Center for Auto Safety, In re, 85-1348

Decision Date20 June 1986
Docket NumberNo. 85-1348,85-1348
Citation793 F.2d 1346
Parties, 253 U.S.App.D.C. 360, 17 Envtl. L. Rep. 20,052 In re CENTER FOR AUTO SAFETY, et al., Petitioners.
CourtU.S. Court of Appeals — District of Columbia Circuit

Cornish F. Hitchcock, with whom Alan B. Morrison and Clarence M. Ditlow, III, Washington, D.C., were on brief, for petitioners. Katherine I. Hall, Washington, D.C., also entered an appearance, for petitioners.

Marleigh D. Dover, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, David W. Allen and Stephen P. Wood, Asst. Chief Counsels, Enid Rubenstein and J. Edward Glancy, Attys., Nat. Highway Traffic Safety Admin. and John F. Cordes, Atty., Dept. of Justice, Washington, D.C., were on brief, for respondents. William Kanter and Irene M. Solet, Attys., Dept. of Justice, Washington, D.C., were also on brief, for respondents.

Before EDWARDS, SCALIA and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge SCALIA.

HARRY T. EDWARDS, Circuit Judge:

The National Highway Traffic Safety Administration ("NHTSA") is required by the Energy Policy and Conservation Act ("EPCA") to promulgate fuel economy standards for light trucks 18 months before the start of each model year. 1 In June 1985, after the agency repeatedly missed this deadline, the petitioners 2 requested this court to enter a writ of mandamus compelling NHTSA to immediately promulgate the 1987 model year standards and to comply with the statutory deadlines for future standards. In September 1985, six months after the deadline and while the petition was pending in this court, NHTSA promulgated the 1987 model year standards. At the time of oral argument in March 1986, the agency was faced with yet another deadline for the 1988 model year standards; after receiving a request for timetables from this court, NHTSA finally issued the 1988 model year standards in April 1986.

The Government's threshold contention that the petitioners lack standing to request this court to compel agency action is clearly without merit. As in the related case of Center for Auto Safety v. NHTSA, 3 the petitioners have suffered an injury-in-fact and meet the Article III requirements for standing. The prudential inquiry into whether petitioners present a "generalized grievance" is not germane to either case because Congress granted generous standing to seek judicial review of fuel economy standards when it enacted EPCA.

In addition, there is no merit to the contention that this case is moot. The petitioners have challenged a pattern of delay by the agency. While NHTSA has issued the standards specifically requested by the petitioners, and "expects" to issue the next set of fuel economy standards on time, nothing has happened to ensure that the pattern of delay has abated. In any event, the agency's "voluntary cessation" of allegedly illegal conduct does not moot the entire case. The agency has failed to carry its burden of showing that there is no reasonable expectation that it will once again miss the statutory deadline in the upcoming rulemaking.

Finally, on the merits, the evidence indicates that NHTSA has repeatedly delayed issuing the light truck fuel economy standards in total disregard of the obligations imposed on it by Congress. As a result of these delays, the agency has set standards at fuel economy levels lower than those it projected the manufacturers could achieve, justifying its action in part by reasoning that the industry lacked time to respond to stricter requirements. In this way, the agency itself impedes progress toward the statutorily mandated goals of fuel conservation and national energy self-sufficiency. These persistent delays and the obvious adverse consequences that they produce do not bode well for the regulatory scheme under EPCA. In order to ensure future compliance with the statute, this court has no reasonable choice but to retain jurisdiction until NHTSA promulgates the 1989 model year standards.


The regulatory framework established by EPCA for the purpose of improving motor vehicle fuel efficiency has been described in detail in a companion case, Center for Auto Safety. 4 The centerpiece of this regulatory scheme is the program of mandatory Corporate Average Fuel Economy ("CAFE") standards, set at the "maximum feasible average fuel economy level" 5 in miles per gallon ("mpg"). Each manufacturer's fleet must achieve this fuel efficiency, on average, every model year.

EPCA requires the Secretary of Transportation, who has in turn delegated this responsibility to NHTSA, 6 to prescribe standards for light trucks "at least 18 months prior to the beginning of such model year." 7 Once issued, the fuel economy standards may be amended, but any amendment "which has the effect of making any average fuel economy standard more stringent shall be" promulgated "at least 18 months prior to the beginning of the model year to which such amendment will apply." 8

Although the statute is silent on the required timing of amendments relaxing the standards, the Conference Report on EPCA states that "[a]n amendment which has the effect of making an average fuel economy standard less stringent can be promulgated at any time prior to the beginning of the model year in question." 9 The agency has adopted this interpretation of the statute. 10

NHTSA has never established one particular date as the official start of a model year. While selected models may be available as early as the July preceding the calendar year, or as late as December, 11 the model year is traditionally thought to start approximately October 1st. Agency practice through 1980 reinforces this conclusion, as no CAFE standards were ever prescribed later than March for the model year starting one and one-half years later. In the context of strengthening amendments, which like the standards require an 18-month leadtime, this court has stated:

Thus, amendments to standards for the 1985 model year--which we presume absent contrary evidence to begin during the autumn of 1984--must be promulgated by early 1983. 12

Between 1977 and 1980, NHTSA issued light truck CAFE standards for the model years 1979 through 1985 in a timely fashion. 13 In November 1983, Ford Motor Company ("Ford") requested the agency to amend the 1984 and 1985 standards to make them more lenient. NHTSA denied Ford's request for 1984 because the model year was already underway. 14 However, on October 16, 1984, the agency amended the 1985 model year standards, 15 notwithstanding the fact that the new trucks and vans were already in the showrooms. Thus, in practical terms, the 1985 model year had already commenced. In the same notice, NHTSA prescribed standards for model year 1986, which had been due the previous March, and declined to issue 1987 standards. 16

In June 1985, with the 1987 standards still unpromulgated, the Center for Auto Safety filed a petition challenging the agency's delay and requesting "entry of a writ compelling immediate promulgation of the 1987 light truck fuel economy standard and compelling NHTSA's compliance with the deadlines of the Act for future model years." 17

In July 1985, NHTSA's Associate Administrator for Rulemaking, Barry Felrice, stated in an affidavit that he expected the agency to promulgate the 1987 standards no later than mid-September. He also anticipated issuing a Notice of Proposed Rulemaking ("NPRM") on the 1988 standards during October or November, in order to permit the final 1988 rule to issue by March 1986. 18 Felrice's projections proved too optimistic. NHTSA issued the final 1987 standards on September 30, 1985, 19 and did not issue a NPRM for the 1988 and 1989 model years until January 21, 1986. 20 When argument in this case was heard on March 14, 1986, the 1988 and 1989 standards had not yet been promulgated, and counsel for NHTSA stated, "I cannot give you specific dates when [they] will be out." 21 Subsequently, the court requested the agency to file, by April 18, 1986, a supplemental memorandum setting forth the dates by which the agency expected to issue light truck CAFE standards for model years 1988 and 1989. 22 The agency then issued the 1988 standards on April 17, 1986, 23 and Barry Felrice indicated in an affidavit that he expects the rule for model year 1989 to issue by February 28, 1987. 24


The Government raises objections to petitioners' standing identical to those they advanced in Center for Auto Safety; these objections fare no better here than in the companion case.

The petitioners seek standing as representatives of their members, who desire to purchase light trucks of the highest possible fuel efficiency. As already shown in Center for Auto Safety, lower CAFE standards injure this interest. In the present case, injury is caused not only by lower standards, but also by the industry's impaired ability to comply with CAFE standards that are imposed with inadequate leadtimes.

Both the agency and the industry have repeatedly stressed the importance of adequate leadtime for the industry to develop and incorporate the technology necessary to improve fuel efficiency. NHTSA has frequently cited inadequate time as a factor justifying its failure to impose a higher standard, even in rulemakings that complied with the statutory schedule. For example, in 1978, NHTSA concluded that

the limited leadtime available before the 1980 model year and slightly limited leadtime before [the] 1981 model year have significantly restricted the extent to which the agency can project fuel economy improvements for the manufacturers. For example, no completely new vehicles or engines were projected by NHTSA unless those items were already planned by manufacturers. 25

Lack of an adequate leadtime obviously becomes even more crucial when the agency fails to meet the statutory deadline for...

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