National Environmental Policy Act Cases

Alec L. v. Jackson (United States District Court for the District of Columbia, May 31, 2012). 

Five children, along with the groups Kids vs. Global Warming and WildEarth Guardians, sued the heads of several federal agencies for failing to adequately address global warming. The plaintiffs proceeded on the theory that the atmosphere is a commonly shared public resource that defendants, as agency heads, have a duty to protect under the public trust doctrine. As relief, plaintiffs asked for an injunction directing the named federal agencies to “take all necessary actions to enable carbon dioxide emissions to peak by 2012 and decline by at least six percent per year beginning in 2013.” Defendants and intervenors argued in a motion to dismiss that plaintiffs failed to state a valid claim for relief. The district court agreed and dismissed the suit.  Relying on the recent Supreme Court decision PPL Montana, LLC v. Montana (2012), the court held that the public trust doctrine is a matter of state, not federal, law. It further held that even if the public trust doctrine were a federal common law claim, such a claim has been displaced in this case by the Clean Air Act (as was similarly held in the 2011 Supreme Court case American Electric Power Co. v. Connecticut).

Loorz v. Jackson (United States District Court for the District of Columbia, April 2, 2012). 

A federal district court in Washington D.C. allowed business groups to intervene in a lawsuit that seeks to require the federal government to establish a plan for an immediate cap on GHG emissions and start lowering these emissions by six percent a year beginning in 2013. Several advocacy groups, including Our Children’s Trust, filed the federal lawsuit in May 2011 along with similar actions in many states. The lawsuit alleges that the federal government has a duty under the public trust doctrine to reduce GHG emissions in the atmosphere. So far, no state challenges have been successful.

Association of Irradiated Residents, et al.  v. California Air Resources Board (Superior Court of California for the County of San Francisco, October 20, 2011)

Background:  On September 27, 2006, then Governor of California Arnold Schwarzenegger signed into law the Global Warming Solutions Act of 2006, or AB 32. The law seeks to fight climate change through comprehensive program reducing GHG emissions from all sources statewide. The act requires the California Air Resources Board (CARB) to develop regulations and market mechanisms that will cut the state’s GHG emissions to 1990 levels by 2020—a 25% reduction statewide.

On December 17, 2010 CARB selected a cap-and-trade program as the market mechanism to cut the state’s GHG emissions. CARB scheduled the program to take effect in 2012, placing a limit that would decrease by two percent each year through 2015. From 2015 through 2020, the proposed limit would decrease by three percent annually. AB 32’s rules would first apply to some of the major emitters—utilities and large industrial plants. In 2015, the rules would apply to fuel distributors as well, eventually totaling 360 businesses throughout California. The market would begin with a distribution of free allowances to businesses accounting for approximately 90 percent of the business’s overall emissions; however, for any additional emissions, the business must purchase the necessary allowances.

Case Discussion and Holding:  On December 19, 2010, two days after CARB’s selection of a cap-and-trade program, a number of associations—among them the Association of Irritated Residents (AIR)—filed suit against CARB. The complaint alleged that CARB failed to meet the requirements of AB 32 as well as those for the California Environmental Quality Act (CEQA). AIR asked the court to require CARB to correct the deficiencies under both AB 32 and the CEQA before allowing implementation to proceed.

AIR alleged that CARB violated the requirements of AB 32 in three ways. First, AIR claimed CARB excluded sectors of the economy from emissions controls. Thus, selecting a cap-and-trade program could not allow for a determination of whether potential reduction measures achieved maximum technologically feasible and cost effective reductions. Second, CARB did not adequately consider the total costs and benefits to the environment, economy and public health before selection of its plan. Finally, CARB did not consider—as instructed to do in AB 32—information regarding GHG emission programs throughout the United States and the world.

The Court determined that the implementation and interpretation of AB 32 was delegated to CARB; thus, on review, the Court largely deferred to CARB’s findings and interpretations under an “arbitrary and capricious” standard of review. This standard affords CARB a “wide latitude” for interpretation and implementation, and challenging a determination under this standard is an extraordinarily difficult task. In this case, AIR was unable to overcome this burden, and the Court held that CARB’s findings satisfied the requirements of AB 32.

AIR also claimed that CARB violated the requirements under the CEQA in three ways. AIR’s first claim was that CARB did not “adequately analyze the impacts of the measures described” in the plan. Second, AIR claimed that CARB did not sufficiently consider alternatives to their chosen plan. Finally, in light of the first two allegations, AIR claimed that CARB approved and implemented its plan before completing the necessary environmental impact review (EIR).

In reviewing CARB’s compliance with the CEQA, the Court used a lesser standard—abuse of discretion. Under this standard, CARB’s findings would be upheld unless there was “no substantial evidence” supporting its decision or CARB did not proceed in a manner required by law. On the first claim, the Court found that CARB did not need to provide a comprehensive analysis of the various details of the plan that would be implemented at a later date. However, on AIR’s second and third claims, the Court found CARB in violation of the CEQA. With regard to CARB’s failure to analyze alternatives, the Court noted that CARB provided five alternatives to the selected plan. The first alternative, “no project,” received 10 pages worth of discussion in the documentation supporting CARB’s plan. However, the total discussion for the other four alternatives yielded only three pages in the same document. The Court was unsatisfied that the other four alternatives received sufficient analysis, and held that CARB violated the CEQA stating that CARB’s “analysis provides no evidence to support its chosen approach.” The Court also decided the third claim against CARB. On this issue, the Court treated a resolution adopted by CARB at a hearing in December 2008 as initiating the approval of CARB’s plan. However, the finalization of CARB’s CEQA review was not finalized until May 2009. In light of CARB’s “jumping the gun,” the Court held that CARB had not complied with CEQA’s requirements.

In response to CARB’s failures under the CEQA, the Court issued an injunction preventing any further implementation of the measures contained in the selected plan until CARB has satisfied the requirements of the CEQA.

Center for Biological Diversity v. NHTSA (Ninth Circuit, 2007)

Eleven states, the District of Columbia, the City of New York, and four public interest organizations challenged a rule promulgated by the National Highway Traffic Safety Administration (NHTSA).  The rule was entitled “Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011” and set corporate average fuel economy (CAFE) standards pursuant to the Energy Policy and Conservation Act (EPCA) – prior to the passage of the new energy bill (EISA).  The rule was significant in three ways.  The rule set CAFE standards for light trucks, including SUVs, minivans, and pickup trucks, for the model years 2008-2001.  The rule set new CAFE standards using its traditional method, fleet-wide average, for model years 2008-2010.  The rule also created a new CAFÉ structure that sets “varying fuel economy targets depending on vehicle size and requires manufacturers to meet different fuel economy levels depending on their vehicle fleet mix.”  The rule was challenged by the petitioners under the EPCA and the National Environmental Policy Act (NEPA).   

The petitioners’ complaint argued that the NHTSA is “arbitrary, capricious, and contrary to the EPCA because (a) the agency’s cost-benefit analysis does not set the CAFE standard at the ‘maximum feasible’ level and fails to give due consideration to the need of the nation to conserve energy; (b) its calculation of the costs and benefits of alternative fuel economy standards assigns zero value to the benefit of carbon dioxide (CO2) emissions reduction; (c) its calculation of costs and benefits of alternative fuel economy standards fails to evaluate properly the benefit of vehicle weight reduction; (d) Reformed CAFE standards will depend on manufacturer fleet mix and not guarantee a minimum average fuel economy or ‘backstop’; (e) the transition period during which manufacturers may choose to comply with either Unreformed or Reformed CAFE is contrary to the ‘maximum feasible’ requirement and unnecessary; (f) it perpetuates the ‘SUV loophole,’ which allows SUVs, minivans, and pickup trucks to satisfy a lower fuel economy standard than cars; and (g) it excludes most vehicles rated between 8,500 and 10,000 pounds gross vehicle weight (comprised mostly of large pickup trucks) from any fuel economy regulation, even though these vehicles satisfy the statutory criteria for regulation.”

The petitioners also argued that NHTSA’s Environmental Assessment (EA) under NEPA was inadequate because it fails to sufficiently examine greenhouse gas implications.  Petitioners also claimed the EA failed to analyze a reasonable range of alternatives or examine the rule’s cumulative impact.  Additionally, petitioners argued that NEPA requires that an Environmental Impact Statement be prepared as opposed to the less exhaustive EA, because a properly performed EA would have shown “significant impacts” which would then trigger the requirement of an Environmental Impact Statement.  

The court found in an unanimous decision that “the Final Rule is arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon emissions, 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.”  The court first rejected the rule because the cost-benefit analysis did not include the cost of climate change caused by carbon dioxide.  The court also discredited contrary precedent by stating more is now known about climate change, and Mass. v EPA is more relevant than past cases where climate change science was allowed to be ignored.  The rule was then criticized for not having a “backstop” that would prevent companies from simply building bigger vehicles, which would then be allowed to produce higher emissions under the rule’s system.  The court rejected NHTSA’s arguments that this was done to account for consumer preferences stating that consumer demand cannot be the sole factor dictating the necessity of a “backstop.”  The court then challenged the “SUV loophole,” which allows SUV’s and minivans to be characterized as “light trucks” instead of “passenger automobiles” despite being predominantly used for the transportation of passengers.  The court ordered NHTSA to reexamine the classifications and provide new definitions or sufficient reasons for the SUV and minivan classification.  

The court also found “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” because the “impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impact analysis that NEPA requires agencies to conduct.”  The court found that climate change’s global nature and influence of actions outside of NHTSA’s control did not allow the agency to avoid considering the effects of the rules impact.  Additionally, the court rejected NHTSA’s argument that an EA was adequate because the CAFE standards were reducing carbon.  The court countered that the standards merely decrease the rate of carbon contribution from new cars and that NHTSA does not offer sufficient analysis to support its finding of no significant impact.  The court then remanded the case to “NHTSA to promulgate new standards as expeditiously as possible and to prepare a full Environmental Impact Statement.”  

View the case document here