Center for Biological Diversity v. National Highway Traffic Safety Administration
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Full Opinion
Opinion by Judge BETTY B. FLETCHER; Partial Concurrence and Partial Dissent by Judge SILER.
ORDER WITHDRAWING OPINION AND OPINION
ORDER
The opinion filed on November 15, 2007 and published at 508 F.3d 508 (9th Cir.2007), is hereby vacated and withdrawn. Respondents’ petition for rehearing with suggestion for rehearing en banc is denied
1. At 508 F.3d at 514, delete <Therefore, we remand to NHTSA to promulgate new standards as expeditiously as possible and to prepare a full Environmental Impact Statements and replace with < Therefore, we remand to NHTSA to promulgate new standards as expeditiously as possible and to prepare either a revised Environmental Assessment or an Environmental Impact Statements
2. At 508 F.3d at 552, delete <3. NHTSA must prepare an Environmental Impact Statement > and replace with < <3. NHTSA must prepare either a revised Environmental Assessment or, as necessary, an Environmental Impact Statement >
3. At 508 F.3d at 553, after the citation «Blue Mountains Biodiversity Project, 161 F.3d at 1212 (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir.1988)); see also Nat’l Parks & Conservation Ass’n, 241 F.3d at 730,> insert the following sentences:
NHTSA’s EA is markedly deficient in its attempt to justify the refusal to prepare a complete EIS. As explained below, the agency’s FONSI is based primarily on its conclusory assertion — contradicted by evidence in the record — that the Final Rule will have no significant environmental impact because it authorizes CAFE standards that will result in a very small decrease in carbon dioxide emissions.
4. At 508 F.3d at 554, delete paragraph <We conclude that NHTSA’s FONSI is arbitrary and capricious and the agency must.... Nat’l Parks & Conservation Ass’n, 241 F.3d at 730.>
5. At 508 F.3d at 554, insert <Idaho Sporting Cong., 137 F.3d at 1149 (internal quotation marks omitted) > between < “human environmental factor,” > and particularly in light of the compelling scientific evidence >
6. At 508 F.3d at 558, delete the sentences < NHTSA has not provided a “statement of reasons why potential effects are insignificant,” much less a “convincing statement of reasons.” See Blue Mountains Biodiversity Project, 161 F.3d at 1211 (emphasis added) (internal quotation marks omitted). It asserts simply that the insignificance of the effects is “self-evident[ ].”> and replace with <Instead of providing the required “convincing statement of reasons,” Blue Mountains Biodiversity Project, 161 F.3d at 1211 (internal quotation marks omitted), NHTSA simply asserts that the insignificance of the effects is “self-evident[.]”>
7. At 508 F.3d at 558, delete the sentence <In order that the public and the agency be fully advised, we remand and order the agency to prepare a full EIS.> and insert the following paragraphs:
Finally, we must decide the appropriate remedy given NHTSA’s inadequate EA. We have previously recognized that preparation of an EIS is not mandated in all eases simply because an agency has prepared a deficient EA or otherwise failed to comply with NEPA. If, for example, an EA is so procedurally flawed that we cannot determine whether the proposed rule or project may have a significant effect, the court should remand for the preparation of a new EA. See Metcalf v. Daley, 214 F.3d 1135, 1146 (9th Cir.2000) (ordering remand for preparation of a new EA, where prior EA was prepared after the agency had already rendered a substantive decision on the permitting action). If an agency completely fails to prepare an EA before deciding that a proposed project or rule will have no significant environmental impact, remand for preparation of an EA is likewise the prop
By contrast, if the court determines that the agency’s proffered reasons for its FONSI are arbitrary and capricious and the evidence in a complete administrative record demonstrates that the project or regulation may have a significant impact, then it is appropriate to remand with instructions to prepare an EIS. See, e.g., Nat’l Parks & Conservation Ass’n., 241 F.3d at 733-34; Idaho Sporting Cong., 137 F.3d at 1154.
The distinction — between cases where it is appropriate to order immediate preparation of an EIS and those where it is not — is implicit in this circuit’s NEPA jurisprudence, and has been explicitly recognized elsewhere. See O’Reilly v. U.S. Army Corps of Eng’rs, 477 F.3d 225, 238-39 (5th Cir.2007) (“It is also clear that a decision to forego preparation of an EIS may be unreasonable for at least two distinct reasons: (1) the evidence before the court demonstrates that, contrary to the FONSI, the project may have a significant impact on the human environment, or (2) the agency’s review was flawed in such a manner that it cannot yet be said whether the project may have a significant impact .... If the court finds that a project may have a significant impact, the court should order the agency to prepare an EIS. If the court finds, on the other hand, that the EA is inadequate in a manner that precludes making the determination whether the project may have a significant impact, the court should remand the case to the agency to correct the deficiencies in its analysis.”) (citations omitted). So, if there is uncertainty over whether the proposed project may have a significant impact, including uncertainty caused by an incomplete administrative record or an inadequate EA, the court should ordinarily remand for the agency to either prepare a revised EA or reconsider whether an EIS is required. Metcalf, 214 F.3d at 1146 (“On reflection, and in consideration of our limited role in this process, we have decided that it is appropriate only to require a new EA, but to require that it be done under circumstances that ensure an objective evaluation free of the previous taint.”); see also Hill v. Boy, 144 F.3d 1446, 1451 (11th Cir.1998) (remanding where agency’s failure to prepare an EIS was based on incorrect assumption); Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 18-19 (2d Cir.1997) (remanding due to incomplete administrative record).
Whether to require an EIS now is a very close question. Petitioners’ evidence demonstrates, overwhelmingly, the environmental significance of C02 emissions and the effect of those emissions on global warming. How NHTSA can, on remand, prepare an EA that takes proper account of this evidence and still conclude that the 2006 Final Rule has no significant environmental impact is questionable. See 40 C.F.R. § 1508.13 (FONSI is a document “presenting the reasons why an action ... will not have a significant effect on the
First, the EA’s primary deficiency lies with its conclusory assertion that a modest 0.2 percent decrease in carbon emissions renders the 2006 Final Rule environmentally insignificant. The EA provides no reasons or analysis in support of this conclusion, much less “convincing” reasons. Blue Mountains Biodiversity Project, 161 F.3d at 1212. Although Petitioners’ evidence is daunting we cannot, in the abstract, categorically decide that NHTSA’s reasons for this conclusion in a revised EA would be unconvincing.
Second, we have a significant reason to defer to the agency as to whether an EA will suffice or whether an EIS is necessary. During the pendency of this appeal, Congress enacted the Energy Independence and Security Act of 2007 (“EISA”). Pub.L. No. 110-140, 121 Stat. 1492. EISA requires NHTSA to increase fuel economy standards for passenger and non-passenger automobiles to reach a combined average of at least 35 mpg by model year 2020. See 49 U.S.C. § 32902(b)(2)(A). In connection with EISA, NHTSA has already begun preparation of a complete EIS to inform the “NEPA analysis relating to the CAFE standards for MY 2011-2015 automobiles,” including light trucks. Notice of Intent to Prepare an Environmental Impact Statement for New Corporate Average Fuel Economy Standards, 73 Fed.Reg. 16,615, 16,616 (Mar. 28, 2008) (to be codified at 49 C.F.R. pts. 531 & 533). With the exception of MY 2011, the EIS prepared as a result of the passage of EISA will not encompass the CAFE standards implemented by the 2006 Final Rule. However, information developed in preparation of the EISA-based EIS would undoubtedly inform NHTSA’s decision as to the necessity of an EIS in this case. See City of Los Angeles, 912 F.2d at 503 (Wald, C.J., dissenting) (stating that proper course was to remand without enjoining agency action because agency was “already conducting a [separate] programmatic EIS which may yet provide an adequate explanation for its finding of no significant impact”).
Taken together, these reasons lead us to conclude that the record is insufficiently complete for us to order the immediate preparation of an EIS. See O’Reilly, 477 F.3d at 240-41 (remanding without instructions to prepare EIS); Metcalf, 214 F.3d at 1146 (same); Hill, 144 F.3d at 1451 (same); Nat’l Audubon Soc’y, 132 F.3d at 18-19. We therefore remand to NHTSA to prepare a revised EA or, as necessary, a complete EIS.
8. At 508 F.3d at 558, delete <Thus, we remand to NHTSA for the preparation of a full EIS.> and replace with <Thus, we remand to NHTSA for the preparation of a revised EA or, as necessary, a full EIS.>
Our denial of the petition for rehearing with suggestion for rehearing en banc is made without prejudice to any party who may wish to file a petition for rehearing or petition for rehearing en banc with regard to the substituted opinion.
IT IS SO ORDERED.
OPINION
Eleven states, the District of Columbia, the City of New York, and four public interest organizations petition for review of a rule issued by the National Highway Traffic Safety Administration (NHTSA) entitled “Average Fuel Economy Standards for Light Trucks, Model Years 20082011,” 71 Fed.Reg. 17,566 (Apr. 6, 2006) (“Final Rule”) (codified at 49 C.F.R.
Petitioners challenge the Final Rule under the EPCA and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4347 (2007).
Second, Petitioners argue that NHTSA’s Environmental Assessment is inadequate under NEPA because it fails to take a “hard look” at the greenhouse gas implications of its rulemaking and fails to analyze a reasonable range of alternatives or examine the rule’s cumulative impact. Petitioners also argue that NEPA requires NHTSA to prepare an Environmental Impact Statement.
NHTSA argues that the Final Rule is not arbitrary and capricious or contrary to the EPCA, the Environmental Assessment’s evaluation of the environmental consequences of its action is adequate, and an Environmental Impact Statement is not required.
We have jurisdiction under 49 U.S.C. § 32909(a) to review the Final Rule issued by NHTSA. We hold 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
I. FACTUAL AND PROCEDURAL BACKGROUND
A. CAFE Regulation Under the Energy Policy and Conservation Act
In the aftermath of the energy crisis created by the 1973 Mideast oil embargo, Congress enacted the Energy Policy and Conservation Act of 1975, Pub.L. No. 94-163, 89 Stat. 871, 901-16. See H.R.Rep. No. 94-340 at 1-3 (1975), as reprinted in 1975 U.S.C.C.A.N. 1762, 1763-65. Congress observed that “[t]he fundamental reality is that this nation has entered a new era in which energy resources previously abundant, will remain in short supply, retarding our economic growth and necessitating an alteration in our life’s habits and expectations.” Id. at 1763. The goals of the EPCA are to “decrease dependence on foreign imports, enhance national security, achieve the efficient utilization of scarce resources, and guarantee the availability of domestic energy supplies at prices consumers can afford.” S.Rep. No. 94-516 (1975) (Conf. Rep.), as reprinted in 1975 U.S.C.C.A.N. 1956, 1957. These goals are more pressing today than they were thirty years ago: since 1975, American consumption of oil has risen from 16.3 million barrels per day to over 20 million barrels per day, and the percentage of U.S. oil that is imported has risen from 35.8 to 56 percent. NRDC Cmt. at ll;
In furtherance of the goal of energy conservation, Title V of the EPCA establishes automobile fuel economy standards. An “average fuel economy standard” (often referred to as a CAFE standard) is “a performance standard specifying a minimum level of average fuel economy applicable to a manufacturer in a model year.” 49 U.S.C. § 32901(a)(6) (2007). Only “automobiles” are subject to fuel economy regulation, and passenger automobiles must meet a statutory standard of 27.5 mpg, 49 U.S.C. § 32902(b),
Under the EPCA’s definitional scheme, vehicles not manufactured primarily for highway use and vehicles rated at 10,000 lbs. gross vehicle weight or more are excluded from fuel economy regulation altogether because they are not “automobiles.”
a 4-wheeled vehicle that is propelled by fuel, or by alternative fuel, manufactured primarily for use on public streets, roads, and highways ..., and rated at—
(A) not more than 6,000 pounds gross vehicle weight;7 or
(B) more than 6,000, but less than 10,-000, pounds gross vehicle weight, if the Secretary decides by regulation that—
(i) an average fuel economy standard under this chapter for the vehicle is feasible; and
(ii) an average fuel economy standard under this chapter for the vehicle will result in significant energy conservation or the vehicle is substantially used for the same purposes as a vehicle rated at not more than 6,000 pounds gross vehicle weight.
49 U.S.C. § 32901(a)(3). Although NHTSA has the authority to regulate the fuel economy of vehicles up to 10,000 lbs. GVWR, see id. § 32901(a)(3)(B), the agency has excluded vehicles exceeding 8,500 lbs. (other than medium-duty passenger vehicles manufactured during MY 2011 or thereafter) from its definition of “automobile,” see 49 C.F.R. § 523.3(b).
The CAFE standards NHTSA sets for non-passenger automobiles or “light trucks,” as referred to by the agency in its regulations,
an automobile that the Secretary decides by regulation is manufactured primarily for transporting not more than 10 individuals, but does not include an automobile capable of off-highway operation that the Secretary decides by regulation—
(A) has a significant feature (except 4-wheel drive) designed for off-highway operation; and
(B) is a 4-wheel drive automobile or is rated at more than 6,000 pounds gross vehicle weight.
49 U.S.C. § 32901(a)(16).
The Final Rule sets CAFE standards for “light trucks,” defined by NHTSA to include many SUVs, vans, and pickup trucks, for MYs 2008-2011. See 71 Fed. Reg. at 17,568; 49 C.F.R. § 533.5(a), (g), (h). A “light truck” is:
an automobile other than a passenger automobile which is either designed for off-highway operation, as described in paragraph (b) of this section,9 or de*1184 signed to perform at least one of the following functions: (1) Transport more than 10 persons; (2) Provide temporary living quarters; (3) Transport property on an open bed; (4) Provide greater cargo-carrying than passenger-carrying volume; or (5) Permit expanded use of the automobile for cargo-carrying purposes or other non-passenger-carrying purposes through [removable or folda-ble, stowable seats to create a flat floor].
49 C.F.R. § 523.5(a) (2007).
For MYs 1996 to 2004, Congress froze the light truck CAFE standard at 20.7 mpg. See 71 Fed.Reg. at 17,568. After the legislative restrictions were lifted, NHTSA set new light truck CAFE standards in April 2003: 21.0 mpg for MY 2005, 21.6 mpg for MY 2006, and 22.2 mpg for MY 2007. Light Truck Average Fuel Economy Standards Model Years 2005-2007, 68 Fed.Reg. 16,868, 16,871 (Apr. 7, 2003) (codified at 49 C.F.R. pt. 533).
In response to a request from Congress, the National Academy of Sciences (NAS) published in 2002 a report entitled “Effectiveness and Impact of Corporate Average Fuel Economy (CAFE) Standards.”
The NAS committee found that the CAFE program has increased fuel economy, but that certain aspects of the program “have not functioned as intended,” including “[t]he distinction between a car for personal use and a truck for work use/cargo transport,” which “has been stretched well beyond the original purpose.” Id. at 3. The committee also found that technologies exist to “significantly reduce fuel consumption,” for cars and light trucks and that raising CAFE standards would reduce fuel consumption. Id. at 3-4. Significantly, the committee found that of the many reasons for improving fuel economy, “[t]he most important ... is concern about the accumulation in the atmosphere of so-called greenhouse gases, principally carbon dioxide. Continued increases in carbon dioxide emissions are
B. National Environmental Policy Act
NEPA requires a federal agency “to the fullest extent possible,” to prepare “a detailed statement on ... the environmental impact” of “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C)(i) (2007); see also 40 C.F.R. § 1500.2 (2007). The purpose of NEPA is twofold: “ ‘ensure[ ] that the agency ... will have available, and will carefully consider, detailed information concerning significant environmental impacts[, and] guarantee[ ] that the relevant information will be made available to the larger [public] audience.’ ” Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir.1998) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)); see also 40 C.F.R. § 1500.1(b) (stating that environmental information must be provided “before decisions are made and before actions are taken.”). “NEPA expresses a Congressional determination that procrastination on environmental concerns is no longer acceptable.” Found, for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681 F.2d 1172, 1181 (9th Cir.1982). NEPA “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a).
If there is a substantial question whether an action “may have a significant effect” on the environment, then the agency must prepare an Environmental Impact Statement (EIS). See, e.g., Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998) (internal quotation marks omitted). An EIS should contain a discussion of significant environmental impacts and alternatives to the proposed action. See 40 C.F.R. §§ 1502.1, 1502.14, 1508.7. As a preliminary step, an agency may prepare an Environmental Assessment (EA) in order to determine whether a proposed action may “significantly affect[ ]” the environment and thereby trigger the requirement to prepare an EIS. See 40 C.F.R. § 1508.9(a)(1) (2007). An EA is “a concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.”
Whether an action may “significantly affect” the environment requires consideration of “context” and “intensity.” Id. § 1508.27; see also Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 731 (9th Cir.2001). “Context ... delimits the scope of the agency’s action, including the interests affected.” Nat’l. Parks & Conservation Ass’n, 241 F.3d at 731. Intensity refers to the “severity of impact,” which includes both beneficial and adverse impacts, “[t]he degree to which the proposed action affects public health or safety,” “[t]he degree to which the effects on the quality of the human environment are
C. NHTSA’s Proposed Rulemaking and Draft Environmental Assessment
On December 29, 2003, NHTSA published an advance notice of proposed rulemak-ing (ANPRM) that solicited comments on several proposed regulatory changes intended to increase fuel economy, including a proposal to modernize the light truek/ear distinction and a proposal to increase the GVWR limit on vehicles subject to CAFE standards. 68 Fed.Reg. 74,908 (Dec. 29, 2003). NHTSA acknowledged that its regulations define passenger and non-passenger vehicles “by the type of use to which they were generally put in the mid-1970s,” id. at 74,909, and that “[t]he markets for, and designs of, cars and light trucks have changed substantially,” with “some light trucks ... used primarily to transport passengers,” id. at 74,913. NHTSA noted that in its original NPRM promulgated in December 1976, it concluded that “Congress intended that passenger automobiles be defined as those used primarily for the transport of individuals and that all other vehicles would fall within the category of non-passenger automobiles.” Id. at 74,926. NHTSA did not present any specific proposals for reforming the CAFE program, but it presented two options for including vehicles under 10,000 lbs. GVWR in the program; (1) regulating medium-duty passenger vehicles (MDPVs),
On August 30, 2005, NHTSA issued proposed CAFE standards for light trucks MYs 2008-2011 of 22.5 mpg for MY 2008, 23.1 mpg for MY 2009, and 23.5 mpg for MY 2010.
NHTSA issued a Draft Environmental Assessment in August 2005. The Draft EA integrated much of the text from the Final EA that accompanied NHTSA’s light truck rulemaking for MYs 2005-2007 released in April 2003. See Draft Environmental Assessment, NHTSA Proposed Corporate Average Fuel Economy (CAFE) Standards 9 (Aug. 2005) (Draft EA). The Draft EA analyzed three alternatives to the proposed rule. Alternative A (“No Action”) would extend the MY 2007 standard of 22.2 mpg through MY 2011. Alternative B would be Unreformed CAFE in MY 2008-2010 and Reformed CAFE in MY 2011. Alternative C would be Reformed CAFE set at equalized cost with Unreformed CAFE in MY 2008-2010 and Reformed CAFE in MY 2011. Id.
The Draft EA noted that “C02 ... has started to be viewed as an issue of concern for its global climate change potential.” Id. at 18. With regard to biological resources, the Draft EA stated, “emissions of criteria pollutants and greenhouse gases could result in ozone layer depletion and promote climate change that could affect species and ecosystems.” Id. at 19. The projected lifetime fuel savings for MY 2008-2011 light trucks under Alternatives B and C would “rang[e] from 1.3% to 1.7% of their fuel compared to the baseline, corresponding to 4.7-6.0 billion gallons.” Id. at 25. The estimated lifetime emissions of C02 ranged from 1,341.4 million metric tons (mmt) under baseline to 1,306.4 and 1,304.0 mmt under Alternatives B and C, respectively. Id. at 29. The Draft EA concluded that the proposed standards would “result in reduced emissions of C02, the predominant greenhouse gas emitted by motor vehicles,” “reductions in contamination of water resources,” and “minor reductions in impacts to biological resources.” Id. at 30-31. In addition, “the cumulative effects estimated to result from both the 2005-2007 and 2008-2011 light truck rulemakings over the lifetimes of the vehicles they would affect are projected to be very small.” Id. at 34.
NHTSA received over 45,000 comments on the NPRM and Draft EA from states, consumer and environmental organizations, automobile manufacturers and associations, members of Congress, and private individuals. See 71 Fed.Reg. at 17,577. Manufacturers argued that reliance on a cost-benefit analysis might not “adequately account for the capabilities of the industry.” Id. They also generally opposed subjecting vehicles greater than 8,500 lbs. GVWR to CAFE regulation, arguing that those vehicles are used in a different manner than lighter vehicles and that their regulation would not result in significant fuel savings. Id. at 17,577-78. The states and environmental and consumer organizations generally argued that:
• The need of the nation to conserve energy and national security require more stringent standards, and such standards are feasible and practicable. E.g., NRDC Cmt. at 4-5; Environmental Defense Cmt. at 1 — 7;15 Public Citizen Cmt. at 1-2.16 For example, the Alliance to Save Energy — American Council for an Energy-Efficient Economy (ACEEE) argued that “[t]he*1188 10 billion gallons of fuel that NHTSA claims will be saved through the new standards over the three-decade life of model year 2008-2011 vehicles amount to less than one month’s supply of gasoline for U.S. light-duty vehicles. These savings are also insufficient to offset the expected growth in gasoline usage for even the four-year period covered by the rule.” ACEEE Cmt. at l.17
• NHTSA’s use of marginal cost-benefit analysis unlawfully overemphasizes cost at the expense of technological feasability and energy conservation and is not “technology-forcing,” as EPCA intended. E.g., NRDC Cmt. at 14-16; Environmental Defense Cmt. at 4-5; Public Citizen Cmt. at 1-2.
• Even if NHTSA’s cost-benefit analysis is permissible, the “maximum feasible” standard cannot be determined properly without taking environmental impacts into account, and the failure to monetize certain benefits such as greenhouse gas (GHG) emissions underestimates benefits of stricter standards. E.g., CBD Cmt. at 1-4;18 NRDC Cmt. at 8 (suggesting specific figures and sources for the value per ton of C02 emissions avoided, from $8/ton to $26.50/ton); Environmental Defense Cmt. at 5-6; Environmental Defense Cmt. Re: Carbon Costs at 1-3 (citing new studies from the United Kingdom that value carbon at $96-174/ton carbon).19
• Reformed CAFE “rewards fuel economy laggards while penalizing industry leaders,” Sierra Club Cmt. at 4,20 and, like Unreformed CAFE, promotes the manufacture of larger, less fuel-efficient vehicles. E.g., App. G to NRDC Cmt. at 3-4;21 States Cmt. at 5;22 Environmental Defense Cmt. at 12-13.23
*1189 • NHTSA’s analysis of the adverse safety effects of vehicle weight reduction is flawed and confounds size and weight. E.g., Sierra Club Cmt. at 8-10; App. C to Environmental Defense Cmt. at 1-4; Public Citizen Cmt. at 12-19; App. B to Public Citizen Cmt. at 1-16.
• Since the Reformed CAFE standard for a particular manufacturer depends on its fleet mix, NHTSA should include a “backstop” or guarantee that average fuel economy levels will not fall below the “maximum feasible” level. E.g., NRDC Cmt. at 24-25; ACEEE Cmt. at 5; see also App. E to NRDC Cmt. at 6-12 (analysis of gaming scenarios and upsizing trends); Environmental Defense Cmt. at 13-14 (same); App. G. to Environmental Defense Cmt. at 1-14 (same).
• The transition period (MY 2008-2010) to Reformed CAFE is unnecessary and undercuts fuel economy savings. E.g., NRDC Cmt. at 27-28; ACEEE Cmt. at 2; Environmental Defense Cmt. at 8-9; UCS Cmt. at 9.
• All Class 2b trucks between 8,500-10,000 lbs. GVWR should be regulated because fuel economy standards for them are feasible, would result in significant energy conservation, and they are used for substantially the same purposes as vehicles 6,000 lbs. or less. Environmental Defense Cmt. at 9-11; App. F to Environmental Defense Cmt. at 1-2; and Polk Study.24
• Higher fuel economy standards would help domestic automakers remain competitive in the long term and protect U.S. jobs. App. D to NRDC Cmt. at 22.25 The California Energy Resources Conservation and Development Commission commented that “[upgrading CAFE requirements could enhance jobs in the United States, especially in the automobile manufacturing sector.... Increasing light truck CAFE to 26.9 mpg in 2010 and 31 mpg in 2015 (with corresponding changes for passenger cars) would increase net jobs up to 346,000.” California Energy Commission Cmt. at 9-10.26
• NHTSA’s draft EA is inadequate and fails to consider the proposed rule’s impact on climate change. States Cmt. at 1-11; CBD Cmt. at 5-12.
See also 71 Fed.Reg. at 17,578-79 (summarizing comments).
Commenters also submitted to NHTSA numerous scientific reports and studies regarding the relationship between climate change and greenhouse gas emissions and the expected impacts on the environment.
The Intergovernmental Panel on Climate Change (IPCC)’s “Third Assessment Report,” published in 2001, presented the consensus view of hundreds of scientists on key issues relating to climate change. The IPCC concluded that “C02 concentrations increasing over [the] 21st century[are] virtually certain to be mainly due to fossil-fuel emissions,” and that “[stabilization of atmospheric C02 concentrations at 450, 650, or 1,000 ppm would require global anthropogenic C02 emissions to drop below year 1990 levels, within a few decades, about a century, or about 2 centuries, respectively, and continue to decrease steadily thereafter to a small fraction of current emissions.”
More recent evidence shows that there have already been severe impacts in the Arctic due to warming, including sea ice decline. See Attachments J, L, & Q to CBD Cmt. Global warming has already affected plants, animals, and ecosystems around the world. See, e.g., Attachment M to CBD Cmt. at 15-16. Some scientists predict that “on the basis of mid-range climate-warming scenarios for 2050, that 15-37% of species in our sample of regions and taxa will be ‘committed to extinction.’ ”