Last week, the National Highway Traffic Safety Administration (NHTSA) issued a Notice of Intent to Prepare an Environmental Impact Statement (EIS) for the Corporate Average Fuel Economy Standards (CAFE) for model years 2011 to 2015.

The new notice “initiates the NEPA scoping process to identify the environmental issues and reasonable alternatives to be examined in the EIS, and requests comments regarding those and others matters related to the scope of NHTSA’s NEPA analysis for the new standards.”

Specifically, “[t]he scoping process initiated by this notice seeks to determine ‘the range of actions, alternatives, and impacts to be considered’ in the EIS and to identify the most important issues for analysis involving the potential environmental impacts of NHTSA’s CAFE standards.”

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This post is the third installment in our ongoing coverage of Center for Biological Diversity v. National Highway Traffic Safety Administration.

Earlier this month, the Center for Biological Diversity (CBD) filed its response to National Highway Traffic Safety Administration (NHTSA’s) Petition for Rehearing en banc. NHTSA’s Petition for Rehearing focused on the 9th Circuit’s order that the agency prepare a complete Environmental Impact Statement (EIS) that accounts for the role that auto emissions play in global climate change; NHTSA argued that the circuit court lacks authority to order an EIS. CBD’s response argues that the 9th Circuit was well within its rights to order NHTSA to produce an EIS.

CBD argues that the courts have the authority to “both ‘set aside’ an unlawful finding of no significant impact and ‘compel’ an unlawfully withheld EIS.” So long as “substantial questions are raised as to whether a project” may have a significant impact on the environment, an agency must prepare an EIS. CBD argues that once this threshold is reached, the courts may compel the agency to produce the required EIS. CBD’s filing cites six cases within the 9th Circuit alone that have ordered a full or supplemental EIS, countering NHTSA’s argument that courts do not have this authority.

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We reported in January that three environmental groups had notified the Fish and Wildlife Service (FWS) of their intent to sue over the Service’s failure to act on a petition to list the polar bear as a threatened or endangered species. The original petition was filed in February 2005.

Under 16 U.S.C. § 1540(g)(2)(C), written notice must be given to the Secretary of the Interior at least 60 days before a citizen suit can be filed in federal district court. The 60 day period elapsed yesterday and the three groups — the Center for Biological Diversity, Greenpeace, and the Natural Resources Defense Council — filed suit to force FWS to act on the petition.

The Department of the Interior has indicated that it will respond to the suit “in a timely manner.”

The Center for Biological Diversity also recently sued the FWS to have ten species of penguins listed as a result of the effects of climate change. For many penguin species, including the emperor penguin, loss of habitat, caused by declines in Antarctic sea ice, poses a significant threat to survival.

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In our previous coverage of Center for Biological Diversity v. National Highway Traffic Safety Administration, Perry Rosen noted that one likely course of action was for NHTSA to petition for a rehearing en banc - before the full Ninth Circuit, rather than just the typical panel of three judges. NHTSA recently filed just such a petition before the Ninth Circuit.

In the original ruling, the judges found that the new CAFE (fuel economy) standards were arbitrary and capricious. In addition, the court held that the Environmental Assessment (EA) was inadequate, and ordered NHTSA to produce a full Environmental Impact Statement (EIS) that accounts for the effect of emissions on climate change. An EIS is required when an agency find that its proposed action will have a significant impact on the environment.

NHTSA’s petition focuses on the second aspect of the decision, and argues that the 9th Circuit does not have the authority to order a full EIS. Instead, NHTSA argues that it should be allowed, on remand, to address any deficiencies in the EA and potentially avoid the preparation of a full EIS.

NHTSA argues that administrative law “only allows a reviewing court to ‘hold unlawful and set aside’ agency action that if finds arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Citing a long string of Supreme Court cases, the agency writes that “when a reviewing court finds that an administrative agency has erred, the appropriate remedy is to remand the matter back to the agency for ‘further consideration.’” The court does not substitute its own judgment for that of the agency, but merely reviews the agency’s determinations.

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A ruling this morning invalidating the U.S. mercury emissions cap and trade program should not impact the Environmental Protection Agency’s authority to establish trading programs for other emissions, including carbon dioxide.

The United States Court of Appeals for the District of Columbia Circuit today struck down two rules promulgated by the U.S. Environmental Protection Agency (EPA) addressing mercury emissions from coal-fired power plants. State of New Jersey v. EPA, No. 05-1097 (D.C. Cir. Feb. 8, 2008). The court ruled that EPA deleted power plants from the list of emission sources subject to hazardous air pollutants requirements of the Clean Air Act (CAA) without following the statutory requirements for delisting. This conclusion, the court reasoned, required it also to invalidate EPA’s Clean Air Mercury Rule (CAMR) that had established numerical limitations for the emission of mercury from power plants and a cap and trade system for compliance with those limits.

The Bush Administration developed and promulgated CAMR in an effort to back away from an 11^th hour finding issued by EPA Administrator Browner in December 2000 that regulation of mercury emissions from coal-fired power plants under the hazardous air pollutant program was “appropriate and necessary.” This finding by the Clinton Administration was not subject to judicial review, but served as the linchpin for the court’s invalidation of CAMR. Once EPA made that finding and included power lists on the “list” of emission sources subject to regulation, the court ruled EPA could change course only by following the procedures set forth in the CAA.

To promulgate the CAMR, and its cap and trade system, EPA tried to short-circuit the statutory procedures. The court ruled that EPA did not have the discretion to proceed in that manner. While this decision prevents EPA from proceeding with a cap and trade system for mercury emissions, it does not provide opponents of cap and trade systems comfort. The court expressly declined to consider arguments concerning EPA’s authority to establish a cap and trade system for pollutants and sources outside the hazardous air pollutant regime.

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Today, three environmental groups informed the Fish and Wildlife Service (FWS) of their intent to sue the agency regarding the listing of the polar bear as an endangered or threatened species.

The Center for Biological Diversity, Greenpeace and the Natural Resources Defense Council had petitioned the government in February 2005 to give polar bears protection under the Endangered Species Act (ESA). After not receiving a response, the petitioners sued in federal court in December 2005. Center for Biological Diversity v. Norton (N.D. Cal).

On July 5, 2006, the parties agreed to a negotiated settlement under which FWS would publish a finding by December 27, 2006. On January 9, 2007, after missing the initial deadline, FWS issued a proposed rule to extend “threatened” status to polar bears, which would mark the first time a mammal was found to be at risk because of global warming. FWS had one year from that date to make a final determination. Read the rest of this entry »

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In a landmark decision, the Ninth Circuit Court of Appeals overturned automobile fuel economy standards issued by the National Highway Traffic Safety Administration (NHTSA) on climate change grounds. Center For Biological Diversity v. National Highway Traffic Safety Administration, No. 06-71891 (9th Cir. November 15, 2007). Citing climate change as an economic and environmental issue that NHTSA must consider when it issues new rules, the court made it clear that consideration of climate change in rulemaking proceedings is no longer optional for federal agencies.

The case involved a challenge to the most recent fuel economy standards for so-called “light trucks” – a category that includes mini-vans, sport-utility vehicles, and most pick-up trucks. NHTSA issued new standards for light trucks in 2006, calling for a modest increase in fuel economy, to be implemented for model years 2008-2011.

The plaintiffs challenged the standards on several grounds, the most significant of which concerned the process used by the agency to balance the costs and benefits of enacting a new standard. The lead plaintiff, the Center for Biological Diversity, argued that NHTSA’s failure to assign a monetary value to the reduction of carbon dioxide emissions resulting from increased fuel economy made the agency’s action arbitrary and capricious. The Ninth Circuit agreed, holding that federal law requires NHTSA to consider energy conservation when balancing the costs and benefits of fuel economy standards – including the value of the carbon dioxide emissions that would be reduced by setting the fuel economy standards at different levels.

The court also held that NHTSA’s decision that the rules would not have a substantial impact on the environment violated the National Environmental Policy Act (NEPA), and ordered that the agency to produce an Environmental Impact Statement addressing the role that vehicle emissions play in global climate change.

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