One Winner in Reducing GHG Emissions from Vehicles
Yesterday I outlined failed or stalled attempts by Massachusetts, California and other states to curb vehicle GHG emissions. While Massachusetts v. EPA is a stalled victory at best, and denial of California's Clean Air Act waiver request is so far a major setback for the states, the states have achieved one recent victory.
In Center for Biological Diversity v. National Highway Traffic Safety Administration, 50 F.3d 508 (9th Cir. 2007), the Ninth Circuit ruled that the National Environmental Policy Act requires all federal projects to be evaluated for both project-specific and cumulative GHG emissions impacts.
The NHTSA (National Highway Traffic Safety Administration) has petitioned for a full court rehearing of the case. If the decision stands, it will have a major impact on NEPA analysis for a wide range of federal activities. Among the requirements will be that carbon dioxide emissions must be monetized in any cost-benefit analysis of a particular project. (The NHTSA had concluded that since the value of carbon dioxide emissions could not be easily determined, they should be valued at zero.)
This decision is a significant step toward ensuring that the true costs of federal action – including environmental costs – are factored into project decision-making. Too often in the past, environmental costs were discounted or, more often, ignored and thereby not factored into the cost/benefit equation. By recognizing the cost of things like carbon emissions, hopefully more carbon-intensive projects will be rejected in favor of more climate-friendly alternatives.
Thus, as it stands today the states' record on regulating GHG emissions is one win (the NEPA case), one loss (the California Clean Air Act waiver), and one tie (Massachusetts v. EPA) hopefully to be broken when a new referee takes office in 2009. Stay tuned here for updates as these results may change.
Posted by David J. Petersen, partner practicing in the Sustainability and Real Estate & Land Use Practice Groups.
