538 F.3d 1172 (9th Cir. 2008), 06-71891, Center for Biological Diversity v. National Highway Traffic Safety Admin.

• Docket Nº: 06-71891, 06-72317, 06-72641, 06-72694, 06-73807, 06-73826.
• Citation: 538 F.3d 1172
• Party Name: CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, Respondent. People of the State of California ex rel. Bill Lockyer, Attorney General; State of Connecticut; State of Maine; Commonwealth of Massachusetts; State of New Jersey; State of New Mexico; State of New York; State of Oregon; State of Rhode Island
• Case Date: August 18, 2008
• Court: United States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (9th Circuit)

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538 F.3d 1172 (9th Cir. 2008)

CENTER FOR BIOLOGICAL DIVERSITY, Petitioner,

v.

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, Respondent.

People of the State of California ex rel. Bill Lockyer, Attorney General; State of Connecticut; State of Maine; Commonwealth of Massachusetts; State of New Jersey; State of New Mexico; State of New York; State of Oregon; State of Rhode Island; State of Vermont; District of Columbia; City of New York, Petitioners,

v.

National Highway Traffic Safety Administration, an Agency Within the United States Department of Transportation, Respondents.

State of Minnesota, Petitioner,

v.

National Highway Traffic Safety Administration, an Agency Within the United States Department of Transportation, Respondent.

Sierra Club; Public Citizen, Inc., Petitioners,

v.

Department of Transportation, Respondent.

Environmental Defense, Petitioner,

v.

Department of Transportation, Respondent.

Natural Resources Defense Council, Inc., Petitioner,

v.

Department of Transportation, Respondent.

Nos. 06-71891, 06-72317, 06-72641, 06-72694, 06-73807, 06-73826.

United States Court of Appeals, Ninth Circuit.

August 18, 2008

Argued and Submitted May 14, 2007.

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Patrick Gallagher, Sierra Club; Sean H. Donahue (argued), Environmental Defense; Aaron Colangelo, David Doniger, Margaret Renner, Natural Resources Defense Council for Public Interest petitioner-appellants on Energy Policy Conservation Act Issues.

Deborah A. Sivas, Holly D. Gordon, Stanford Law School Environmental Law Clinic; Kassia R. Siegel, Brendan R. Cummings, Center for Biological Diversity for Public Interest petitioner-appellants on National Environmental Policy Act Issues.

Edmund Brown, Jr., Thomas Greene, Theodora Berger, Ken Alex, Susan S. Fiering (argued), Office of the Attorney General of California; Richard Blumenthal, Kimberly Massicotte, Jose Suarez, Office of the Attorney General of Connecticut; G. Steven Rowe, Gerald D. Reid, Office of the Attorney General of Maine; Thomas F. Reilly, William L. Pardee, Matthew Brock, Office of the Attorney General of Massachusetts; Stuart Rabner, Howard Geduldig, Lisa J. Morelli, Office of the Attorney General of New Jersey; Patricia A. Madrid, Stephen R. Farris, Office of the Attorney General of New Mexico; Eliot Spitzer, Caitlin Halligan, Jared Snyder, Office of the Attorney General of New York; Hardy Myers, Philip Schradle, Richard M. Whitman, Office of the Attorney General of Oregon; Patrick C. Lynch, Tricia K. Jedele, Office of the Attorney General of Rhode Island; William H. Sorrell, Kevin O. Leske, Office of the Attorney General of Vermont; Eugene A. Adams, Todd S. Kim, Donna M. Murasky, Office of the Attorney General for the District of Columbia; Michael A. Cardozo, Susan M. Kath, Scott Pasternack, Tracy Triplett, Corporation Counsel for the City of New York; Mike Hatch, Ronald Gitek, Office of the Attorney General of Minnesota for petitioner-appellants in Consolidated Cases Nos. 06-72317 and 06-72641.

Rosalind A. Knapp, Paul M. Geier, Peter J. Plocki, Anthony M. Cooke, Lloyd S. Guerci, Katherine C. Gehringer, Timothy H. Goodman, David W. Case, National Highway Traffic Safety Administration, Department of Transportation; Peter D. Keisler, Matthew J. McKeown, Office of the U.S. Attorney General; Ronald M. Spritzer, Environment and Natural Resources Division; Douglas N. Letter, H. Thomas Byron (argued), U.S. Department of Justice, Civil Division, for the respondent-appellees.

On Petition for Review of an Order of the Dept. of Transportation, NTSB. TRAN No. Reg. 17,566, TRAN No. Energy Policy Act, TRAN No. NHTSA 2006-24306.

Before: B. FLETCHER, EUGENE E. SILER, JR.,^[*] and HAWKINS, Circuit Judges.

Opinion by Judge BETTY B. FLETCHER; Partial Concurrence and Partial Dissent by Judge SILER.

ORDER WITHDRAWING OPINION AND OPINION

ORDER

The opinion filed on November 15, 2007 and published at 508 F.3d 508 (9th Cir.2007), is hereby vacated and withdrawn. Respondents' petition for rehearing with suggestion for rehearing en banc is denied

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as moot. The opinion vacated and withdrawn is replaced by an opinion filed simultaneously with this order. We file a new opinion with the following changes:

1. At 508 F.3d at 514, delete and replace with

2. At 508 F.3d at 552, delete <3. NHTSA must prepare an Environmental Impact Statement> and replace with <<3. NHTSA must prepare either a revised Environmental Assessment or, as necessary, an Environmental Impact Statement>

3. At 508 F.3d at 553, after the citation <<Blue Mountains Biodiversity Project, 161 F.3d at 1212 (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir.1988)); see also Nat'l Parks & Conservation Ass'n, 241 F.3d at 730,> insert the following sentences:

NHTSA's EA is markedly deficient in its attempt to justify the refusal to prepare a complete EIS. As explained below, the agency's FONSI is based primarily on its conclusory assertion-contradicted by evidence in the record-that the Final Rule will have no significant environmental impact because it authorizes CAFE standards that will result in a very small decrease in carbon dioxide emissions.

4. At 508 F.3d at 554, delete paragraph Nat'l Parks & Conservation Ass'n, 241 F.3d at 730.>

5. At 508 F.3d at 554, insert <Idaho Sporting Cong., 137 F.3d at 1149 (internal quotation marks omitted)> between and

6. At 508 F.3d at 558, delete the sentences why potential effects are insignificant," much less a “convincing statement of reasons." See Blue Mountains Biodiversity Project, 161 F.3d at 1211 (emphasis added) (internal quotation marks omitted). It asserts simply that the insignificance of the effects is “self-evident [ ]." > and replace with Blue Mountains Biodiversity Project, 161 F.3d at 1211 (internal quotation marks omitted), NHTSA simply asserts that the insignificance of the effects is “self-evident[.]" >

7. At 508 F.3d at 558, delete the sentence and insert the following paragraphs:

Finally, we must decide the appropriate remedy given NHTSA's inadequate EA. We have previously recognized that preparation of an EIS is not mandated in all cases simply because an agency has prepared a deficient EA or otherwise failed to comply with NEPA. If, for example, an EA is so procedurally flawed that we cannot determine whether the proposed rule or project may have a significant effect, the court should remand for the preparation of a new EA. See Metcalf v. Daley, 214 F.3d 1135, 1146 (9th Cir.2000) (ordering remand for preparation of a new EA, where prior EA was prepared after the agency had already rendered a substantive decision on the permitting action). If an agency completely fails to prepare an EA before deciding that a proposed project or rule will have no significant environmental impact, remand for preparation of an EA is likewise the proper

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remedy. See Jones v. Gordon, 792 F.2d 821, 828-29 (9th Cir.1986) (remanding where agency failed to prepare any NEPA document before issuing permit). And where an agency determines that consideration of certain factors are legally irrelevant to the agency's action, rendering it impossible for the reviewing court to determine the accuracy of the FONSI, we also remand for preparation of an EA on a complete record. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F.3d 1016, 1024, 1031, 1035 (9th Cir.2006) (ordering remand for reconsideration of EA where agency rejected consideration of terrorist acts as factor to be considered in its review of application for license to construct nuclear spent-fuel storage facility), cert. denied sub nom. Pac. Gas & Elec. Co. v. San Luis Obispo Mothers for Peace, __ U.S. __, 127 S.Ct. 1124, 166 L.Ed.2d 891 (2007).

By contrast, if the court determines that the agency's proffered reasons for its FONSI are arbitrary and capricious and the evidence in a complete administrative record demonstrates that the project or regulation may have a significant impact, then it is appropriate to remand with instructions to prepare an EIS. See, e.g., Nat'l Parks & Conservation Ass'n., 241 F.3d at 733-34; Idaho Sporting Cong., 137 F.3d at 1154.

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. See O'Reilly v. U.S. Army Corps of Eng'rs, 477 F.3d 225, 238-39 (5th Cir.2007) ( “It is also clear that a decision to forego preparation of an EIS may be unreasonable for at least two distinct reasons: (1) the evidence before the court demonstrates that, contrary to the FONSI, the project may have a significant impact on the human environment, or (2) the agency's review was flawed in such a manner that it cannot yet be said whether the project may have a significant impact.... If the court finds that a project may have a significant impact, the court should order the agency to prepare an EIS. If the court finds, on the other hand, that the EA is inadequate in a manner that precludes making the determination whether the project may have a significant impact, the court should remand the case to the agency to correct the deficiencies in its analysis." ) (citations omitted). 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. Metcalf, 214 F.3d at 1146 (“On reflection, and in consideration of our limited role in this process, we have decided that it is appropriate only to require a new EA, but...