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Center for Auto Safety v. Thomas

Citation: 17 ELR 20712
No. No. 85-1515, 806 F.2d 1071/25 ERC 1265/(D.C. Cir., 12/02/1986) Panel decision

The court upholds the Environmental Protection Agency's (EPA's) decision not to require adjustments in the corporate average fuel economy (CAFE) ratings for automobile manufacturers' sales fleets based on changes in testing procedures for road load power settings, but retroactive debits are needed for changes made in mileage accumulation limits. The Energy Policy and Conservation Act of 1975 (EPCA) requires EPA to establish test and calculation procedures to determine automobile fuel economy; these procedures may be changed through administrative rulemaking but must yield results comparable to the base year of 1975. After EPA changed its testing procedures, and was successfully challenged by two automobile manufacturers, it promulgated new rules granting retroactive credit for adverse impacts of certain of its changes, and not assessing retroactive debits for favorable impacts from other changes.

The court holds that three plaintiff membership organizations have standing to challenge EPA's CAFE rules, based on their members' interests in the widest possible choice of fuel-efficient cars. Observing that the EPCA does not specifically require exhaustion of administrative remedies or participation in rulemaking proceedings prior to judicial review, the court holds that although these plaintiffs did not participate in EPA's rulemaking it may hear their challenges, but determines that it will only decide issues raised by some party during the rulemaking process.

Two changes in the CAFE procedures that would have resulted in debiting the fuel economy ratings were considered during the rulemaking process. These changes relate to road load power settings and mileage accumulation credits. Turning to EPA's decision not to impose debits for its changes in measuring road load power settings, the court finds that the changes made were substitutes for a rarely used alternate procedure available during 1975, and that this procedure measures improved economy through enhanced aerodynamics. Consequently, no debiting is required. With regard to changes made to account for mileage accumulation limits, EPA acknowledged that its changed procedures resulted in improved CAFE ratings, but imposed only prospective changes without retroactive debits. The court finds no reasonable basis for not applying retroactive debits, concluding that in the end EPA is simply resistant to retroactive debits, but that the manufacturers must take the bitter with the sweet. The court declines to consider whether retroactive adjustments may be made at all, because this issue was not raised during rulemaking.

Counsel for Petitioners
Cornish F. Hitchcock
Public Citizen Litigation Group
2000 P St. NW, Washington DC 20036
(202) 785-3704

Counsel for Respondents
Nancy A. Ketcham-Colwill
Environmental Protection Agency
401 M St. SW, Washington DC 20024
(202) 475-8040

Before: Wald, Chief Judge, Ruth B. Ginsberg, and Bork, Circuit Judges.