When a federal appeals court yesterday threw out the Bush administration's anemic fuel economy standard for sport utility vehicles and other light trucks, the White House didn't just lose a lawsuit. "They just lost their best talking point on the environment," says lawyer Dan Becker, who now is an outside consultant to green groups after working 18 years on auto efficiency for the Sierra Club.
In fact, earlier in the week, at a special briefing with reporters on the world oil markets and energy policy, the Department of Energy had touted its light-truck standard as one of the pillars of "a very robust energy policy," in the words of Karen Harbert, assistant secretary for policy and international affairs.
Although it was indeed, as the automakers never tire of saying, the largest increase in the U.S. corporate average fuel economy, or CAFE, standard ever, not everyone was awed by the decision to force SUVs, vans, and pickups to get 1.8 mpg better fuel mileage (to an average of 24 mpg) by 2011. Memorably, Don MacKenzie, vehicle engineer with the Union of Concerned Scientists, said then, "Fighting America's oil addiction with these standards is like fighting lung cancer by smoking 49 cigarettes a day instead of 50."
The Ninth U.S. Circuit Court of Appeals was even harsher, saying that the Bush administration failed to explain why the popular SUVs should be allowed to pollute more than passenger cars, didn't address greenhouse gas emissions, and set no standard whatsoever for the heavier vehicles like the Hummer H2 and Ford F-250. In Judge Betty Fletcher's words, the administration "cannot put a thumb on the scale by undervaluing the benefits and overvaluing the costs of more stringent standards."
Although the case marked a win for the 11 states, two cities, and four environmental groups taking on the administration, there does seem something pyrrhic about a victory that puts the CAFE ball back in Bush's court.
The Veterans Day briefing with Harbert was the second time this fall that I had heard the Bush administration's tortured CAFE logic. In addition to the now jettisoned light-truck standard, the administration said it wanted Congress to give it the power to set a higher CAFE standard for passenger cars. But at the same time, the administration said it thinks it already has that authority because of a Supreme Court ruling last spring that said the Environmental Protection Agency has the power to act to curb greenhouse gases.
So why doesn't it do something? Legislation would be preferable, the administration says. And there things stand—stuck with no change in fuel economy standards for the past 30 years.
On passenger cars, Becker and others note that the administration probably does have the authority from Congress to raise CAFE standards—the Congress of 1975. Although the language of that law left any executive branch action on that score subject to a legislative veto, the legislative veto was ruled unconstitutional by the Supreme Court 24 years ago.
"If they tried to raise CAFE standards, they would find that they had the authority all along, just like Dorothy and the ruby-red slippers in The Wizard of Oz," Becker says.
Becker is not holding his breath for the administration to find its way back to Kansas. He does think that the decision increases pressure on Congress to pass legislation for the SUVs and light trucks and to act on the stalled energy bill that would increase the standard for passenger cars to 35 mpg by 2020.
But in the meantime, California Gov. Arnold Schwarzenegger may end up trumping everyone and, in effect, setting a new fuel economy standard for the nation. Nineteen states—including populous New York and Florida—have promised to follow the tough California standard, which would raise fuel economy for both cars and SUVs much faster than Congress has envisioned, once California gets the approval it needs from the Bush administration.
California sued last week over the administration's delay on this decision, and that battle may continue for the remainder of the presidency. But in January 2009, all a new president would have to do is sign California's waiver to enact a national mandate for better gas mileage.