# Opposition Brief — Department of Transportation v. Public Citizen

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 752

## Text

No. 03-358

IN THE

Supreme Court of the United States

UNITED STATES DEPARTMENT OF
TRANSPORTATION, ef al..

Petitioners,
Vv.

PUBLIC CITIZEN, et al.,

Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

GAIL. RUDERMAN FEUER

ADRIANNA QUINTERO SOMAINI

NATURAL RESOURCES DEFENSE
COUNCIL

71 Stevenson Street, Suite 1825

San Francisco, CA 94105

(415) 777-0220

Attorneys for Respondents Natural
Resources Defense Council and
Planning and Conservation
League

DAVID C. VLADECK
PUBLIC CITIZEN

1600 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000

Attorneys for Respondent Public
Citizen

STEPHEN P. BERZON
Counsel of Record

JONATHAN WEISSGLASS

ADAM B. WOLF

ALTSHULER, BERZON, NUSSBAUM,
RUBIN & DEMAIN

177 Post Street, Suite 300

San Francisco, California 94108

(415) 421-7151

Attorneys for Respondents
International Brotherhood of
Teamsters, California Labor
Federation, and Environmental
Law Foundation

| Additional counsel listed on inside cover}

WiILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

@ <P 60

‘ +
«+

PATRICK J. SZYMANSKI

Cieneral Counsel

INTERNATIONAL BROTHERHOOD
OF TRAMSTERS

25 Lousiana Ave., N.W.

Washington, D.C. 20001

(202) 624-6945

Attorney for Respondent
International Brotherhood of
Teamsters

DAVID ROSENFELD

WEINBERG, ROGER & ROSENFELD
180 Grand Avenue, Suite 1400
Oakland, CA 94612

(510) 839-6600

Attorneys for Respondent
Brotherhood of Teamsters, Auto
and Truck Drivers, Local 70

PATRICK J. COUGHLIN

ALBERT HL. MEYERHOFE

STANLEY S. MALLISON

Mil BERG WEISS BERSHAD HYNES
& LERACH LLP

100 Pine Street, Suite 2600

San Francisco, California 94111

(415) 288-4545

WILLIAM S. LERACH

MILBERG WEISS BERSHAD HYNES
& LeRAcH LLP

401 B Street, Suite 1700

San Diego, CA 92101

(619) 231-1058

Attorneys for Respondents
International Brotherhood of
Teamsters, Brotherhood of
Teamsters, Auto and Truck
Drivers, Local 70, California
Labor Federation, California
Trucking Association, and
Environmental Law koundation

QUESTIONS PRESENTED

|. Whether administrative rules of a federal agency that
will permit the operation of Mexico-domiciled trucks
throughout the United States are subject to the requirement
that the agency prepare an Environmental Impact Statement
that discloses and evaluates the rules’ serious environmental
effects under the National Environmental Policy Act, 42
U.S.C. §4332.

2. Whether those same rules require a conformity analysis
with state plans under the Clean Air Act, 42 U.S.C. §7506.

(i)

TABLE OF CONTENTS

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APPENDIX

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(iii)

28

iV Vv

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued
CASES: Page Page
Aberdeen & Rockfish R.R. Co. v. SCRAP, 422 Fp ie CD cecrtiemnememmenimenenen 24
Ue 0. a 20, 24 ET ee 6, 18, 22, 24
Bennett v. Spear, 520 U.S. 154 (1997) oc cccccceeees 16 ME 25
Bowen v. Michigan Academy of Family a is SUID cncrnncnsnttunnsnenennnenninenmagineinis 24
Physicians, 476 U.S. 667 (1986) .........ccccceeeeeees 15 SB ee GPG COND cncsencserscnssrcensnsssnessenmensen 2
Cent. Bank of Denver v. First Interstate Bank of ie tins SIE ierrecsentninineintnemnnnmeen 3
Denver, S11 U.S. 164 (1994)..........cccccccccsssereees 13 FF ie SOD crcnserreunnsnreeernnemenemn 3, 26
City of Springfield v. Kibbe, 480 U.S. 257 Pie UN ncevesnsencstmmenicnemenemmemanninns 4
eee ee NE 14 2002 Department of Transportation and Related
Desert Palace, Inc. v. Costa, __. U.S. ___, 123 Agencies Appropriations Act, Pub. L. 107-87,
ee ee rrcreninnenntsinntnmnrmemieennisanees 12 SEPT hntnnesscndeneninensenentenemietenenienenemeemenmnenies 1,5,17
Franklin v. Massachusetts, 50S U.S. 788 (1992) .. 16 2002 Supplemental Appropriations Act for Fur-
Lorillard v. Pons, 434 U.S. S75 (1978) ....cccccceeeees 12 ther Recovery From and Response to Terrorist
Metropolitan Edison v. People Against Nuclear Attacks on the United States, Pub. L. No. 107-
Energy, 460 U.S. 766 (1983) .......cccccceeeeeereeeeees 20 206, Tit. 1, Chap. 7, §§706(a)(3), (j) .......eeceee 13
Ohio Forestry Association, Inc. v. Sierra Club, 2003 Consolidated Appropriations Resolution, |
ee 23 Pub. L. No. 108-7, Div. 1, Tit. Il, §348 ............ 9
Robertson v. Methow Valley Citizens Council, North American Free Trade Agreement, 32
BL 20, 23, 25, 26 _ LL.M. 289 (1993)
Tennessee Valley Authority v. Hill, 437 U.S. 153 Peli Denresmunssspnenpesmsssessemenmmmmememmneenen 3
ee 13 Gee. Te GR, Fee renennnmmen ‘eS
United States v. Bohn, 956 F.2d 208 (9th Cir. le CN ccrrrcennennssemessnmermmsenmnenes 26
UIE cxnsnssensmcemeesnnscenmnereemeenemnnenmmnseanennann 25 ee Se cnneeccenmmmmemenen 1,27
United States v. Williams, 504 U.S. 36 (1992)...... 14, 25 TT 26
ly CU Rrecccrrereeenemnnmenieemens 26
STATUTES, AGREEMENT, AND 40 C.F.R. $1500.1 (0) ..ccccccsssosssssnneceececeseseeeeesssssee 26
REGULATIONS: SN ETE ET ACES 18
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vi
TABLE OF AUTHORITIES—Continued

MISCELLANEOUS: \ Page
64 Fed. Reg. 31553-34 (June 11, 1999) ........ eee 16
68 Fed. Reg. 51322-23 (Aug. 26, 2003)... 10
68 Fed. Reg. 58162-63 (Oct. 8, 2003) .......ccccccceeees 1]

Press Release, FMCSA, FMCSA to Prepare
Environmental Impact Statement Addressing
Effects of Mexican Trucks in U.S., at http://
www.fmesa.dot.gov/contactus/press/2003/082-
603.asp (Aug. 26, 2003) .....cccccccceeeereeeeereeeereees 10

IN THE

Supreme Court of the Anited States

No, 03-358

UNITED STATES DEPARTMENT OF
TRANSPORTATION, ef al.,
Petitioners,

Vv.

PUBLIC CITIZEN, et al.,
Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

ADDITIONAL PROVISIONS INVOLVED

In addition to the statutes and regulations in petitioners’
appendix, respondents’ appendix includes other relevant
provisions: Chapter 9, Article 904(1) of the North American
Free Trade Agreement (“NAFTA”); 19 U.S.C. §3312(a)(1), a
portion of the NAFTA Implementation Act; §350(a) of the
2002 Department of Transportation and Related Agencies
Appropriations Act, Pub. L. 107-87, 115 Stat. 864-66; and a
portion of 40 C.F.R. §93.152.

2
STATEMENT
Petitioners request that this Court review a narrow decision
interpreting the applicability of domestic environment.) laws

to a federal agency’s rulemaking. Petitioners seek review to
set aside a purported constraint on the President’s discretion
over foreign affairs, an issue that was not raised below and
that is not implicated in this case. This case does not involve
the application of environmental laws to a_ presidential
decision, nor does it challenge the President’s ability to
conduct foreign policy or the validity of NAFTA. Rather, as
the court of appeals explained, the issue in this case “is
relatively narrow: we are asked only to review the adequacy
of the environmental analyses conducted by [the agency]
before promulgating the three regulations” at issue. App.
26a. The court “emphasize|d] that we draw no conclusions
about the actions of the President of the United States nor the
validity of NAFTA, neither of which is before us.” App. 51a.

1. The National Environmental Policy Act (“NEPA”), 42
U.S.C. §§4321-70(f), and the Clean Air Act (“CAA”), 42
U.S.C. §§7401-671(q), have long contained environmental
requirements that federal agencies must meet. See generally
App. 3a-7a.

NEPA requires that “to the fullest extent possible . . . all
agencies of the Federal Government shall . . . include in...
major Federal actions significantly affecting the quality of the
human environment, a detailed statement” with respect to
“the environmental impact of the proposed action, .. .
alternatives to the proposed action,” and other environmental
issues. 42 U.S.C. §4332. Moreover, “to the fullest extent
possible . . . policies, regulations, and public laws of
the United States shall be interpreted and administered
in accordance with the policies set forth in” NEPA. 42
U.S.C. §4332.

3

The CAA requires each state to develop an implementation
plan to comply with federal air quality standards. 42 U.S.C.
§7410(a). While imposing this requirement on the states,
Congress also ensured that the federal government would not
do anything to impede compliance with state plans: “No
department, agency, or instrumentality of the Federal
Government shall engage in, support in any way or provide
financial assistance for, license or permit, or approve, any
activity which does not conform to an implementation plan.”
42 U.S.C. §7506(c)(1). Each agency head is responsible
for making a determination of conformity. 42 U.S.C.
§7506(c)(1).

These NEPA and CAA provisions do not distinguish
between duties of an environmental agency and those of other
agencies. Nor do these statutes (or the Administrative
Procedure Act, 80 Stat. 392, codified as amended, 5 U.S.C.
§§551-59, 701-06, which permits judicial review of agency
action) excuse agencies from compliance when the President
takes a separate action that may also affect the environment.

2. The ratification of NAFTA did nothing to change
NEPA or the CAA; See generally App. 7a-8a. NAFTA was
meant not only to increase trade, but also to “STRENGTHEN
the development and enforcement of environmental laws and
regulations.” NAFTA pmbl., 32 LL.M. 289, 297 (1993)
(capitalization in original). Signatories to NAFTA may
“adopt, maintain or apply any standards-related measure,
including any such measure relating to . . . protection of
human .. . life or health, [or] the environment.” NAFTA, Ch.
9, Art. 904(1), 32 I.L.M. at 387. Similarly, when Congress
approved NAFTA through the NAFTA Implementation Act,
Pub. L. No. 103-182, 107 Stat. 2037, 19 U.S.C. §§3301-473,
Congress provided: “No provision of the Agreement, nor
the application of any such provision to any person or
circumstance, which is inconsistent with any law of the
United States shall have any effect.” 19 U.S.C. §3312(a)(1).

4

Accordingly, NEPA and the CAA continue to constrain
the actions of federal agencies just as those laws did
before NAFTA.

3. For years before and after ratification of NAFTA,
Congress and the President maintained a moratorium on
the operation of Mexico-domiciled motor carriers within
the United States, restricting operations to a narrow
commercial zone along the border. See App. 9a-10a. After
ratification of NAFTA, Congress continued the existing
moratorium, and authorized the President to modify or lift it
upon making certain determinations. See 49 U.S.C.
$13902(c). This litigation does not challenge the President's
authority to modify or lift the moratorium—or any other
presidential authority.

In February 2001, an arbitration panel established pursuant
to NAFTA ruled that the refusal of the United States to
consider applications of Mexico-domiciled trucks to travel
beyond border commercial zones due to safety concerns
violated NAFTA. See App. 10a; C.A. ER 312-13, SER 23.
The arbitration panel did not determine whether a delay in
considering such applications as a result of compliance with
domestic environmentai laws would violate NAFTA.
Petitioners do not assert that the panel considered
environmental issues at all, and, indeed, the panel did not—
nor could it—bar the United States from enforcing NEPA and
the CAA, which NAFTA does not override.

4. Respondents agree with petitioners that “[a]lmost
immediately after the arbitrators’ decision, the President
made clear his intention to lift the moratorium on cross-
border operations.” Pet. for Cert. at 5. The administration
stated that it would permit Mexico-domiciled trucks to travel
beyond the commercial zones by January 2002. C.A. ER
313. Meanwhile, the Federal Motor Carrier Safety
Administration (“FMCSA”), a federal agency within the
Department of Transportation (“DOT”), began the process of

5

preparing rules governing both applications for admission of
Mexico-domiciled trucks to the United States and the safety
of those trucks. The agency published proposed rules for
comment in May 2001. See App. 10a.

Congress intervened before the rules became final and
prior to any agency consideration of applications by Mexico-
domiciled carriers to operate within the United States. On
December 18, 2001, the President signed into law the fiscal
year 2002 Department of Transportation and Related
Agencies Appropriations Act, Pub. L. 107-87, 115 Stat. 833.
Section 350 of that Act provides in part: “No funds limited or
appropriated in this Act may be obligated or expended for the
review or processing of an application by a Mexican motor
carrier for authority to operate beyond United States
municipalities and commercial zones on the United States-
Mexico border until the Federal Motor Carrier Safety
Administration” puts into place certain safety and inspection
standards for Mexico-domiciled trucks seeking to operate
beyond the commercial zones. Pub. L. 107-87, §350(a). The
preconditions included that the previously published appli-
cation and safety rules contain additional requirements,
see App. 62a, 128a, and that a different rule concerning
certification be promulgated, see App. 210a.

The conditions in the 2002 DOT Appropriations Act—
which were enacted after Congress gave the President the
authority to lift the moratorium—were independent of any
presidential action, and were to remain in place regardless of
whether the President lifted the moratorium. Because
NAFTA did not change NEPA or the CAA, those statutes
applied to FMCSA as it endeavored to promulgate rules
complying with the conditions of the new legislation.

In sum, as of mid-December 2001, two key, independent
barriers prevented Mexico-domiciled trucks from operating
throughout the United States: (i) the restrictions Congress
imposed in the 2002 DOT Appropriations Act, which

6

prohibited use of funds to process applications from Mexico-
domiciled trucks until the rules at issue in this case are
properly promulgated and implemented; and (ii) the
moratorium on cross-border trucking maintained by the
President as authorized by Congress (which the President had
already announced he would lift).

In March 2002, FMCSA issued three sets of Interim Final
Rules intended to meet the congressional preconditions for
permitting entry of Mexico-domiciled trucks into this country
for operation throughout the United States. See App. 53a-
220a. FMCSA promulgated each of the three rules in order to
comply with the 2002 DOT Appropriations Act. App. 53a-
54a, 125a, 210a.

5. FMCSA did not prepare an Environmental Impact
Statement (“EIS”) for any of the three rules as required by
NEPA when a _ federal agency takes major action
“significantly affecting the quality of the human
environment.” 42 U.S.C. §4332(2)(C). Instead, for the two
rules that it had originally published in May 2001 and then
modified to comply with the 2002 DOT Appropriations Act,
see App. lla, FMCSA conducted only an Environmental
Assessment (“EA”) rather than a thorough EIS, and
concluded that there would be no significant environmental
effects, App. 107a, 128a; C.A. ER 25. For these two rules,
however, FMCSA admitted that NEPA applied to its
rulemaking: “To satisfy the requirements of the National
Environmental Policy Act (NEPA), FMCSA . . . prepared a
Programmatic Environmental Assessment (PEA) to assess the
impacts of the proposed rules.” C.A. ER 29 (emphasis
added). For the third rule, FMCSA found NEPA did not
apply because the rule was “categorically excluded.” App.
215a-l6a. FMCSA failed to conduct a CAA conformity
analysis for any of the three rules. App. 12a.

In the EA, petitioners also made a critical concession about
the ramifications of the congressional preconditions: “While

7

the appropriations hold is in effect, any Presidential order to
modify the statutory moratorium will have no practical effect,
since FMCSA would still be prohibited from processing . . .
applications.” C.A. ER 41 (emphasis added). Despite this, as
petitioners admit, the agency’s EA failed to attribute to its
rules the effects of changes in truck traffic from Mexico.
C.A. ER 42; Pet. for Cert. at 8.

Once the preconditions are fulfilled, and FMCSA begins
processing applications to cross the border from a large
number of Mexico-domiciled trucks, substantial environ-
mental harm will result because those trucks will emit
significantly larger quantities of harmful air pollutants than
U.S. trucks. See, e.g., C.A. ER 265-70, 362-63. These
increased emissions will raise serious public health concerns.
Id. at 340. The fine particulate matter from such emissions is
linked to significant adverse health effects, including both
lung cancer and non-cancer respiratory effects such as
asthma. /d. at 342-45. Epidemiological comparisons of death
rates among cities with different levels of air pollution
indicate that even moderate differences in fine particle air
pollution are associated with increased mortality, with a
concentration in cardiovascular causes of death. /d. at 340,
343. This represents the largest environmental public health
problem that currently exists in this country. /d. at 340.

6. Respondents filed timely petitions for review of the
three rules. App. 13a. The petitions did not seek to interfere
with the President’s decision whether to lift the moratorium,
but sought only to ensure that FMCSA complied with NEPA
and the CAA in promulgating its own rules.

In November 2002, while the litigation was pending, the
President lifted the moratorium to permit Mexico-domiciled
trucks to cross the border. App. 13a-14a, 232a-34a. Despite
this presidential action, Mexico-domiciled trucks were not
able to travel into the United States because FMCSA still had
to implement the rules that Congress had made a separate

8

pre-condition to the entry of the trucks with the consequent
environmental effects. In the almost seven weeks between
the time the President lifted the moratorium and the court of
appeals issued its decision, FMCSA did not authorize any
Mexico-domiciled trucks to travel beyond the border zones.

On January 16, 2003, the court of appeals issued a decision
requiring compliance with “long-established environmental
laws.” App. Sla. The court first found that respondent
Public Citizen has standing to pursue this challenge. App.
14a-26a. The critical determination in the standing analysis
was that FMCSA’s rules would cause environmental harm
because trucks would be permitted to cross the border only
following the proper promulgation of those rules. See App.
18a-22a. The lower court noted that the relief requested
would not interfere with presidential action and would not
affect the viability of NAFTA. App. 26a. The court of
appeals instead found that “the issues before us do not touch
on [the President’s}] clear, unreviewable discretionary
authority to modify the moratorium” and that “neither the
validity of nor the United States’ compliance with NAFTA is
before us.” /d. Petitioners do not contest the standing
decision. Pet. for Cert. at 14 n.6.

The court of appeals then addressed NEPA’s statutory and
regulatory requirements. The lower court found that the rules
constitute “major federal actions” under NEPA because their
effects cannot be -artificially constrained by ignoring the
uncontested fact that trucks will be permitted into this country
only after the rules go into effect. See App. 30a-3la
(referring to discussion at App. 18a-22a). The lower court
also. found that the rules may have a_ significant
environmental impact. App. 3la-42a. Accordingly, the court
of appeals found FMCSA acted arbitrarily and capriciously in
failing to prepare an EIS. The court also found that no
categorical exclusion applied. App. 43a-45a.

9

Finally, the court of appeals turned to the CAA claims, and
held that a conformity determination was required. App. 46a-
52a. The lower court found that FMCSA’s actions were not
subject to either of the CAA exemptions the agency
advanced. First, FMCSA did not show that the total of direct
and indirect emissions caused by the agency's regulations
would fall below de minimis amounts. App. 47a-48a. Sec-
ond, the court held that regulations are not categorically
excluded from the conformity analysis requirement. App.
48a-Sla.

After the court below issued its January 16, 2003 decision,
petitioners filed a petition for rehearing and petition for
rehearing en banc, which the court of appeals denied without
a request for an en_banc vote by Order of April 10, 2003.
App. 22 1a-22a.

Petitioners did not seek a stay and did not file their Petition
for a Writ of Certiorari until September 8, 2003. By the time
they filed the Petition, FMCSA had already begun the process
of conducting both an EIS and a CAA conformity analysis.
Pet. for Cert. at 15 n.7.

7. Meanwhile, on February 20, 2003, after the widely
publicized decision by the court of appeals, Congress passed
and the President signed into law the 2003 Consolidated
Appropriations Resolution, which extended the preconditions
to the 2003 fiscal year Pub. L. No. 108-7, Div. I, Tit. II,
$348, 117 Stat. 419. Thus, Congress continued the pre-
conditions on Mexico-domiciled trucks crossing the border,
with the understanding that FMCSA must complete an EIS
and a conformity analysis to meet those preconditions.

REASONS FOR DENYING THE PETITION

This is a petition in search of a problem. Despite petition-
ers’ attempt to convert this case into a foreign policy
challenge, it concerns only the routine application of
domestic environmental laws to federal agency action.
Additionally, the issues presented are well on their way to

10

resolving themselves without this Court's intervention.
FMCSA is presently preparing the required EIS and
conformity analysis. And, if there was ever any doubt as to
whether Congress meant to require an EIS and a conformity
analysis, there can no longer be any question because
Congress enacted the same appropriations -esiriction after the
court of appeals ruled. Moreover, the decision of the court of
appeals creates no conflict among the circuits and is unlikely
to do so in the future, as this case arose out of an unusual set
of factual circumstances and is sui generis. Other than
claiming that the court of appeals erred in interpreting certain
provisions of NEPA and the CAA (which is neither correct
nor a good reason for this Court to grant certiorari even if
correct), petitioners focus only on an erroneous allegation that
this case interferes with the President's role in foreign affairs.
See, e.g., Pet. for Cert. at 24. That claim is not implicated by
the challenge to FMCSA’s rules that is the subject of this
case, and is not even properly before the Court because it was
neither raised nor passed on below.

|. There is no reason for the Court to decide the legal
questions posed by the idiosyncratic facts of this case because
the matter warrants no further judicial intervention. The
issue will soon resolve itself, and there is no need for the
Court to intervene.

FMCSA has already “entered into a $1.8 million contract
with a vendor for the preparation of the EIS and CAA
analysis.” Pet. for Cert. at 15 n.7. The agency also published
a notice of intent to prepare the analyses. 68 Fed. Reg.
§ 1322-23 (Aug. 26, 2003). FMCSA estimates that the studies
will be complete as early as the summer of 2004. See Press
Release, FMCSA, FMCSA to Prepare Environmental Impact
Statement Addressing Effects of Mexican Trucks in U.S., at
http://www.fmesa.dot.gov/contactus/press/2003/082603.asp
(Aug. 26, 2003). Public comments on the scope of the studies
were due on November 7, 2003, and FMCSA has held nine

meetings throughout the country to obtain public input into
what environmental effects and alternatives should be
considered. /d.; 68 Fed. Reg. 58162-63 (Oct. 8, 2003).

If the Court were to hear this case, it is likely that an
opinion would not issue until late spring or summer of 2004.
The EIS and conformity analysis would then be close to
completion. The scoping sessions are finished. The drafting
of the studies would be far along by the time any opinion
issued, by which point FMCSA would have already done
most of the work on the project.

FMCSA’s actions in this case belie its claim that the EIS
and CAA processes should be cut short. The court of appeals
ruled almost 10 months ago, FMCSA did not seek a stay, and
the Solicitor General asked for two extensions and took 150
days from the denial of en banc review to file the Petition.
Now, in the midst of conducting the studies—indeed, having
notified the public that the agency intends to conduct the
reviews and having taken comments from the public—it
makes no sense to ask this Court for a ruling to permit
FMCSA to cut short the processes to which it and the public
have devoted significant time and resources. Petitioners point
to no harm from developing the information over the next
several months that will permit FMCSA to make an informed
decision about the rules at issue.'

2. Even if the issues in this case were not well on their
way to being resolved without this Court's intervention, the
question of statutory interpretation on which the court of
appeals ruled is no longer an even arguably open question.

' Were FMCSA to contend that the Court should hear this case because
of the cost of conducting the environmental reviews, it would be too late
to make that argument. FMCSA has already entered into the contract.
Pet. for Cert. at 15 n.7. Even were the contract voidable if the Court
were to rule in FMCSA’s favor, most of the money would already have

}?

Petitioners completely ignore that the only question for the
judiciary here is what Congress intended and therefore miss
the implications of what has occurred since the court of
appeals’ decision.

NEPA and the CAA are congressional enactments, and
Congress has the power to decide whether these statutes
should apply in any particular case. There can be no question
that Congress has the power to enact a statute requiring an
EIS and a conformity analysis before FMCSA permits trucks
to cross the border. The only question is whether Congress
did mandate such analyses via the preconditions in the
appropriations process. That question is readily answered by
what Congress did after the court of appeals ruled.

Congress legislates with judicial review as a backdrop.
See, e.g., Desert Palace, Inc. v. Costa, __. U.S. ___, 123
S.Ct. 2148, 2151 (2003). More particularly, the doctrine of
ratification provides that “Congress is presumed to be aware
of a... judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.”
Lorillard v. Pons, 434 U.S. 575, 580 (1978).

In this case, the court of appeals filed its decision finding
the rules did not comply with NEPA and the CAA on January
16, 2003. The court found that the 2002 DOT Appropriations
Act “conditioned funding for permitting Mexican truck traffic
into the United States” on the challenged rules, that the rules
were an independent cause of trucks being permitted to cross
the border, and that the rules therefore caused environmental
effects. App. 9a, 19a-23a, 30a-3la, 47a. That decision
received widespread publicity in the Washington Post, New
York Times, Wall Street Journal, Los Angeles Times, CBS
Evening News, and other media sources.

At that point, Congress had the complete power to express
its disapproval by stating that nothing in the appropriations
language required an EIS or a conformity analysis. Congress

13

knows how to use such power in the context of the appropria-
tions process, and has exempted certain activities from
NEPA’s application, including in response to litigation. See,
e.g., 2002 Supplemental Appropriations Act for Further
Recovery From and Response to Terrorist Attacks on
the United States, Pub. L. No. 107-206, Tit. I, Chap. 7,
§§706(a)(3), (j), 116 Stat. 864, 868 (“actions authorized by
this section shall proceed immediately and to completion
notwithstanding any other provision of law including, but not
limited to, NEPA”).

Congress did not take such action here. To the contrary,
after the lower court's ruling Congress affirmatively extended
the same restrictions for the 2003 fiscal year. In so doing,
Congress ratified and adopted the court of appeals’ ruling.

That Congress took affirmative action to provide for the
continued vitality of the preconditions in this case is of
particular significance. Although congressional inaction has
generally been rejected as an interpretive aid, see, ¢.g., Cent.
Bank of Denver v. First Interstate Bank of Denver, 511 U.S.
164, 186-87 (1994), affirmative congressional reenactment is
recognized as a highly persuasive indicator of congressional
intent, see, e.g., id. at 185.

Application of the doctrine of ratification is particularly
appropriate given the public policy issues involved in this
case. Although petitioners mischaracterize this case as one
that involves interference with the President's foreign-affairs
power rather than as a simple exercise of Congress’ power,
this matter undeniably implicates public policy considera-
tions. By reenacting the appropriations language after the
court of appeals’ decision, Congiess spoke on how to balance
the competing public policy concerns at issue. It is not the
province of the judiciary to question the soundness of
Congress’ judgment in this arena. See Tennessee Valley
Auth. v. Hill, 437 U.S. 153, 194 (1978) (noting “exclusive

14

province of the Congress not only to formulate legislative
policies and mandate programs and projects, but also to
establish their relative priority for the Nation”). As Congress
has clearly manifested its intent in the 2003 fiscal year, there
is no reason for this Court to decide whether the court of
appeals was correct about what Congress meant in the 2002
DOT Appropriations Act.

3. Petitioners ignore that all the decision below did is
enforce a congressional act, and instead argue that this
challenge seeks to interfere with the President's constitutional
power over foreign affairs. This argument is based on a
misconception of this case, which we explain below. As a
threshold matter, however, the argument is not properly
before the Court because petitioners failed to raise the issue
below, and the court of appeals therefore did not address
whether its decision unconstitutionally impeded _ the
President's foreign-affairs powers.

a. This Court’s “traditional rule” is that it will not
hear a case “when the question presented was not pressed or
passed upon below.” United States v. Williams, 504 U.S. 36,
41 (1992) (internal quotation marks omitted); see also City
of Springfield v. Kibbe, 480 U.S. 257, 258-60 (1987) (per
curiam) (dismissing writ of certiorari as improvidently
granted).

The present petitioners, as respondents in the court of
appeals, did not press the President’s foreign-affairs power.
Instead, they argued (incorrectly) that environmental effects
would occur only “as a result of future action that the
President may take with respect to trade policy” and “as a
result of modifying the moratorium.” C.A. Resp. Brief at 35,
47. They also claimed that the court of appeals should not
question “the wisdom of the decision to liberalize trade
barriers” under NAFTA. C.A. Resp. Supp. Brief. at 13.
Neither in their merits briefs nor in oral argument, however,

15

did petitioners argue that an adverse decision could interfere
with the President’s constitutional power over foreign affairs.
Likewise, the court of appeals’ opinion does not address the
foreign-affairs argument that petitioners now raise. Accord-
ingly, this Court should decline to grant certiorari to address
the President’s foreign-affairs power.

b. Notwithstanding their failure to raise the issue
below, petitioners now claim that the foreign-affairs question
is important enough to warrant review by this Court.
Properly understood, however, there is no foreign affairs
issue in this case.

Petitioners suggest that this case poses the question
whether the President’s action in lifting the moratorium is
subject to NEPA, and argue that the court of appeals required
“a full NEPA review of the President's foreign-policy
decision to open the border.” Pet. for Cert. at 15. As if
repetition would make it so, petitioners repeat similar
assertions throughout. See id. at 2, 15, 16, 17, 21, 22. But
respondents do not make such a claim, and the court of
appeals did not so hold.

Respondents do not challenge any presidential action in
lifting the moratorium or otherwise, nor do they challenge
NAFTA. Rather, they challenge a federal agency's failure to
conduct statutorily required environmental reviews before
promulgating and implementing rules as required by
Congress. Challenges to such actions are wholly proper. See,
e.g., Bowen v. Michigan Acad. of Family Physicians, 476
U.S. 667, 681 (1986) (stating presumption that Congress
“expects the courts to grant relief” if federal agency violates
statutory command). Here, FMCSA did not conduct environ-
mental reviews required by statute. Actions challenging such
failure are commonplace.

That FMCSA and the President both have roles to play in
making decisions about cross-border trucking does not

16

preclude judicial review of FMCSA’s compliance with
environmental laws. The Administrative Procedure Act
permits review of “final agency action.” 5 U.S.C. §704; see
also Bennett v. Spear, 520 U.S. 154, 175 (1997); id. at 177-78
(agency action is final when it marks “consummation of the
agency's decisionmaking process” and either “rights or
obligations have been determined” or “legal consequences
will flow”) (internal quotation marks omitted). Petitioners
did not dispute below that FMCSA’s rules at issue constitute
final agency action regardless of the President’s entirely
separate decision about whether to lift the moratorium, and
the test for final agency action is readily met here.”

This is not a case where an agency merely provides a
recommendation to the President, who then has final
decisionmaking authority, and hence the agency recom-
mendation does not constitute final agency action, See
Franklin v. Massachusetts, 505 U.S. 788, 797-99 (1992).
Unlike the situation in Franklin, the rules here are not a
recommendation, as there is no further action for the
President to take with respect to them. Moreover, under the
appropriations language, FMCSA’s action has independent,
legally operative effect with respect to whether Mexico-
domiciled trucks will be permitted to cross into this
country. In Bennett, the Court clarified the limited nature of
Franklin, noting that “our holding that this [action] did not
constitute ‘final agency action’ was premised on_ the
observation that the report carried ‘no direct consequences’
and served ‘more like a tentative recommendation than a final
and binding determination.”” 520 U.S. at 178 (quoting
Franklin, 505 U.S. at 798). In other words, challenges to

* Notably, the EIS here will be far from the first EIS conducted against
the backdrop of an international agreement. For instance, the Air Force
prepared an EIS with regard to deactivation of a missile system that would
be required by a treaty between the United States and Russia. See 64 Fed.
Reg. 31553-34 (June 11, 1999).

17

administrative proceedings that are final without presidential
action are permitted.

Here, the court of appeals did not review the President’s
action, finding that “the issues before us do not touch on his
clear, unreviewable discretionary authority to modify the
moratorium.” App. 26a. The lower court reviewed only
agency action. App. Sla. Petitioners are simply wrong in
asserting to the contrary. See Pet. for Cert. at 25.

Nor did the court of appeals interfere with any
commitments of this country. NAFTA expressly preserves
the applicability of domestic environmental laws, and the
NAFTA arbitration panel decision did not address the en-
forcement of those laws. Far from interfering with NAFTA,
the court of appeals required compliance with its terms.

This case is about routine enforcement of domestic
environmental laws. Those laws constrain agency action for
the purpose of protecting the environment, a function that
NAFTA expressly allows and Congress has _ required.
Moreover, to the extent this case touches on relations with
foreign governments, it does so with respect to foreign
commerce. As petitioners recognize, Congress has the power
to regulate foreign commerce. Pet. for Cert. at 3.

Petitioners do not contest Congress’ power to impose
preconditions on FMCSA’s processing of applications for
trucks to cross the border. But petitioners mistake these
preconditions as conditions on the President’s lifting of the
moratorium. See Pet. for Cert. at 25. By their terms, the
preconditions apply to the agency's expenditure of funds to
review or process applications. Pub. L. 107-87, §350(a). The
preconditions do not apply to the President’s act of lifting the
moratorium, which was not constrained by the appropriations
language. Congress acted well within its authority in
imposing preconditions on agency action; and in so doing,

18

Congress did not impinge on the power of the President to
conduct foreign affairs.

4. The court of appeals correctly held that an EIS and a
CAA conformity analysis are required. We start with NEPA.

There is no dispute that FMCSA must comply with NEPA.
See 42 U.S.C. §4332(2) (applying EIS requirement to “all
agencies of the Federal Government”). Congress provided
that “major Federal actions significantly affecting the quality
of the human environment” require an EIS. 42 U.S.C.
§4332(2)(C). We address the two basic prerequisites—
“major Federal actions” and “significantly affecting the
environment’ ’—separately.

a. The Council on Environmental Quality (“CEQ”)
regulations implementing NEPA are “binding on all Federal
agencies.” 40 C.F.R. §1500.3. The CEQ regulations
state: “*Major Federal action’ includes actions with effects
that may be major and which are potentially subject to
Federal control and responsibility.” 40 C.F.R. §1508.18
(emphasis omitted). Petitioners take issue only with whether
the federal agency action has “effects” that trigger the EIS
requirement. The CEQ regulations define “effects” to include
“lijndirect effects, which are caused by the action and
are later in time or farther removed in distance, but
are still reasonably foreseeable.” 40 C.F.R. §1508.8(b)
(emphases added).

With respect to the causation prong of the analysis, the
rules at issue fulfill congressional preconditions on permitting
Mexico-domiciled trucks to cross the border. See App. 53a-
54a, 125a, 210a. As such, the rules are a prerequisite for
Mexico-domiciled trucks to travel outside the designated
border commercial zones with the attendant environmental
effects. Without implementation of the challenged rules, it
would be illegal for the agency to spend any appropriated
money to process applications that would allow Mexico-

19

domiciled trucks to travel to interior points in the United
States. The effects of admitting such trucks are therefore
caused by FMCSA’s rules.

The President's authority to lift the moratorium on trucks
crossing the border does not break the causal connection
between the rules and environmental effects. Because of
the congressional preconditions, no matter what happens
with regard to the moratorium, Mexico-domiciled trucks
cannot travel throughout the United States unless the
challenged rules are implemented. That is why FMCSA
admitted in the EA: “While the appropriations hold is in
effect, any Presidential order to modify the statutory
moratorium will have no practical effect.” C.A. ER 41.
Similarly, petitioners concede:

The spending restrictions of Section 350 did establish
the promulgation of FMCSA’s safety rules as a
condition precedent to processing Mexican carriers’
applications for operating authority under the regulatory
Statutes administered by FMCSA. That function of
processing applications is separate from the President’s
decision to lift the moratorium.

Pet. for Cert. at 19-20 (emphases added).

The challenged rules cause environmental effects because
regardless of what the President does, Congress has prohib-
ited FMCSA from processing applications from Mexico-
domiciled trucks until the rules are in place. Nor is FMCSA
merely “implementing a policy of the President” in prom-
ulgating the rules. Pet. for Cert. at 16. Rather, Congress
made the agency's action a precondition to the entry of
Mexico-domiciled trucks. FMCSA is only implementing
presidential policy in the sense that every executive branch
agency in every situation is in some sense implementing the
President’s policy. This does not affect the applicability of
NEPA. The court of appeals recognized this, noting several
times that the actions of the President and the agency were

20

independent (App. 19a, 21a), and finding that “both had to
take action for the event to occur.” App. 19a.

To be sure, in certain circumstances “but for” causation by
itself may not be sufficient to establish the requisite causal
link. See Metropolitan Edison v. People Against Nuclear
Energy, 460 U.S. 766, 773-74 (1983). This is not one of
those cases. Unlike in Metropolitan Edison, where the issue
was possible psychological harm from the risk of a nuclear
accident, the harm here is classic harm to the physical
environment. The case here is no different from the numer-
ous NEPA matters where an agency must prepare an EIS
before issuing a permit even though other independent action
must also take place before environmental effects will result.
See, e.g., Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 336-37 (1989) (Forest Service “special use permit”
that authorizes development of ski resort constitutes “major
Federal action”); Aberdeen & Rockfish R.R. Co. v. SCRAP,
422 U.S. 289, 299, 318-19 (1975) (Interstate Commerce
Commission general revenue proceeding that was necessary
for railroad companies to raise rates, which could cause
environmental harm, is “major federal action”).

Even were this a case where “but for” causation were not
itself sufficient, the courts would still be required to “look to
the underlying policies or legislative intent in order to draw a
manageable line between those causal changes that may make
an actor responsible for an effect and those that do not.”
Metropolitan Edison, 460 U.S. at 774 n.7. This is a particu-
larly strong case with respect to the underlying policies and
legislative intent because they are revealed not only by
general indications but also by very specific congressional
commands. NEPA’s general policies are comprehensive.
See, e.g., 42 U.S.C. §4332 (NEPA must be applied “to the
fullest extent possible”); Robertson, 490 U.S. at 348-50
(discussing NEPA’s broad purposes). More important,
Congress confirmed that it intended FMCSA’s actions to be

21

subject to NEPA when, after the lower court’s decision
requiring an EIS, Congress reenacted express appropriations
language to continue to make the rules a precondition for
cross-border trucking.

With respect to the foreseeability prong of the analysis, it
was certainly foreseeable that implementing the rules would
lead to adverse environmental effects. Petitioners complain
that the court of appeals based its holding that FMCSA must
prepare an EIS on a finding that “the President’s lifting of the
moratorium was a ‘reasonably foreseeable’ consequence of
FMCSA’s rulemakings.” Pet. for Cert. at 15 (quoting App.
31a). Petitioners mistake the holding of the court of appeals.
When the lower court noted “that the President’s rescission of
the moratorium was ‘reasonably foreseeable’ at the time the
EA was prepared and the decision not to prepare an EIS was
made” (App. 31a), the court was not making a finding that the
rules would cause the President’s action. The court of
appeals was merely stating that, as petitioners concede, the
President had already made up his mind to lift the
moratorium; therefore, it was “reasonably foreseeable” that, if
FMCSA implemented the rules, envireamental effects would
occur. In other words, in a situation where there are two
independent causes of environmental effects, and one of them
is a forgone conclusion, the second cause has effects that are
reasonably foreseeable.

Petitioners make a similar mistake in arguing that the court
of appeals’ opinion subjects a presidential decision to NEPA.
Pet. for Cert. at 16. As we have previously explained, this is
not a challenge to presidential action. It is not the President’s
decision that is subject to review—it is the promulgation of
the rules. The relevant question is whether the agency's
actions will significantly affect the environment.’

‘The regulatory scheme ensures in many different ways that agencies
cannot evade environmental review. See, e.g., 40 C.F.R. §1508.25(a)(2)
(cumulative actions); 40 C.F.R. §1508.7 (cumulative impact); 40 C.F.R.

22

b. With respect to whether FMCSA’s rules “signifi-
cantly affect{| the quality of the human environment,” 42
U.S.C. §4332(2)(C), FMCSA refused to prepare an EIS under
two separate rationales. For two of the rules, FMCSA
claimed that the EA demonstrated no significant effects.
App. 107a, 128a. FMCSA claimed the remaining rule was
categorically excluded from NEPA. App. 215a-16a. Peti-
tioners do not challenge the court of appeals’ finding that no
categorical exclusion applies. Pet. for Cert. at 13 n.5.

Petitioners continue to rely on the contention that the
President’s decision to lift the moratorium—not FMCSA’s
rules—is the cause of the environmental effects. See Pet. for
Cert. at 20-21. Again, however, because of the congressional
appropriations preconditions, nothing the President did by
himself could cause the trucks to cross the border absent
promulgation and implementation of FMCSA’s rules.

Petitioners make no attempt to explain why, if the rules
constitute “major federal action” as demonstrated above, they
do not significantly affect the environment. The court
of appeals carefully applied CEQ regulations interpreting
“significant” effects on the environment and determined that
the EA was inadequate. App. 3la-42a. Petitioners do not
rebut, and therefore concede, that the EA does not properly
analyze localized effects (App. 33a), long-term effects (App.
34a), effects on public health and safety (App. 35a), uncertain
environmental effects (App. 35a-39a), and effects on
California air pollution laws (App. 39a-40a); nor do they
contest that the rulemaking concerns a controversial matter
(App. 40a-42a).

§1508.25(a)(1) (connected actions). Petitioners take issue with the court
of appeals’ reliance on cumulative effects. Pet. for Cert. at 17. In so
doing, petitioners attempt to limit consideration of cumulative effects to
the effects of FMCSA’s actions. /d. But the CEQ regulations do not so
limit the scope of cumulative effects. See 40 C.F.R. §1508.7. The cumu-
lative effects are another reason FMCSA should have prepared an EIS.

23

It is important to understand that the court of appeals’
decision does not demand that the EIS examine any particular
alternative or that the agency reach a particular result. See
App. 39a; Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S.
726, 737 (1998) (“NEPA . . . simply guarantees a particular
procedure, not a particular result.”). NEPA merely mandates
“action-forcing procedures that require that agencies take a
hard look at environmental consequences.” Robertson, 490
U.S. at 350 (internal quotation marks omitted).

At the same time, however, an EIS is an important,
mandatory requirement. The two arguments that petitioners
make to excuse their failure to conduct an EIS on grounds of
“common sense” do not apply. See Pet. for Cert. at 18.
First, although it is certainly true that a “rule of reason”
applies to the content of an EIS once an agency decides to
prepare one, see 40 C.F.R. §1502.2(b), it is of no moment that
an EIS requires only a brief discussion of insignificant issues,
as respondents have submitted to the agency numerous
significant environmental issues that need to be addressed.
Second, the suggestion that obtaining information would
require an exorbitant cost is not only erroneous but moot
because FMCSA has already contracted to have the EIS
prepared. Petitioners have not shown that the cost of this EIS
is more than many other EIS’s that federal agencies have
been required to undertake. To the extent petitioners invite
resort to “common sense” rather than the law, they miss the
most important commonsense issue here: Under NEPA,
severe environmental effects may not occur until full
information is available.

‘In addition, this argument was not raised below and is therefore
waived.

24

c. Nor can petitioners prevail by claiming that FMCSA
is not an environmental agency, has no control over
environmental effects, and is “lacking any regulatory
responsibility for... motor vehicle emissions.” Pet. for Cert.
at 6, 15, 17. NEPA requires an EIS for “major Federal
actions significantly affecting the quality of the human
environment” without regard to the agency's power to protect
the environment. 42 U.S.C. §4332(2)(C). The statute ensures
that environmental issues are considered along with more
traditional priorities. See, e.g., 42 U.S.C. §4332(2)B).
NEPA specifically makes its policies and goals “supplemen-
tary to those set forth in existing authorizations of Federal
agencies.” 42 U.S.C. §4335 (emphasis added). Courts have
frequently applied NEPA to agencies possessing statutory
duties that do not explicitly concern environmental issues.
See, e.g., Aberdeen, 422 U.S. at 318-19 (holding Interstate
Commerce Commission’s general revenue proceeding re-
quires EIS so long as proceeding has substantial environ-
mental effect). Nor does anything in FMCSA’s statutory
authorization expressly prohibit or make impossible compli-
ance with NEPA, which is the standard under 40 C.F.R.
§ 1500.6.

Moreover, the actions that FMCSA takes with regard to the
rules will have a direct relation to environmental effects. The
EA states that through the rules “FMCSA expects to target
the highest risk [trucks] and bring them into compliance with
United States safety and environmental laws, standards,
policies, rules, and regulations.” C.A. ER 114 (emphasis
added); see also App. 91a (noting agency added language to
application form stating that compliance with environmental
laws is mandatory). Moreover, in the court of appeals,
FMCSA admitted that the safety related requirements the
challenged rules impose on Mexico-domiciled trucks have
important environmental implications: FMCSA_ suggested
that increased emissions from Mexico-domiciled trucks will
not be as great because “the heightened standards put into

25

place by the challenged safety rules will tend to restrict the
number of older (pre-1993) Mexican trucks that can be
operated in the United States.” C.A. Resp. Brief at 58; see
also C.A. Resp. Supp. Brief at 11 n.4. (It is these older trucks
that are the most polluting.) If increasing the stringency of
safety standards to the extent required by the challenged rules
is likely to produce corresponding environmental benefits,
then increasing the stringency even more should yield even
greater environmental benefits. FMCSA has non-ministerial
discretion to choose amongst various options and in so doing
to alleviate environmental effects.”

Additionally, FMCSA may have other ways to protect the —
environment from some of the adverse effects of certifying
Mexico-domiciled trucks to travel to interior points within the
United States. See 42 U.S.C. §4332(2)(C)iii) (providing that
EIS should discuss “alternatives to the proposed action”). For
example, FMCSA could engage in cooperative agreements to
include emissions inspections with safety inspections. The
focus on alternatives to environmentally destructive action
that is the hallmark of NEPA’s EIS requirement is meant to
stimulate agencies to identify and examine innovative options
for protecting the environment while accomplishing the
agency’s primary goals. See, e.g., Robertson, 490 U.S. at 351
(“one important ingredient of an EIS is the discussion of steps
that can be taken to mitigate adverse environmental conse-

’ Petitioners’ argument that this point is waived because it was not
raised until a reply brief (Pet. for Cert. at 21 n.10) is unavailing. The
point was rebuttal to an argument raised in the opposition brief, as
permitted by the court of appeals. See, e.g., United States v. Bohn, 956
F.2d 208, 209 (9th Cir. 1992) (per curiam). Additionally, this Court will
entertain an argument that was either “pressed or passed upon below.”
Williams, 504 U.S. at 41 (emphasis added). Because the court of appeals
addressed the issue, App. 23a, 42a, it is properly before this Court.

26

quences”).° FMCSA is required to consider these issues just
like every other agency.’

5. The court of appeals also interpreted the CAA correctly.
A federal “department, agency, or instrumentality” is
forbidden from supporting or approving an activity that fails
to conform to state plans to achieve air quality standards. 42
U.S.C. §7506(c)(1)." Federal agencies must make a
determination that an action conforms to the relevant state air
quality plan based upon a conformity analysis before taking
an action that will cause direct or indirect emissions that
exceed certain levels. See 40 C.F.R. §§93.150(b), 93.153(b),
93.154.”

Petitioners concede that agencies must consider both
“direct emissions” and “indirect emissions” in performing a
conformity analysis. Pet. for Cert. at 23. The emissions from
Mexico-domiciled trucks fall within the definition of
“indirect emissions,” which “[a]re caused by the Federal
action, but may occur later in time and/or may be further

“Moreover, compliance with NEPA will provide important
information to agency decisionmakers and the public, which is an
important purpose of the statute. See Robertson, 490 U.S. at 349; 40
C.F.R. §1500.1(b).

’ Petitioners’ suggestion that they should have had a chance to
determine whether to prepare an EIS on remand even though the court of
appeals found an EIS to be necessary (Pet. for Cert. at 18-19 n.8) was not
raised below and is therefore waived. Nor is this a sufficient reason for
the Court to grant review even if it were correct and not waived. In any
event, given the record of potentially severe environmental consequences
in this case, App. 33a-40a, there is no question that an EIS is necessary to
fulfill NEPA’s purposes.

* Petitioners’ authorities do not stand for the proposition that the
President is not an instrumentality under the CAA. As FMCSA is
unquestionably subject to the CAA, however, this issue need not
be reached.

* FMCSA relied below on an exemption for certain rulemakings, but
petitioners no longer raise this argument. Pet. for Cert. at 10 n.4.

27

removed in distance from the action itself but are still
reasonably foreseeable,” and which “[t}he Federal agency can
practicably control and will maintain control over due to a
continuing program responsibility of the Federal agency.” 40
C.F.R. §93.152. Petitioners do not contest the first prong of
the test.

As to the second prong, “continuing program respon-
sibility” has the following meaning under the regulations:
“When an agency, in performing its normal program
responsibilities, takes actions itself or imposes conditions that
result in air pollutant emissions by a non-Federal entity taking
subsequent actions, such emissions are covered by the
meaning of a continuing program responsibility.” 40 C.F.R.
§93.152. FMCSA is conducting its normal responsibilities in
promulgating and implementing the challenged rules. As we
have shown, this action will result in emissions because the
rules will result in Mexico-domiciled trucks traveling beyond
the border commercial zones and emitting pollution. As
such, the rules come within the definition of “continuing
program responsibility.”

28

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

GAIL RUDERMAN FEUER

ADRIANNA QUINTERO SOMAINI

NATURAL RESOURCES DEFENSE
COUNCIL

71 Stevenson Street, Suite 1825

San Francisco, CA 94105

(415) 777-0220

Attorneys for Respondents Natural
Resources Defense Council and
Planning and Conservation
League

DAVID C. VLADECK
PUBLIC CITIZEN

1600 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000

Attorneys for Respondent Public
Citizen

Respectfully submitted,

STEPHEN P. BERZON
Counsel of Record

JONATHAN WEISSGLASS

ADAM B. WOLF

ALTSHULER, BERZON, NUSSBAUM,
RUBIN & DEMAIN

177 Post Street, Suite 300

San Francisco, California 94108

(415) 421-7151

Attorneys for Respondents
International Brotherhood of
Teamsters, California Labor
Federation, and Environmental
Law Foundation

PATRICK J. SZYMANSKI

General Counsel

INTERNATIONAL BROTHERHOOD
OF TEAMSTERS

25 Louisiana Ave., N.W.

Washington, D.C. 20001

(202) 624-6945

Attorney for Respondent

International Brotherhood of
Teamsters

DAVID ROSENFELD

WEINBERG, ROGER & ROSENFELD
180 Grand Avenue, Suite 1400
Oakland, CA 94612

(510) 839-6600

Attorneys for Respondent
Brotherhood of Teamsters, Auto
and Truck Drivers, Local 70

November 10, 2003

29

PATRICK J. COUGHLIN

ALBERT H. MEYERHOFF

STANLEY S. MALLISON

MILBERG WEISS BERSHAD HYNES
& LERACH LLP

100 Pine Street, Suite 2600

San Francisco, California 94111

(415) 288-4545

WILLIAM S. LERACH

MILBERG WEISS BERSHAD HYNES
& LERACH LLP

401 B Street, Suite 1700

San Diego, CA 92101

(619) 231-1058

Attorneys for Respondents
International Brotherhood of
Teamsters, Brotherhood of
Teamsters, Auto and Truck
Drivers, Local 70, California
Labor Federation, California
Trucking Association, and
Environmental Law Foundation

APPENDIX

la
APPENDIX

Additional Provisions Involved

1. North American Free Trade Agreement and Imple-
mentation Act

a. Chapter 9, Article 904(1) of the North American Free

Trade Agreement provides as follows:

Each Party may, in accordance with this Agreement,
adopt, maintain or apply any standards-related measure,
including any such measure relating to safety, the
protection of human, animal or plant life or health, the
environment or consumers, and any measure to ensure
its enforcement or implementation. Such measures
include those to prohibit the importation of a good of
another Party or the provision of a service by a service
provider of another Party that fails to comply with the
applicable requirements of those measures or to
complete the Party’s approval procedures.

b. 19 U.S.C. §3312(a)(1) provides as follows:

No provision of the Agreement, nor the application of
any such provision to any person or circumstance, which
is inconsistent with any law of the United States shall
have effect.

2. 2002 Department of Transportation and Related Agen-
cies Appropriations Act

Section 350(a) of Pub. L. 107-87, 115 Stat. 864-66,
provides as follows:

No funds limited or appropriated in this Act may be
obligated or expended for the review or processing of an
application by a Mexican motor carrier for authority to
operate beyond United States municipalities and
commercial zones on the United States-Mexico border
until the Federal Motor Carrier Safety Administration—

2a

(1)(A) requires a safety examination of such motor
carrier to be performed before the carrier is granted
conditional operating authority to operate beyond
United Statesmunicipalities and commercial zones on
the United States-Mexico border;

(B) requires the safety examination to include—

(i) verification of available performance data
and safety management programs;

(ii) verification of a drug and alcohol testing
program consistent with part 40 of title 49, Code
of Federal Regulations;

(iii) verification of that motor carrier’s system
of compliance with hours-of-service rules,
including hours-of-service records;

(iv) ver#fication of proof of insurance;

(v) a review of available data concerning that
motor carrier’s safety history, and other infor-
mation necessary to determine the carrier’s
preparedness to comply with Federal Motor
Carrier Safety rules and regulations and Haz-
ardous Materials rules and regulations;

(vi) an inspection of that Mexican motor
carrier’s commercial vehicles to be used under
such operating authority, if any such commercial
vehicles have not received a decal from the
inspection required in subsection (a)(5);

(vii) an evaluation of that motor carrier’s
safety inspection, maintenance, and repair facil-
ities Or Management systems, including verifi-
cation of recordsof periodic vehicle inspections;

3a

(viii) verification of drivers’ qualifications, in-
cluding a confirmation of the validity of the
Licencia de Federal de Conductor of each driver
of that motor carrier who will be operating under
such authority; and

(ix) an interview with officials of that motor
Carrier to review safety management controls and
evaluate any written safety oversight policies and
practices.

(C) requires that—

(1) Mexican motor carriers with three or fewer
commercial vehicles need not undergo on-site
safety examination; however 50 percent of all
safety examinations of all Mexican motor
carriers shall be conducted onsite; and

(ii) such on-site inspections shall cover at least
50 percent of estimated truck traffic in any year.

(2) requires a full safety compliance review of the
carrier consistent with the safety fitness evaluation
procedures set forth in part 385 of title 49, Code of
Federal Regulations, and gives the motor carrier a
satisfactory rating, before the carrier is granted
permanent operating authority to operate beyond
United States municipalities and commercial zones on
the United States-Mexico border, and requires that
any such safety compliance review take place within
18 months of that motor carrier being granted
conditional operating authority, provided that—

(A) Mexican motor carriers with three or fewer
commercial vehicles need not undergo onsite com-
pliance review; however 50 percent of all com-
pliance reviews of all Mexican motor carriers shall
be conducted on-site; and

4a

(B) any Mexican motor carrier with 4 or more
commercial vehicles that did not undergo an on-site
safety exam under (a)(1)(C), shall undergo an on-
site safety compliance review under this section.

(3) requires Federal and State inspectors to verify
electronically the status and validity of the license of
each driver of a Mexican motor carrier commercial
vehicle crossing the border;

(A) for every such vehicle carrying a placardable
quantity of hazardous materials;

(B) whenever the inspection required in subsec-
tion (a)(5) is performed; and

(C) randomly for other Mexican motor carrier
commercial vehicles, but in no case less than
SOpercent of all other such commercial vehicles.

(4) gives a distinctive Department of Transportation
number to each Mexican motor carrier operating
beyond the commercial zone to assist inspectors in
enforcing motor carrier safety regulations including
hours-of-service rules under part 395 of title 49, Code
of Federal Regulations;

(5) requires, with the exception of Mexican motor
carriers that have been granted permanent operating
authority for three consecutive years—

(A) inspections of all commercial vehicles of
Mexican motor carriers authorized, or seeking
authority to operate beyond United States munic-
ipalities and commercial zones on the United
States-Mexico border that do not display a valid
Commercial Vehicle Safety Alliance inspection
decal, by certified inspectors in accordance with the
requirements for a Level I Inspection under the
criteria of the North American Standard Inspection

Sa

(as defined in section 350.105 of title 49, Code of
Federal Regulations), including examination of the
driver, vehicle exterior and vehicle under-carriage;

(B) a Commercial Vehicle Safety Alliance decal
to be affixed to each such-commercial vehicle upon
completion of the inspection required by clause (A)
or a re-inspection if the vehicle has met the criteria
for the Level I inspection; and

(C) that any such decal, when affixed, expire at
the end of a period of not more than 90 days, but
nothing in this paragraph shall be construed to
preclude the Administration from requiring rein-
spection of a vehicle bearing a valid inspection
decal or from requiring that such a decal be
removed when a certified Federal or State inspector
determines that such a vehicle has a safety violation
subsequent to the inspection for which the decal
was granted.

(6) requires State inspectors who detect violations
of Federal motor carrier safety laws or regulations to
enforce them or notify Federal authorities of such
violations;

(7)(A) equips all United States-Mexico commercial
border crossings with scales suitable for enforcement
action; equips 5 of the 10 such crossings that have the
highest volume of commercial vehicle traffic with
weigh-in-motion (WIM) systems; ensures that the re-
maining 5 such border crossings are equipped within
12 months; requires inspectors to verify the weight of
each Mexican motor carrier commercial vehicle
entering the United States at said WIM equipped high
volume border crossings; and

6a

(B) initiates a study to determine which other
crossings should also be equipped with weigh-in-
motion systems;

(8) the Federal Motor Carrier Safety Administration
has implemented a policy to ensure that no Mexican
motor carrier will be granted authority to operate
beyond United States municipalities and commercial
zones on the United States-Mexico border unless that
carrier provides proof of valid insurance with an
insurance company licensed in the United States;

(9) requires commercial vehicles operated by a
Mexican motor carrier to enter the United States only
at commercialborder crossings where and when a
certified motor carrier safety inspector is on duty and
where adequate capacity exists to conduct a sufficient
number of meaningful vehicle safety inspections and
to accommodate vehicles placed out-of-service as a
result of said inspections.

(10) publishes—

(A) interim final regulations under section 210(b)
of the Motor Carrier Safety Improvement Act of
1999 (49 U.S.C. 31144 note) that establish mini-
mum requirements for motor carriers, including
foreign motor carriers, to ensure they are
knowledgeable about Federal safety standards, that
may include the administration of a proficiency
examination;

(B) interim final regulations under section 31148
of title 49, United States Code, that implement
measures to improve training and provide for the
certification of motor carrier safety auditors;

(C) a policy under sections 218(a) and (b) of that
Act (49 U.S.C. 31133 note) establishing standards

7a

for the determination of the appropriate number of
Federal and State motor carrier inspectors for the
United States-Mexico border;

(D) a policy under section 219(d) of that Act (49
U.S.C. 14901 note) that prohibits foreign motor-
carriers from leasing vehicles to another carrier to
transport products to the United States while the
lessor is subject to a suspension, restriction, or
limitation on its right to operate in the United
States; and

(E) a policy under section 219(a) of that Act (49
U.S.C. 14901 note) that prohibits foreign motor
carriers from operating in the United States that is
found to have operated illegally in the United
States.

3. Clean Air Act
40 C.F.R. §93.152 provides in part:

When an agency, in performing its normal program
responsibilities, takes actions itself or imposes con-
ditions that result in air pollutant emissions by a non-
Federal entity taking subsequent actions, such emissions
are covered by the meaning of a continuing program
responsibility.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0706%3A04. Public record. Not legal advice.