Warming Law

The Auto Industry's No-Good, Horrible, Very Bad Week Continues

Opening an editorial on the need for tougher auto emissions standards, the LA Times notes that the last few months have not been kind to the legal position of those standing in the way, and with good cause:

The auto industry and the Bush administration are now 0 for 3 in their attempts to block tighter fuel economy standards in court. There's a reason for their rotten record: They don't have a case. And the longer they delay taking action, the higher the price Americans will pay.

And it's looking like that losing streak might well continue.

Yesterday afternoon in Fresno, U.S. District Court Judge Anthony Ishii heard arguments on competing motions for summary judgment in the industry's lawsuit against California's tailpipe emissions standards. In a September 2006 opinion tossing out two of the auto industry's claims but denying the state's motion for summary judgment on three others, Ishii appeared fairly open to the industry's case regarding conflict preemption-- that is, the assertion that California's standards would conflict with and undermine the federal fuel economy regime. His opinion also seemed to throw cold water on the state's argument that its standards, if granted an EPA waiver, would automatically become a part of federal law and thus eliminate any conflict.   

But according to Bob Egelko of the San Francisco Chronicle, the state's arguments about the impact of this spring's landmark Massachusetts v. EPA  decision appear to have had a clear impact on the judge's thinking:

"Plant it this afternoon"

On several occasions, President Kennedy told the story of how the great French Marshall Lyautey asked his gardener to plant a tree.  The gardener objected that the tree was slow growing and would not reach maturity for 100 years.  The Marshall replied, "In that case, there's no time to lose; plant it this afternoon!"

The new IPCC Report is telling us we need the same sense of vision and urgency on global warming.  We can't let the size or duration of the task overwhelm us.  Each one of us needs to start planting the tree this afternoon.

Tim Dowling

Full of Hot Air

Gauging some of the critical reaction to Thursday's 9th Circuit ruling, we're sadly not surprised to see any number of blatant overreactions and inaccuracies bandied about. After all, the auto industry has seen fit to cite non-existent language in the Clean Air Act and pretend that California's standards would create an unwieldy patchwork. Seeing its defenders jump head-first into the same territory isn't much of a stretch.

Still, in reading these hyperbolic reactions, it's striking just how little attention their authors seem to have paid to the cases at hand. Take Newsday columnist Raymond J. Keating, who phones in a day-after reaction at the Business Trends blog. After leveling a tired allegation of "judicial activism" and blasting the Mass. v. EPA ruling in that vein, Keating goes on to argue that stricter CAFE standards mean "reduced safety (i.e. more deaths) on our roads and highways"-- quite ironic given that this very ruling demolishes that canard.    

Perhaps the worst case, however, comes from an Investors Business Daily editorial decrying "Judicial Overreach." After angrily disputing the reality of global warming, IBD feeds readers the following blatant lie assertion:

The only magistrate who has made sense in this case is unfortunately no longer involved. Judge Martin Jenkins of the Northern District of California initially ruled in a lower court in September that the "global warming thicket" is a political issue that should be untangled by policymakers, not the courts.

We're All Connected

by Sean Siperstein

Stepping back for a moment from breaking in-depth legal analysis, I just wanted to note that in Bangladesh, over 1,000 people have lost their lives (that we know of) as the result of a Category 5 cyclone, Sidr. Science writer Chris Mooney has been all over this story, and his co-blogger Sheril Kirshenbaum has a moving videoblog up as well.

As with the California wildfires, there is nothing to directly tie this to global warming and the focus now should be on supporting recovery efforts. But the resonance remains because, as Adam Siegel notes over at Energy Smart, Bangladesh is particularly vulnerable to rising sea levels and powerful cyclones.

This is also somewhat eerie for me because just the other day, I was excitedly emailing friends about the apparent potential of the new SimCity Societies game, based on Andrew Revkin's NY Times description of how the game simulates the truly global scope of climate-change impacts:

For gamers who build a city around fossil energy choices, droughts and heat waves supposedly intensify (I haven’t bought it yet). As the producer, Rachel Bernstein, explained, climate-related disasters abroad also have a ripple effect that hurts your imagined city’s economy. And on and on.

The point is cliched, but it bears repeating: what goes on here, at every level of governance and even in the minutiae of jurisprudence, echoes elsewhere and vice versa.

 

"NHTSA can't have it both ways": NEPA and GHG

By Tim Dowling

"NHTSA can't have it both ways," the Ninth Circuit insisted in yesterday's blockbuster CAFE ruling.  It can't argue both that (1) the federal energy laws are so inflexible as to prevent it from considering more stringent alternatives under the National Environmental Policy Act (NEPA); and (2) the energy laws are so flexible regarding NHTSA's balancing of the statutory factors that federal courts must defer to the agency's discretion.  In untangling NHTSA's internal inconsistencies, the court ruled that NHTSA failed to meet its obligations under NEPA to prepare an adequate Environmental Assessment (EA) and an Environmental Impact Statement to address the potential impact of its new CAFE standards on global warming. 

The NEPA portion of the opinion hasn't been getting as much press as the sexier issues in the case -- who could resist monetizing of the benefits of GHG reductions or the closing of the SUV loophole? -- but it might prove to be the significant sleeper issue in the case.  The NEPA discussion comes at the end of a lengthy opinion, but it shouldn't be dismissed as a superfluous add-on.  Because NEPA applies to every major federal agency action and requires a searching inquiry into the environmental impact of agency actions, it could shape federal efforts to reduce global warming across the board. 

As a preliminary matter, the court made short work of NHTSA's attempt to rely on cases holding that NEPA doesn't apply where the agency has no authority to alter the action in question.  In contrast to the federal agencies in those cases, which had no statutory authority to change the challenged agency action, the court held that NHTSA has clear statutory authority to set higher CAFE standards if its deliberations under NEPA so require. 

More importantly, the court emphatically affirmed that NEPA requires NHTSA and every other federal agency to consider the CUMULATIVE impact of their proposed actions on global warming.  The NEPA regs define cumulative impact as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions" regardless of the agency or person taking those actions.  In a tip of the hat to synergistic impact, the court stressed: "Sometimes the total impact from a set of actions may be greater than the sum of its parts."

Here, the court found NHTSA's analysis deficient because it only catalogued the total tonnage of CO2 emissions that would result from its proposal, without considering their impact in light of other agency actions such as other CAFE standards.  Nor does it discuss the environmental impact of the emissions. This failure was especially significant because the new CAFE standards, while more stringent that the old standards, would not have decreased carbon emissions, but rather only reduced the rate of increase (because they would not have offset increases in the number of light trucks).  In language that sets the NEPA standard for all future federal agency actions that implicate global warming, the court concluded:  "NHTSA must provide the necessary contextual information about the cumulative and incremental environmental impacts of the Final Rule in light of other CAFE rulemakings and other past, present, and reasonably foreseeable future actions, regardless of what agency or person undertakes such other actions."

(more after the jump)

Clean Cars Hearing, Take Two

Readers who are new to Warming Law via our ongoing coverage of yesterday's 9th Circuit's ruling on mileage standards should also note ongoing developments in a case that is not directly related, but of definite relevance. The LA Times' Marc Lifsher, picking up on the theme of emerging jurisprudential trends, puts it in context:

A district court judge in Burlington, Vt., built upon [Mass. v. EPA]in April when he ruled that the Clean Air Act allows California to set car tailpipe emission regulations that exceed federal rules to combat climate change. Other states, such as Vermont, are free to copy California's stricter laws, the judge said.

A lawsuit brought by automakers against the state of California over its car emission rules is set for a hearing Monday in U.S. District Court in Fresno.

Warming Law previewed the arguments for summary judgment that Judge Anthony Ishii will hear last month, before the hearing was postponed from its original date. Other noteworthy developments include the last-minute motions filed by the industry, seeking consideration of additional deposition testimony, that resulted in the delay;  briefs filed this summer by both sides, assessing the impact of Mass. v. EPA on the case; and the news that several of the car dealerships joining the domestic auto industry as lead plaintffs are trying to end their involvement in the case.

Delights in the Details

by Jennifer Bradley

Buried in the 9th Circuit's dismantling of NHTSA's rule on CAFE standards is a remarkable sentence: "The assertion is also based on the controversial assumption that higher fuel economy standards for light trucks causes adverse safety effects from downweighting." (p. 14883).  The assertion in question is that the benefits of GHG reductions would be canceled out by the safety losses from lighter, smaller (but more fuel efficient) cars. 

Why is this sentence so important?  Because it dumps cold water on the main industry contention against increasing fuel economy standards, which is that higher standards kill people.  Industry has said for years that stricter CAFE standards "force" manufacturers to reduce vehicle weight, and that lighter cars are less safe.   

The court deftly guts this argument, pointing out that once vehicles get past a certain weight, making them lighter actually makes them safer:

The NAS committee found that weight reduction in vehicles greater than 4,000 lbs. curb weight would result in a safety benefit: "total fatalities in a hypothetical fleet of relatively modern passenger vehicles would be reduced by about 0.26 percent if all pickups and SUVs weighing more than 4,000 lbs. were replaced with pickups and SUVs weighing 3,500 to 4,000 lbs."

(More after the jump...)

Judicial Baseball

Initial reaction to yesterday's ruling by the 9th Circuit continues, and there's a growing sense that the court's sweeping ruling plays into a broader trend in environmental jurisprudence this year. First, from the NY Times:

Lawyers specializing in environmental issues said the decision had implications beyond the automobile industry’s struggles over fuel-economy standards. It was the third major federal court ruling in seven months pressing federal and state regulators to take the risk of climate change into consideration as they regulate industries that emit carbon dioxide and other heat-trapping gases produced when oil, coal and natural gas are burned to produce energy.

“What this says to me is that the courts are catching up with climate change and the law is catching up with climate change,” said Patrick Parenteau, an environmental law professor at Vermont Law School. “Climate change has ushered in a whole new era of judicial review.”

In each case, starting with the Supreme Court’s 5-to-4 ruling early this year that the Environmental Protection Agency can regulate heat-trapping emissions, courts have found that federal officials must either grapple with the consequences of climate change or explain why they chose not to.

To insert our own analogy here-- lifted indirectly from James Gammon's clubhouse speech to the fictitious, moribund Cleveland Indians midway through the movie "Major League II"-- this is a lot like our national pastime. When you win a big game, that's a victory (and legally speaking, a source of uplift and some precedent). Another one makes 'two in a row.' Next thing you know, you've got a winning streak, with all the added momentum and legal applications it hopefully represents.

On Cloud 9(th Circuit) For Thanksgiving

An initial read of the 9th Circuit's ninety-page opinion in Center for Biological Diversity v. National Highway Transportation Safety Administration indicates that the three-judge-panel's opinion truly was a stunning decision from the states' perspective.

Plaintiffs' argument rested on the assertion that CAFE standards for light trucks in model years 2008-2011, set by NHTSA in April 2006, should be invalidated for violating both the Energy Policy Conservation Act (EPCA) and the National Environmental Policy Act (NEPA). In addition to agreeing that the agency conducted an inadequate environmental assessment under NEPA, the court found that NHTSA's regulations violated EPCA in four key areas:

NHTSA's failure to monetize the value of carbon emissions in its determination of the MY 2008-2011 light truck CAFE standards, failure to set a backstop, failure to revise the passenger automobile/light truck classicfications, and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 lb. GWR class, was arbitrary and capricious and contrary to the EPCA. We therefore remand to NHTSA to promulgate new standards consistent with this opinion as expeditiously as possible and for the earliest model year practicable.

Note that the "passenger automobile/light truck classifications" referred to by the court constitute the notorious "SUV loophole," which allows auto companies to classify vehicles intended to carry passengers as trucks, which are subject to looser fuel-efficiency requirements. Congressman Ed Markey (D-MA), Chairman of the House Select Committee on Global Warming and Energy Independence, certainly does in focusing part of his reaction-- which humorously applauds the court for "killing this regulatory turkey so close to Thanksgiving"-- on that issue.

However, we'll focus first (after the jump) on the other highlight mentioned by Markey, namely a ruling about cost-benefit analysis for CO2 emissions that deems NHTSA's rules overly friendly to the auto industry.

BREAKING: 9th Circuit Rules That Feds Must Account for Climate Change

The 9th Circuit Court of Appeals today has ruled in favor of California's lawsuit against federal mileage standards (California v. National Highway Traffic Safety Administration, 06-72317). The court issued a 90-page opinion that strikes down recently-implemented CAFE standards for light-duty trucks (a category that includes SUVs and minivans) on several grounds, including the failure to take global warming into account. Warming Law analyzed the case back in May, in advance of oral arguments.

California Attorney General Jerry Brown, who argued the case (joined by eleven other states, the District of Columbia, New York City, and several environmental groups) is celebrating:

Commenting on the decision Attorney General Brown said, “This decision sends a clear message that the Congress must get serious about combating dangerous foreign oil dependency and global warming. This is a major victory and a stunning rebuke to the Bush administration and its failed energy policies.”

In May, Attorney General Brown had argued that the administration had failed to consider the effects of vehicles’ greenhouse gas emissions on global warming, a requirement under the National Environmental Policy Act, when formulating new mileage standards. Brown asserted that the National Highway Traffic Safety Administration’s mileage standards violated federal law by ignoring both global warming and America’s “dangerous foreign oil dependency.”

Under the Energy Policy and Conservation Act—adopted four decades ago in response to the Arab oil crisis—the National Highway Traffic Safety Administrations sets gas mileage standards for motor vehicles. The Administration, under Bush, ordered a pathetic one mile per gallon increase, from 22 to 23 miles per gallon by 2010, which Brown challenged in court as a violation of federal environmental law.

“A paltry one-mile-per gallon increase in gas mileage was clearly unlawful,” said Brown, “and today’s decision to reject that dangerously misguided policy is a victory for states that want to fight climate disruption and oil dependency.”

We'll have more on the decision as we read through the Court's opinion, which was written by Judge Betty Fletcher.