In another request for judicial notice filed Wednesday with the U.S. Court of Appeals for the Ninth Circuit in Central Valley Chrysler-Jeep, Inc, .et al. v Goldstene, et al. (the auto industry’s challenge to California’s auto emissions standards on preemption grounds), California informed the court that the National Highway Traffic Safety Administration (NTHSA) plans to eliminate all mention or support of federal preemption in its soon-to-be-promulgated final rules for fuel economy standards.

California’s request that the court take notice of NHTSA’s action stated:

The National Highway Traffic Safety Administration (NHTSA) has issued a notice of intent, to be published in the Federal Register, stating that NHTSA “is reconsidering its views regarding preemption under [the Energy Policy and Conservation Act] of state standards regulation motor vehicle tailpipe emissions of carbon dioxide” (that is, standards such as those challenged in this appeal). NHTSA further explained that its final rules for model year 2011 fuel economy standards, to be issued before April 1, 2009, will “not include any discussion of preemption” but rather that “the agency will re-examine and set forth its position on preemption in the context of its forthcoming rulemaking” on fuel economy standards for model year 2012 and later. That rulemaking will be finalized before April 1, 2010.

The announcement comes after President Obama instructed the Department of Transportation (which oversees NHTSA) to revisit pro-preemption language inserted by the Bush Administration into fuel economy regulations it proposed last May. Those regulations were intended to comply with the Energy Independence and Security Act of 2007 (EISA), which mandated that, “as part of the Nation’s efforts to achieve energy independence, the Secretary of Transportation prescribe annual fuel economy increases for automobiles, beginning with model year 2011, resulting in a combined fuel economy fleet average of at least 35 miles per gallon by model year 2020.” However, as President Obama’s Jan. 26 memorandum to the Secretary of Transportation pointed out:

In the notice and comment period, the NHTSA received numerous comments, some of them contending that certain aspects of the proposed rule, including appendices providing for preemption of State laws, were inconsistent with provisions of EISA and the Supreme Court’s decision in Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007)…

Therefore, the President’s memo requested that:

(a) in order to comply with the EISA requirement that fuel economy increases begin with model year 2011, [the Secretary] take all measures consistent with law, and in coordination with the Environmental Protection Agency, to publish in the Federal Register by March 30, 2009, a final rule prescribing increased fuel economy for model year 2011;…

[and]

…(c) in adopting the final rules in paragraphs (a) and (b) above, [the Secretary] consider whether any provisions regarding preemption are consistent with the EISA, the Supreme Court’s decision in Massachusetts v. EPA and other relevant provisions of law and the policies underlying them.

NHTSA’s notice of intent signals that the Administration is working to comply with these instructions, and, moreover, to address more generally the abundant and assorted problems with the Bush Administration’s approach (or lack thereof) to climate policy.

As suggested by California’s request that the Ninth Circuit take judicial notice of NHTSA’s action, this action is expected to boost states’ efforts to defend their auto emission standards against industry claims that they are preempted by federal law. As we mentioned earlier this week, in the preemption lawsuit pending in the Ninth Circuit, California is seeking to have the industry’s appeal either held in abeyance or, alternatively, delayed, until the Obama EPA has decided whether it will grant California a waiver of preemption under the Clean Air Act to implement higher-than-federal auto emission standards, which it is widely expected the EPA will do. NHTSA’s notice of intent suggests that industry efforts to stop any eventual waiver will not be aided by the Obama Administration, which is good news indeed.

[Update 3.30.09: The revised language has been published in the Federal Register, available here.]