Oct 16: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-60756. This case represents another major decision regarding citizen enforcement, utilizing common-law actions and seeking damages resulting from corporate greenhouse gas emissions. The case follows another recent related decision in State of Connecticut v. American Electric Power Co. Inc. issued on September 21, 2009, by the U.S. Court of Appeals, Second Circuit [See WIMS 9/22/09].
As explained by the Appeals Court, the plaintiffs, residents and owners of lands and property along the Mississippi Gulf coast, filed this putative class action in the district court against the named defendants, corporations that have principal offices in other states but are doing business in Mississippi. The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.
The plaintiffs’ putative class action asserts claims for compensatory and punitive damages based on Mississippi common-law actions of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The plaintiffs invoked the district court’s subject-matter jurisdiction based on diversity of citizenship. The plaintiffs do not assert any federal or public law actions and do not seek injunctive relief.
Defendants moved to dismiss plaintiffs’ claims on the grounds that the plaintiffs lack standing to assert their claims and that their claims present "nonjusticiable political questions." The district court granted the motion and dismissed the claims. The plaintiffs timely appealed.
The Appeals Court ruled, "For the reasons discussed herein, we conclude that the plaintiffs have standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims present nonjusticiable political questions; but we conclude that their unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed for prudential standing reasons. Accordingly, we reverse the district court’s judgment, dismiss the plaintiffs’ suit in part, and remand the case to the district court for further proceedings."
The Appeals Court explains that the district court began its analysis of the political question doctrine by stating “that the problem [in this case] is one in which this court is simply ill-equipped or unequipped with the power that it has to address these issues.” Describing this suit as a “debate” about global warming. The district court judge said he should not be forced "to balance economic, environmental, foreign policy, and national security interests and make an initial policy determination of a kind which is simply nonjudicial."
In its conclusion the Appeals Court said, "The plaintiffs have pleaded sufficient facts to demonstrate standing for their public and private nuisance, trespass, and negligence claims. We decline to find standing for the unjust enrichment, civil conspiracy, and fraudulent misrepresentation claims and dismiss these claims. We find that the plaintiffs’ remaining claims are justiciable and do not present a political question. We do not hazard, at this early procedural stage, an Erie guess into whether these claims actually state all the elements of a claim under Mississippi tort law, e.g., whether the alleged chain of causation satisfies the proximate cause requirement under Mississippi state common law; we leave this analysis to the district court in the first instance. Thus, for the foregoing reasons, we reverse the judgment of the district court and remand the case to the district court for further proceedings consistent with this opinion."
On attorney, Paul Mollica, with the law firm of Meites, Mulder, Mollica & Glink in Chicago commented on the company blog that, "The headline for this case ought to read: 'Fifth Circuit More Activist Than San-Francisco-Based Court." A panel of Fifth Circuit judges reverse dismissal of a potentially immense tort class action, under Mississippi law, alleging trespass, nuisance and negligence in relation to the emission of greenhouse gasses.'" Mollica concludes his comments saying, "One thought: if anything might prompt Congress to regulate the greenhouse gas field preemptively, it would be the peril of having an incensed Mississippi jury decide the issue instead."
The blog, Global Environmental Law posted a comment on the case saying, "The court held that the case did not pose a nonjusticiable political question and that the plaintiffs had standing in light of the U.S Supreme Court’s decision in Massachusetts v. EPA. While the case returns to the district court for trial, it remains a decided longshot on the merits in light of the attenuated causal link between climate change and Hurricane Katrina. Indeed Judge Davis in a special concurrence opined that the case could be dismissed for failure to allege facts that would establish that GHG emissions from the defendants were a proximate cause of injury from Hurricane Katrina."
Access the complete 36-page opinion (click here). Access the complete blog post by Paul Mollica (click here). Access the complete Global Environmental Law blog post (click here).
Showing posts with label Climate. Show all posts
Showing posts with label Climate. Show all posts
Wednesday, October 21, 2009
Tuesday, September 22, 2009
State of Connecticut v. American Electric Power Co. Inc.
Sep 21: In the U.S. Court of Appeals, Second Circuit, Case Nos. 05-5104 & 05-5119. In this major 139-page decision regarding citizen and government enforcement of greenhouse gas emissions the Appeals Court summarized saying, the case is appealed from a judgment of the United States District Court for the Southern District of New York that dismissed Plaintiffs-Appellants’ Federal common law of nuisance claims as non-justiciable under the "political question doctrine."
The Appeals Court ruled that, "We hold that: (1) Plaintiffs-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we vacate the judgment of the district court and remand for further proceedings.
The case was finally decided by a two judge panel that noted, "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter."
By way of background, in 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively Plaintiffs), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively Defendants), seeking abatement of Defendants’ ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future. Pointing to a "clear scientific consensus" that global warming has already begun to alter the natural world, Plaintiffs predict that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”
Plaintiffs brought these actions under the Federal common law of nuisance or, in the alternative, state nuisance law, to force Defendants to "cap and then reduce their carbon dioxide emissions." Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints.
On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court’s judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of Federal common law. In addition, Defendant Tennessee Valley Authority (TVA) asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.
The Appeals Court ruled, "We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA’s alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings."
In its conclusion, the Appeals Court said additionally, "With regard to air pollution, particularly greenhouse gases, this case occupies a niche similar to the one Milwaukee I occupied with respect to water pollution. With that in mind, the concluding words of Milwaukee I have an eerie resonance almost forty years later. To paraphrase: 'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases. Milwaukee I, 406 U.S. at 106."
The Natural Resources Defense Council (NRDC) issued a release calling the decision "a landmark ruling," that "five large electric power companies can be sued in Federal court because their carbon dioxide emissions contribute to rising temperatures and a host of damaging impacts in other states, including heat waves, smog episodes, droughts and forest fires." NRDC said that the Second Circuit "held that Federal courts are empowered to curb damaging carbon pollution unless and until the legislative and executive branches actually regulate that pollution, either under the existing Clean Air Act or the comprehensive new energy and climate legislation bending in Congress."
Included in the NRDC release was a statement from Matt Pawa, lead attorney for the land trusts Open Space Institute and the Audubon Society of New Hampshire saying, “The court’s decision makes clear that the harms of global warming are real and need to be addressed today. For hundreds of years, courts have been there to protect citizens from harm. Today’s decision opens the way for citizens to protect themselves from the polluters responsible for global warming. Power companies that release millions of tons of dangerous carbon pollution are not above the law.”
Also, David Doniger, senior attorney and policy director for NRDC’s Climate Center said, “The best way to fight global warming is for the Senate to pass comprehensive clean energy and climate legislation. However, the court’s decision guarantees that if the Congress fails to do its job, or blocks EPA from doing its job, the biggest power companies will still be held accountable in the federal courts.”
Access the complete opinion (click here). Access a release from NRDC (click here).
The Appeals Court ruled that, "We hold that: (1) Plaintiffs-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we vacate the judgment of the district court and remand for further proceedings.
The case was finally decided by a two judge panel that noted, "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter."
By way of background, in 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively Plaintiffs), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively Defendants), seeking abatement of Defendants’ ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future. Pointing to a "clear scientific consensus" that global warming has already begun to alter the natural world, Plaintiffs predict that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”
Plaintiffs brought these actions under the Federal common law of nuisance or, in the alternative, state nuisance law, to force Defendants to "cap and then reduce their carbon dioxide emissions." Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints.
On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court’s judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of Federal common law. In addition, Defendant Tennessee Valley Authority (TVA) asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.
The Appeals Court ruled, "We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA’s alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings."
In its conclusion, the Appeals Court said additionally, "With regard to air pollution, particularly greenhouse gases, this case occupies a niche similar to the one Milwaukee I occupied with respect to water pollution. With that in mind, the concluding words of Milwaukee I have an eerie resonance almost forty years later. To paraphrase: 'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases. Milwaukee I, 406 U.S. at 106."
The Natural Resources Defense Council (NRDC) issued a release calling the decision "a landmark ruling," that "five large electric power companies can be sued in Federal court because their carbon dioxide emissions contribute to rising temperatures and a host of damaging impacts in other states, including heat waves, smog episodes, droughts and forest fires." NRDC said that the Second Circuit "held that Federal courts are empowered to curb damaging carbon pollution unless and until the legislative and executive branches actually regulate that pollution, either under the existing Clean Air Act or the comprehensive new energy and climate legislation bending in Congress."
Included in the NRDC release was a statement from Matt Pawa, lead attorney for the land trusts Open Space Institute and the Audubon Society of New Hampshire saying, “The court’s decision makes clear that the harms of global warming are real and need to be addressed today. For hundreds of years, courts have been there to protect citizens from harm. Today’s decision opens the way for citizens to protect themselves from the polluters responsible for global warming. Power companies that release millions of tons of dangerous carbon pollution are not above the law.”
Also, David Doniger, senior attorney and policy director for NRDC’s Climate Center said, “The best way to fight global warming is for the Senate to pass comprehensive clean energy and climate legislation. However, the court’s decision guarantees that if the Congress fails to do its job, or blocks EPA from doing its job, the biggest power companies will still be held accountable in the federal courts.”
Access the complete opinion (click here). Access a release from NRDC (click here).
Saturday, February 21, 2009
Moshe Leib v. Hillsborough County Public Transportation
Feb 19: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-14271. Moshe Leib (Leib) appealed from the district court’s dismissal of his suit, brought under 42 U.S.C. § 1983, against the Hillsborough County Public Transportation Commission (HCPTC, or the Commission) for denying him permission to operate a Toyota Prius as one of the limousines offered by his transportation service. Leib argues that the HCPTC violated his due process and equal protection rights, and that the Commission’s rules are unconstitutionally vague and impermissibly burden interstate commerce. The district court dismissed Leib’s complaint under Rule 12(b)(6) and the Appeals Court affirmed the decision.
Leib owns and operates TB Limo.com, a limousine service in the Tampa Bay area. Seeking to offer customers an "environmentally-friendly” alternative to traditional limousines, Leib bought a Prius. In order to operate the Prius as a limousine within Hillsborough County, Leib had to obtain a permit from the HCPTC, the administrative agency charged by the Florida State Legislature with regulating the operation of public vehicles on Hillsborough County’s public highways. The Commission denied Leib’s request on the ground that the Prius did not qualify as a “luxury” vehicle, and thus did not meet the definition of “limousine” in HCPTC Taxi Rule 1.15. A subsequent waiver request was also denied by HCPTC.
The Appeals Court said, ". . .Leib’s argument rests on a factual mistake: he argues that 'environmentally-friendly passengers that desire to utilize ecologically superior transportation are left with no alternative options whatsoever as a result of the HCPTC’s complete prohibition of eco-friendly vehicles for use as limousines.' This is simply false: an environmentally-friendly vehicle may qualify as a limousine so long as it meets Rule 1.15’s luxury and other requirements. Accordingly, Leib’s interstate commerce claim was properly dismissed."
Access the complete opinion (click here).
Leib owns and operates TB Limo.com, a limousine service in the Tampa Bay area. Seeking to offer customers an "environmentally-friendly” alternative to traditional limousines, Leib bought a Prius. In order to operate the Prius as a limousine within Hillsborough County, Leib had to obtain a permit from the HCPTC, the administrative agency charged by the Florida State Legislature with regulating the operation of public vehicles on Hillsborough County’s public highways. The Commission denied Leib’s request on the ground that the Prius did not qualify as a “luxury” vehicle, and thus did not meet the definition of “limousine” in HCPTC Taxi Rule 1.15. A subsequent waiver request was also denied by HCPTC.
The Appeals Court said, ". . .Leib’s argument rests on a factual mistake: he argues that 'environmentally-friendly passengers that desire to utilize ecologically superior transportation are left with no alternative options whatsoever as a result of the HCPTC’s complete prohibition of eco-friendly vehicles for use as limousines.' This is simply false: an environmentally-friendly vehicle may qualify as a limousine so long as it meets Rule 1.15’s luxury and other requirements. Accordingly, Leib’s interstate commerce claim was properly dismissed."
Access the complete opinion (click here).
Thursday, August 21, 2008
Center For Biological Diversity v. NHTSA
Aug 18: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-71891, 06-72317, 06-72694, 06-73807, and 06-73826. The Appeals Court vacated and withdrew its opinion filed on November 15, 2007 [See WIMS 11/15/07] and denied respondents’ petition for an en banc rehearing as moot. The Appeals Court replaced its opinion filed simultaneously with an order and new opinion.
In the original case before the Appeals Court, eleven states, the District of Columbia, the City of New York, and four public interest organizations petitioned for review of a rule issued by the National Highway Traffic Safety Administration (NHTSA) entitled “Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011,” 71 Fed. Reg. 17,566 (Apr. 6, 2006) (Final Rule) (codified at 49 C.F.R. pt. 533). Pursuant to the Energy Policy and Conservation Act of 1975 (EPCA), 49 U.S.C. §§ 32901-32919 (2007), the Final Rule sets corporate average fuel economy (CAFE) standards for light trucks, defined by NHTSA to include many Sport Utility Vehicles (SUVs), minivans, and pickup trucks, for Model Years (MYs) 2008-2011. For MYs 2008-2010, the Final Rule sets new CAFE standards using its traditional method, fleet-wide average (Unreformed CAFE). For MY 2011 and beyond, the Final Rule creates a new CAFE structure that sets varying fuel economy targets depending on vehicle size and requires manufacturers to meet different fuel economy levels depending on their vehicle fleet mix (Reformed CAFE).
The Petitioners, the Center For Biological Diversity (CBD), et al, argued that NHTSA's Final Rule was arbitrary, capricious and contrary to the EPCA; that the Environmental Assessment was inadequate; and a full Environmental Impact Statement was required. NHTSA disputed all charges. The Ninth Circuit ruled in the original opinion that, "the Final Rule is arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon emissions, failure to set a backstop, failure to close the SUV loophole, and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating (GVWR) class. We also hold that the Environmental Assessment was inadequate and that Petitioners have raised a substantial question as to whether the Final Rule may have a significant impact on the environment. Therefore, we remand to NHTSA to promulgate new standards as expeditiously as possible and to prepare a full Environmental Impact Statement."
In its new order and opinion, the Ninth Circuit the Ninth Circuit Court of Appeals denied the Administration’s request to revisit the court’s November 2007 decision. The ruling was based in part on the administration’s failure to analyze the impact of the standards on greenhouse-gas emissions and global warming. Existing law requires the administration to set fuel-economy standards at the “maximum feasible level” and to fully analyze the environmental consequences of the standards chosen. In a release, CBD commented on the ruling saying, ". . .the court affirmed the decision in every significant respect, making only minor modifications.
Among other changes, the Ninth Circuit clarified that NHTSA must promulgate new standards as expeditiously as possible and prepare "either a revised Environmental Assessment or an Environmental Impact Statement." [emphasis added] On this issue the Appeals Court said, "The distinction -- between cases where it is appropriate to order immediate preparation of an EIS and those where it is not -- is implicit in this circuit’s NEPA jurisprudence, and has been explicitly recognized elsewhere. . . So, if there is uncertainty over whether the proposed project may have a significant impact, including uncertainty caused by an incomplete administrative record or an inadequate EA, the court should ordinarily remand for the agency to either prepare a revised EA or reconsider whether an EIS is required. . . Whether to require an EIS now is a very close question. Petitioners’ evidence demonstrates, overwhelmingly, the environmental significance of CO2 emissions and the effect of those emissions on global warming. How NHTSA can, on remand, prepare an EA that takes proper account of this evidence and still conclude that the 2006 Final Rule has no significant environmental impact is questionable. . . We nonetheless give the benefit of the doubt to NHTSA and decline to order the immediate preparation of an EIS . . ."
Kassie Siegel, climate program director for the Center for Biological Diversity and an attorney on the case said, “As the Court of Appeals has affirmed, the law requires the Bush administration to set fuel-economy standards at the maximum feasible level in order to conserve oil, reduce greenhouse gas pollution, and protect consumers from increasing energy prices.Yet the administration’s current proposal still allows oil use and greenhouse gas emissions to spiral upwards while protecting nothing but the profits of the oil and auto industries.”
In the release including a chart of the Administration's Proposed Fuel Economy Standards for MY 2011-2015, Mickey Moritz, another CBD staff member said, “According to the Bush administration, we should strive to achieve lower fuel economy in 2015 than cars on the road achieve today. We can and must do better, and we will hold this administration accountable for complying with the law and requiring automakers to provide state-of-the-art, fuel-efficient vehicles.” CBD said, "The administration kept the proposed standards low by employing numerous assumptions that defy common sense and violate the law."
For example, CBD indicates that Administration officials assumed that gas will cost $2.36 per gallon in 2020 and $2.51 in 2030, whereas increasing gas prices by 88 cents per gallon in 2016 would have increased the gas-mileage standard by nearly 7 mpg for passenger cars. The officials also assumed that technological solutions available today, such as the use of plug-in hybrids and electric vehicles, could not be employed by automakers for model years 2011-2015. And the officials assumed that automakers "need not and would not change" their existing vehicle redesign schedules in order to provide more fuel-efficient vehicles. The NHTSA's comment period on its Notice of Intent to Prepare an Environmental Impact Statement for New Corporate Average Fuel Economy Standards also ended on August 18.
Access the complete opinion (click here). Access a release from CBD with links to additional information (click here). Access the NHTSA's docket including its notice, supporting information and public comments (click here).
In the original case before the Appeals Court, eleven states, the District of Columbia, the City of New York, and four public interest organizations petitioned for review of a rule issued by the National Highway Traffic Safety Administration (NHTSA) entitled “Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011,” 71 Fed. Reg. 17,566 (Apr. 6, 2006) (Final Rule) (codified at 49 C.F.R. pt. 533). Pursuant to the Energy Policy and Conservation Act of 1975 (EPCA), 49 U.S.C. §§ 32901-32919 (2007), the Final Rule sets corporate average fuel economy (CAFE) standards for light trucks, defined by NHTSA to include many Sport Utility Vehicles (SUVs), minivans, and pickup trucks, for Model Years (MYs) 2008-2011. For MYs 2008-2010, the Final Rule sets new CAFE standards using its traditional method, fleet-wide average (Unreformed CAFE). For MY 2011 and beyond, the Final Rule creates a new CAFE structure that sets varying fuel economy targets depending on vehicle size and requires manufacturers to meet different fuel economy levels depending on their vehicle fleet mix (Reformed CAFE).
The Petitioners, the Center For Biological Diversity (CBD), et al, argued that NHTSA's Final Rule was arbitrary, capricious and contrary to the EPCA; that the Environmental Assessment was inadequate; and a full Environmental Impact Statement was required. NHTSA disputed all charges. The Ninth Circuit ruled in the original opinion that, "the Final Rule is arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon emissions, failure to set a backstop, failure to close the SUV loophole, and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating (GVWR) class. We also hold that the Environmental Assessment was inadequate and that Petitioners have raised a substantial question as to whether the Final Rule may have a significant impact on the environment. Therefore, we remand to NHTSA to promulgate new standards as expeditiously as possible and to prepare a full Environmental Impact Statement."
In its new order and opinion, the Ninth Circuit the Ninth Circuit Court of Appeals denied the Administration’s request to revisit the court’s November 2007 decision. The ruling was based in part on the administration’s failure to analyze the impact of the standards on greenhouse-gas emissions and global warming. Existing law requires the administration to set fuel-economy standards at the “maximum feasible level” and to fully analyze the environmental consequences of the standards chosen. In a release, CBD commented on the ruling saying, ". . .the court affirmed the decision in every significant respect, making only minor modifications.
Among other changes, the Ninth Circuit clarified that NHTSA must promulgate new standards as expeditiously as possible and prepare "either a revised Environmental Assessment or an Environmental Impact Statement." [emphasis added] On this issue the Appeals Court said, "The distinction -- between cases where it is appropriate to order immediate preparation of an EIS and those where it is not -- is implicit in this circuit’s NEPA jurisprudence, and has been explicitly recognized elsewhere. . . So, if there is uncertainty over whether the proposed project may have a significant impact, including uncertainty caused by an incomplete administrative record or an inadequate EA, the court should ordinarily remand for the agency to either prepare a revised EA or reconsider whether an EIS is required. . . Whether to require an EIS now is a very close question. Petitioners’ evidence demonstrates, overwhelmingly, the environmental significance of CO2 emissions and the effect of those emissions on global warming. How NHTSA can, on remand, prepare an EA that takes proper account of this evidence and still conclude that the 2006 Final Rule has no significant environmental impact is questionable. . . We nonetheless give the benefit of the doubt to NHTSA and decline to order the immediate preparation of an EIS . . ."
Kassie Siegel, climate program director for the Center for Biological Diversity and an attorney on the case said, “As the Court of Appeals has affirmed, the law requires the Bush administration to set fuel-economy standards at the maximum feasible level in order to conserve oil, reduce greenhouse gas pollution, and protect consumers from increasing energy prices.Yet the administration’s current proposal still allows oil use and greenhouse gas emissions to spiral upwards while protecting nothing but the profits of the oil and auto industries.”
In the release including a chart of the Administration's Proposed Fuel Economy Standards for MY 2011-2015, Mickey Moritz, another CBD staff member said, “According to the Bush administration, we should strive to achieve lower fuel economy in 2015 than cars on the road achieve today. We can and must do better, and we will hold this administration accountable for complying with the law and requiring automakers to provide state-of-the-art, fuel-efficient vehicles.” CBD said, "The administration kept the proposed standards low by employing numerous assumptions that defy common sense and violate the law."
For example, CBD indicates that Administration officials assumed that gas will cost $2.36 per gallon in 2020 and $2.51 in 2030, whereas increasing gas prices by 88 cents per gallon in 2016 would have increased the gas-mileage standard by nearly 7 mpg for passenger cars. The officials also assumed that technological solutions available today, such as the use of plug-in hybrids and electric vehicles, could not be employed by automakers for model years 2011-2015. And the officials assumed that automakers "need not and would not change" their existing vehicle redesign schedules in order to provide more fuel-efficient vehicles. The NHTSA's comment period on its Notice of Intent to Prepare an Environmental Impact Statement for New Corporate Average Fuel Economy Standards also ended on August 18.
Access the complete opinion (click here). Access a release from CBD with links to additional information (click here). Access the NHTSA's docket including its notice, supporting information and public comments (click here).
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