901 F.2d 107 (D.C. Cir. 1990), 86-1646, Competitive Enterprise Institute v. National Highway Traffic Safety Admin.

Docket Nº:86-1646, 89-1278.
Citation:901 F.2d 107
Party Name:COMPETITIVE ENTERPRISE INSTITUTE, et al., Petitioners, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, Respondent, Automobile Importers of America, Inc., Ford Motor Company, General Motors Corporation, Intervenors. COMPETITIVE ENTERPRISE INSTITUTE and Consumer Alert, Petitioners, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, Respondent, Gen
Case Date:January 19, 1990
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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901 F.2d 107 (D.C. Cir. 1990)




Automobile Importers of America, Inc., Ford Motor Company,

General Motors Corporation, Intervenors.




General Motors Corporation, Automobile Importers of America,

Inc., Ford Motor Company, the City of New York, Intervenors.

Nos. 86-1646, 89-1278.

United States Court of Appeals, District of Columbia Circuit.

January 19, 1990

Argued Oct. 19, 1989.

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Sam Kazman for petitioners Competitive Enterprise Institute, et al., in Nos. 86-1646 and 89-1278.

John A. Bryson and Barbara C. Biddle, Attys., Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., Dirk D. Snel, John F. Cordes, Attys., Dept. of Justice, Kenneth N. Weinstein and Susan L. Rives, Attys., Nat. Highway Traffic Safety Admin., Washington, D.C., were on the joint brief for respondent.

Edward W. Warren, with whom Frederick M. Rowe, John Gibson Mullan, Washington, D.C., Thomas L. Arnett, Detroit, Mich., for Gen. Motors Corp., Charles H. Lockwood, II and John T. Whatley, for Auto. Importers of America, Inc., James A. Brown, for Ford Motor Co., were on the joint brief for intervenors Gen. Motors Corp., et al., in all cases. Arthur F. Sampson, III, David Norrell, Washington, D.C. and William L. Weber, Jr., also entered appearances for Gen. Motors Corp.

Peter L. Zimroth, New York City, was on the brief for intervenor, City of New York in No. 89-1278.

Before WALD, Chief Judge, and RUTH B. GINSBURG and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

Concurring opinion filed by Circuit Judge D.H. GINSBURG.



WALD, Chief Judge:

Competitive Enterprise Institute ("CEI") 1 and Consumer Alert 2 petitioned this court for review of orders of the National Highway Traffic Safety Administration ("NHTSA") lowering the minimum Corporate Average Fuel Economy ("CAFE") standards for passenger cars manufactured in model years ("MYs") 1987, 1988, and 1989. 3 The NHTSA orders amend the CAFE standards by reducing them from 27.5 miles per gallon ("mpg") to 26 mpg for MYs 1987-88, and to 26.5 mpg for MY 1989. 4 Petitioners claim that in refusing to set the CAFE standards below these levels, NHTSA inadequately considered the adverse effects of its actions on the safety of occupants of the affected passenger vehicles. In so doing, petitioners

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claim, NHTSA violated both the Energy Policy and Conservation Act of 1975 ("EPCA"), which governs the setting of mandatory fuel economy standards for passenger cars, and the National Environmental Policy Act ("NEPA"), which requires agencies to take environmental considerations into account when proposing major federal action.

In EPCA, Congress established 27.5 mpg as the presumptive CAFE standard for 1985 and thereafter. Congress also gave NHTSA authority to amend the statutorily-prescribed average fuel economy standard for a given model year to its maximally-feasible level. See 15 U.S.C. Sec. 2002(a)(4). In their primary challenge to NHTSA's action under EPCA, petitioners claim that NHTSA's decision to set the maximally-feasible standards at 26 and 26.5 mpg for MYs 1987-88 and 1989, respectively, was arbitrary and capricious because evidence before the agency on the safety consequences of the CAFE standards compelled standards below those levels.

Petitioners claim that NHTSA also violated NEPA by failing to prepare an environmental impact statement prior to amending the CAFE standards. NEPA requires a detailed environmental impact statement ("EIS") on every proposed major federal action that would "significantly affect the quality of the human environment." 42 U.S.C. Sec. 4332. Petitioners claim that the adverse safety consequences of the CAFE standards as amended constitute just such a major federal action that is significantly affecting the quality of the human environment.

This case initially raises issues concerning petitioners' standing to bring these claims. Consumer Alert claims standing under EPCA on behalf of its members; the organization asserts that its members are hampered in their ability to purchase larger passenger cars because of NHTSA's decision not to reduce the CAFE standards below 26 and 26.5 mpg. The two organizations claim standing under both EPCA and NEPA based on asserted injury to their institutional, information-dissemination activities. They claim that NHTSA's inadequate assessment of the adverse safety consequences of the CAFE standards in its statement of basis and purpose in support of the Final Rule under EPCA, and its failure to consider safety at all in an EIS under NEPA, have impeded their ability to provide information to the public on CAFE's true costs. The government challenged petitioners' standing under both EPCA and NEPA.

We find that petitioner Consumer Alert has standing to challenge the EPCA rulemaking on behalf of its members, and, therefore, need not decide whether either organization has alleged sufficient injury to its activities to sustain standing under EPCA on its own behalf. On the merits of the EPCA claim, we find that NHTSA's decision to set the CAFE standards at the 26 and 26.5 mpg levels was not arbitrary and capricious, but was rather the product of reasoned consideration of the safety implications of its decision. Finally, we conclude that neither organization has standing under NEPA.


    An organization has standing to sue on behalf of its members when: (a) its members would have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); see also International Union, UAW v. Brock, 477 U.S. 274, 288-90, 106 S.Ct. 2523, 2531-33, 91 L.Ed.2d 228 (1986). Consumer Alert unquestionably meets the second and third parts of this test. Germaneness is satisfied by a "mere pertinence" between litigation subject and an organization's purpose. Humane Soc. of the U.S. v. Hodel, 840 F.2d 45, 58 (D.C.Cir.1988); accord Hazardous Waste Treatment Council v. EPA, 861 F.2d 277 (D.C.Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989). Consumer Alert seeks to protect its members'

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    interest in the widest possible consumer choice of large passenger vehicles. This interest is germane to its organizational purpose, which includes defending and expanding consumer choice in the marketplace, and exposing the hidden costs of unwarranted government regulations. In addition, no circumstances exist that would require individual members to participate in the case. See Center for Auto Safety v. NHTSA, 793 F.2d 1322, 1329 n. 44 (D.C.Cir.1986) ("CAS I").

    The critical inquiry, therefore, is whether Consumer Alert satisfies the first Hunt criterion, i.e., whether its members would have standing to sue in their own right. Accordingly, we turn to an analysis of Consumer Alert members' standing under Article III.

    1. Constitutional Requirements

      Article III of the Constitution limits the power of the courts to the resolution of "cases" and "controversies." See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). Under currently governing Supreme Court precedent, these limits are embodied in the requirements that a party seeking review must show "actual or threatened injury," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), that "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 38, 96 S.Ct. 1917, 1926, 1924, 48 L.Ed.2d 450 (1976).

      1. Injury-in-Fact

      To maintain a court challenge to NHTSA's action, Consumer Alert's members must be able to show that they "have been or will in fact be perceptibly harmed by the challenged agency action." United States v. Students Challenging Regulatory Agency Procedures ("SCRAP"), 412 U.S. 669, 688, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973). The harm can be actual or threatened, see Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758, but it must be "distinct and palpable"; mere harm to an ideological interest will not suffice. See Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972).

      Consumer Alert claims an injury that is the "opposite side of the coin" of the injury found cognizable in CAS I, 793 F.2d at 1331-34. See Brief for Petitioner at 10. In CAS I, this court found that the Center for Auto Safety ("CAS") had standing to challenge NHTSA's decision to reduce the CAFE standards for light trucks. 5 CAS claimed that lower CAFE standards would reduce manufacturers' incentives to produce fuel-efficient vehicles by removing the threat of civil penalties that would have been assessed for failure to meet the higher standards. As a result, CAS alleged, its members would suffer injury in the form of a restricted opportunity to purchase fuel-efficient vehicles. We found these allegations sufficient to establish cognizable injury.

      Consumer Alert alleges that its members have been injured in a comparable manner. Its members seek the opportunity to buy larger passenger vehicles; they are hindered in their ability to do so, the organization asserts, because...

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