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In the 1980s, CAFE was the subject of several lawsuits by the Center for Auto Safety and Public Citizen, each of which attempted to force the standard to more stringent levels than those chosen by the National Highway Traffic Safety Administration. In 1986 CEI and Consumer Alert entered the picture, arguing that NHTSA was illegally ignoring CAFE’s lethal impact on traffic safety. In our view, consideration of this issue would have led to CAFE standards that were less stringent and therefore less lethal. At a minimum, a public assessment of CAFE’s safety effects would at least have informed the public of the human costs of this program.
In our first case, decided in 1990, we lost on the merits. The court did, however, rule that we had judicial standing; that is, that we were entitled to challenge NHTSA’s handling of CAFE on the basis of its impact on consumer choice and safety. That decision, reprinted below, is reported at 901 F.2d 107 (D.C. Circuit). We had far greater success in our second CAFE suit, decided in 1992 and reprinted below. The court held that NHTSA had illegally tried “to paper over” the safety issue, using a combination of “fudged analysis”, “statistical legerdemain”, “lame claims” and “specious arguments”. It found that, in pricing consumers out of affordable large cars, the agency demonstrated a “let them eat cake” attitude towards consumer safety. It concluded that when
“the government regulates in a way that prices many of its citizens out of access to large-car safety, it owes them reasonable candor. If it provides that, the affected citizens at least know that the government has faced up to the meaning of its choice. The requirement of reasoned decisionmaking ensures this result and prevents officials from cowering behind bureaucratic mumbo jumbo.”
The court sent the issue back to NHTSA to reconsider its decision. After a year and a half, NHTSA issued a new set of rationalizations for why CAFE supposedly wasn’t lethal. We sued again. This time around, a different panel of judges upheld the agency. They did, however, find NHTSA’s treatment of the safety issue to be troubling. Their ruling, issued in 1995, is reprinted below, directly after the 1992 decision. Given that courts must give federal agencies a high degree of deference, the fact that this panel noted its dissatisfaction with NHTSA suggests that the agency was still playing loose with the CAFE-safety issue.