Judges, CAFE and Global Warming

For those in the business community who still do not care about the appointment of federal judges, they should take note of the decision on corporate average fuel economy (CAFE) standards just handed down by a three-judge panel of the Ninth Circuit Court of Appeals in San Francisco.

In a case brought by 13 states and cities and four environmental groups, the panel rejected the National Highway Traffic Safety Administration’s new fuel economy mandates. The panel essentially ordered the Bush administration to come up with tougher standards for light trucks, minivans, SUVs and large trucks in an effort to reduce greenhouse gas emissions.

Of course, though, such an order amounts to nothing more than another spasm of judicial activism from the notoriously activist Ninth Circuit Court of Appeals. Unfortunately, it follows an activist decision earlier this year by the U.S. Supreme Court in Massachusetts v. EPA. In that case, the Bush EPA had reversed the Clinton EPA’s decision that it had the right to regulate carbon-dioxide emissions. Naturally, assorted green groups and various states took the administration to court. As I noted in an SBE Council Cybercolumn, the result was as follows: “In a narrow 5-4 decision, the Court kicked into activist mode by ignoring the rules for standing; taking on the role of legislators by, in essence, writing its own version of the Clean Air Act; as well as adopting executive branch powers by imposing its judgment over that of the EPA’s. For good measure, the majority decided to play the role of climate experts by essentially declaring as scientific fact that which is in dispute within the scientific community regarding man-made global warming.”

And now we have the Ninth Circuit doing the same.

Two observations on this general topic are worth highlighting. In response to the Ninth Circuit’s decision, Barry McCahill, president of the SUV Owners of America, was quoted by USA Today noting that carbon dioxide “was not even a regulated substance when the original rules were issued.”

And in a dissent in Massachusetts v. EPA, Justice Antonin Scalia correctly declared: “The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.”

For good measure, let’s remember that stricter CAFE mandates mean higher vehicle costs (just what we need with rising energy costs) and reduced safety (i.e., more deaths) on our roads and highways.