Last week, the Justice Department filed a motion with the 9th Circuit Court of Appeals asking for an en banc re-hearing of November's decision in Center for Biological Diversity v. NHTSA. In that case, a three-judge panel determined that proposed federal fuel economy standards for light trucks violated both the Energy Policy Conservation Act (EPCA) and the National Environmental Policy Act (NEPA), on the grounds that the National Highway Transportation Safety Administration (NHTSA) failed to account for the impacts of carbon emissions on global warming.
However, rather than fully defending its decisions and potentially setting up a Supreme Court showdown (as notorious climate change "skeptic" S. Fred Singer advised last month), the administration's appeal focuses on asking the full court to overturn the court's under-publicized, but extremely significant order that NHTSA must prepare a new Environmental Impact Statement regarding the effects of CO2. The administration's petition appears to be motivated by two interrelated factors: a desire to forestall the NEPA ruling's potential long-range impacts, and a legal position of strong deference to agencies when it comes to regulatory decisions affecting global warming (for more discussion of administrative deference, see our prior analyses of its relationship to the EPA's recent denial of California's waiver application).
The administration claims that in ordering a new EIS outright, rather than remanding the matter to NHTSA, the judges contradicted "governing principles of administrative law," and set up a conflict with both other rulings within the 9th Circuit and the interpretation of other appeals courts. Should the full court validate this position, NHTSA would essentially have the option of recalibrating its initially-flawed Environmental Assessment (EA) to reach the same conclusion-- that an EIS for global warming impacts is unncessary and would have "minimal impact." The petition implies this much, stating that "This is the type of case that should be remanded to the agency to reconsider the issue whether an EIS is required, since the panel concluded that NHTSA failed to provide a convincing statement of reasons to support its conclusion that the impact of the rule might not be significant."
The successful plaintiffs in the original lawsuit-- a coalition of environmental groups and states led by the Center for Biological Diversity and California Attorney General Jerry Brown, the latter of whom has referred to the petition as "a frivolous appeal...intended for delay, to help the automakers to continue for a little longer making unacceptable gas guzzlers-- are not required to respond to DOJ's arguments before the 9th Circuit decides whether to grant a rehearing. State officials are weighing whether to respond, while the court has given no indication as to when it might reach a decision.