Last month, the Bush Administration appealed part of its November 2007 defeat in Center for Biological Diversity v. NHTSA, asking the Ninth Circuit panel that had overturned CAFE standards for light trucks to order a re-hearing before the entire Circuit. The Department of Justice claims that the judges went too far by outright ordering them to prepare a new Environmental Impact Statement (EIS) concerning the effects of carbon emissions on global warming, and instead should have simply remanded the issue back to the National Highway Transportation Safety Administration (NHTSA). It also argues that the 9th Circuit is split on the issue of NEPA remedies, and that other federal appeals courts differ in their doctrine, generally favoring the administration's preferred view.
The administration cited a long list of precedents to advance the idea of a circuit split requiring the court's resolution, in the process making a sweeping argument that, if it won out, would effectively enable NHTSA to reach the same end result that the court had declared invalid. The environmental groups that initiated the suit recently filed a strong rebuttal rooted in a rather simple legal exercise: demonstrating that in reality, the legal issues raised in the administration's petition are entirely fictitious.
The basic arguments made by the Center for Biological Diversity (state government plaintiffs, led by California, have also filed a response) have been aptly analyzed elsewhere. Courts have the clear authority to order a new EIS under circumstances where the record clearly demonstrates need and improper agency conduct; the Ninth Circuit cases cited by DOJ to claim an intra-circuit split are factually disimilar to the current case, in so far as the record was less conclusive; cases from other circuits also offer no meaningful parallels; and NHTSA's argument that recent legislation enacting new CAFE standards make acting improper is bogus. (Astute readers have probably noticed that this is far from the first time that the Bush administration has trotted out the Energy Independence and Security Act of 2007 as supposed justification for its delaying tactics.)
But the degree of legal subterfuge that the plaintiffs allege is worth highlighting, specifically as it pertains to the theory of a split with other circuits. Plaintiffs' attorneys reserve their harshest language for this section, writing that in "attempting to manufacture a "split" of authority, NHTSA selectively quotes and confuses holdings in cases from the Second, Fifth and D.C. Circuits." They argue, for instance, that the administration's invocation of two specific Fifth Circuit cases deliberately left out "crucial language" that demonstrates consistency with the Ninth Circuit's approach. Discussion of this discrepancy includes a lengthy citation from the case O'Reilly v. U.S. Army Corps of Engineers, explicitly stating that, "If the court finds that the project may have a significant impact, the court should order the agency to prepare an EIS."
We suspect that DOJ lawyers are working on a response, as well they should if they're going to effectively counter the environmental plaintiffs' sweeping takedown. At this point, should the Ninth Circuit accept the plaintiffs' rebuttal and deny the government an en banc rehearing, the administration's efforts here will have been branded as nothing more than yet another attempt to run out the clock and leave global warming to the next President.