On Thursday, Jeremy Schiffer of Akin Gump posted some additional thoughts over at Climate Intel, regarding the Bush administration's en banc petition to overturn a key portion of Center for Biologicial Diversity v. NHTSA, that Warming Law readers ought to be aware of. His analysis digs more into the Justice Department's secondary argument (not covered in our initial posting) that its case for a do-over Environmental Assessment is bolstered by NHTSA's need to respond to congressional passage of the Energy Independence and Security Act (EISA).
Moreover, Schiffer puts the potential importance of this case in sharp relief, and reveals that at least one of the original lawsuit's plaintiffs intends to weigh in as the court considers the petition:
This is a very important case moving forward. If NHTSA’s arguments are adopted by the Ninth Circuit, it will have a significant impact on the ability to challenge agency determinations that actions will not have a significant impact on the environment. By remanding the decision to the agency level, courts would be further insulating the decision-making process from public scrutiny. If agencies are routinely given multiple attempts to create an EA that finds no significant impact, it threatens to undermine the primary purpose of conducting environmental reviews under NEPA.
The Center for Biological Diversity will be filing its response to the petition within the next few weeks.