Competitive Enterprise Institute v. National Highway Traffic Safety Administration

In June 2022, the D.C. Circuit Court of Appeals issued orders continued to hold in abeyance cases filed in 2019 and 2020 that challenge the Trump administration’s greenhouse gas emission and fuel economy standards for model year 2021-2026 light-duty vehicles, the 2019 National Highway Traffic Safety Administration rule preempting state limits on tailpipe greenhouse gas emissions and zero-emission vehicles mandates, and EPA’s withdrawal of California’s waiver for such regulations. The D.C. Circuit will hold these cases in abeyance while it considers lawsuits challenging the Biden administration’s revised greenhouse gas emissions standards for 2023 and later model year light-duty vehicles, fuel economy standards for model years 2024-2026, and reinstatement of California’s waiver.

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On April 2, 2021, the D.C. Circuit Court of Appeals granted the motion by EPA and the National Highway Traffic Safety Administration to hold in abeyance the proceedings challenging the Trump administration’s greenhouse gas emission and fuel economy standards for passenger cars and light trucks (the Safer Affordable Fuel-Efficiency (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks). The court ordered that the cases be held in abeyance pending further order of the court, with status reports on the agencies’ review of the rule to be filed every 90 days. On April 6, it was <a href="https://www.autonews.com/regulation-safety/bidens-epa-chief-vows-tougher-tailpipe-rules-july-unwinding-trump-regs">reported</a> that EPA Administrator Michael Regan had said the Biden administration was on track to propose new standards by the end of July 2021 (as directed by President Biden’s Executive Order 13990).

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Petitioners representing local and state governments and environmental and public health organizations opposed the federal respondents’ request for an indefinite abeyance. The state and local government petitioners argued that the “sheer magnitude of … accumulating harms, which include greenhouse gas emission increases greater than the total emissions of many States,” warranted judicial oversight to prevent delay or to ensure an opportunity for review should the challenged standards be left in place. The state and local government petitioners instead suggested a six-month extension of the deadline for the federal respondents’ brief and corresponding extensions for other briefs. The public interest organization petitioners supported this suggestion.

In the lawsuits challenging the Trump administration’s greenhouse gas emission and fuel economy standards for passenger cars and light trucks (the Safer Affordable Fuel-Efficiency (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks), the federal respondents asked the D.C. Circuit to hold the cases in abeyance while the agencies evaluate the SAFE Rule pursuant to Executive Order 13990, which specifically targeted the SAFE Rule for review. The D.C. Circuit is already holding in abeyances the cases challenging EPA’s withdrawal of California’s waiver for greenhouse gas emission standards and zero emission vehicle mandates and the National Highway Traffic Safety Administration’s rule preempting state regulation of vehicle greenhouse gas emissions.

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One of the 11 amicus briefs was filed by Clean Fuels Development Coalition and other petitioners that had originally filed their own petition of review to argue that EPA failed to consider the role ethanol could play in improving fuel efficiency and reducing emissions and that EPA failed to consider impacts from harmful aromatic compounds.

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Competitive Enterprise Institute (CEI) and related petitioners argued that NHTSA should have considered more lenient standards that would result in safer vehicles and also contended that the agencies overstated the health risks of fine particulate matter.

The state and local government petitioners argued that EPA had arbitrarily rescinded the 2017 final determination that the standards for model years 2022-2025 remained appropriate, and that EPA disregarded emission increases, failed to exercise independent judgment by uncritically accepting analysis prepared by NHTSA, and relied on underlying analysis containing numerous errors. The state and local governments also asserted that NHTSA acted unlawfully by improperly elevating non-statutory policy objectives of the “core objective of conserving energy,” preparing and relying on underlying analysis that including “fundamental flaws,” and failing to comply with the requirements of the Clean Air Act, the Endangered Species Act, and NEPA.

Industry petitioners argued that EPA and NHTSA “distort[ed] the record on consumer acceptance of electric vehicles,” mischaracterized electric automakers’ reliance on credits, and disregarded safety benefits of electric vehicles.

The public interest organization petitioners argued that EPA and NHTSA relied on a “fundamentally flawed analysis of pollution impacts” that “gave scant, if any consideration to the huge increases in climate-disrupting pollution” the amendments would cause. The public interest organization petitioners also contended that the agencies’ analysis of consumer effects was unlawful and arbitrary, that the cost-benefit analysis included “large and patent mistakes,” that NHTSA used inconsistent fuel-economy projections, and that the agencies failed to comply with the Endangered Species Act and the National Environmental Policy Act.

In the cases challenging the revised greenhouse gas emission and fuel economy standards for light-duty vehicles, the D.C. Circuit Court of Appeals granted petitioner Competitive Enterprise Institute’s (CEI’s) motion to complete the record to the extent it requested the inclusion of EPA’s December 2019 Integrated Science Assessment for Particulate Matter in the administrative record. CEI argued that it should be included because EPA explicitly relied on it. The D.C. Circuit referred the remainder of CEI’s motion to the merits panel, along with the entirety of a motion by State and Municipal and Public Interest Petitioners to complete and supplement the record. The other documents CEI seeks to add to the record are two Clean Air Scientific Advisory Committee peer review reports; CEI argued that EPA Administrator Andrew Wheeler had said he considered these reports. The State and Municipal and Public Interest Petitioners asked that the record include certain documents related to interagency review; the petitioners said these documents were probative of their claim that EPA failed to exercise independent judgment or apply technical expertise. The D.C. Circuit’s order also established the briefing schedule for the cases, with three initial briefs from petitioners due on January 14, 2021, respondents’ brief due April 14, 2021, and reply briefs due June 1, 2021. The petitioners had asked for a more accelerated briefing schedule that would have allowed for oral argument in the current term; they had also requested that they be permitted to file five briefs.

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EPA and NHTSA contended that the motion to establish a briefing schedule was premature because motions to supplement the record and motions to intervene were still pending. If the court decided to establish a briefing format and schedule, the respondents requested that the petitioners’ opening briefs be due on January 14, 2021, with final briefs due on June 14, 2021. The respondents also argued that the petitioners’ proposed word counts were unreasonable and requested reduced word counts.

Petitioners asked the D.C. Circuit to establish a briefing schedule that would allow for oral argument during the current term, with briefing to begin on November 10, 2020 and be completed on March 5, 2021. They also requested that the court permit petitioners to file five separate principal briefs.

Two motions to add documents to the record were filed in proceedings challenging EPA and NHTSA’s revision of greenhouse gas emissions and fuel economy standards for passenger cars and light trucks. In the second motion, petitioner Competitive Enterprise Institute (CEI) sought the addition of three scientific documents regarding particulate matter. CEI argued that the final rule explicitly relied on one of the documents, and that EPA Administrator Andrew Wheeler considered the other two documents.

The State and Municipal Petitioners and Public Interest Petitioners requested that the D.C. Circuit order the respondents to add six interagency-review documents in the administrative record: two drafts of the final rulemaking notice submitted to the White House Office of Management and Budget; EPA comments to NHTSA on those drafts; and two EPA documents that provide context for its comments. The petitioners asserted that the deliberative privilege that would ordinarily shield EPA comments and the related documents from judicial review either did not apply or was “overcome by showings of need by [the petitioners] and bad faith or improper behavior by the Agencies.” The petitioners argued that the documents were probative of their claim that EPA failed to exercise independent judgment or apply technical expertise, and also that the available evidence showed that EPA was “cut out of the process of developing its own rule” and that “the Executive Branch took unprecedented and improper steps to hide the facts.”

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Public interest organization petitioners filed a motion to intervene in support of the respondents in CEI's proceeding to oppose arguments that EPA and NHTSA should have adopted weaker standards.

On May 29, 20 states, two cities, and several air quality management districts in California sought leave to intervene in support of the respondents in CEI’s proceeding to oppose any arguments that the agencies should have adopted weaker standards.

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