City of Los Angeles v. National Highway Traffic Safety Administration

RUTH BADER GINSBURG, Circuit Judge,

concurring:

I concur in full in Judge D.H. Ginsburg’s disposition of the challenge of the city and state petitioners, on air pollution grounds, to NHTSA’s CAFE rollbacks for MYs 1987 and 1988. As to MY 1989, I agree with Chief Judge Wald that NRDC has standing under NEPA. See, e.g., Public Citizen v. NHTSA, 848 F.2d 256 , 269 n. 2 (D.C.Cir.1988) (Silberman, J., dissenting in part) (“Standing analysis is different under the NEPA, which confers a procedural right to have environmental impacts considered. A party is therefore ‘aggrieved’ if an agency fails to take the mandated procedural steps, provided the party actually asserts a bona fide environmental interest and is within the geographical area where the suspected impact is likely to occur.”) (emphasis in original). * A testing question, in my judgment, is whether NRDC would have standing to complain in court had NHTSA failed to engage in any environmental review, despite the directions contained in Council on Environmental Quality (CEQ) NEPA-implementing regulations. See 40 C.F.R. § 1501.1 et seq. (CEQ regulations); 49 C.F.R. § 520.1 et seq. (NHTSA’s own parallel rules). If, as I believe, the answer to that question is “yes,” then the adequacy of the agency’s compliance, i.e., NHTSA’s preparation of an “environmental assessment” rather than a fuller impact statement, relates to the merits, it seems to me, not to threshold standing.

Turning to the merits of NRDC’s challenge, I call the close question, see Opinion of Chief Judge Wald at 501 (noting that “the merits question may be a closer one than the standing question”), in the agency’s favor. I do so mindful of the deferential “abuse of discretion” standard governing judicial review of NHTSA’s decision. I further include in the calculus considerations Judge D.H. Ginsburg places under a “standing” headline, particularly (1) NRDC’s apparent acceptance of NHTSA’s finding that the 1.0 mpg CAFE rollback at issue would yield “a maximum theoretical increase of less than one percent in greenhouse gases,” EA Supplement at 8, and (2) NRDC’s failure even to allege that such an increase “would produce any marginal effect on the probability, the severity, or the imminence” of the global warming disaster petitioners project. See Opinion of Judge D.H. Ginsburg at 484.

Our precedent seems to me sounder than atypical sister circuit decisions judging standing under NEPA more restrictively, see Glover River Org. v. U.S. Dep’t of Interior, 675 F.2d 251 (10th Cir.1982), or homogenizing standing and merits inquiries, see Evanston v. Regional Transp. Auth., 825 F.2d 1121 (7th Cir.1987).