Petition for Writ of Certiorari — Department of Transportation v. Public Citizen

supreme Court, Ug.

L FILED

03 358 SEP 8 2003

No.

Jn the Supreme Court of the Gnited States

UNITED STATES DEPARTMENT OF TRANSPORTATION,

ET AL., PETITIONERS

Vv.

PUBLIC CITIZEN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

KIRK K. VAN TINE Counsel of Record

General Counsel THOMAS L. SANSONETTI

PAUL M. GEIER Assistant Attorney General

Assistant General Counsel EDWIN S. KNEEDLER

PETER J. PLOCKI Deputy Solicitor General

Senior Trial Attorney

JEFFREY BOSSERT CLARK

BRIGHAM A. McCown Deputy Assistant Attorney

Chief Counsel General

MICHAEL J. FALK AUSTIN C. SCHLICK

Federal Motor Carrier Safety General

Administration JOHN L. SMELTZER

Department of Transportation | DAVID C.SHILTON

Washington, D.C. 20590 Attorneys

Department of Justice

JOHN K. VERONEAU _ Washington, D.C. 20530-0001

General Counsel (202) 514-2217

Office of the United States

Trade Representative

Executive Office of the President

Washington, D.C. 20508

QUESTION PRESENTED

Whether a presidential foreign-affairs action that is

otherwise exempt from environmental-review require-

ments under the National Environmental Policy Act, 42

U.S.C. 4821 et seg., and Clean Air Act, 42 U.S.C.

7506(c)(1), became subject to those requirements be-

cause an executive agency promulgated administrative

rules concerning implementation of the President’s

action.

(I)

II

PARTIES TO THE PROCEEDINGS

Petitioners are: United States Department of Trans-

portation; Federal Motor Carrier Safety Admini-

stration (FMCSA); Annette M. Sandberg, as Ad-

ministrator, FMCSA; and Joanne Haller, as Acting

Western Field Administrator, FMCSA.

Respondents who were petitioners in the court of

appeals below are: Public Citizen; Brotherhood of

Teamsters, Auto and Truck Drivers, Local 70; Califor-

nia Labor Federation; California Trucking Association;

Environmental Law Foundation; and International

Brotherhood of Teamsters.

Respondents who were petitioners-intervenors in the

court of appeals below are: Natural Resources Defense

Council and Planning and Conservation League.

TABLE OF CONTENTS

LES LAT

TABLE OF AUTHORITIES

Cases:

Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2002) ..........

California Bankers Ass'n v. Schultz, 416 U.S. 21

(1974) sueteeetnpencenensmnenensnensestensemmenemenscenssssmnessnnmenesee

Chicago & S. Air Lines, Inc. v. Waterman S.S.

Se A EID cerecscsnsrsssecsnnesnssnsnsnsnnsssssussnsssssssssee

Citizens Against Rails-to-Trails v. Surface Transp.

Bd., 267 F.3d 1144 (D.C. Cir. 2001) .......cccccccceseseeeenenenees

Crosby v. National Foreign Trade Council, 530

Te

Department of the Navy v. Egan, 484 U.S. 518

EEE

EEE A

Environmental Def. Fund v. Marsh, 651 F.2d 983

LT

Environmental Def. Fund, Inc. v. EPA, 82 F.3d 451,

amended, 92 F.3d 1209 (D.C. Cir. 1996) .........cccccccccececeseee

Franklin v. Massachusetts, 505 U.S. 788 (1992) .............

Heckler v. Mathews, 465 U.S. 728 (1984) ........cccccccccceseeoees

Ludecke v. Watkins, 335 U.S. 160 (1948) .0.........ccccccccccccees

Marsh v. Oregon Natural Resources Council,

ET

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 792 (1988) ..........c.cccccccssssesesescerserenesenees

(III)

ww ne =

18

IV

Cases—Continued: Page

Robertson v. Methow Valley Citizens Council, 490

U.S. 332 (1989) 16

Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995) ....... 17

Sierra Club v. United States Dep't of Transp., 753 F.2d

120 (D.C. Cir. 1985) _ 18

United States v. 12 200-Ft. Reels of Super 83MM.

Film, 413 U.S. 123 (1973) ” 3

Wisconsin v. Weinberger, 745 F.2d 412 (7th Cir.

1984) 19

Constitution, agreement, statutes, and regulations:

US. Const.:

Art. I, § 8, Cl. 3 (Foreign Commerce Clause) ..............-.+« 3

Art. II:

§ 2, Cl. 1.... 2-3

§3 3

North American Free Trade Agreement, Dec. 17, 1992,

32 1.L.M. 605 (1993) 2

Administrative Procedure Act, 5 U.S.C. 701-706

et seq. 11

5 U.S.C. 703 25

Clean Air Act, 42 U.S.C. 7506(¢)(1) 9, 22

Consolidated Appropriations Resolution, 2003, Pub. L.

No. 108-7, Div. I, Tit. III, § 348, 117 Stat. 419 .................. 7

Department of Transportation and Related Agencies

Appropriations Act, 2002, Pub. L. No. 107-87, 115

Stat. 833:

§ 350, 115 Stat. 864 7, 8, 12,19

§ 350(a), 115 Stat. 864 7

§ 350(a)(10)(B), 115 Stat. 866 11

Motor Carrier Safety Improvement Act of 1999, 49

U.S.C. 31148 10

National Environmental Policy Act of 1969, 42 U.S.C.

4321 et seq. 9

42 U.S.C. 4332(2\(C) 14

42 U.S.C. 4332(2)(C)(ii) 15

Vv

Statute, and regulations—Continued:

North American Free Trade Agreement Implemen-

tation Act, Pub. L. No. 103-182, 107 Stat. 2057-2225,

19 U.S.C. 3301-3473

19 U.S.C. 3311(b)

19 U.S.C. 3312(a)

28 U.S.C. 2343

49 US.C. 113(f)

49 U.S.C. 10922(1) (1982)

49 U.S.C. 13902(a)(1)

49 US.C. 13902(c)

40 C.F.R.:

Section 93.150

Section 93.152

Section 93.153(b)

Section 93.153(c)

Section 93.153(¢)(2)(iii)

Section 1500.1(c)

Section 1502.2(b)

Section 1502.16(b)

Section 1502.22

Section 1508.7

Section 1508.8(b)

I EE cenrsctectsensssemeemnenneeneneseneen

TEES. eee ee

Miscellaneous:

Ricardo Alonso-Zaldivar, NAFTA Panel Rejects

Constraints on Mexico Trucks, L.A. Times, Feb. 7,

2001

Application by Certain Mexican Motor Carriers to

Operate Beyond U.S. Municipalities and Com-

mercial Zones on the U.S.-Mezxico Border, 66 Fed.

Reg. 22,371 (2001)

Determination Under the Bus Regulatory Reform

Act of 1982, 47 Fed. Reg. 54,053 (1982)

:

aaa aki a w

VI

Miscellaneous—Continued:

Determining Conformity of General Federal Actions

to State or Federal Implementation Plans:

ae

58 Fed. Reg. 63,221 (1993) "

Steven Greenhouse, Bush to Open Country to

Mexican Truckers, N.Y. Times, Feb. 7, 2001 .............00000«

Memorandum on Implementation of NAFTA, 29

Weekly Comp. Pres. Doc. 2641 (Dec. 27, 1993) ..........0.++«:

John Nagel, Transportation: Mexico Seeks Urgent

Meeting to Discuss Implementation of Cross-Border

Trucking, 20 Int'l Trade Rep. (BNA) 521 (2003) .............

Remarks Prior to a Meeting with Virginia Guber-

natorial Candidate Mark Earley and an Exchange

with Reporters, 37 Weekly Comp. Pres. Doc. 1103

(July 26, 2001)

Remarks to the Hispano Chamber of Commerce in

Albuquerque, 37 Weekly Comp. Pres. Doc. 1174

(Aug. 15, 2001)

2 Restatement (Second) of Torts (1965)

Safety Monitoring System and Compliance Initiative

for Mexican Motor Carriers Operating in the

United States, 66 Fed. Reg. 22,415 (2001) ............cceceseeeees

Tim Weiner, Mexico Vows to Retaliate Against U.S.

on Trucking, N.Y. Times, Aug. 3, 2000 .0..........cccccccceeeesees

Jn the Supreme Court of the Gnited States

No.

UNITED STATES DEPARTMENT OF TRANSPORTATION,

ET AL., PETITIONERS

v.

PUBLIC CITIZEN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States

Department of Transportation (DOT), the Federal

Motor Carrier Safety Administration (FMCSA), the

Administrator of FMCSA, and the Acting Western

Field Administrator of FMCSA, respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit in

this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1la-

52a) is reported at 316 F.3d 1002. The interim final

rules of FMCSA are published at 67 Fed. Reg. 12,702

(App., infra, 53a-124a), 67 Fed. Reg. 12,758 (App., infra,

125a-202a), and 67 Fed. Reg. 12,776 (App., infra, 203a-

220a).

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

January 16, 2003. A petition for rehearing was denied

on April 10, 2003 (App., infra, 221a-222a). On June 30,

2003, Justice O’Connor extended the time within which

to file a petition for a writ of certiorari to and including

August 8, 2003. On July 28, 2003, Justice O’Connor

further extende’? the time within which to file a petition

for a writ of certiorari to and including September 8,

2003. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATUTES AND REGULATIONS INVOLVED

Relevant statutory provisions and regulations are set

out in an appendix to this petition. App., infra, 223a-

231a.

STATEMENT

In this case, the Ninth Circuit has required the

federal agency that is responsible for motor-carrier

safety to undertake an extensive review of the environ-

mental effects of the President’s decision to lift a trade

moratorium. The court of appeals misapplied the Na-

tion’s environmental laws and constrained the Presi-

dent’s discretion to conduct foreign affairs. The court of

appeals’ decision also prolongs a significant trade dis-

pute between the United States and Mexico, which the

President has sought to resolve in a’ cordance with the

requirements of the North American Free Trade

Agreement (NAFTA), Dec. 17, 1992, 32 1.L.M. 605

(1993), and the decision of an international arbitration

panel finding the United States to be in violation of its

obligations under NAFTA.

1. The President exercises foreign-affairs powers as

Commander-in-Chief of the armed forces (U.S. Const.

3

Art. II, § 2, Cl. 1), through his power to “receive

Ambassadors and other public Ministers” (id. Art. II,

§ 3), and in the course of “tak{ing] Care that the Laws

be faithfully executed” (ibid.). He is the Nation’s

“guiding organ in the conduct of our foreign affairs,” in

whom the Constitution vests “vast powers in relation to

the outside world.” Ludecke v. Watkins, 335 U.S. 160,

173 (1948); see Department of the Navy v. Egan, 484

U.S. 518, 529 (1988) (noting “the generally accepted

view that foreign policy was the province and respon-

sibility of the Executive”) (citation omitted).

The Foreign Commerce Clause of the Constitution,

Article I, Section 8, Clause 3, empowers Congress to

“regulate Commerce with foreign Nations.” This Court

has recognized that “[t]he Constitution gives Congress

broad, comprehensive” and “plenary” powers to regu-

late foreign commerce. United States v. 12 200-Ft.

Reels of Super 8MM. Film, 413 U.S. 123, 125-126

(1973); accord California Bankers Ass’n v. Schultz, 416

U.S. 21, 46 (1974) (“The plenary authority of Congress

over * * * foreign commerce is not open to dispute”).

NAFTA and ensuing trade reforms arise from a joint

exercise of the President’s foreign-affairs power and

Congress’s foreign-commerce power. In 1990, the

United States, Mexico, and Canada initiated negotia-

tions with the goal of eliminating or reducing trade

barriers and creating a free-trade zone that encom-

passes the three countries. In December 1992, the

leaders of the three nations signed NAFTA. Congress

implemented NAFTA through, inter alia, the North

American Free Trade Agreement Implementation Act,

Pub. L. No. 103-182, 107 Stat. 2057 (19 U.S.C. 3301 et

seq.). See generally App., infra, 7a-8a. NAFTA took

effect on January 1, 1994. See Memorandum on Imple-

4

mentation of NAFTA, 29 Weekly Comp. Pres. "ocs.

2641 (Dec. 27, 1993); 19 U.S.C. 3311(b).

2. a. This case involves a trade-liberalization policy

that the President has determined to implement in

accordance with NAFTA and pursuant to express

congressional authorization. Since 1982, the President

has been empowered to determine whether certain

Mexican and Canadian motor carriers may operate in

the United States. See 49 U.S.C. 10922(/) (1982); 49

U.S.C. 13902(c). Congress has specifically authorized

the President to lift or modify an existing trade mora-

torium adopted in 1982 that has prohibited grants of

new operating authority to Mexican motor carriers.

The moratorium arose from concerns that Mexico was

not permitting United States motor carriers the same

access to its markets as Mexican motor carriers have

had to United States markets. It prevents Mexican

carriers—other than carriers that already have

authority to operate in the United States or are not

required to obtain operating authority (such as carriers

that operate solely in commercial zones along the

United States-Mexico border)—from providing cross-

border trucking services and scheduled bus service in

the United States. See 49 U.S.C. 13902(c); see also

App., infra, 9a-10a, 56a-57a (discussing history of mora-

torium).’

In NAFTA, the United States agreed to partially

phase out the moratorium by, among other things, per-

mitting Mexican carriers to obtain operating authority

! The moratorium originally applied to Canadian as well as

Mexican motor carriers. In 1982, after the United States entered

into a bilateral understanding with Canada, the President lifted

the moratorium on new authorizations of Canadian carriers. See

Determination Under the Bus Regulatory Reform Act of 1982, 47

Fed. Reg. 54,053 (1982); see also App., infra, 56a.

5

for cross-border truck services to or from border States

starting in December 1995, and to or from any point in

the United States starting in January 2000. Due to

concerns about the adequacy of Mexico’s regulation of

motor-carrier safety, however, President Clinton did

not lift the moratorium on cross-border truck services

as scheduled. See C.A. Supp. E.R. 16, 19.

In February 2001, an international arbitration panel

convened pursuant to NAFTA’s dispute-resolution pro-

visions upheld a trade complaint that Mexico had filed

against the United States, determining that the mora-

torium on granting new cross-border operating author-

ity violates NAFTA. App., infra, 10a, 59a. The panel

recommended that the United States “take appropriate

steps to bring its practices with respect to cross-border

trucking services * * * into compliance with its

obligations under the applicable provisions of NAFTA.”

C.A. Supp. E.R. 23. Almost immediately after the

arbitrators’ decision, the President made clear his in-

tention to lift the moratorium on cross-border opera-

tions in order to comply with NAFTA and promote

trade between the United States and Mexico.”

2 See App., infra, 10a; see also, e.g., Remarks to the Hispano

Chamber of Commerce in Albuquerque, 37 Weekly Comp. Pres.

Does. 1174, 1176 (Aug. 15, 2001) (“[W]Je ought to enforce all of

NAFTA. I believe strongly we can have safety on our highways

without discriminating against our neighbors to the south. * * *

[I)f United States trucks and Canadian trucks are allowed to move

freely on our highways, we can not only enforce the laws; it will

help prosperity spread its rocts throughout our neighborhood.”);

Remarks Prior to a Meeting with Virginia Gubernatorial Can-

didate Mark Earley and an Exchange with Reporters, 37 Weekly

Comp. Pres. Docs. 1103, 1104 (July 26, 2001) (“[Mexican truckers]

need to be treated just like the Canadians are treated. We ought

to accept the spirit of NAFTA.”); Steven Greenhouse, Bush to

6

b. The Federal Motor Carrier Safety Administration

(FMCSA) is the agency within the Department of

Transportation that is responsible for motor-carrier

safety and registration. See 49 U.S.C. 113(f). FMCSA

operates under a general statutory mandate to grant

registration to all domestic or foreign motor carriers

that are “willing and able to comply with” applicable

safety and financial-responsibility requirements for

receiving operating authority. 49 U.S.C. 13902(a)(1).

FMCSA has no authority to base those registration

decisions on environmental considerations or to promul-

gate or enforce environmental requirements for motor

carriers.

In May 2001, following the decision of the NAFTA

arbitration panel and the President’s announcement of

his intention to lift the moratorium, FMCSA published

for comment proposed rules addressing the regulation

of Mexican motor carriers seeking authority to conduct

cross-border operations. One of the proposed rules (the

Application Rule) involved the establishment of a new

application form specifically for Mexican carriers that

might seek cross-border operating authority, in order

to require those carriers to submit more detailed

safety-related information than was required on the

form that the carriers previously would have used to

apply for such authority. See Application by Certain

Mexican Motor Carriers to Operate Beyond U.S.

Municipalities and Commercial Zones on the U.S.-

Mexico Border, 66 Fed. Reg. 22,371, 22,372 (2001).

Another (the Safety Monitoring Rule) proposed a

safety-inspection regime for most Mexican motor

carriers, including (but not limited to) carriers that

Open Country to Mexican Truckers, N.Y. Times, Feb. 7, 2001, at

Al2.

7

would receive operating authority under the Applica-

tion Rule. See Safety Monitoring System and Compli-

ance Initiative for Mexican Motor Carriers Operating

in the United States, 66 Fed. Reg. 22,415 (2001).°

c. In December 2001, Congress enacted Section 350

of the Department of Transportation and Related

Agencies Appropriations Act, 2002, Pub. L. No. 107-87,

115 Stat. 864, which addressed cross-border operations

by Mexican trucks. Section 350 provided that no funds

appropriated under the 2002 Appropriations Act could

be “obligated or expended for the review or processing

of an application by a Mexican motor carrier for author-

ity to operate beyond United States municipalities and

commercial zones on the United States-Mexico border”

until, among other things, FMCSA implemented spe-

cific application and safety-monitoring requirements for

Mexican carriers. Pub. L. No. 107-87, § 350(a), 115 Stat.

864. In February 2003, Congress extended the condi-

tions of Section 350 to appropriations for Fiscal Year

2003. Consolidated Appropriations Resolution, 2003,

Pub. L. No. 108-7, Div. I, Tit. III, § 348, 117 Stat. 419.

d. Meanwhile, in January 2002, as part of its con-

sideration of the Application and Safety Monitoring

Rules (and related proposed rules that are not at issue

in this case), FMCSA released an Environmental

Assessment. C.A. E.R. 26-164. FMCSA assumed in its

environmental analysis that the President would lift the

moratorium on cross-border operations. See id. at 40-

51. FMCSA explained (id. at 40-41) that the President

had announced his intention to comply with the

3 A third rule proposed on the same day, which concerns appli-

cation rules for Mexican motor carriers operating solely in border

commercial zones, is not at issue in this case.

8

arbitration panel’s decision by lifting the moratorium,

and that FMCSA’s proposed rules concerning cross-

border operations would have no practical impact until

the President lifted the moratorium. FMCSA con-

cluded that changes in Mexican truck and bus traffic

that are the result of lifting the moratorium, rather

than FMCSA’s safety program, should be attributed to

the President’s trade action rather than the safety rule-

making. Jd. at 42.

Against that background, FMCSA compared the

environmental impacts of its “Proposed Action”

alternative, under which FMCSA would adopt the new

rules and the President would lift the moratorium, with

the “Baseline Scenario,” under which FMCSA would

not promulgate new safety rules and the moratorium

would remain in place, and the “No Action” alternative,

under which FMCSA would not promulgate the pro-

posed new rules but the moratorium nevertheless

would end (a scenario that, FMCSA recognized, would

not occur as a practical matter in light of the spending

restrictions of Section 350, see C.A. E.R. 40-41). See id.

at 43-46. FMCSA assessed the potential effects of the

alternatives on traffic and congestion (id. at 76-83),

publi¢ safety and health (id. at 83-89), air quality (7d. at

89-99), noise (id. at 99-106), and socioeconomic factors

(id. at 106-113). Based on its review, FMCSA con-

cluded that “because the Proposed Action by FMCSA is

mostly administrative”—involving procedures for ob-

taining operating authority—“impacts associated with

this Action are expected to be minor.” /d. at 114. In

particular, FMCSA determined that the foreseeable

environmental impacts associated with inspectors’ con-

duct of roadside safety inspections of Mexican trucks

and buses were not significant, and that if those impacts

became significant in the future, they could be

9

mitigated without modifying the proposed safety rules.

Id. at 114-115. Accordingly, FMCSA determined that

the Application Rule and the Safety Monitoring Rule

would have no significant impact on the human environ-

ment and that a full environmental impact statement

(EIS) therefore was not required under the National

Environmental Policy Act of 1969 (NEPA), 42 U.S.C.

4321 et seq. C.A. E.R. 25.

e. On March 19, 2002, FMCSA issued its Application

Rule (App., infra, 53a-124a) and Safety Monitoring

Rule (id. at 125a- 202a). In preambles to the new rules,

FMCSA explained that its Environmental Assessment

satisfied concerns, which had been expressed by some

members of the public in their comments on the

proposed rules, that FMCSA was required to review

the rules under NEPA. See App., infra, 64a-65a, 154a-

155a.

FMCSA additionally rejected the argument of the

Attorney General of California that FMCSA was re-

quired to perform a so-called “conformity review” of the

proposed rules under the Clean Air Act (CAA), 42

U.S.C. 7506(c)(1). The CAA provides that a federal

agency shall not “engage in, support in any way or

provide financial assistance for, license or permit, or

approve” any activity that does not “conform” to the

requirements of a state air-quality implementation plan

that has been established under the CAA. 42 U.S.C.

7506(c)(1). FMCSA stated that its rules did not have to

be assessed in greater detail for compliance with the

conformity requirement because they (1) involve only

“improv[ing] FMCSA’s regulatory oversight, not an

action to modify the moratorium and allow Mexican

trucks to operate beyond the border” (App., infra, 66a),

and (2) are exempt from the conformity-review re-

quirement under an Environmental Protection Agency

10

(EPA) regulation that establishes threshold emission

amounts for various pollutants, below which no confor-

mity review is required. Id. at 65a-66a, 155a; see 40

C.F.R. 93.153(b).*

Specifically addressing the relationship between its

rules and the moratorium on granting operating author-

ity for cross-border operations by Mexican carriers,

FMCSA explained that its rules would not “‘open the

border’ or lift the current moratorium.” App., infra, at

79a. The agency noted that “(t]he President, not the

FMCSA, has that authority.” Ibid. FMCSA further

observed that “(t]he President has announced that the

United States will comply with its NAFTA obligations

regarding Mexico-domiciled motor carrier access in a

manner that will not weaken motor carrier safety. The

regulations help ensure motor carrier safety in antici-

pation of presidential action lifting the moratorium.”

Ibid.

On the same day that FMCSA published the Applica-

tion Rule and Safety Monitoring Rule, it also promul-

gated a rule that was required by the-Motor Carrier

Safety Improvement Act of 1999, 49 U.S.C. 31148, to

establish training and certification requirements for all

persons who conduct federal motor-vehicle safety in-

spections and safety audits of domestic and foreign

motor carriers. See App. infra, 203a-220a (Auditor

Certification Rule); see also id. at 205a-206a (discussing

statutory background). Although that rule was not

limited to Mexican carriers, Congress in the 2002

4 FMCSA also relied on EPA’s de minimis exemption for rule-

makings, 40 C.F.R. 93.153(c)(2)(iii). See App., infra, 65a-66a. The

court of appeals found that provision of EPA’s regulations inap-

plicable to FMCSA’s Application and Safety Monitoring Rules, see

id. at 48a-51a, and this petition does not seek review of the court of

appeals’ determination on that point. ,

1]

appropriations rider had made promulgation of that

industry-wide rule a prerequisite to expending funds on

processing Mexican carriers’ applications for cross-

border operating authority. See Pub. L. No. 107-87,

§ 350(a)(10)(B), 115 Stat. 866.

f. In November 2002, the President modified the

trade moratorium to allow FMCSA to register Mexican

carriers for cross-border operations. App., infra, 232a-

234a. The President determined that permitting cross-

border operations is “consistent with obligations of the

United States under NAFTA and with our national

transportation policy,” and that “expeditious action is

required to implement th[{e] modification to the mora-

torium.” Jd. at 233a.

3. Respondents filed petitions for review of the

Application, Safety Monitoring, and Auditor Certifica-

tion Rules, asserting that the rules were promulgated

in violation of NEPA, the conformity requirement of

the CAA, and the Administrative Procedure Act, 5

U.S.C. 701-706. See App., infra, 13a. The Ninth Circuit

granted the petitions for review.

a. The court of appeals first determined (App., infra,

14a-26a) that respondent Public Citizen—which alleges

that some of its members who live near the Mexican

border would suffer adverse health consequences from

increased emissions attributable to cross-border opera-

tions by Mexican commercial vehicles, see id. at 1l6a-

17a—has standing to challenge FMCSA’s safety rules.

The court did not suggest that FMCSA’s rulemak-

ings themselves determined whether the border would

be opened to Mexican carriers. To the contrary, the

court recognized that, by the time FMCSA issued its

safety rules, “the President * * * had already indi-

cated his intention to comply with NAFTA by lifting

the trucking moratorium” (App., infra, 19a) and “com-

12

mitted himself to a course of action to which the United

States was obligated under an important international

treaty * * * as to which it was then in default” (id. at

2la-22a). Nevertheless, the court concluded that

respondents sufficiently alleged »oth causation and

redressability. The court reasoned that Mexican trucks

would be able to conduct cross-border operations if

FMCSA’s safety regulations were upheld, but, if the

petition for review were granted, then Mexican trucks

would be temporarily excluded by virtue of Section 350,

pending FMCSA’s completion of a new environmental

analysis. See id. at 22a-23a.

b. Turning to the merits, the court of appeals

concluded that FMCSA’s Environmental Assessment

was deficient under NEPA because the agency failed to

consider the overall environmental impact of lifting the

moratorium on Mexican trucks and buses, and instead

confined its analysis to the narrower effects of

FMCSA’s safety regulations themselves. App., infra,

28a-43a. Quoting regulations promulgated by the

Council on Environmental Quality (CEQ) to guide

federal agencies’ implementation of NEPA, the court

determined that FMCSA was required to consider the

effects of lifting the trade moratorium because “the

President’s rescission of the moratorium was ‘reason-

ably foreseeable’ at the time the [Environmental As-

sessment] was prepared.” /d. at 3la (quoting 40 C.F.R.

1508.7 and 1508.8(b)). The court further concluded that,

in studying the effects of the border opening, FMCSA

should assess those effects on a long-term basis by

determining the most likely routes of Mexican traffic,

and then conducting localized environmental analysis

for particular geographic areas. See id. at 33a-39a. The

court also faulted FMCSA for failing to consider

additional alternatives to its proposed safety rules,

13

“such as, for example, proposing more stringent

controls on incoming Mexican trucks.” Jd. at 42a.

Finally, the court disagreed (id. at 43a-45a) with

FMCSA’s view that the Auditor Certification Rule

comes within a categorical exclusion from any require-

ment of further NEPA analysis.”

ce. The court of appeals further determined that

DOT erred in failing to undertake a region-by-region

conformity review of the border opening under the

Clean Air Act. App., infra, 46a-5la. The court rea-

soned that although FMCSA had determined that its

regulations would not lead to any significant increase in

motor-vehicle emissions, that determination was based

on what the court regarded as an “illusory distinction

between the effects of the regulations themselves and

the effects of the presidential rescission of the mora-

torium on Mexican truck entry.” /d. at 47a.

The court remanded the case to DOT for the prepara-

tion of “a full Environmental Impact Statement” under

NEPA and a conformity determination under the CAA,

with respect to all three regulations. App., infra, 52a.

REASONS FOR GRANTING THE PETITION

The President of the United States must be able to

act quickly and with assurance to implement the deci-

sions that are entrusted personally to him. That is

particularly true when, as here, the Presicent’s re-

sponsibilities involve relations with other nations. In

5 The court of appeals determined (Pet. App. 43a-45a) that the

Auditor Certification Rule is not categorically excluded from

NEPA review under implementing regulations of the CEQ and

DOT. This petition does not seek review of that holding. DOT is

preparing an environmental assessment to address the environ-

mental consequences of the Auditor Certification Rule and to

determine whether a full EIS should be prepared.

14

this case, the Ninth Circuit has construed the environ-

mental laws as contravening that constitutionally

grounded necessity. The Ninth Circuit’s approach is

unsupported by the relevant statutes and inconsistent

with agency regulations. If not overturned, the court of

appeals’ decision will delay substantially the United

States’ compliance with the North American Free

Trade Agreement and the arbitration panel’s decision

of February 2001. That delay is causing the Gov-

ernment of Mexico to continue its parallel restrictions

on operations by United States motor carriers and to

threaten new trade sanctions. For all of those reasons,

this Court’s review is warranted.°

1. The court of appeals erred fundamentally in

concluding that the National Environmental Policy Act

and the Clean Air Act render “illusory” (App., infra,

47a) the critical distinction, under our Constitution and

laws, between an action the President takes pursuant -

to his foreign-affairs powers and statutory authority

vested in him, and a subordinate federal agency’s do-

mestic regulatory action. The court of appeals’ decision

takes away presidential discretion that NEPA and the

CAA preserve.

a. Under NEPA, federal agencies must complete a

detailed environmental impact statement before taking

“major Federal actions significantly affecting the qual-

ity of the human environment.” 42 U.S.C. 4332(2)(C).

Regulations of the Council of Environmental Quality—

which implement the statutory requirement and “are

6 Although the government argued in the court of appeals that

respondents lack standing to challenge the FMCSA’s safety rules

under the environmental laws, the court of appeals determined

that one respondent (Public Citizen) has standing. See pp. 11-12,

supra. We do not contest the court of appeals’ standing deter-

mination in this petition.

15

entitled to substantial deference,” Marsh v. Oregon

Natural Resources Council, 490 U.S. 360, 372 (1989)—

provide that the “federal agencies” subject to NEPA do

not include “the Congress, the Judiciary, or the Presi-

dent.” 40 C.F.R. 1508.12. Therefore, the President’s

determination to implement NAFTA by lifting the

moratorium on cross-border operations by Mexican

motor carriers is not subject to NEPA’s EIS require-

ment.

The court of appeals did not dispute that. See App.,

infra, 51a (“{W]e draw no conclusions about the actions

of the President of the United States.”). Instead, the

court reasoned that CEQ regulations required FMCSA

to prepare an EIS to study the environmental conse-

quences of opening the border, because the President’s

lifting of the moratorium was a “reasonably fore-

seeable” consequence of FMCSA’s rulemakings. Jd. at

3la. Thus, in the court’s view, an agency having rele-

vant responsibility only for “ruck and bus safety—and

lacking any regulatory responsibility for either inter-

national trade or motor vehicle emissions—had to

conduct a full NEPA review of the President’s foreign-

policy decision to open the border, even though the

President did not have to undertake such a study of his

own action. ’

In reaching that incongruous and incorrect con-

clusion, the Ninth Circuit relied particularly on two

provisions of the CEQ regulations. The first states that

the environmental “effects” that must be studied by

federal agencies, see 42 U.S.C. 4332(2)(C)(ii), include

* To comply with the court of appeals’ decision if it is upheld,

FMCSA has entered into a $1.8 million contract with a vendor for

the preparation of the EIS and CAA analysis mandated by the

court of appeals’ decision.

16

not only direct effects, but also “[iJndirect effects, which

are caused by the action and are later in time or farther

removed in distance, but are still reasonably fore-

seeable.” 40 C.F.R. 1508.8(b); see 40 C.F.R. 1502.16(b).

Under that regulation, indirect effects that trigger the

EIS requirement must be “caused by the [agency]

action.” In this case, the effects of the President’s

opening of the border were not “caused by” FMCSA

under the CEQ regulations. As the court of appeals

explained, the President already had determined to

open the border, see App., infra, 20a, and his deter-

mination that doing so would be in the best interests of

the United States is what “prompted” FMCSA to issue

its safety regulations, id. at 34a.

The court of appeals’ application of CEQ’s “indirect

effects” rule therefore is flawed in two respects. First,

it illogically requires an agency that participates in

implementing a policy of the President to treat its own

subordinate action as the “cause” of the action that the

President earlier had determined to take, and over

which the agency had no authority. Second, it subjects

to full NEPA review a decision of the President that is

not subject to NEPA. NEPA’s purpose is “helpling]

public officials make decisions.” 40 C.F.R. 1500.1(c);

accord Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 349 (1989) (discussing EIS requirement).

That purpose is not served when a federal agency is

required to prepare an EIS concerning a foreign-affairs

decision that is exempt from NEPA and outside the

agency’s control, and, in addition, already has been

made.

The courtgof appeals have held that agencies are not

required to conduct NEPA reviews of “ministerial”

decisions over which they have no control. See Citizens

Against Rails-to-Trails v. Surface Transp. Bd., 267

17

F.3d 1144, 1151 (D.C. Cir. 2001) (“If * * * the agency

does not have sufficient discretion to affect the outcome

of its actions, and its role is merely ministerial, the

information that NEPA provides can have no effect on

the agency’s actions, and therefore NEPA is inapplica-

ble.”); Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th

Cir. 1995) (collecting cases). Analogously here, when

FMCSA conducted an environmental evaluation of its

own safety rules it was not required to prepare a full-

blown EIS to address the effects of the President’s

action, over which it had no control.

The court of appeals also relied on a CEQ regulation

that provides that agency EISs should address “{c]Ju-

mulative actions, which when viewed with other pro-

posed actions have cumulatively significant impacts.”

40 C.F.R. 1508.25(a)(2). A “cumulative impact” is an

impact that “results from the incremental impact of the

action when added to other past, present, and reason-

ably foreseeable future actions” of any person. 40

C.F.R. 1508.7. FMCSA determined that the require-

ment of considering cumulative effects would be satis-

fied by comparing the Baseline Scenario (under which

the moratorium would remain in place) to both the No

Action alternative (opening the border without new

FMCSA rules—which the appropriations riders for-

bade as a practical matter) and the Proposed Action

alternative (opening the border with the proposed

rules). See pp. 8-9, supra. The flaw that respondents

asserted and the court of appeals found in FMCSA’s

analysis is that the agency did not adequately investi-

gate the environmental effects of the President’s

border-opening decision itself. That is not an issue of

the cumulative effects of FMCSA’s actions. As ex-

plained, moreover, the border opening is a presidential

action exempt from EIS requirements.

' 18

pmcsAs

Phat conclusion is supported by the rule of reason

that is inherent in NEPA and CEQ’s implementing

regulations. The CEQ regulations that apply when an

EIS is required, for example, require only a “brief

discussion” of issues that are not significant (to show

why more study is not needed), see 40 C.F.R. 1502.2(b),

and make clear that the agency is not required to obtain

new information bearing on significant environmental

impacts if the cost of doing so would be “exorbitant,” 40

C.F.R. 1502.22. Similar principles apply in this case.

FMCSA estimates that preparing an EIS addressing

the President’s decision to lift the trade moratorium

would have cost well over one million dollars. FMCSA,

however, has no responsibility for the foreign-affairs

decision to which that costly effort would have related.

Those facts confirm as a commonsense matter that it

was not arbitrary and capricious for FMCSA to decline

to undertake the massive environmental review con-

templated by the court of appeals. See generally

Anderson v. Evans, 314 F.3d 1006, 1015 (9th Cir. 2002)

(noting that “arbitrary and capricious” standard applies

to agency decision against preparing EIS); Sierra Club

v. DOT, 753 F.2d 120, 126-127 (D.C. Cir. 1985) (same);

cf. Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 772, 776 (1983) (“The scope of the

agency’s inquiries must remain manageable if NEPA’s

goal of insuring a fully informed and well-considered

decision is to be accomplished.”) (internal quotations

marks, brackets, and citations omitted).°

8 Relatedly, and given the serious foreign-relations concerns

presented in this case,-see pp. 25-26, infra, the court of appeals

erred in overturning FMCSA’s safety rules and postponing imple-

mentation of the President’s decision to open the border pending

the agency’s completion of a full-blown EIS. Even if the court of

appeals’ faulty NEPA analysis were accepted, the agency still

19

b. The above analysis is not changed by the fact that

Section 350 required—-as a condition precedent to the

border opening—promulgation of special FMCSA rules

to ensure the safety of those Mexican trucks that would

enter the United States following the President’s lifting

of the moratorium. As the court of appeals itself recog-

nized, the linkage of FMCSA’s rules to the President’s

trade action existed before Congress enacted Section

350. See App., infra, 2la-22a, 34a. Furthermore, al-

though Section 350 involved Congress in the border-

opening decision, action of Congress is exempt from

NEPA under the same provision that exempts unilat-

eral action of the President. See 40 C.F.R. 1508.12. It

makes no difference under CEQ’s regulations whether

the President alone is responsible for lifting the mora-

torium, or the President and Congress jointly made

that decision and specified the conditions under which it

would occur. In either event, the decision concerning

the Nation’s foreign policy and foreign commerce was

not made by FMCSA and the lifting of the moratorium

is not attributable to FMCSA’s safety rules.

The spending restrictions of Section 350 did establish

the promulgation of FMCSA’s safety rules as a condi-

tion precedent to processing Mexican carriers’ appli-

cations for operating authority under the regulatory

statutes administered by FMCSA. That function of

processing applications is separate from the President’s

should have been allowed to determine on remand whether the

preparation of a full EIS—with the consequent delay—is required.

See, e.g., Wisconsin v. Weinberger, 745 F.2d 412, 426 (7th Cir. 1984)

(court that finds NEPA violation “should tailor its relief to fit each

particular case, balancing the environmental concerns of NEPA

against the larger interests of society that might be adversely

affected by an overly broad injunction.”) (quoting Environmental

Def. Fund v. Marsh, 651 F.2d 983, 1006 (5th Cir. 1981)).

20

decision to lift the moratorium and open the border to

Mexican trucks. It therefore is inaccurate to portray

FMCSA’s actions as the cause of the entry of additional

Mexican trucks and any consequent environmental

effects. In any event, a mere “but for” relationship is

not sufficient to establish the requisite causal link be-

tween a proposed agency action and possible environ-

mental effects under NEPA, when there is a super-

vening action such as the President’s foreign- affairs

action in this case. See Metropolitan Edison, 460 U.S.

at 773-774 (stating that NEPA’s “effects” standard is

not necessarily satisfied by “but for” causation, and

drawing analogy to tort liability); cf. 2 Restatement

(Second) of Torts §§ 440, 442 (1965) (discussing “super-

seding causes” of tortious injury).”

c. The court of appeals stated that FMCSA’s Envi-

ronmental Assessment was deficient not only for failing

to consider “the effects of the presidential rescission of

the moratorium on Mexican truck entry,” but also

because of other “methodological flaws.” App., infra,

47a. It is not clear that the court believed that those

“methodological flaws” have significance apart from

FMCSA’s determination not to conduct a full study of

9 Likewise, the court of appeals’ decision is not bolstered by

Congress’s statutory clarification that NAFTA implementation is

subject to the Nation’s environmental laws. 19 U.S.C. 3312(a), see

App., infra, 7a-8a. The issue in this case is whether the environ-

mental laws require the preparation of)an EIS concerning the

President’s foreign-affairs action, not whether those laws apply to

NAFTA implementation. Furthermore, Mexican motor carriers

that obtain authorization to operate in this country are “subject to

the same Federal and State laws, regulations, and procedures that

apply to carriers domiciled in the United States” when they pro-

vide cross-border service, “including those administered by

* * * Federal and State environmental agencies.” App., infra,

233a-234a.

21

the environmental effects of the President’s decision.

See id. at 33a-43a. The court’s conclusions concerning

FMCSA’s methodology all seem to flow from its errone-

ous determination about the necessity of preparing an

EIS that addresses the President’s actions. Further-

more, every argument that respondents presented to

the court of appeals concerning supposed defects in

FMCSA’s Environmental Assessment depended on

their theory that “(t]he challenged rules will have the

practical effect—that is, the trucks crossing the border

—that will create adverse environmental effects.” C.A.

Br. of Public Citizen, et al. 32; see id. at 27-44; see also

C.A. Br. of Natural Resources Defense Council, et al. 17

(“The [Environmental Assessment] fails to take into

account the public health effects that will result from an

increase in the number of more polluting Mexican-

domiciled trucks traveling in the U.S. once the Final

Rules are implemented.”). Because respondents raised

only the border-opening issue in the court of appeals,

the petition for review must be denied, and FMCSA’s

rules sustained, if this Court grants the instant petition

for a writ of certiorari and determines that FMCSA

was not required to prepare an EIS addressing the

environmental effects of the President’s decision to lift

the moratorium."

The respondents who were petitioners below added a new

argument in their Ninth Circuit reply brief. See C.A. Reply Br. of

Public Citizen, et al. 21 (“FMCSA has the power to influence the

number and type of Mexico-domiciled trucks that travel beyond

the border zones by determining which trucks are certified.”). But

only the arguments made in their opening brief were possible

grounds for granting relief. See Eberle v. City of Anaheim, 901

F.2d 814, 818 (9th Cir. 1990). Moreover, none of the respondents

argued in FMCSA’s rulemaking proceedings that the agency

should adopt particular safety rules because of their environmental

22

Even if respondents had preserved the argument

that FMCSA failed to study adequately the environ-

mental effects of the proposed safety rules themselves

—and even if that argument had merit—this Court’s

review of the question presented in the instant petition

would be warranted. As explained below, that question

has general importance beyond this case. See pp. 24-25,

infra. Furthermore, the scope of an ensuing agency

remand proceeding in this case, and the consequential

delay in opening the border to Mexican motor carriers,

would be far less if the agency were not required to

conduct an entirely new and potentially broad-reaching

environmental study of the President’s decision to open

the border to Mexican motor carriers.

2. The court of appeals’ application of the CAA is

similarly flawed. Under the CAA and implementing

regulations promulgated by the Environmental Pro-

tection Agency, a federal “department, agency, or

instrumentality” generally may not “engage in, support

in any way or provide financial assistance for, license or

permit, or approve, any activity” that violates an appli-

cable State air-quality implementation plan. 42 U.S.C.

7506(c)(1); 40 C.F.R. 93.150. Presidential actions are

not Subject to the CAA’s conformity requirement be-

cause the President is not a federal “department,

agency, or instrumentality.” See Franklin v. Massa-

chusetts, 505 U.S. 788, 799-800 (1992); see also 40 C.F.R.

93.152 (using “federal agency” and “Federal depart-

ment, agency, or instrumentality” interchangeably); De-

termining Conformity of General Federal Actions to

effects or, more generally, that FMCSA should adopt more strin-

gent rather than less stringent rules in an effort to benefit the

environment by marginally reducing the number of Mexican trucks

that might enter the United States.

23

State or Federal Implementation Plans, 58 Fed. Reg.

13,838 (1993) (defining federal “instrumentality” to

mean “those Federal entities which are not specifically

linked to a ‘department’ or ‘agency,’ including, for ex-

ample, an independent Federal Commission.”). Accord-

ingly, the CAA portion of this case, similarly to the

NEPA portion, can be resolved—in harmony with the

constitutional separation of powers as well as the canon

that specific statutory provisions govern general ones—

by giving effect to the exclusion of the President from

the coverage of the conformity provision.

The correctness of that result is confirmed by EPA’s

regulation defining “indirect emissions,” which the

court of appeals itself quoted. See App., infra, 49a

(quoting 40 C.F.R. 93.152). As the court suggested (id.

at 48a-49a), federal agencies must consider both the

direct emissions that result from their actions (ie.,

emissions “caused or initiated by” the action that “occur

at the same time and place as the action,” 40 C.F.R.

93.152) and the indirect emissions. See generally 40

C.F.R. 93.153(c). “Indirect emissions” are less-proxi-

mate air emissions “that would be brought about by

agency action, and that the agency can practicably con-

trol, and that are subject to a continuing program re-

sponsibility of thle] agency.” Determining Conformity

of General Federal Actions to State or Federal Imple-

mentation Plans, 58 Fed. Reg. 63,221 (1993); see 40

C.F.R. 93.152 (defining “indirect emissions”).

EPA’s indirect-emissions definition ensures that

agencies are not required to conduct conformity re-

views of “subsequent activity that,” although related to

an agency action in some way, “is outside the control or

responsibility of the federal agency.” See Environ-

mental Def. Fund, Inc. v. EPA, 82 F.3d 451, 464 (per

curiam) (upholding regulation), amended, 92 F.3d 1209

24

(D.C. Cir. 1996). Here, FMCSA has no responsibility or

control over the President’s decision to lift the

moratorium and open the border to Mexican motor

carriers, no ongoing ability to control the emissions of

Mexican motor carriers engaged in cross-border opera-

tions, and no programmatic responsibility for those

emissions. The court of appeals did not find otherwise.

Accordingly, the emissions that the court of appeals

required FMCSA to study under the CAA are neither

“direct” (proximate) emissions nor “indirect” emissions

resulting from FMCSA’s safety rules, and the confor-

mity requirement does not apply to those emissions.

3. a. The Ninth Circuit’s misapplication of NEPA and

the CAA endangers the President’s ability to act

quickly and decisively in areas such as foreign affairs

and national defense. This Court has long recognized

the necessity of preserving presidential discretion in

those matters and the inappropriateness of judicial

interference with that discretion. See, e.g., Chicago &

S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103

(1948). Particularly in the area of international

diplomacy, the President must be able to “speak for the

Nation with one voice,” and to make commitments on

behalf of the Nation in the exercise of his judgment and

discretion, without fear that those commitments will be

overridden by the courts. Crosby v. National Foreign

Trade Council, 530 U.S. 368, 381, 382 (2000); see

Heckler v. Mathews, 465 U.S. 728, 748 (1984) (“Great

nations, like great men, should keep their word.”)

(brackets omitted). In particular, the fulfillment of the

President’s lawful commitments should not be delayed

or prevented because subordinate executive officials

have not undertaken environmental reviews of the

President’s action or other matters lying outside their

authority, or because a court questions whether the

25

President’s action is consistent with conclusions an

agency reached in an EIS. The Ninth Circuit’s decision

also threatens to interfere with the internal operations

of the Executive Branch, inasmuch as the President

may be deterred from involving executive agencies in

the implementation of his policies if doing so might

effectively subject the President’s own decisions to

environmental-review requirements.

No other court of appeals has similarly applied

NEPA or the CAA to actions of the President. The

uncertainty created by the instant decision is intoler-

able, particularly when the opponents of agency action,

if they coordinate their judicial attack, often are able to

choose the judicial circuit that will hear their claims of

agency error. See generally 5 U.S.C. 703; 28 U.S.C.

2343.

b. The circumstances of this case vividly illustrate

the flaws and practical consequences of the court of

appeals’ approach. In February 2001, the President

announced his determination to comply with the arbi-

tration panel’s interpretation of NAFTA by exercising

his statutory authority to lift the moratorium on cross-

border operations by Mexican trucks and buses. Con-

gress then imposed preconditions for taking that

particular action. In November 2002, the congressional

conditions were satisfied and the President—acting

with the special force of his own inherent authority plus

express congressional authorization, see Crosby, 530

U.S. at 375—lifted the moratorium.

The Ninth Circuit’s decision prevents the President’s

action from taking effect and thereby hampers com-

merce. On a border where there are approximately 4.5

million northbound truck crossings each year, see C.A.

E.R. 55, cargo from Mexico must be transferred at the

border onto U.S. trucks before it can be shipped to

26

points in the United States beyond the border zone.

Passengers using scheduled bus services must follow

similarly inefficient procedures.

The court of appeals’ decision also prolongs a trade

dispute between the United States and Mexico. The

Government of Mexico asserts that its country has

suffered economic damages in the billions of dollars

from the moratorium on cross-border operations. See

Ricardo Alonso-Zaldivar, NAFTA Panel Rejects Con-

straints on Mexico Trucks, L.A. Times, Feb. 7, 2001, at

Al (claimed losses of $2 billion as of arbitration deci-

sion). Mexico has cited the United States’ failure to

implement the arbitration decision to justify its own

restrictions on the operations of United States motor

carriers in Mexico, which deprive those carriers of

opportunities in the Mexican market. See Tim Weiner,

Mexico Vows to Retaliate Against U.S. on Trucking,

N.Y. Times, Aug. 3, 2001, at A5. The Mexican Gov-

ernment also has indicated that it may implement

retaliatory trade restrictions against the United States

in proportion to its claimed losses. See John Nagel,

Transportation: Mexico Seeks Urgent Meeting to Dis-

cuss Implementation of Cross-Border Trucking, 20

Int’l Trade Rep. (BNA) 521 (2003). The Ninth Circuit’s

decision therefore is causing serious and ongoing harm

to United States’ businesses and consumers and to

international relations with Mexico.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

KIRK K. VAN TINE

General Counsel

PAUL M. GEIER

Assistant General Counsel

PETER J. PLOCKI

Senior Trial Attorney

BRIGHAM A. MCCOWN

Chief Counsel

MICHAEL J. FALK

Trial Attorney

Federal Motor Carrier Safety

Administration

Department of Transportation

JOHN K. VERONEAU

General Counsel

Office of the United States

Trade Representative

Executive Office of the President

SEPTEMBER 2003

THEODORE B. OLSON

Solicitor General

THOMAS L. SANSONETTI

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY BOSSERT CLARK

Deputy Assistant Attorney

General

AUSTIN C. SCHLICK

Assistant to the Solicitor

General

JOHN L. SMELTZER

DAVID C. SHILTON

Attorneys