California court rules that the Bush administration broke the law by ignoring the Energy Policy Act of 1992.

epaafv.jpg Illustration by Tray Butler

Last month, while Sen. Russ Feingold (D-WI) unsuccessfully urged Congress to censure President Bush for his illegal wiretapping program, a Northern California judge called out the Bush administration on illegal neglect of energy policy. Ruling on a suit brought forth by two environmental organizations, Center for Biological Diversity and Friends of the Earth, Judge William Alsup declared that the Department of Energy violated the 1992 Energy Policy Act by failing to acknowledge that it could not meet its own goals for converting its fleet of vehicles to alternative fuel models.

“[This decision] cuts back on the ability of the executive branch to ignore laws written by congress, even if the executive branch thinks it knows better,” said the plaintiffs’ attorney Jay Tutchton via e-mail.

The ruling may force the government to purchase more alternative fuel vehicles (AFVs), which are to be used in private and municipal fleets, and are intended to set the stage for a national conversion away from gasoline.

“The near term implications are, we hope, more AFVs on the road, cleaner air and an improved quality of life,” said Tutchton, who is also director of the University of Denver Environmental Law Clinic.

The Energy Policy Act of 1992, signed into law by President George H.W. Bush, requires that 75% of all vehicles purchased by government agencies run on alternative fuel. The goal of the Act was to replace 30% of projected motor fuel consumption with alternative fuel by 2010.

Tutchton said the original plan was to use the government as a “captive market” to generate demand for AFVs, and that eventually, the increased production of AFVs would allow private citizens to convert to alternative fuel. However, governmental departments have not been purchasing at the required rate or reporting their purchases as mandated by law. The fleet belonging to the Department of Labor, for example, consists of only 3% AFVs.

The 1992 Act also requires the Secretary of Energy to set new goals for reduced oil consumption if the original goals are deemed unattainable. After setting new benchmarks, the secretary can decide whether or not a switch to AFVs would be necessary. But, since the act was passed, no Secretary of Energy has ever set these new goals before deeming the conversion unnecessary, even though it was universally acknowledged that the country would be unable to achieve the 30% fuel conversion by 2010. Therefore, the government violated the Act.

Compliance with the original standards set forth by the Energy Policy Act could have had an enormous environmental impact, according to a fact sheet on the Center for Biological Diversity’s website. The conservation group’s statement notes that besides sharply cutting down on greenhouse gas emissions, the 30% reduction would save four times as much fuel every year as drilling in the Arctic National Wildlife Refuge could provide in the same period.

However, the new ruling does not mandate that the Bush administration comply with the original standards. Instead, it is up to the Secretary of Energy to set new goals. Considering that the government has only replaced about 3% of its vehicles with AFVs in the 14 years that the act has been law, the new standard will most likely be a more reachable 10% replacement by 2015 instead of a 30% replacement by 2010, Tutchton said.

Former administrator of the Environmental Protection Agency, Christine Todd Whitman, said that setting realistic goals is a necessary component of any environmental act.

“You have to find that place where you are pushing the innovation and pushing the technology and pushing the goals that you want to get,” she said. “But you don’t make them so unrealistic that you set up for failure, because then you just give the other side the excuse of saying, ‘Hey, this was never going to work, and it’s a crazy idea.’ And then you lose everything.”

Tutchton further opined that as a country, the US is poor at achieving the goals we set. With regards to purchasing AFVs, the Clinton Administration was no better at complying with the Energy Policy Act than the Bush administration. However, according to Tutchton, Clinton did close a loophole in the Act that would have allowed the government to purchase AFVs and fill them with regular fuel.

The government may appeal the decision. If the judge decides in favor of the government, it would mean that the Secretary’s inaction would stand, implying that switching to AFVs is unnecessary. Cynthia Magnuson, a Department of Justice spokeswoman, said the defendants’ lawyers could not comment on either the case or the government’s plans for appeal.

Originally published April 23, 2006

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