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CENTER FOR BIOLOGICAL DIVERSITY v. ABRAHAM

July 30, 2002

CENTER FOR BIOLOGICAL DIVERSITY, BLUEWATER NETWORK, AND SIERRA CLUB, PLAINTIFFS,
V.
SPENCER ABRAHAM, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Alsup, District Judge.

       
ORDER: (1) DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND (2) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND SUMMARY JUDGMENT

INTRODUCTION

In this case, plaintiffs, three environmental organizations, seek enforcement of certain provisions of the Energy Policy Act of 1992. These provisions relate to alternative fuel vehicles, or AFVs. Alternative fuel vehicles are vehicles capable of operating on alcohol-based fuels, natural gas, biomass fuels, electricity, and other sources aside from petroleum. Defendants are eighteen government agencies and their heads, all of whom are being sued in their official capacities.*fn1 Plaintiffs now move for partial summary judgment on Count I of their complaint and summary judgment on Counts II and III. Defendants move for summary judgment as to all of plaintiffs' claims, on the ground that plaintiffs lack the capacity to sue. For the reasons given below, this order GRANTS plaintiffs' motion with regard to all of their claims. Plaintiffs have standing to bring each of their claims, and have established beyond doubt that defendants have violated the Act in that (1) several among the defendant agencies have not met the annual AFV-acquisition requirements set forth in the Act (Count I); (2) the defendant agencies have failed to compile and to properly make publicly available the compliance reports required by the Act (Count II); and (3) the Department of Energy has not met the rulemaking deadlines for private and local fleets provided in the Act (Count III). This order grants injunctive and declaratory relief with regard to Counts II and III but only declaratory relief as to Count I.

STATEMENT

Before addressing the merits, this order must set forth the law at issue here, as well as the established facts regarding defendants' compliance (or noncompliance) therewith.

1. Energy Policy Act.

On October 24, 1992, President George Bush signed the Energy Policy Act of 1992 into law. The Act was designed to create a "comprehensive national energy policy that gradually and steadily increases U.S. energy security in cost-effective and environmentally beneficial ways." H.R.Rep. No. 104-474(I), at 132, reprinted in 1992 U.S.C.C.A.N. 1954, 1955. The Act consists of twelve subchapters. Only subchapters one and three, which concern AFVs, are at issue in this case.

A. AFV-Acquisition Requirements.

The Act includes several measures designed to encourage the wider use of AFVs. This suit concerns certain of these provisions, but not others (such as the Act's requirement that alternative fuel providers themselves purchase AFVs). The provisions at issue here all concern government duties under the Act. First, the Act provides that beginning with fiscal year 1996, AFYs had to constitute a certain percentage of each federal fleet's vehicle acquisitions. The percentages mandated by the Act start with 25 percent in 1996 and rise to 33 percent in 1997, 50 percent in 1998, and 75 percent of acquisitions in 1999 and beyond. 42, U.S.C. § 13212(b)(1). A "federal fleet" is defined by the Act as twenty or more light-duty motor vehicles in a metropolitan area with a population of 250,000 or more that are centrally fueled or capable of being centrally fueled and are owned, operated, leased, or otherwise controlled by or assigned to any federal executive department, military department, government corporation, independent establishment, or executive agency, the United States Postal Service, the Congress, the courts of the United States, or the Executive Office of the President. 42 U.S.C. § 13212 (b)(3).*fn2

Under the Act, "alternative fueled vehicles" need not run solely on alternative fuels. Rather, the term also encompasses "dual fueled vehicles," which are capable of running on alternative fuels or gasoline. 42 U.S.C. § 13211 (3), (8)(B). The Act also provides that the Secretary of Energy "may permit a Federal fleet to acquire a smaller percentage than is required . . . so long as the aggregate percentage acquired by all Federal fleets is at least equal to the required percentage." 42 U.S.C. § 13212 (b)(2).

B. Compliance Reports.

Second, the Act requires each covered federal agency to prepare annual reports to Congress summarizing its compliance with alternative fuel purchasing standards. This compliance-report requirement was added to the Act in November 1998. The first report from each covered agency was due not later than November 13, 1999. The reports must include, inter alia, "any information on any failure" to meet statutory requirements; any prior plan of compliance that the agency head was required to submit under Executive Order 13031; and, if that plan of compliance did not contain specific dates by which the federal agency was to achieve compliance, a revised plan of compliance that contained specific dates for achieving compliance.*fn3 42 U.S.C. § 13218 (b)(2)(A). These reports must be made available to the public by means including posting on a publicly-available website and announcement of availability in the Federal Register. 42 U.S.C. § 13218 (b)(3).

C. Rulemaking.

Third, the Act requires the Department of Energy to undertake a staged rulemaking process to determine whether or not AFV-acquisition requirements also must be applied to private and local fleets in order to meet the Act's goals. DOE is authorized to promulgate a rule under one of two rulemaking schedules. Under the early rulemaking provisions, DOE was to have promulgated a rule by December 15, 1996, for the rule to be enforceable. 42 U.S.C. § 13257 (b)(1). If DOE missed this deadline, as was the case, the agency was required to proceed with later rulemaking. 42 U.S.C. § 13257 (b)(3).

Under the procedures for later rulemaking, DOE was required to publish an advance notice of proposed rulemaking by April 1, 1998, to evaluate the progress made toward reaching the Act's stated goals of reducing the nation's petroleum motor-fuel consumption by ten percent by the year 2000 and by thirty percent by the year 2010. DOE had to conduct at least three regional hearings and a public comment period on this advance notice of rulemaking. 42 U.S.C. § 13257 (c)(1). DOE was required to publish a proposed rule by May 1, 1999, with hearings and public comment to follow. 42 U.S.C. § 13257 (d). By January 1, 2000, DOE was required to issue a final determination regarding whether AFV-acquisition requirements applicable to private and municipal fleets were necessary. 42 U.S.C. § 13257 (e)(1). A private and municipal fleet program "shall be considered necessary" if DOE determined: (1) the goal of thirty percent replacement fuel by 2010 (an amount and date subject to modification by DOE) is not expected to be achieved without such a program; and (2) the thirty percent goal is practicable and achievable with a private and municipal fleet requirement program in combination with voluntary means and other programs. 42 U.S.C. § 13257 (e)(1)(A)-(B).

If DOE determined that a private and municipal fleet requirement program was not necessary, it was required to publish this determination not later than January 1, 2000, in the Federal Register as final agency action, including an explanation of its and a basis for its determination. 42 U.S.C. § 13257 (f)(2). If DOE determined that a private and municipal fleet requirement program was necessary, then it was required to issue a rule by January 1, 2000, requiring a percentage of the total number of new light-duty motor vehicles acquired for a fleet (other than a fleet owned by a federal, state, or covered alternative fuel provider) to be AFVs beginning in model year 2002 (or later). 42 U.S.C. § 13257 (g)(1).

2. Compliance.

The parties agree that, for the most part, the government has failed to live up to its duties under the Act.

A. AFV-Acquisition Requirements.

Despite their FOIA requests, plaintiffs have not received purchasing data from all defendant agencies. From the record, one cannot tell whether plaintiffs have sought information pertaining to certain other government entities (many immune from suit under the APA), such as Congress or the courts. Plaintiffs' information indicates that at least fifteen of the eighteen defendants have fallen short of the AFY-acquisition requirements at least one year between 1996 and 2001. By its own account, between 1996 and 2001 the Department of Defense acquired 9353 fewer AFVs than required. On the other end of the spectrum is the United States Postal Service, which between 1996 and 2001 acquired approximately 8000 more AFVs than required. All other identified government agencies fall in between, or have not provided plaintiffs (or the public) with data. Several government agencies report modest progression toward meeting the Act's percentage requirements, though their deficits often remain large. For example, the Department of Defense and Department of Agriculture are two agencies reporting data for 1996 through 2001:

AFVs as a Percentage of Overall Acquisitions

1996 1997 1998 1999 2000 2001
Department of Defense 21 24 33 36 47 57
Department of Agriculture 4 18 34 34 41 76

The following table lists all deficiencies vis-a-vis the statutory minimum that have been stipulated to by the parties:

AFVs Below Statutory Requirement

1996 1997 1998 1999 2000 2001
Department of Commerce 2 127 227 76
Department of Defense 279 722 1184 3056 ...

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