City of Los Angeles v. National Highway Traffic Safety Admin., s. 86-1649

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 912 F.2d 478
• Docket Number: 86-1651,Nos. 86-1649,86-1652,89-1277 and 89-1403,s. 86-1649
• Parties: , 21 Envtl. L. Rep. 20,170 CITY OF LOS ANGELES and City of New York, Petitioners, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, et al., Respondents, Automobile Importers of America, Inc., Ford Motor Company, General Motors Corporation, Intervenors. CENTER FOR AUTO SAFETY, et al., Petitioners, v. Diane K. STEED, Administrator, National Highway Traffic Safety Administration, et al., Respondents, Automobile Importers of America, Inc., Ford Motor Company, General Motors Corporation, Intervenors. PEOPLE OF THE STATE OF CALIFORNIA, et al., Petitioners, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, et al., Respondents, Automobile Importers of America, Inc., Ford Motor Company, General Motors Corporation, Intervenors. NATURAL RESOURCES DEFENSE COUNCIL, Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, Respondent, Automobile Importers of America, Inc., Ford Motor Company, The City of New York, General Motors Corporation, Intervenors. CENTER FOR AUTO SAFETY and Public Citizen, Petitioners, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, et al., Respondents. District of Columbia Circuit
• Decision Date: 24 August 1990

Page 478

912 F.2d 478 286 U.S.App.D.C. 78, 21 Envtl. L. Rep. 20,170 CITY OF LOS ANGELES and City of New York, Petitioners,
v.
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, et al., Respondents,
Automobile Importers of America, Inc., Ford Motor Company,
General Motors Corporation, Intervenors.
CENTER FOR AUTO SAFETY, et al., Petitioners,
v.
Diane K. STEED, Administrator, National Highway Traffic
Safety Administration, et al., Respondents,
Automobile Importers of America, Inc., Ford Motor Company,
General Motors Corporation, Intervenors.
PEOPLE OF THE STATE OF CALIFORNIA, et al., Petitioners,
v.
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, et al., Respondents,
Automobile Importers of America, Inc., Ford Motor Company,
General Motors Corporation, Intervenors.
NATURAL RESOURCES DEFENSE COUNCIL, Petitioner,
v.
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, Respondent,
Automobile Importers of America, Inc., Ford Motor Company,
The City of New York, General Motors Corporation,
Intervenors.
CENTER FOR AUTO SAFETY and Public Citizen, Petitioners,
v.
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, et al., Respondents. Nos. 86-1649, 86-1651, 86-1652, 89-1277 and 89-1403. United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 19, 1989.
Decided Aug. 24, 1990.

On Petitions for Review of Rules of the National Highway Traffic Safety Administration.

Peter Lehner with whom Peter L. Zimroth, and William L. Waterhouse, for City of Los Angeles and the City of New York, Cornish F. Hitchcock, Alan B. Morrison, and Clarence M. Ditlow, III, for Center for Auto Safety, et al., and Theodore Berger, Craig C. Thompson, and Susan Durbin, for People of the State of Cal., et al., were on the joint brief for petitioners City of Los Angeles and the City of New York, et al., in Nos. 86-1649, 86-1651, and 86-1652. Gary R. Netzer, Sr. and Roger J. Holt also entered appearances for City of Los Angeles and the City of New York.

Ralph C. Cavanagh with whom Richard E. Ayres, for Natural Resources Defense Council, Cornish F. Hitchcock, Alan B. Morrison, and Clarence M. Ditlow, III, for Center for Auto Safety and Public Citizen were on the joint brief, for petitioners Natural Resources Defense Council, et al., in Nos. 89-1277 and 89-1403.

John A. Bryson and Barbara C. Biddle, Attorneys, Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., Dirk D. Snel, John F. Cordes, Attys., Dept.

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of Justice, Kenneth N. Weinstein and Susan L. Rives, Attorneys, Nat. Highway Traffic Safety Admin., were on the joint brief for respondents in all cases.

Edward W. Warren with whom Frederick M. Rowe, John Gibson Mullan, Thomas L. Arentt, for General 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 General Motors Corp., et al., in all cases. Arthur F. Sampson, III, David Norrell, Washington, D.C., and William L. Weber, Jr., Detroit, Mich., also entered appearances for General Motors Corp.

Peter L. Zimroth, New York City, was on the brief for intervenor City of New York in No. 89-1277.

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

Opinion for the Court PER CURIAM.

Opinion for the Court and dissenting on NRDC standing filed by Circuit Judge D.H. GINSBURG.

Opinion for the Court on NRDC standing and dissenting on the failure to issue an EIS for Model Years 1987-1988 filed by Chief Judge WALD.

Concurring opinion filed by Circuit Judge RUTH BADER GINSBURG.

PER CURIAM:

Petitioners brought two separate challenges, under the National Environmental Policy Act (NEPA), to the decision of the National Highway Traffic Safety Administration (NHTSA) not to prepare an Environmental Impact Statement (EIS) covering its Corporate Average Fuel Economy (CAFE) standards for model years 1987-88 and 1989. As to MYs 1987 and 1988, we

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hold that the city and state petitioners, based on their obligations under the Clean Air Act, have standing to sue under NEPA on air pollution grounds, but that their challenge fails on the merits. Chief Judge Wald dissents from the disposition on the merits. She would remand to NHTSA for further explanation of the agency's conclusion that the 1987-88 CAFE standards would not have an environmental impact significant enough to warrant an EIS. However, she would leave the standards in place pending completion of a cumulative EIS, covering the entire CAFE program, that NHTSA has undertaken to prepare in 1990.

As to MY 1989, we hold that the Natural Resources Defense Council (NRDC), et al., have standing under NEPA to challenge the MY 1989 CAFE standard on global warming grounds. Judge D.H. Ginsburg would dismiss the NRDC petition for lack of standing. He suggests that the petitioners have failed to explain how the injury they allege from global warming can be traced causally to the agency's decision setting the MY 1989 CAFE standard, and how the relief they seek could redress that injury.

On the merits of the NRDC petition, Chief Judge Wald would hold that NHTSA acted arbitrarily in concluding that the 1989 CAFE standard would not have a significant impact on global warming, and would remand to the agency; she would leave the standard in place, however, pending completion of the cumulative EIS. Judge Ruth B. Ginsburg would not disturb the agency's conclusion that no EIS was required. As a result, this petition, too, is denied.

Opinion for the Court ^* filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

The Energy Policy and Conservation Act of 1975 (EPCA) makes 27.5 miles per gallon the presumptive CAFE standard for Model Year 1985 (MY 85) and thereafter. The Act also authorizes the NHTSA by rulemaking to set a different standard, not lower than 26.0 mpg, for any individual model year at the level it determines to be "the maximum feasible average fuel economy level" for that year. 15 U.S.C. Secs. 2002(a)(1), (4). The NHTSA exercised this authority to set the standard at 26.0 mpg for MYs 87-88 and at 26.5 mpg for MY 89. 51 Fed.Reg. 35,594 (1988); 53 Fed.Reg. 39,275 (1988). The Cities of New York and Los Angeles and the State of California (the polities), Public Citizen, the Union of Concerned Scientists, and the Center for Auto Safety challenge the agency's decision for MYs 87-88, while the NRDC, the Center for Auto Safety, Public Citizen, and the City of New York (hereinafter collectively referred to as the NRDC) challenge its decision for MY 89.

The NHTSA prepared an "environmental assessment" (EA) (an "environmental review" in the lexicon of 49 C.F.R. Part 520, but we adhere to the agency's misnomer) for each of the rulemakings, in order to determine whether the actions proposed would have a significant effect upon the environment. The NHTSA issued each EA at the same time as the Notice of Proposed Rulemaking to which it related--in January 1986 for MYs 87-88, and in August 1988 for MY 89. It issued a Supplement to each EA when it issued the associated final rule--in October 1986 and October 1988, respectively. (A revised version of the October 1986 Supplement was published later that same month, but appears not to have effected any major change in the analysis.) In each instance, the NHTSA concluded on the bases of the EA and the public comments thereon that the proposed rule would not "significantly affect[ ] the quality of the human environment," 42 U.S.C. Sec. 4332, so that the agency was not required by the NEPA to prepare an EIS.

All petitioners other than the NRDC argue that the NHTSA should have prepared an EIS for the MYs 87-88 rule in order to assess the cumulative impact of that decision together with previous rulemakings setting the CAFE standard below 27.5 mpg, and in order to assess the effect of

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the new rule in areas that are already unable to attain the air quality levels required under the Clean Air Act. These petitioners also contend that the NHTSA arbitrarily failed to acknowledge a connection between increased tailpipe emissions and the increased fuel consumption that would assertedly accompany a reduction of CAFE standards. With respect to the MY 89 rulemaking, the NRDC contends that the NHTSA should have prepared an EIS in order to consider the adverse climatic effects of the increase in fossil fuel consumption that would result from setting a CAFE standard lower than 27.5 mpg.

I. STANDING

The Constitution requires that a complainant, to maintain a case in federal court, show that it has suffered "(1) 'some actual or threatened injury' that (2) 'fairly can be traced to the challenged action' and (3) 'is likely to be redressed by a favorable decision.' " National Wildlife Federation v. Hodel, 839 F.2d 694, 704 (D.C.Cir.1988). In order to press this case under the NEPA, each petitioner must, in addition, show that the NHTSA's failure to prepare an EIS before setting the CAFE standard below the statutory default level of 27.5 mpg "adversely affected" or "aggrieved" it, within the meaning of Sec. 10(a) of the Administrative Procedure Act, 5 U.S.C. Sec. 702, i.e., that the NHTSA's omission "caused actual injury to an interest within the zone of interests protected by the statute allegedly violated," the NEPA. Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 997 (D.C.Cir.1979). If a petitioner can establish that it has suffered an injury within that zone of interests, it will necessarily have satisfied the constitutional injury requirement as well. In the NEPA context, "the creation of a risk that serious environmental impacts will be overlooked" is sufficient to establish the injury necessary for standing, "provided this injury is alleged by a plaintiff that ... may be expected to suffer whatever environmental consequences the [decision] may have." City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir.1975).

A. NRDC's Standing (MY 89)

According to the NRDC, the...