Dept. of Transportation, et al. v. Public Citizen, et al. (06/07/2004)

Questions presented: Whether a presidential foreign-affairs action that is otherwise exempt from environmental-review requirements under the National Environmental Policy Act, 42 U.S.C. 4321 et seq., and Clean Air Act, 42 U.S.C. 7506(c)(1), became subject to those requirements because an executive agency promulgated administrative rules concerning implementation of the President's action?

BY JOSH DROBNYK, MEDILL NEWS SERVICE

In 1993, President Clinton signed into law the North American Free Trade Agreement in order to ease trade restrictions with Canada and Mexico. It was, and still is, a controversial pact, in part now because some of its policies have simply gone unheeded.

One such policy concerns the United States willingness to allow Mexican trucks across the border. By 2000, Mexican trucks were supposed to be able to enter the United States under the agreement. However, concerns about Mexicos safety standards prevented the U.S. government from lifting a trade moratorium that had barred Mexican trucks from the United States since 1982.

In 2001, an international arbitration panel ruled that the United States trade moratorium was violating NAFTA. President Bush responded by announcing his intent to open the borders to Mexican trucks, and asked the Federal Motor Carrier Safety Administration, an agency within the Department of Transportation, to issue rules overseeing the regulation of such vehicles.

By March 2002, the federal agency had published three new rules concerning the conditions under which Mexican-domiciled trucks would be permitted to enter and operate within the United States.

Just two months after the new rules were published, the non-profit organization Public Citizen filed a petition against the Department of Transportation, challenging the validity of the newly created regulations. Public Citizen alleged that the DOT violated two procedural requirements mandated by federal environmental law when it issued the regulations.

Public Citizen was soon joined in its action by other local and national environmental and labor organizations, including the International Brotherhood of the Teamsters, the California Labor Federation and the Environmental Law Foundation.

Under the Administrative Procedures Act, the case went directly to the 9th Circuit Court of Appeals.

Public Citizen claimed that the DOT violated the National Environmental Protection Act by failing to adequately prepare an environmental impact statement, which, under the law, must be carried out for "major Federal actions significantly affecting the quality of the human environment." They also alleged violations of the Clean Air Act, claiming that the DOT did not evaluate how the rules would impact the ability of states to comply with federal standards, and that the law could do "substantial environmental harm" because Mexican trucks "will emit significantly larger quantities of air pollutants than U.S. trucks" because of lax emissions standards.

"California already has some areas that are some of the most polluted in the country," said Jonathan Weissglass, attorney for the California Labor Federation. "It makes it very difficult to meet the clean air act standards that are required by the federal government."

The DOT argued that it had complied with the relevant environmental laws because it had completed a preliminary environmental assessment from which they concluded the proposed rules would not "significantly affect the quality of the human environment." Therefore, DOT claimed, a full assessment was not legally required.

On Jan. 16, 2003, a 9th Circuit panel unanimously disagreed. Holding that the DOT "acted arbitrarily and capriciously" in disregarding procedural safeguards mandated by federal environmental law, the court ordered the DOT to carry out a full Environmental Impact Statement and Clean Air Act conformity determination.

The DOTs preliminary assessment was "woefully inadequate," according to the court, in part, because it had failed to consider both the long-term effects of the new regulations and the various effects such regulations might have on different parts of the country.

The court also stressed that it did not want to "dictate the outcome" of a full analysis and said a full assessment might yet determine the new regulations to have a "minor" impact. But without such an assessment, the court wrote, too many uncertainties remained.

"An agency must complete an EIS (Environmental Impact Statement) where uncertainty may be resolved by further collection of data," the court wrote.

The DOT sought review by the U.S. Supreme Court, arguing that abiding by the rules interfered with the presidents ability to implement international trade agreements.

"The court of appeals misapplied the nations environmental laws and constrained the presidents discretion to conduct foreign affairs," the department wrote in its brief to the Court.

The attorneys for Public Citizen, however, claimed that the matter at issue was not about the presidents power, but about obeying the environmental laws stipulated under the National Environmental Protection Act and the Clean Air Act.

"This litigation does not challenge the presidents authority to modify or lift the moratorium or any other presidential authority," they wrote in response.

The Court accepted review in the case on Dec. 15, 2003.

Attorneys: For Department of Transportation, et al.:THEODORE B. OLSONSolicitor General, Counsel of RecordTHOMAS L. SANSONETTIAssistant Attorney GeneralEDWIN S. KNEEDLERDeputy Solicitor GeneralJEFFREY BOSSERT CLARKDeputy Assistant Attorney GeneralAUSTIN C. SCHLICKAssistant to the Solicitor GeneralJOHN L. SMELTZERDAVID C. SHILTON