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Court Rejects Bush CAFE Rules:

Yesterday the U.S. Court of Appeals for the Ninth Circuit sent the Bush Administration's revised automotive fuel economy standards back to the Department of Transportation for reconsideration. Under the Bush Administration, the DoT modestly tightened the fuel economy standards governing light trucks, but also increased the flexibility afforded automakers by basing future light-truck fuel economy standards on vehicle size, rather than an overall fleet average.

In this case, Center for Biological Diversity v. National Highway Traffic Safety Administration, several states and environmental groups challenged the Bush Administration's new federal fuel economy standards for light trucks on several grounds, including the failure to fulfill the requirements of the Energy Policy Conservation Act or comply with the National Environmental Impact Statement. The court, in an opinion by Judge Betty Fletcher, ruled favorably on most of the challenges.

We hold that the Final Rule is arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon missions, failure to set a backstop, failure to close the SUV loophole, and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating ("GVWR") class. We also hold that the Environmental Assessment was inadequate and that Petitioners have raised a substantial question as to whether the Final Rule may have a significant impact on the environment. Therefore, we remand to NHTSA to promulgate new standards as expeditiously as possible and to prepare a full Environmental Impact Statement.
Senior Sixth Circuit Judge Eugene Siler (sitting by designation) dissented in part, objecting only to the court's conclusion that the failure to include a "backstop" was arbitrary and capricious. In a one paragraph opinion, Judge Siler said he did not find this aspect of the rule arbitrary because such a backstop was not required by the authorizing statute.

The decision was covered in the New York Times, and prompted commentary on the Warming Law blog (see also here). Time permitting, I'll have more to say about this interesting and important decision as well.

Mike S.:
So the result is that instead of weak CAFE standards for SUV's there will be none at all until the EPA holds more hearings, writes new regulations and whatever groups don't like them file legal challenges and appeals--that is for another 3 -6 years. A stunning victory for the environment.
11.16.2007 8:24am
skyywise (mail):
Mike S: People are thinking long-term here. Do it right the first time (set standards that are actually decent) as opposed to having to revisit it in the near future where opponents will lobby, "but look, you already got something, why are you talking about the environment again?"
11.16.2007 9:50am
Cornellian (mail):
Is there no end to the scope of federal regulation? Now they're regulating how long people can sit in Starbucks, whether they have to have "half and half" out on the counter, the type of napkins that must be made available etc.
11.16.2007 10:32am
Hoosier:
Mike S: I understand skywise's point, but I must admit that my reaction was the same as yours. I can't forsee the broader "do it right the first time" legislation passing--not enough public interest, and powerful oponents. So a stepwise--rather than 'skywise'--approach is the best outcome that I can forsee actually happening.

This has been a lousy issue for a long time. John Kerry supported significant revisions in CAFE standards . . . until he went to Michigan to campaign for president, at which point he no longer supported upward revisions. Both parties have lobbies that they cannot alienate. So what's to be expected now is probably no CAFE revision.
11.16.2007 10:46am
Bender (mail):
As in the case of any 9th Circuit decision, it's probably wise to withhold any further commentary, except perhaps the preparation of amicus briefs, until Supreme Court review.
11.16.2007 11:33am
David M (mail) (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 11/16/2007 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
11.16.2007 12:44pm
Just Dropping By (mail):
Wrong type of café, Cornellian.
11.16.2007 1:42pm
PLR:
Does Cornellian oppose judicial review of agency decisions alleged to be contrary to the governing laws enacted by Congress?
11.16.2007 2:02pm
SunnySideUp:
I'm wondering whether this decision will have any influence on California's suit to force the federal government to let it set its own emissions standards. If I'm the judge, I might be persuaded by the argument that California's emissions standards are ready-to-go, whereas the federal government has just proven its inability to lawfully produce any standards whatsoever.
11.16.2007 2:11pm
Kazinski:
Given that the heart of the decision is the "failure to monetize the value of carbon missions" is there any actual evidence that the net benefits of climate change won't be positive? I'm well aware of some studies that paint a dire picture, such as the Stern report, but it was way short of convincing. Just as the medieval warming period was (at least in Europe) beneficial to the economic well being of the populace, I'd expect that the long term effects, especially of deferring an ice age, would be positive.
11.16.2007 3:59pm
Tim Dowling (mail):
Jonathan -- Thanks very much for linking to warminglaw.org. I hope you have time to share some thoughts on the ruling. I look forward to it.

Sunnyside, state and local officials across the country have been calling for greater federal protections, but since those calls have borne little fruit, they very much stand ready to proceed with their own initiatives. So as a general matter, your point is dead on. One important distinction to keep in mind, however, is that the standards issued by California and adopted by many other states are air emission standards under the Clean Air Act, whereas the just-nixed NHTSA standards are fuel-efficiency standards under the federal energy laws. As the Supreme Court recognized in Mass. v. EPA, energy conservation is not coextensive with environmental protection, but they often overlap.
11.16.2007 4:28pm
happylee:
I recently reread a nice article by Lino Graglia about how the Federal Courts basically ruined both race relations and education in our fair lands by insisting on shortcircuting the tedious democratic process.

His arguments appear to apply here. Taking entirely UNPROVEN but widely believed (and constantly hyped) theories of a looming carbon fueled global warming crisis, the courts are now willy nilly overruling legislative and regulatory impediments to 'saving the earth.'

The sheer arrogance is amazing.
11.16.2007 4:31pm
Colin (mail):
I'm going to go out on a limb and guess that happylee hasn't read the opinion.
11.16.2007 6:49pm
Eli Rabett (www):
Kazinski, the reports of WGII and WGIII of the IPCC AR4 deal with the issue of costs and costs of mitigation and adaptation. If nothing else there is a long list of references to the literature on this issue.
11.16.2007 8:21pm
Kazinski:
Eli,
Somehow I find that unconvincing, the sum of the entire economic and ecologic activity on the globe is really too complex a subject to figure out what will happen, when a 10 day weather report is all they can currently cope with.

If Global Warming activists are right and human behavior is causing major climate changes by increasing CO2 from 200 parts per million to 400ppm, it isn't the first time an organism has altered the atmosphere. 2 billion years ago blue-green algae took the atmosphere from almost 0% O2 to about 20% oxygen, and in the process nearly wiped out all life on earth. But the earth rebounded, oxygen breathing life forms evolved, and the ozone layer was created allowing land based life to develop. Was that a positive or a negative, and how do you monetize the change?
11.16.2007 10:28pm
Eli Rabett (www):
280 to ~380 today, probably > 450 by 2050 or so. Kazinski, at least try and be accurate. So, let us consider, I friendly like, point you to two on line references which summarize what we know and you play the blue green algae card? Com' on. You did notice the part about all died? Good, cause now you can figure out that just maybe you and yours would not survive. Yes, the Earth will still be here, almost certainly mankind will survive although probably (and not just from climate change) a large number of other species will not, but it won't be pleasant, and as long as we are talking about ancient history, let us recall that the mess that was left after Rome fell, called the Dark Ages, was exceedingly unpleasant and long lasting.

If you want to monetize the change, consider that the value of real estate on the south shore of Long Island is a couple of zillion dollars and that goes bluey.
11.17.2007 12:36am
Smokey:
Kazinski-

Don't feed the troll. He posts all over the internet -- causing one to wonder how he has any time at all to indoctrinate his unfortunate students with his far Left hokum.

But don't take my word for it. Just look at how his students view him [3 pages worth, and they get worse the more you read].
11.19.2007 6:51pm