Respondents Brief — Department of Transportation v. Public Citizen

Supreme Court brief2004

Ask Donna

What actually matters in this document.

Text

No. 03-358 ~~

UNITED STATES DEPARTMENT OF TRANSPORTATION, ef ai.,

Petitioners,

Vv.

PUBLIC CITIZEN, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE RESPONDENTS

GAIL RUDERMAN FEUER STEPHEN P. BERZON

JULIE MASTERS Counsel of Record

ADRIANNA QUINTERO SOMAINI JONATHAN WEISSGLASS

MELISSA LIN PERRELLA ADAM B. WOLF. .

ZAHIRAH WASHINGTON ALTSHULER, BERZON,

NATURAL RESOURCES DEFENSE NUSSBAUM, RUBIN & DEMAIN

COUNCIL 177 Post Street, Suite 300

1314 Second Street San Frarcisco, CA 94108

Santa Monica, CA 90401 (415) 421-7151

(310) 434-2300 Aeeiriani foe Reapodsiii

Attorneys for Respondents Public Citizen, International

Natural Resources Defense Brotherhood of Teamsters,

Council and Planning and AFL-CIO, California Labor

Conservation League Federation, AFL-CIO,

and Environmental Law

Davin C. VLADECK

PUBLIC CITIZEN Reanaiton

1600 20th Street, N.W.

Washington, D.C. 20009

(202) 588-1000

Attorneys for Respondent

Public Citizen

[Additional counsel listed on inside cover]

BEST AVAILABLE COPY"="""""""""

RR ES BD EP PE a

7 % uy ; : -

‘ ae - rat £95 Apter we ae

a. mis 4 J

‘- * ’ - 7 4 \ NY

“ rag ak 1 Be gong Pee

7 wl y 7 ~ -

- RAB ; ‘ >

” Ps ‘ £

QUESTIONS PRESENTED

1. Whether under the National Environmental Policy Act,

42 U.S.C. § 4332, agency action that Congress made a

prerequisite to allowing Mexico-domiciled trucks to operate

throughout the United States is subject to an Environmental

Impact Statement that will disclose and evaluate the serious

environmental effects caused by such trucking.

2. Whether under the conformity provision of the Clean

Air Act, 42 U.S.C. § 7506(c)(1), that agency action requires

an analysis into the extent to which permitting Mexico-

domiciled trucks to operate throughout the United States

will make it difficult for states to comply with federal air

quality standards.

(i)

* adam _ - — —— }

——————

TABLE OF CONTENTS

QUESTIONS PRESENTED q.w....cccccceccsesecsssesescsscrscsesees

FO CS OU UE csneneessrenessscecnmmememsemacenesens

THE COURT OF APPEALS’ DECISION

PROPERLY RESPECTED CONGRES-

(lee

A. Congress Has Broad Power Under The

Commerce Clause To Enact Prerequisites

To The Entry Of Mexico-Domiciled

Pe ccentennemsenmnenmnenmtememnmmmenenn

B. Congress’ Grant Of Authority To FMCSA

Does Not Interfere With The Separate

Authority Congress Delegated To The

Pee ccnsnnsensneveenenvemmeemenemmnenen

C. Judicial Review Of Final Agency Action Is

cena

CONGRESS RATIFIED THE COURT OF

FEFCGEED GND Occcncencensseemmm

NEPA REQUIRES FMCSA TO PRE-

PARE AN ENVIRONMENTAL IMPACT

SOS ED cxpensnensenenevennessnenssceneim

TABLE OF CONTENTS—Continued

IV. FMCSA MUST COMPLY WITH CLEAN AIR

ACT CONFORMITY REQUIREMENTS ..........

A. The Federal Government Cannot Allow

Actions That Impinge On States’ Ability

To Meet Federal Air Quality Standards ......

B. FMCSA Improperly Failed To Prepare A

Conformity AmalySis..............cc000cceeeeeeerees

COINCCLLILIIIIIOIN nccccccsecccccccessccsesccesccccscccssosccsscssoscsssocooees

APP TIGIEK 22.ccccccccesccccescccecscecssccsesssossscsssscsssossooscsssonoeoes

TABLE OF AUTHORITIES

CASES

Abby Dodge v. United States, 223 U.S. 166

Aberdeen & Rockfish R.R. Co. v. SCRAP, 422

ee ee ccertinnieicerncmsissnecunennimsestiigemmiimnesis

Aircraft Owners and Pilots Ass'n v. Hinson, 102

Alaska Dep't of Envtl. Conservation v. EPA, 540

US. _, 124 S. Ct. 983 (2004) oon

American Airlines, Inc. v. Dep't of Transp., 202

fo ee

Audubon Society of Central Arkansas v. Dailey,

977 F.2d 428 (8th Cir. 1992) 00........cccecceeeeeeeeeees

Baltimore Gas & Elec. Co. v. NRDC, 462 U.S.

I Caer csierernetentineneninpenemnsennemmmmnereemmnnusemansess

Beanett v. Spear, 520 U.S. 154 (1997) .......ccccccceeee

Bowen v. Mich. Acad. of Family Physicians, 476

ee a CE cccenenerenneniniananesensdanenemmanentecmnincess

Cady v. Morton, 527 F.2d 786 (9th Cir. 1975)......

Central Bank of Denver v. First Interstate Bank

of Denver, 511 U.S. 164 (1994)..0000..ccccccccceeeeees

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

Corp., 333 U.S. 103 (1948) .0.....cccccccsceseeeseeeeees

Citizens Against Rails-to-Trails v. Surface

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

Citizens Awareness Network, Inc. v. United

States Nuclear Regulatory Comm'n, 59 F.3d

ee E

City of New York v. Minetta, 262 F.3d 169 (2d

County of Suffolk v. Secretary of Interior, 562

Pb Ee

Dalton v. Specter, 511 U.S. 462 (1994)...........0000+.

Dep't of the Navy v. Egan, 484 U.S. 518 (1988)...

Page

24, 25

29, 30

TABLE OF AUTHORITIES—Continued

Page

Forelaws on Board v. Johnson, 743 F.2d 677

GIGI GEE ceveconssssctconennseomesenesnnsesunsennmemen 42

Franklin v. Massachusetts, 505 U.S. 788 (1992) .. 24, 25

General Motors Corp. v. United States, 496 U.S.

ee ccnsrssccesmsensieerennseceemnenpnaneamaens 44, 45

Gibbons v. Ogden, 22 U.S. (9 Wheat. 1) 1,

(II ta cencnccenensnenssesensasmpesenusnssanneascennenqenpmisteseseness 18

Goos v. ICC, 911 F.2d 1283 (8th Cir. 1990)......... 41

Hodel v. Virginia Surface Mining & Reclamation

Ass 'n, 452 U.S. 264 (1981) .....ccccccceseseeeeeennees 19

Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478

SR ee GD cccsnsesncsesneecerinmeasinerenemnsnnans 25

Keene Corp. v. United States, 508 U.S. 200

(EIT consecnnsennnsnessenntasensesessmsmsnnnnpsetansnaneenmemntens 26

Kleppe v. Sierra Club, 427 U.S. 390 (1976).......... 33

Lorillard v. Pons, 434 U.S. 575 (1978)... 26

Ludecke v. Watkins, 335 U.S. 160 (1948) ............. 23

Marsh v. Oregon Natural Resources Council,

490 U.S. 360 (1989) ooo ccccccccccceseeteeseeeeee 31, 32, 42, 43

Maryland Conservation Council, Inc. v. Gil-

christ, 808 F.2d 1039 (4th Cir. 1986)................ 33

Merrill Lynch, Pierce, Fenner & Smith v.

Curran, 456 U.S. 353 (1982)......cccccccceeeeeeeeeeees 26

Metropolitan Edison v. People Against Nuclear

Energy, 460 U.S. 766 (1983) ........cccccccceeeeeees 33, 34, 37

Milo Cmty. Hosp. v. Weinberger, 525 F.2d 144

SRG, Ci eee ncrccnecsnemnensnssescsenmseneneseneememensnnes 41

Pierce County, Washington v. Guillen, 537 U.S.

Fa Gee ccnceccscesscenecssennensmansnessermenmmansneneeneniee 19

Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996)..... 33

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ...........4.. 32, 33, 34, 36, 38, 41, 42

EY a Ot A Ne

Vii

TABLE OF AUTHORITIES—Continued

Page

Sac & Fox Nation v. Norton, 240 F.3d 1250

eee mE 41

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

a ee 4]

Sierra Club v. Marsh, 769 F.2d 868 (Ist Cir.

EE 33

Sierra Club v. Peterson, 717 F.2d 1409 (D.C.

Re Niacin iahlicaiateiadaiaaeilailtenia tai cindiaaieamae 33

Union Electric Co. v. EPA, 427 U.S. 246 (1976).. 44

United States v. Curtis-Wright Export Corp., 299

ee a eiieienialtinetenreatitiidintatarenaens 23

United States v. Lopez, 514 U.S. 549 (1995)......... 18

United States v. Williams, 504 U.S. 36 (1992)...... 40

Whitman v. Am. Trucking Ass'n, 531 U.S. 457

Rr eae sa OED 44

CONSTITUTION, STATUTES, AND

REGULATIONS

U.S. Const., Art. 1, § 8, C13 .oocccccccccccccceceeeeeeeeees 18

5 U.S.C. §§ 551-59, 701-706.........cccccecccceeseeeeeeees 3

TE eae ne ReaD 24

A 31

BP ite He UE ccccccsccccnsscnnssiensececenseccscnsinins 3

BUF Wiese ©) BP ORI D D ccccocescccccescococcccscccczsetbocsscsess 4,21

TL 3

RS etait tnnntenrrertentemmnicttaainemaietsiesi 37

EEE ee oma 3,31

42 U.S.C. § 4332(2)(B) .....ccccccccesccsscesssessceesserseeeees 38

ap ire OF TE ccccccccccecsccsccsensnenseneccoussees 31

42 U.S.C. § 4332(2)(C)iii) ......ccccccccceeeceeseseeeceeeeees 4]

i I ci ncrctrentereccnatisneicenienineminineseseis 38

a 43

Fp ee OF PD ccccccccnscnscccssccnccnsncsessnsniasnees 44

viii

TABLE OF AUTHORITIES—Continued

Page

42 U.S.C. §§ 7401-671 ......cccsccesseesseeeereesereeeereens 3

42 U.S.C. § 7409(a).......ccceeesreesreeesreeseeesseesssensens 44

42 U.S.C. § T409(D).........sscccrrceerreeerersressseessseesees 44

42 U.S.C. § 7410(a)........cccccccsscessrseeereesstsessseessnees 3, 44

42 U.S.C. § TS506(C)(1) ....ccceceeerrereeeeeerees 3, 45, 46, 47, 48

42 U.S.C. § 7509(a)........:cccecrsceeereceesrscessreseseoeseeess a4

42 U.S.C. § T509(D)..........cccsscccrrecereesrsssesessssssnssnees 44

49 U.S.C. § 113(a)........cccrscccrreeerreeesreessecsseessensens 5

49 U.S.C. § 13102(12)........cccccccrreesreessresssresseerens 4

49D U.S.C. § 13 102(14)......cccceceeeereeerenereeseessenesenes 4

49 U.S.C. § 13902 .........cccscerrcersesreesressssseeseessnsees 4

49 U.S.C. § 13902(C).........sccersccerereesreesecsseeesseesens 21

49 U.S.C. § 13902(C)(1) .....cececcccssreeeerreeserneesereeseees 5

49D U.S.C. § 13902(C)(3) ....ceeccecececseesreeereeeresereserees 5

49 U.S.C. § 13902(C)(4) ....:cccerrceeereeereeeereeeeesenreeees 5

Pub. L. No. 97-261, 96 Stat. 1102 ........cccccsceeeeeees 4

Pub. L. No. 103-182, 107 Stat. 2037 .........:cceseees 3

Pub. L. No. 104-19, 109 Stat. 194 00... ccccceeeeeeens 28

Pub. L. No. 104-88, 109 Stat. 803 ..........:cccceseeeeees a

Pub. L. No. 107-87, 115 Stat. 833 .........cccceceeeeees 6

Pub. L. No. 107-206, 116 Stat. 820 .........:ccccceeeeeees 28

Pub. L. No. 108-7, 117 Stat. 11.0... ceceeeseeeeeeeeees 15, 27

Pub. L. No. 108-199, 118 Stat. 3 ........ccceeseeeeeees 15, 27

40 C.F.R. § 93. 150(D)...... cc cccccseeseeeeeeseeensssrnsennees 3, 46

AO C.F.R. § 93.152........csccssseeereesrseersessessresssneees 46, 47, 48

40 C.F.R. § 93.1530) .....ccccccecesseeesreeeseeneenereesenees 46

AO C.F.R. § 93.154.......cccccccsseeereeesnsesereessensneneeeens 3, 46

40 C.F.R. § 1500.2........cccccccesseeesseesneeseeeseeresseneeeens 38

40 C.F.R. § 1500.3 ........cccccceeereesseeeseeereressersseeneeees 8, 31

40 C.F.R. § 1500.6........cccccccccsseeseeesreeseresseeseeneetens 38

4O C.F.R. § 1501.3.......cccccsceeeseeeeeeseeesereseeresseneenens 8

40 C.F.R. § 1501.40... ccccccsceeeseeeeeeeeeneeeneeserneeennenens 8

AO C.F.R. § 1502.1 oo... ccccscecseeeseeeneeeenesenseereeneneeenens 38

Pe ee Oe ee

TABLE OF AUTHORITIES—Continued

Page

a ir UIT cnccdshiehscnesitsibiasmeninidemmnnenapiinetiats 4]

ee ae SI ciiinconniecmmisectininninsstecisenmicbents 32, 35

es Ue SI hanicinircsicseciitienrstnaneniidncamaienapsoncsnin 8

| Eee eee 8

a te cere srntntesisiincmmeiauntisiuniieiindtinnaiei 8

es ae TIT Tadinsineinstinsicettiinenianineieianitiibaiinauabiaiite 37

nr IT iiicitiiiinisicnininsininniiaecgiibinaionien 32

is ae IIIT sc sccensenienenneimamenieeerensetnniins 37

Co E, | ee 37

ee ee Pe rrceieasensinenennmsnnsesneinnersnbuness 10, 11

ee > ee 11

MISCELLANEOUS

S. Rep. No. 95-127, 95th Cong., Ist Sess. (1977).. 45

H.R. Rep. No. 108-243, 108th Cong., Ist Sess.

Sr TEE TET nsiidintiiniiiiddanennninninneitinnninieesedes 15, 28, 29

S. Rep. No. 108-146, 108th Cong., Ist Sess.

I Ss SII cectitieniateaticinsepiaiaannmaionseninmiens 15, 27, 29

64 Fed. Reg. 31553 (June 11, 1999)... 37

66 Fed. Reg. 22371 (May 3, 2001)...............ceeee 6, 39

66 Fed. Reg. 22415 (May 3, 2001).................:ce0e 6, 39

66 Fed. Reg. 30799 (June 5, 2001).............c:cccee 22

67 Fed. Reg. 71795 (Dec. 2, 2002)............... lenin 22

W. Page Keeton ef al., Law Of Torts (Sth ed.

SearTi thniciicsstasnaiicinicininasienseshiniininesiaiiinbiiciiinidieiedaiiinciininte 35

sa Pe ne at a

eR etn ae oe erie

ee ee ee ae

PROVISIONS INVOLVED

In addition to the statutes and regulations in petitioners’

appendix, respondents’ appendix includes other relevant

statutes and regulations.

STATEMENT

This action challenges the failure of the Federal Motor

Carrier Safety Administration (“FMCSA”), in taking action

that will allow thousands of Mexico-domiciled trucks to

operate throughout the United States, to consider adequately

the resulting environmental effects under the National

Environmental Policy Act (“NEPA”) and the Clean Air Act

(“CAA”). Congress enacted legislation that, for fiscal year

2002 (and each year thereafter), required that no appropriated

funds be used to process applications from Mexico-domiciled

trucks to operate in the interior of the United States until

FMCSA implemented standards governing those trucks.

FMCSA attempted to establish certain of the standards

mandated by Congress by promulgating rules, but did so

improperly, without adequate attention to the serious

environmental consequences that will flow from the

introduction of thousands of Mexico-domiciled trucks into

the United States.

The court of appeals agreed with respondents that allowing

Mexico-domiciled trucks to travel into the interior of the

United States (“cross-border trucking”) presents serious en-

vironmental and public health problems, and petitioners do

not contend otherwise. The court directed FMSCA—which

has discretion to ameliorate the environmental effects—both

to complete an Environmental Impact Statement under NEPA

to assess the environmental effects of cross-border trucking

and to perform a conformity analysis under the CAA to

evaluate such effects on the ability of states with pollution

problems to comply with federal air quality standards.

Nothing in this case interferes with the President’s power,

obtained via previous authorization from Congress, to lift a

congressionally imposed moratorium on cross-border truck-

ing. Despite petitioners’ attempts to suggest otherwise, re-

spondents have never challenged the President’s action. To

the extent the restriction on spending appropriated funds

precludes cross-border trucking, even though the moratorium

has been lifted, that limitation has been imposed by Congress,

not the courts. This litigation challenges only FMCSA’s

failure to consider the environmental effects that will flow

from its actions allowing Mexico-domiciled trucks to travel

throughout the country. Petitioners do not and could not

contest that Congress, with its broad authority under the

Commerce Clause, may condition cross-border trucking on

FMCSA’s compliance with environmental and safety laws.

This action simply seeks compliance with those laws.

Most strained is petitioners’ suggestion that this case poses

a constitutional question about the President’s foreign affairs

power. Pet. Cert. 13-14. Those powers are not challenged by

respondents, nor are they implicated in this action. This case

is solely about FMCSA’s responsibility under generally

applicable environmental laws to assess the environmental

effects of its actions, specifically the effects that will be

caused by the issuance of rules that will permit the entry of

thousands of Mexico-domiciled trucks into the United States.

Congress has now repeatedly enacted legislation that for-

bids the expenditure of any federal funds to process appli-

cations by Mexico-domiciled trucks for authorization to

operate throughout the United States until applicable FMCSA

standards are in place. Not only did Congress enact such an

appropriations restriction for fiscal year 2002, which trig-

gered FMCSA’s rulemaking, Congress reenacted the same

provision for fiscal year 2003—after the court of appeals’

ruling in this case—and again for fiscal year 2004. Congress

did so for an unmistakable reason: to drive home Congress’

intent that cross-border trucking should not take place until

Oe Ae ade. See

Pt 6 Pm

FMSCA promulgates rules in full compliance with applicable

environmental laws.

1. NEPA, 42 U.S.C. §§ 4321-70f, and the CAA, 42 U.S.C.

§§ 7401-671q, are fundamental environmental statutes that

impose requirements on all federal agencies in order to

protect the environment and public health. See generally Pet.

App. 3a-7a. In enacting NEPA, Congress required that

federal agencies “shall . . . include in . . . proposals for. . .

major Federal actions significantly affecting the quality of the

human environment, a detailed statement” known as an

Environmental Impact Statement (“EIS”) with respect to “the

environmental impact of the proposed action, . . . alternatives

to the proposed action,” and other environmental issues. 42

U.S.C. § 4332(2). The CAA requires each state to develop an

implementation plan to comply with federal air quality

standards. 42 U.S.C. § 7410(a). To ensure that the federal

government would not interfere with state efforts to meet

federal air standards, Congress required federal agencies to

prepare a conformity analysis concerning the effects of their

proposed actions on state air quality plans. See 42 U.S.C.

§ 7506(c)(1); 40 C.F.R. §§ 93.150(b), 93.154.

These NEPA and CAA provisions are background require-

ments that apply to all federal agency actions. The statutes do

not distinguish between duties of an environmental agency

and those of other agencies. Nor do these statutes—or the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-59,

701-06, which authorizes judicial review of final agency

actions—excuse agencies from compliance with NEPA or the

CAA when another actor, including the President, takes a

separate action that may also affect the environment.

The ratification of NAFTA did nothing to alter federal

agency obligations under NEPA and the CAA, or Congress’

power to enact legislation protecting public health and safety.

In 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 incon-

sistent with any law of the United States shall have effect.”

19 U.S.C. § 3312 (a)(1). Accordingly, NEPA and the CAA

continue to constrain the actions of federal agencies just as

those laws did before NAFTA.

2. For years before and after ratification of NAFTA, Con-

gress and the President maintained a moratorium on the

operation of Mexico-domiciled trucks within the United

States, restricting operations to a narrow commercial zone

along the border.

a. In 1982, Congress enacted the Bus Regulatory Re-

form Act (Pub. L. No. 97-261, § 6(g), 96 Stat. 1102, 1107-

08), by which “Congress imposed a two-year moratorium” on

new authorizations for trucks domiciled in Mexico and

Canada to travel into the United States. J.A. 49.’ In Section

6(g) of the Act, Congress permitted the President to remove,

modify, or extend the moratorium. The moratorium was

quickly lifted for trucks domiciled in Canada. See Pet. App.

56a. With respect to Mexico-domiciled trucks, however,

three Presidents exercised their authority under the 1982 Act

to extend the moratorium through September 1996. See 49

U.S.C. § 13902 Memoranda of President; Pet. App. 9a & n.2.

Before the September 1996 extension of the moratorium

expired, Congress enacted the Interstate Commerce Commis-

sion Termination Act of 1995, Pub. L. No. 104-88, 109 Stat.

' The moratorium did not apply to Mexico-domiciled trucks that oper-

ate within the “border zone,” defined as “commercial zones adjacent to

Mexico in Texas, New Mexico, Arizona, and California.” J.A. 50; see

also id. at 253; Pet. App. 56a-57a.

? This statute and others discussed below refer to “motor carriers,”

the broad definition of which encompasses trucks. See 49 U.S.C.

§§ 13102(12), (14). Throughout, we refer to “trucks” rather than “motor

carriers” because the former are the basis of this litigation.

a. a

803, 883, which leaves in place “any existing restrictions on

operations of motor carriers . . . domiciled in any contiguous

foreign country” unless the President takes one of two

potential actions set forth by Congress: (i) the President may

place restrictions on trucking operations based on “unrea-

sonable or discriminatory” practices placed on United States

trucks by Canada or Mexico, and (ii) the President may

remove or modify restrictions if he determines such action “is

consistent with the obligations of the United States under a

trade agreement or with United States transportation policy.”

49 U.S.C. §§ 13902(c)(1), (3), (4). This litigation does not

challenge the President’s authority to modify or lift the mora-

torium as authorized by Congress.

b. In February 2001, an international arbitration panel

established pursuant to NAFTA ruled that the blanket refusal

of the United States to consider applications from Mexico-

domiciled trucks to travel beyond the border zones due to

safety concerns violated NAFTA. See J.A. 254, 279-80. The

arbitration panel did not determine whether a delay in

considering such applications as a result of compliance with

domestic environmental laws would violate NAFTA and

expressly noted that the panel “is not making a determination

that the Parties to NAFTA may not set the level of protection

that they consider appropriate in pursuit of legitimate

regulatory objectives.” /d. at 280. 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.

Respondents agree with petitioners that “[a]lmost imme-

diately after the arbitrators’ decision, the President made clear

his intention to lift the moratorium on cross-border opera-

tions.” Pet. Cert. 5; see also J.A. 57.

3. Meanwhile, FMCSA, a federal “administration” or

agency within the Department of Transportation (“DOT”) (49

U.S.C. § 113(a)), began the process of preparing rules

governing both applications for admission from Mexico-

domiciled trucks for entry to the United States and the safety

of those trucks. Nothing in the statutes governing FMCSA

precludes the agency from taking into account environmental

issues in promulgating such rules.

In May 2001, FMCSA proposed two rules that are

pertinent here: (1) the “Application Rule” concerning the

application form for Mexico-domiciled trucks seeking to

operate beyond the border zones (known as the “OP-1 (MX)”

application form) (see 66 Fed. Reg. 22371 (May 3, 2001));

and (2) the “Safety Monitoring Rule” involving safety

monitoring of Mexico-domiciled trucks (see 66 Fed. Reg.

22415 (May 3, 2001)). Without providing any rationale or

conducting an Environmental Assessment (“EA”), FMCSA

determined that neither rule required preparation of an EIS

under NEPA. 66 Fed. Reg. at 22377; 66 Fed. Reg. at

22418. FMCSA also failed to prepare a CAA conformity

analysis for either rule.

4. Congress intervened before the rules became final and

prior to consideration of any applications from Mexico-

domiciled carriers to operate beyond the border zones. On

December 18, 2001, Congress passed and the President

signed into law the fiscal year 2002 Department of

Transportation and Related Agencies Appropriations Act,

Pub. L. No. 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

regulatory standards for Mexico-domiciled trucks seeking to

operate beyond the border zones. Pub. L. No. 107-87,

§ 350(a), 115 Stat. 864. The congressional prerequisites went

beyond requirements in then-existing cr proposed regulations.

See Pet. App. 53a-54a, 128a; see also Pet. Br. 9.

The restriction in Section 350 of the 2002 DOT Appro-

priations Act—which was enacted after Congress gave the

President the authority to lift the moratorium and after the

President announced his intention to lift the moratorium—

was independent of any presidential action, and was to

remain in place regardless of whether the President lifted

the moratorium.

Accordingly, as of mid-December 2001, two independent

barriers prevented Mexico-domiciled trucks from operating

throughout the United States: (i) the restrictions Congress

imposed in Section 350, which prohibited use of funds to

process applications from Mexico-domiciled trucks until

FMCSA complied with the preconditions; and (ii) the

moratorium on cross-border trucking the President was

authorized by Congress to maintain (which the President had

already announced he would lift).

5. In March 2002, FMCSA issued new Application and

Safety Monitoring Rules. Pet. App. 53a-202a. The rules

were intended to meet five of the congressional preconditions

outlined in Section 350. See id. at 53a-S4a, 62a, 125a, 128a;

Pet. Br. 13.

a. As part of the rulemaking, FMCSA received numer-

ous comments, including comments on the environmental

effects of the rules from, inter alia, various environmental

organizations, experts on environmental and health issues,

and the California Attorney General. See, e.g., J.A. 232-48,

283-95, 307-71, 372-86, 387-413. The majority of those

comments focused on air quality concerns. California’s

Attorney General, for example, expressed concern that under

the CAA the federal government was “requiring California to

meet stringent air quality standards, . . . while simultaneously

approving the entry into California of a very significant new

source of pollutants that will make it more difficult to attain

these standards.” J.A. 375-76.

b. In promulgating the two revised rules, FMCSA did

not prepare an EIS, but this time it did provide an EA, upon

which the agency relied for a finding that the rules would

have no significant impact on the environment. See Pet. App.

64a-65a, 106a-107a, 154a-155a, 182a. FMCSA failed to

undertake an analysis for conformity with state air quality

plans under the CAA. /d. at 65a-66a, 15Sa.

The Council on Environmental Quality (“CEQ”) has prom-

ulgated regulations implementing NEPA that are “binding on

all Federal agencies.” 40 C.F.R. § 1500.3. The CEQ regula-

tions permit an agency to prepare an EA to determine whether

or not a more detailed EIS is necessary. See 40 C.F.R.

§§ 1501.3, 1501.4, 1508.9, 1508.11, 1508.13. FMCSA’s EA

was issued in January 2002 with respect to four proposed

rules, including the Application and Safety Monitoring Rules,

in an attempt to comply with NEPA. See J.A. 36, 47, 59;

C.A. ER 29. On the basis of the EA, FMCSA made a

“finding of no significant impact” and decided not to prepare

the more detailed EIS. J.A. 34-35. Such a finding is

permitted only when an action “will not” significantly affect

the environment. 40 C.F.R. § 1508.13.

c. The EA makes three important concessions about the

ramifications of the congressional preconditions in Section

350 (all of which necessarily follow from Congress’ action).

First, FMCSA must meet “several conditions” before the

agency may expend funds to process applications for Mexico-

domiciled trucks to travel beyond the border zones—the OP-|

(MX) applications. J.A. 57. Second, the proposed rules

satisfy conditions of Section 350. /d. at 57-58; Pet. App. 53a-

54a, 125a. Third, “While 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 OP-1 (MX) applications.” J.A. 58

(emphasis added).

In addition to agreeing that, under Section 350, there will

be no cross-border trucking without the rules and hence no

environmental effects, the EA also makes other critical

concessions about the agency’s discretion to mitigate envir-

onmental effects. First, the new Application Rule is expected

to result in a smaller increase in applications from Mexico-

domiciled trucks than the old rule “because the revised

application form would deter applicants that would be unable

to adequately demonstrate their willingness and ability to

comply with the safety regulations.” J.A. 66-67. That is,

making the application process more onerous will reduce

the number of Mexico-domiciled trucks operating in the

United States.

Second, there is a direct relationship between safety and

the environment. Specifically, the EA states: “Aside from

direct and indirect safety benefits, the inspections could have

an environmental benefit, as they have the potential to alert

officials of other problems, such as leaking” trucks. /d. at

201 (emphasis added). Also, “factors that affect emissions

from vehicles include . . . maintenance practices.” /d. at 98.

Hence, to the extent the rules require better maintenance they

will have beneficial environmental effects.

More generally, the EA provides: “FMCSA expects to tar-

get the highest risk [trucks] and bring them into compliance

with United States safety and environmental laws, standards,

policies, rules, and regulations.” /d. at 193 (emphasis added);

see also id. at 138 (describing benefits of safety audit for

reducing “high-risk” trucks). That is, high-risk trucks present

a risk to both safety and the environment, and FMCSA’s rules

would target both risks. By promulgating safety standards

aimed at preventing high-risk trucks from obtaining operating

authority, FMCSA would also prevent environmental prob-

lems from those same trucks.

d. The EA did not properly make a finding of no

significant impact on the environment, as several examples

demonstrate. First, the EA is inherently contradictory. The

EA acknowledges that Section 350 means that there will be

no Mexico-domiciled trucks in the interior of the United

States absent agency action. See id. at 58. But then, claiming

to examine the environmental effects when both the President

lifts the moratorium and the agency promulgates new rules

(id. at 56), and conceding “there could be an increase” in

cross-border trucking beyond the current rates of increase (id.

at 60; see also id. at 32-33, 316; C.A. ER 246), the EA

“assumed that the implementation of the Proposed Action

would not affect the trade volume between the United States,

Mexico, and Canada” (J.A. 59). The EA cannot properly

examine the effects of cross-border trucking without deter-

mining how increased trade volume will affect the number

of trucks.

Second, the EA does not properly account for the emis-

sions from even the artificially small number of Mexico-

domiciled trucks it assumed will travel into the interior of the

United States. There is overwhelming evidence that emis-

sions levels for the Mexican trucking fleet have been, are

now, and will in the future be higher than for the United

States trucking fleet. /d. at 315, 332-38, 388, 392, 394-97,

411-12, 424, 456. For example, until 1993 there were no

emissions standards for Mexico-domiciled trucks, which

lagged significantly behind U.S. domiciled trucks in emis-

sions controls. /d. at 334, 392, 456; see also id. at 426,

458-59. But the EA erroneously assumed that all Mexico-

domiciled trucks fit the emissions profiles of U.S. trucks. See

id. at 154, 205, 392, 410, 422, 456.

Third, despite a CEQ regulation requiring consideration of

local effects (40 C.F.R. § 1508.27(a)), the EA determined the

environmental effect of emissions contributions from

Mexico-domiciled trucks by comparing them to “national

levels.” J.A. 147; see also id. at 150, 154, 157-58, 167, 327,

329. The EA did not examine separately areas along major

transportation corridors just outside the border zones where

cross-border trucking is likely to have the most environmental

effects, such as Los Angeles, Houston, and Phoenix—areas

that already are suffering from serious air pollution problems.

See id. at 319-25, 330, 423.

Fourth, the same CEQ regulation requires consideration of

long-term effects (40 C.F.R. § 1508.27(a)), but the EA

limited its analysis to one year. See J.A. 331, 423-24. There

is no analysis of what will happen over the long term,

including after 2004 and 2007 when, as the EA notes, the

United States emissions regulations become considerably

more stringent—without any evidence that Mexico will

follow suit. See id. at 118, 315, 392, 403, 432, 444, 457-58.

Fifth, FMCSA failed to consider “[t]he degree to which the

proposed action affects public health or safety.” 40 C.F.R.

§ 1508.27(b)(2). Despite the substantial record evidence

discussed below, the EA overlooked the public health effects

that will result from cross-border trucking.

Finally, although the agency has the ability to ameliorate

environmental effects, the EA barely considered alternatives

that could reduce environmental harm. And most of the ex-

ceedingly modest alternatives the agency considered relate

solely to mitigating harm from inspections. See J.A. 193-96.

These and other limitations of the EA are critical. A

respected consulting firm specializing in air quality issues (id.

at 414) concluded that the document “is both inadequate in

terms of scope as well as fatally flawed in terms of the

methodology used to assess the significance of the air quality

impacts” (id. at 310). Another respected air quality con-

sultant (id. at 448) concluded that the EA “is seriously flawed

because it underestimated the emissions impact” (id. at 410).

e. The public health effects from the emissions at issue

are serious. The EA admits that “[a]ir pollutants are a

significant cause for concern for both public health and

welfare.” Jd. at 93; see also id. at 103. This is particularly

true for children. /d. at 293. Motor vehicles, including trucks

with diesel engines, are significant contributors to air

pollution. /d. at 95-95, 326, 42i. Diesel trucks are

particularly significant contributors of nitrogen dioxide

(“NOx”) and particulate matter (“PM”). /d. at 95, 97, 99,

312, 314, 326, 421. For instance, in the highway corridors

from San Antonio, Texas to Monterrey, Mexico, and from

Tucson, Arizona to Hermosillo, Mexico, approximately 80%

of smog causing NOx and 90% of other pollutants are caused

by freight trucking. /d. at 100-01. Most of the areas of the

country that are in non-attainment (that is, do not meet

national standards, see id. at 94) for PM are in the western

United States, with the largest number of counties in Arizona

and California. /d. at 209-10. These are the areas which, as

discussed above, are likely to be most affected by cross-

border trucking. See id. at 319-25.

Numerous studies indicate that diesel exhaust is associated

with a significant increased risk of lung cancer. /d. at 441.

California lists diesel exhaust as a known carcinogen. /d. at

235, 383; see also id. at 411. NOx creates ozone (or smog),

which can aggravate asthma, emphysema, and other

conditions. See id. at 99,421. PM can cause cancer, increase

the risk of cardiovascular mortality, impair lung function, and

cause or aggravate respiratory illnesses. /d. at 317, 421, 440-

43, 451-52. The EA lists cancer as a potential effect of the

PM in diesel. See id. at 211.

Even moderate increased emissions of fine PM are asso-

ciated with increased mortality. /d. at 436. “[I|ncreased

emissions of fine particulate matter from Mexico-domiciled

trucks can be expected to translate into incremental increases

in premature deaths, an enhanced incidence of respiratory

diseases, numerous lost work days and increased health care

costs.” Jd. at 436-37; see also id. at 440, 446. Put another

way, “removing particulate matter from the atmosphere will

translate directly into saved lives.” Jd. at 445. Exposure to

fine particulate air pollution “is the single largest envir-

onmental public health problem at present in the United

States.” /d. at 436.

6. Respondents filed petitions for review of the rules in the

court of appeals starting in May 2002. See id. at 1; Pet. App.

13a. The petitions sought to ensure that FMCSA complied

with NEPA and the CAA in promulgating its rules, but did

not seek to interfere with the President’s decision whether to

lift the moratorium. See J.A. 26a, 51a.

7. In November 2002, the President lifted the moratorium

to permit cross-border trucking. See Pet. App. 13a-14a,

232a-34a. Despite this presidential action, Mexico-domiciled

trucks were not able to travel into the interior of the United

States (and thereby cause environmental effects beyond the

border zones) because FMCSA still had to meet the separate

prerequisites that Congress under Section 350 placed on the

entry of the trucks.

8. On January 16, 2003, the court of appeals issued a deci-

sion requiring compliance with “long-established environ-

mental laws.” Jd. at Sla.. The court first found that

respondent Public Citizen has standing to pursue this

challenge. /d. at 14a-26a. The critical determination in the

standing analysis was that FMCSA’s actions would cause

environmental harm because cross-border trucking would be

permitted only after FMCSA had met the congressional

conditions. See id. at 18a-22a. The lower court noted that the

relief requested was not directed at presidential action and

would not affect the viability of NAFTA. /d. at 26a. The

court of appeals instead found that “the issues before us do

not touch on [the President’s] clear, unreviewable discre-

tionary 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. Cert. 14 n.6.

The court of appeals next addressed NEPA’s statutory and

regulatory requirements. Based on an analysis of the statute

and CEQ regulations, the lower court found that the two

challenged rules constitute “major federal actions” under

NEPA, and that the rules may have a significant environ-

mental impact; accordingly, FMCSA should have prepared an

EIS. See Pet. App. 28a-43a. In particular, the lower court

rejected FMCSA’s contention that “the effects of the

Application and Safety Rules are limited to the increased

diesel emissions of Mexican trucks during the road-side

inspections and safety monitoring mandated by the regu-

lations.” Jd. at 30a. The court also found numerous other

shortcomings in the EA. /d. at 3!a-43a. ;

The court of appeals then turned to the CAA claims,

holding that a conformity analysis was required. Id. at 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

emissions caused by the rules would fall below the

established threshold levels. See id. at 47a-48a. Second, the

court held that regulations are not categorically excluded

from the conformity analysis requirement. See id. at 48a-5 la.

Petitioners no longer press the second point. Pet. Br. 14 n.6;

Pet. Cert. 10 n.4.

The court of appeals took pains to explain that 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 rules at issue. Pet. 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.” /d. at 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. Jd.

at 221a-22a.

9. FMCSA is in the midst of conducting both an EIS and

a CAA conformity analysis, which may be completed as

early as this summer. See Pet. Cert. 15 n.7; Resp. Br. Opp.

Cert. 10.

10. Meanwhile, Congress twice reenacted the precon-

ditions on Mexico-domiciled trucks operating throughout the

United States, with the understanding that FMCSA must

complete an EIS and a conformity analysis to meet those

preconditions. 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 reenacted the precon-

ditions for the 2003 fiscal year. Pub. L. No. 108-7, Div. I,

Tit. TI, § 348, 117 Stat. 11, 419. On January 23, 2004,

Congress passed and the President signed into law the 2004

Consolidated Appropriations Act, which again reenacted the

preconditions, this time for the 2004 fiscal year. Pub. L. No.

108-199, Div. F, Tit. I, § 130, 118 Stat. 3, 298. At the time of

such reenactment, Congress knew that only the court of

appeals’ decision requiring an EIS and conformity analysis

was standing in the way of cross-border trucking; indeed, the

Senate and House Reports explicitly reference the decision.

See S. Rep. No. 108-146, 108th Cong., Ist Sess. 69-70 (Sep.

8, 2003); H.R. Rep. No. 108-243, 108th Cong., Ist Sess. 81

(July 30, 2003).

SUMMARY OF ARGUMENT

Exercising its uncontested power under the Commerce

Clause, Congress placed a restriction in Section 350 on

FMCSA’s use of appropriated funds to process applications

from Mexico-domiciled trucks to travel into the interior of the

United States until the agency properly puts in place certain

regulatory standards. To meet the congressional conditions,

FMCSA promulgated the rules at issue in this case. Peti-

tioners concede that FMCSA’s action was a precondition to

the operation of Mexico-domiciled trucks throughout the

United States. Respondents challenge this agency action, not

a separate presidential action. Regardless of the President’s

action with respect to the moratorium, there can be no cross-

border trucking under Section 350 until FMCSA separately

meets the congressional prerequisites.

Congress has comprehensive power under the Commerce

Clause to enact safety and environmental requirements. In

Section 350, Congress provided FMCSA authority over the

entry of Mexico-domiciled trucks for cross-border trucking

separate from the authority Congress previously gave the

President with regard to the moratorium.

As this case challenges agency action rather than presi-

dential action, judicial review is appropriate under the APA.

Under this Court’s precedents, “final agency action” chal-

lengeable under the APA exists where an agency makes a

final decision that the President does not directly review.

Because Congress provided FMCSA and the President

separate authority over cross-border trucking, and because

this case challenges only FMCSA’s decision, judicial review

of that agency’s final action is proper.

Because Congress had the power to require environmental

reviews as well as safety standards, the issue is whether

Congress in enacting Section 350 meant to do so. That

question can be determined without interpreting NEPA or the

CAA because Congress has twice ratified the court of

appeals’ decision. After the lower court interpreted Section

350 and required an EIS and conformity analysis, Congress

on two occasions took affirmative action to reenact the

critical appropriations restriction when it was set to expire.

The legislative history demonstrates that Congress did so with

full knowledge of the court of appeals’ decision, and that the

decision requiring environmental reviews was all that was

standing in the way of cross-border trucking. Congress’

intent to require the environmental reviews is plain, and

Congress’ power to do so cannot seriously be challenged

by petitioners.

Should the Court reach the NEPA issues in this case, they

too are governed by Congress’ enactment of Section 350.

The appropriations restriction made FMCSA’s actions both a

condition precedent to, and a proximate cause of, cross-

border trucking and the consequent serious effects on the

environment and public health. In such situations, even

agencies that have no environmental responsibilities apart

from NEPA must prepare an EIS. It is irrelevant under this

Court’s cases and the CEQ regulations that another actor not

covered by NEPA, here the President, also had to take a

separate action for environmental effects to result. It is also

well within the purposes of NEPA to require the agency to

prepare an EIS when, as here, the agency can shape its action

to mitigate adverse environmental effects. FMCSA has

substantial discretion over how stringent to make the safety

standards, and therefore how many older Mexico-domiciled

trucks—which are both less safe and more polluting—are

permitted across the border.

The Clean Air Act requires states to attain and maintain

federal air quality standards and imposes sanctions on those

states that fail to do so. Congress enacted a conformity

provision in the CAA to ensure that the federal government

will not make it more difficult for a state to comply with

federally mandated standards. FMCSA did not undertake a

conformity analysis here even though the agency would cause

environmental effects by allowing Mexico-domiciled trucks

to travel into the interior of the United States. Under Section

350, the agency has control over permitting cross-border

trucking to begin, how stringent to make the safety standards,

how to enforce the standards, and how to change the

standards over time. FMCSA will thereby determine whether

older, more heavily polluting trucks will be traveling into

areas within the interior of the United States that are not in

attainment with federal air quality standards, thus necessi-

tating a conformity analysis.

ARGUMENT

I. THE COURT OF APPEALS’ DECISION

PROPERLY RESPECTED CONGRESSIONAL

AUTHORITY

A. Congress Has Broad Power Under The Com-

merce Clause To Enact Prerequisites To The

Entry Of Mexico-Domiciled Trucks

1. This case concerns the authority of Congress to re-

quire a federal agency to take specified action prior to the

agency’s use of appropriated funds to allow Mekxico-

domiciled trucks to operate throughout the United States.

Petitioners do not take issue with Congress’ power to do so.

See Pet. Br. 21-22. The Constitution provides that Congress

has the power to “regulate commerce with foreign nations,

and among the several states.” Art. I, § 8, Cl. 3. It is hard to

imagine an activity more squarely within Congress’

Commerce Clause power than the regulation of trucks

traveling from another country into this country and then

throughout the several states. See, e.g., Gibbons v. Ogden, 22

U.S. (9 Wheat. 1) 1, 193-94 (1824) (Commerce Clause “com-

prehend[s] every species of commercial intercourse between

the United States and foreign nations” such that “[nJo sort of

trade can be carried on between this country and any other, to

which this power does not extend”); United States v. Lopez,

514 U.S. 549, 572 (1995) (Kennedy, J., concurring) (“Even

the most confined interpretation of ‘commerce’ would

embrace transportation between the States.”).

The trucking activity at issue plainly involves both foreign

commerce and interstate commerce, providing Congress

broad power to regulate, including with respect to issues of

safety and the environment. See Pierce County, Washington

v. Guillen, 537 U.S. 129, 147 (2003) (“legislation aimed at

improving safety in the channels of commerce” is “within

Congress’ Commerce Clause power”); Hodel v. Virginia Sur-

face Mining & Reclamation Ass'n, 452 U.S. 264, 282 (1981)

(“[W]e agree with the lower federal courts that have uni-

formly found the power conferred by the Commerce Clause

broad enough to permit congressional regulation of activities

causing air or water pollution, or other environmental hazards

that may have effects in more than one State.”’).

2. Congress exercised its commerce power by placing a

restriction on agency action in an appropriations bill.

Petitioners do not contest that Congress has the power to put

in place safety and environmental requirements or that

Congress may do so through the appropriations process.

Nonetheless, they seek to nullify the exercise of congres-

sional power by claiming that the challenged action is the

President’s, and that respondents seek to apply NEPA and the

CAA to the President’s action of lifting the moratorium. See

Pet. Br. 24-25 (“The President’s decision to lift the mora-

torium on cross-border operations by Mexican carriers is not

subject to NEPA’s requirement of preparing an EIS.”); id. at

43 (“[T]he Presidential action to open the border is exempt

from the conformity-review requirement.”); see also id. at

1, 2, 18, 23, 26. Repetition does not strengthen a hollow

argument. Petitioners’ contention that respondents challenge

the President’s action, not FMCSA’s separate action, is the

linchpin of petitioners’ arguments. Once it is clear that it

is the agency’s action that is at issue, petitioners’ entire

argument collapses.

Petitioners’ argument cannot be reconciled with the statu-

tory framework under which FMCSA operates. Regardless

of what action the President takes, Congress prohibited

FMCSA from processing applications for cross-border truck-

ing until the agency meets the requirements of Section 350.

For this reason, as petitioners acknowledge, FMCSA

promulgated the rules challenged in this case to meet

conditions Congress imposed in Section 350. See Pet. App.

53a-54a, 125a; Pet. Br. 13. No matter what happens with

regard to the moratorium, Mexico-domiciled trucks cannot

travel throughout the United States with the attendant envir-

onmental effects unless the challenged rules are implemented.

The agency action in promulgating the rules is the subject of

this case.

3. Petitioners have repeatedly conceded that FMCSA has

control over the initiation of cross-border trucking. FMCSA

admitted in the EA, “[wh)hile the appropriations hold is in

effect, any Presidential order to modify the statutory

moratorium will have no practical effect.” J.A. 58; see also

Pet. Br. 11. Petitioners similarly concede in their brief that

Congress in Section 350 made FMCSA’s action “a pre-

condition” to processing applications. Pet. Br. 32; see also id.

at 35. The court of appeals was therefore correct in

recognizing that the President and the agency “both had to

take action for the event to occur.” Pet. App. 19a.

Petitioners attempt to sidestep their concessions by arguing

that “Section 350 of the 2002 Appropriations Act does not

render FMCSA responsible for the President’s decision to

allow cross-border operations by new Mexican carriers.” Pet.

Br. 32. But this is not and has never been the point. Nor are

petitioners correct in arguing that by lifting the moratorium

the President caused the rules. See id. at 31. Congress gave

the President and FMCSA separate spheres of responsibility.

As petitioners acknowledge, the “function of processing

applications is separate from the President’s decision to lift

the moratorium.” Pet. Cert. 19-20 (emphasis added). The

court of appeals therefore properly recognized that the actions

of the President and the agency are independent. Pet. App.

19a, 21a. Nor was FMCSA merely acting as a “subordinate”

of the President (Pet. Br. 32) or simply “implementing a

policy of the President” in promulgating the rules (Pet. Cert.

16). Congress made the agency's actions a precondition to

the entry of Mexico-domiciled trucks as part of Congress’

policymaking prerogatives. FMCSA is only subordinate to

the President and implementing presidential policy in the

sense that every executive branch agency in every situation is

subordinate to the President or in some sense implementing

presidential policy. This does not affect Congress’ authority

to require FMCSA to comply with NEPA and the CAA in

taking action to permit cross-border trucking.

B. Congress’ Grant Of Authority To FMCSA

Does Not Interfere With The Separate Author-

ity Congress Delegated To The President

1. Congress properly exercised its power in giving

FMCSA separate decisionmaking responsibility over Mexico-

domiciled trucks notwithstanding the issues of trade and

presidential authority petitioners raise. Petitioners correctly

recognize that NAFTA was a “joint exercise” of the Presi-

dent’s and Congress’ powers. Pet. Br. 22.’ Congress im-

posed the moratorium and delegated to the President authority

to lift the moratorium. See, e.g., 49 U.S.C. § 13902(c); J.A.

49. Petitioners concede that when “the President lifted [the]

trade moratorium,” he did so “pursuant to express congres-

sional authorization” (Pet. Br. 2), and they do not claim that

absent such a delegation by Congress the President would

have authority to permit cross-border trucking (id. at 22).

> Petitioners do not argue that NAFTA diminished Congress’ broad

authority over commerce, both foreign and domestic, including over

safety and environmental issues. Nor could they. See, e.g., 19 U.S.C.

§ 3312(a)(1) (“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.”’).

Indeed, in lifting the moratorium on November 27, 2002, the

President noted that the Interstate Commerce Commission

Termination Act of 1995 “empowered the President to make

further modifications to~the moratorium.” 67 Fed. Reg.

71795 (Dec. 2, 2002), reprinted in Pet. App. 232a; see also

66 Fed. Reg. 30799 (June 5, 2001).

Petitioners argue that Congress granted the President sole

authority over cross-border trucking because “Congress has

given the President express authority to determine whether,

and to what extent, Mexican motor carriers should be granted

access to United States markets.” Pet. Br. 22. This argument

is simply incorrect. Congress enacted Section 350 after

granting the President authority to lift the moratorium. That

appropriations restriction gave FMCSA separate authority

over the access of Mexico-domiciled trucks to the United

States by making the conditions set forth in Section 350 “a

condition precedent” (Pet. Cert. 19) for the entry of such

trucks. This case involves FMCSA’s separate responsibility

as provided by Congress and is a challenge to that agency’s

action; the President’s prerogatives are not at issue.

2. Petitioners do not dispute that Congress has the power

to condition cross-border trucking upon FMCSA’s issuance

of safety standards, notwithstanding the President's separate

authority to lift the moratorium or to negotiate bilateral

agreements on cross-border commerce.* But if Congress had

the constitutional power to make the entry of Mexico-

domiciled trucks contingent on FMCSA’s issuance of valid

safety standards, Congress also had the power to make entry

contingent upon compliance with environmental laws. Both

the power to require safety standards and the power to require

“ To the extent petitioners claim Congress has unconstitutionally im-

pinged on the President's foreign-affairs powers by enacting Section

350, that argument has been waived because it was not raised or passed

on below.

environmental reviews equally affect the ability of trucks to

come into the United States, and therefore have the same

ramifications for presidential action. Petitioners’ foreign

affairs argument would strip Congress of any power to

regulate the conditions of commerce from Mexico or other

countries with which the United States has trade agreements,

including enacting restrictions on transportation of hazardous

materials or unsafe foods or pharmaceutical products.’

Nor can petitioners argue that there is something unique

about environmental reviews because they take time to

complete. See Pet. Br. 40. There is no meaningful distinction

between the delay caused by the imposition of safety

requirements and that caused by environmental reviews. In

any event, the decision whether determining and possibly

mitigating the environmental effects creates too much delay

belongs to Congress. See, e.g., The Abby Dodge v. United

States, 223 U.S. 166, 176-77 (1912) (“[S]o complete is the

authority of Congress over the subject that no one can be said

to have a vested right to carry on foreign commerce with the

United States.”). Congress certainly understood the possi-

bility of delay when it enacted Section 350 in December

2001. The appropriations provision imposed numerous

preconditions to the entry of trucks even though the President

had announced his decision to lift the moratorium by January

2002, just one month later. See J.A. 254.

* Petitioners invoke language about foreign affairs from cases involv-

ing the President’s powers during times of war (Ludecke v. Watkins, 335

U.S. 160 (1948)), and over national security (Dep't of the Navy v. Egan,

484 U.S. 518 (1988)); see also United States v. Curtis-Wright Export

Corp. 299 U.S. 304 (1936) (arms sales to foreign countries engaged in

armed conflict). See Pet. Br. 21. But these are areas where the

President’s authority is at its peak, and this case plainly does not implicate

the President’s power as Commander-in-Chief. It is a long leap from

those cases to this one, which involves Congress’ regulation of traditional

commerce—an area where petitioners concede Congress has compre-

hensive power. See id.

C. Judicial Review Of Final Agency Action Is

Appropriate

1. The APA permits review of “final agency action.” 5

U.S.C. § 704; see also Bennett v. Spear, 520 U.S. 154, 177-78

(1997). Petitioners do not dispute that FMCSA’s rules

constitute “final agency action.” Instead, petitioners argue

that the President is not an agency and his decisions are not

reviewable by the courts. See Pet. Br. 25-26, 43-44. But this

is irrelevant because, as discussed above, this case does not

challenge the President’s decision to lift the moratorium, but

rather FMCSA’s action pursuant to its separate responsibility

under Section 350.

2. Petitioners rely primarily on this Court’s ruling in

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

there established that when an agency decision is not “a final

and binding determination,” there is no “final agency action”

under the APA. /d. at 798. Franklin does not preclude

judicial review of otherwise “final agency action” just

because the President has a separate decision to make.

Franklin simply found that there is no final action under the

APA when an agency only makes a “tentative recommen-

dation” to the President. /d.; see also Dalton v. Specter, 511

U.S. 462, 469 (1994) (describing Franklin as follows:

“Because the President reviewed (and could revise) the

Secretary’s report, made the apportionment calculations, and

submitted the final apportionment report to Congress, we held

that the Secretary’s report was ‘not final and therefore not

subject to review.””) (quoting Franklin, 505 U.S. at 798).

That is, Franklin (and Dalton) involved direct presidential

review of an agency recommendation.

Unlike Franklin (and Dalton), this is not a case where the

agency provides a recommendation to the President, who then

has final decisionmaking authority with respect to that

recommendation.° Under Section 350, FMCSA’s action has

independent, legally operative effect with respect to whether

Mexico-domiciled trucks are permitted into this country, and

the President plays no role in reviewing or revising FMCSA’s

rules. In Bennett, this Court’s most recent case on the

subject, 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 deter-

mination.”” 520 U.S. at 178 (quoting Franklin, 505 U.S. at

798). In sum, challenges to administrative proceedings that

are final without presidential action are permitted.

3. In keeping with these principles, the court of appeals

reviewed only agency action (Pet. App. 5la), not the

President’s action, finding-that “the issues before us do not

touch on his clear, unreviewable discretionary authority to

modify the moratorium” (id. at 26a). A challenge to an

agency’s failure to comply with a statute is eminently proper.

See, e.g., Bowen v. Mich. 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); Japan Whaling Ass'n v. Am. Cetacean

Soc 'y, 478 U.S. 221, 230 (1986) (rejecting contention that

case was not suitable for judicial review because it involved

foreign relations by stating that “one of the Judiciary’s

characteristic roles is to interpret statutes, and we cannot shirk

this responsibility merely because our decision may have

significant political overtones”).

° This case is also unlike Chicago & S. Air Lines, Inc. v. Waterman S.S.

Corp., 333 U.S. 103, 109 (1948), where the order at issue was not a final

disposition, but simply~a recommendation to the President with no in-

dependent force.

Il. CONGRESS RATIFIED THE COURT OF

APPEALS’ DECISION

Because Congress has the power to place environmental

conditions on trucks crossing the border, the only remaining

question is whether Congress did require environmental

analyses in this instance. Before we demonstrate that the

court of appeals was correct in its application of NEPA and

the CAA to FMCSA’s actions, we show that Congress

ratified the lower court’s decision that an EIS and conformity

analysis were required—not once, but twice—thereby re-

moving any doubt that Congress intended NEPA and the

CAA to apply here. Since the court of appeals decided this

case, Congress has made crystal clear that the enactment of

Section 350 triggered the application of these environmental

statutes. Accordingly, the doctrine of ratification provides a

separate, narrow ground for this Court to affirm the decision

of the court of appeals.

1. The doctrine of ratification is well-settled: “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); see also, e.g., Keene Corp. v. United States, 508 U.S.

200, 212-13 (1993); Merrill Lynch, Pierce, Fenner & Smith v.

Curran, 456 U.S. 353, 381-82 & n.66 (1982).

This case presents at least as strong a claim for appli-

cation of the ratification doctrine as any case previously

before this Court. The court of appeals required an EIS and

conformity analysis on the basis that the challenged rules

“were issued in compliance with a rider to the 2002 Appro-

priations Act for DOT [Section 350], which conditioned

funding for permitting Mexican truck traffic into the United

States on DOT’s issuance” of the rules, that the rules were an

independent cause of trucks being permitted to cross the

border, and that the rules therefore caused environmental

effects. Pet. App. 9a, 19a-23a, 30a-3la, 47a. The court of

appeals expressly noted that the rules that would permit

cross-border trucking “would be in effect now absent this

action.” /d. at 34a.

After the court of appeals ruled on January 16, 2003,

Congress twice reenacted Section 350—once on February 20,

2003, and again on January 23, 2004. Consolidated Appro-

priations Resolution, 2003, Pub. L. No. 108-7, Div. 1, Tit. TI,

§ 348, 117 Stat. 11, 419 (“Funds appropriated or limited in

this Act shall be subject to the terms and conditions stipulated

in section 350 of Public Law 107-87, including that the

Secretary submit a report to the House and Senate Appro-

priations Committees annually on the safety and security of

transportation into the United States by Mexico-domiciled

motor carriers.”); Consolidated Appropriations Act, 2004,

Pub. L. No. 108-199, Div. F, Tit. I, § 130, 118 Stat. 3,

298 (same).

The most basic element of ratification is readily satisfied

because Congress knew about the court of appeals’ decision

when it reenacted Section 350. There is no need to presume

congressional awareness because both the Senate and House

Reports for the fiscal year 2004 reenactment expressly

reference the decision. The Senate Report states:

On November 27, 2002, the Secretary of Transportation

announced that all the preconditions had been met and

directed the Federal Motor Carrier Safety Administration

[FMCSA] to begin to open the border. However, on

January 16, 2003, the Ninth Circuit Court of Appeals in

Public Citizen v. Department of Transportation [DOT],

delayed opening the border pending completion of

environmental impact statements and a Clean Air Act

conformity determination on the FMCSA’s implemen-

ting regulations.

S. Rep. No. 108-146 at 69-70 (emphasis added). Likewise,

the House Report states:

The Administration has completed all requirements

under section 350 and has implemented a regime of

regulations to ensure the safety of Mexican trucks

operating within the U.S. However, on January 18,

2003, the 9th U.S. Circuit Court of Appeals blocked

Mexican trucks from gaining wider access to U.S. high-

ways citing that DOT did not prepare a full environ-

mental impact statement.

H.R. Rep. No. 108-243 at 81 (emphasis added).’

In both fiscal years 2003 and 2004, when Section 350 was

about to expire, Congress had the complete power to express

its disapproval of the court of appeals’ decision simply by

allowing Section 350 to lapse, or by reenacting the provision

while stating that nothing in the appropriations language

required FMCSA to prepare an EIS or a conformity analysis.

Congress knows how to exercise such power in the context of

the appropriations process, and has exempted certain

activities from NEPA’s application, including in response to

litigation. That Congress chose not to do so here and instead

’ Moreover, at the time of the fiscal year 2003 reenactment on February

20, 2003, Congress certainly knew about the court of appeals’ decision.

The decision received widespread publicity in the Washington Post, New

York Times, Wall Street Journal, Los Angeles Times, CBS Evening

News, National Public Radio, and other media sources. In these

circumstances, in addition to the proof that Congress knew about the

decision during the time of the second reenactment, there is no basis to

overcome the presumption that Congress knew about the decision at the

time of the first reenactment.

® See, e.g., 2002 Supplemental Appropriations Act for Further Recov-

ery 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. 820, 864, 868

(“{A]ctions authorized by this section shall proceed immediately and to

completion notwithstanding any other provision of law including, but not

limited to, NEPA.”); Emergency Supplemental Appropriations for Addi-

tional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in

the Recovery from the Tragedy that Occurred at Oklahoma City, and

Rescissions Act, 1995, Pub. L. No. 104-19, Tit. II, § 2001(d), 109 Stat.

194, 244 (“The issuance of any such regulation . . . shall not require the

reenacted the same restriction twice speaks volumes about

Congress’ intent.

2. Petitioners’ responses that congressional reenactment

had nothing to do with the court of appeals’ decision and that

the legislative history only involved safety and not

environmental issues miss the mark. See Pet. Br. 33. The

Committee Reports quoted above expressly refer to the

decision in this case and state that the basis of the court of

appeals’ decision was environmental. S. Rep. No. 108-146 at

69-70 (“Public Citizen v. Department of Transportation

[DOT], delayed opening the border pending completion of

environmental impact statements and a Clean Air Act con-

formity determination.”); H.R. Rep. No. 108-243 at 81

(“Court of Appeals blocked Mexican trucks from gaining

wider access to U.S. highways citing that DOT did not

prepare a full environmental impact statement”). Thus, there

is no basis to suggest that congressional reenactment did not

address the decision or have environmental implications.

Moreover, at the time of the 2004 reenactment, only the

failure to prepare an EIS and conformity analysis was pre-

venting cross-border trucking. See H.R. Rep. No. 108-243 at

81 (“The Administration has completed all requirements

under section 350.”); S. Rep. No. 108-146 at 69 (“On Novem-

ber 27, 2002, the Secretary of Transportation announced that

all the preconditions had been met.”). Yet Congress reen-

acted the entirety of Section 350 twice, thereby ratifying the

decision and requiring the environmental reviews.

Petitioners attempt to evade the doctrine of ratification by

characterizing the two reenactments as congressional inac-

tion. Pet. Br. 33; see also Central Bank of Denver v. First

Interstate Bank of Denver, 511 U.S. 164, 186-87 (1994). But

appropriations bills by their very nature have expiration dates.

preparation of an environmental impact statement under . . . the National

Environmental Policy Act of 1969.”).

Only by affirmatively taking action did Congress provide for

the continued vitality of Section 350. Unlike in Central

Bank, where Congress did not reenact the statutory provisions

at issue during the relevant time period (511 U.S. at 185),

here Congress twice affirmatively reenacted Section 350

because the legislation was set to expire.

In sum, the Court may decide this case on an even nar-

rower ground than the narrow decision of the court of

appeals. Congress has the power to require FMCSA to

conduct an EIS and a conformity analysis, and Congress

twice reenacted the appropriations language upon which the

court of appeals relied after the court required these reviews.

Thus, this Court may find that the reviews are required

without an indenendent analysis of NEPA and the CAA and

how those statutes interact with the appropriations restriction.

Because of the unique facts of this case, Congress’ intent to

require environmental reviews can be determined without

deciding any issue of law other than that Congress meant the

EIS and conformity analysis to proceed in this instance.

lil. NEPA REQUIRES FMCSA TO PREPARE AN

ENVIRONMENTAL IMPACT STATEMENT

Even apart from congressional reenactment of Section 350,

the conclusion that NEPA required FMCSA to prepare an EIS

flows directly from Congress’ original decision making

action by FMCSA a prerequisite to cross-border trucking.

Petitioners’ principal argument to the contrary—that “(t]he

President's decision to lift the moratorium on cross-border

operations by Mexican carriers is not subject to NEPA’s

requirement of preparing an EIS” (Pet. Br. 24-25 (emphasis

added))}—is, as we have shown, non-responsive. Moreover,

petitioners do not contest the lower court’s findings as to the

deficiencies of the EA, including that the EA does not

properly analyze local effects (Pet. App. 33a), long-term

effects (id. at 34a), effects on public health and safety (id. at

35a), uncertain environmental effects such as increased truck

traffic and the emissions profile and age of Mexico-domiciled

trucks (id. at 35a-39a), and effects on California air pollution

laws (id. at 39a-40a). Petitioners instead provide an ill-

conceived causation analysis in an attempt to excuse the

failings of the EA. Relying again on the President’s separate

action with regard to lifting the moratorium, petitioners

dispute the causal link between FMCSA’s actions and the

environmental effects of cross-border trucking. We demon-

strate below that petitioners’ analysis is incorrect.”

A. FMCSA’s Actions Will Cause Environmental

Effects

1. NEPA applies to “all agencies of the Federal Govern-

ment” (42 U.S.C. § 4332(2)), including FMCSA, and peti-

tioners concede that FMCSA must comply with NEPA. See

Pet. Br. 38 n.16. Under NEPA, proposed “major Federal

actions significantly affecting the quality of the human

environment” require an EIS. 42 U.S.C. § 4332(2)(C)."° To

interpret this broad statutory command we, as do petitioners,

rely on the CEQ regulations implementing NEPA, which are

“binding on all Federal agencies” (40 C.F.R. § 1500.3)

* The APA provides for reversal of “gency action that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)A). Because the issue here is whether FMCSA

followed the law in interpreting NEPA’s standards on causation and other

issues, the strict standard of review governing legal issues applies. See

Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376-77

(1989) (distinguishing legal disputes, such as one that would turn on legal

meaning of “significant” under NEPA, from factual disputes which

implicate substantial agency expertise). Even under the more deferential

standard applicable to an agency’s factual determination (see id. at 377),

FMCSA has not taken the requisite “hard look” at the environmental

consequences of its proposed action (id. at 374).

'° The court of appeals separately examined “major federal action” and

“significantly affecting the environment.” See Pet. App. 29a-43a. The

portions of the opinion that petitioners contest relate to the former

component, on which we focus.

and are “entitled to substantial deference.” Marsh, 490 U.S.

at 372.

The CEQ regulations define “major federal action” to

“include[] actions with effects that may be major and which

are potentially subject to Federal control and responsibility,”

including “[a]doption of official policy, such as rules, regu-

lations, and interpretations.” 40 C.F.R. § 1508.18. Further,

“effects” include “{i]ndirect 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) (em-

phases added).

2. As previously discussed, and as petitioners concede,

even though the President lifted the moratorium, Section 350

precludes Mexico-domiciled trucks from operating in the

interior of the United States absent FMCSA action. See

supra at pp. 19-21; Pet. Cert. 11, 19 (“Section 350 did

establish the promulgation of FMCSA’s safety rules as a

condition precedent to processing Mexican carriers’

applications.”). Since the President lifted the moratorium in

November 2002, there has been no cross-border trucking."

Congress gave FMCSA separate control over whether such

nationwide trucking could occur. FMCSA’s action is

therefore a key condition precedent of any environmental

effects. There is no requirement under NEPA that agency

action also be the sole cause of environmental effects. For

instance, this Court has found that a Forest Service “special

use permit” that authorizes development of a ski resort by a

private developer constitutes “major Federal action.”

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

'' Having conceded that Mexico-domiciled trucks cannot travel

throughout the United States until the challenged rules are implemented,

petitioners spend considerable time rebutting a straw man: That FMCSA’s

rules caused the President to lift the moratorium. See Pet. Br. 30-32.

Respondents have never made this argument.

336-37 (1989); see also Kleppe v. Sierra Club, 427 U.S. 390,

399-400 (1976); Aberdeen & Rockfish R.R. Co. v. SCRAP,

422 U.S. 289, 318-19 (1975). In Robertson, as here, there

was “major federal action” because the agency’s decision was

a condition precedent for environmental effects, even though

other actors not covered by NEPA also had to take action for

there to be any such effects.”

3. Petitioners’ reliance on Metropolitan Edison v. People

Against Nuclear Energy, 460 U.S. 766 (1983), is misplaced.

In that case, the Court examined whether an EIS was

necessary to evaluate the possible psychological harm from

The courts of appeals regularly find “major federal action” in such

circumstances. See, e.g, Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir.

1996) (“if a federal permit is a prerequisite for a project with adverse

impact on the environment, issuance of that permit does constitute major

federal action,” even though environmental effects will not occur absent

further action by state governments not subject to NEPA and by private

actors’ fishing); Citizens Awareness Network, Inc. v. United States Nu-

clear Regulatory Comm'n, 59 F.3d 284, 292-93 (1st Cir. 1995) (Nuclear

Regulatory Commission's permission for operator of nuclear power plant

to decommission facility constitutes “major federal action”); Maryland

Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039, 1041, 1042 (4th

Cir. 1986) (“Because of the inevitability of the need for at least one fed-

eral approval, we think that the construction of the highway will constitute

a major federal action,” even though a county government would have to

authorize construction.); Cady v. Morton, 527 F.2d 786, 793 (9th Cir.

1975) (Department of Interior approval of leases to private company that

would conduct coal mining operations was “major federal action’’).

This concept is so well established that it is often accepted without

discussion. See, e.g., Audubon Society of Central Arkansas v. Dailey, 977

F.2d 428, 433 n.6 (8th Cir. 1992) (noting parties do not dispute that there

is “major federal action” where Corps of Engineers issued permit upon

application of city for construction of bridge by private contractor); Sierra

Club v. Marsh, 769 F.2d 868, 870, 882 (ist Cir. 1985) (Breyer, J.) (federal

agencies responsible for grant of “necessary permits and funding” for state

to build cargo port and causeway must prepare EIS); Sierra Club v.

Peterson, 717 F.2d 1409 (D.C. Cir. 1983) (federal agency that leases land

for oil and gas exploration by private parties must prepare EIS).

the risk of an accident that might conceivably result from the

restarting of a nuclear reactor. See id. at 768. Metropolitan

Edison thus did not address the connection between agency

action and harm to the environment, but rather the connection

between harm to the environment and psychological harm,

which in that case was obviously attenuated. See id. at 775;

Pet. Br. 34. The case did not concern the classic threshold

NEPA issue of the connection between agency action—here

the issuance of rules that allow cross-border trucking—and

harm to the environment. That issue, which is the issue in

this case, is governed by Robertson and like cases.

But even under the analysis Metropolitan Edison employed

(see 460 U.S. at 775-77), an EIS is required here. Petitioners

are simply wrong in arguing that this case, like Metropolitan

Edison, “involved a long ‘causal chain’ between the agency’s

action” and the environmental harm. Pet. Br. 34 (quoting

Metropolitan Edison, 460 U.S. at 774-75). To the contrary,

the rules serve the gatekeeper function of determining which

trucks will and will not be able to travel into the interior of

the United States. The President lifted the moratorium, but

under Section 350, FMCSA’s rules are also necessary for

Mexico-domiciled trucks to travel beyond the border zones

and affect the environment. And, the standards contained in

the rules will determine precisely which trucks will do so.

There is much more than a “bare ‘but for’ relationship” (Pet.

Br. 33) between FMCSA’s rules and the predictable envir-

onmental effects of trucking beyond the border zones.

Rather, there is an extremely close connection between the

application of FMCSA’s rules and the environmental harm

they will cause. Because of Section 350, FMCSA’s rule-

making is a proximate cause of those environmental effects in

the classic sense that there is “a reasonably close causal

relationship.” Metropolitan Edison, 460 U.S. at 774.

4. Petitioners refer to the President’s action in lifting the

moratorium as an “intervening event.” Pet. Br. 10-11, 31.

But there are two independent conditions that must be

satisfied for cross-border trucking: the President must lift the

moratorium and FMCSA must meet the prerequisites of

Section 350. That Congress has enacted two conditions does

not deprive the performance of each one of its causal sig-

nificance. Otherwise, every time two federal agencies need

to issue permits for a state construction permit, one of them

would be an “intervening event.” Indeed, NEPA does not

even recognize the concept of an “intervening event” at all.

There is no reason to impose such a requirement separate and

apart from the concept of foreseeability already established

by 40 C.F.R. §1508.8(b). See supra at p. 32.

Even assuming arguendo that an intervening cause can

affect an agency’s obligations under NEPA and that the

President’s action in lifting the moratorium is an intervening

Cause, petitioners’ argument fails in light of traditional tort

law principles and the CEQ regulations. Under tort law:

“Foreseeable intervening forces are within the scope of the

original risk, and hence of the defendant’s negligence.” W.

Page Keeton ef al., Law Of Torts 303 (Sth ed. 1984) (em-

phasis added). Put another way, if “the intervening cause is

‘foreseeable,”” the defendant is still liable. /d. at 302. Here,

the President’s action in lifting the moratorium was not

simply foreseeable, it was inevitable. As petitioners concede,

the President announced his intention to lift the moratorium

before the agency promulgated its rules. See, e.g., Pet.

Cert. 5.'° Therefore, the environmental effects of the flow of

trucks from Mexico to interior points of the United States

were reasonably foreseeable at the time FMCSA promulgated

* Petitioners belatedly speculate that it was “possible” that something

could have changed the President’s mind. Pet. Br. 31. The test under the

CEQ regulations, however, is “reasonably foreseeable” not conceivably

possible. 40 C.F.R. § 1508.8(b). The EA actually dismissed considera-

tion of a scenario in which the President declined to lift the moratorium.

J.A. 57. It is too late to argue that scenario is reasonably foreseeabie.

its rules and are now certain in light of the President’s lifting

the moratorium.

5. This causation analysis does not subject a presidential

decision to NEPA for, as we have pointed out, the President's

decision is not being reviewed, only the actions of FMCSA.

See supra at pp. 19-20.'* The relevant question is whether

the agency's actions may significantly affect the environment.

Petitioners’ argument that the President is exempt from

NEPA misses the point. See Pet. Br. 24-27. One or more of

the actors that cause environmental effects (state agencies,

construction companies, etc.) are often exempt from NEPA.

Those actors do not have to prepare an EIS, and respondents

do not seek to require the President to do so. But that does

not excuse an agency that is covered by NEPA from pre-

paring an EIS when it takes action that is a key condition

precedent to, and a proximate cause of, significant envir-

onmental effects.

Petitioners’ claim that respondents challenge the effects of

the President’s action (see Pet. Br. 2, 3, 27-30) is the same as

characterizing Robertson as a challenge to the effects of a

private company’s decision to build a ski resort. But in that

and similar cases the actions of the federal agency are subject

to NEPA. That the statute limits who must prepare an EIS to

federal agencies does not mean that a covered agency may

ignore the environmental effects it causes because an en-

tity not within the statute also must take action to cause

the effects.

'* Petitioners claim respondents are challenging the President’s lifting

of the moratorium because we have cited a report that criticizes the EA's

“No Action Alternative,” under which the President lifts the moratorium,

there are no new rules promulgated, and FMCSA nonetheless allows

cross-border trucking notwithstanding Section 350’s express prohibition

of such activity. See Pet. Br. 29; J.A. 56, 58, 63. Petitioners certainly

cannot defend the EA and rebut criticisms of it by relying on a scenario

grounded on defiance of the law.

Petitioners claim that an agency’s NEPA review cannot

touch on “sensitive and highly discretionary areas such as

foreign affairs.” Pet. Br. 26. The CEQ regulations, however,

explicitly include “treaties and international conventions or

agreements” within the realm of “federal actions” subject to

NEPA. 40 C.F.R. § 1508.18(b)(1). “[L]egislative proposals”

(40 C.F.R. § 1508.18(a)), including “requests for ratification

of treaties” (40 C.F.R. § 1508.17), also are “federal actions”

subject to NEPA. Agencies covered by NEPA therefore

prepare EISs even though their actions may take place against

the backdrop of foreign affairs. See, e.g., 64 Fed. Reg.

31553, 31553-54 (June 11, 1999) (Air Force to prepare EIS

with regard to dismantlement of missile system that would be

required by treaty between United States and Russia).

B. Preparation Of An EIS Would Further NEPA’s

Purposes

In cases in which there is any doubt as to causation—and

this is not one of those cases—courts “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. As we have previously dis-

cussed, the legislative intent could not be more clear:

Through Section 350, Congress made FMCSA action a

prerequisite to the cross-border trucking that will cause the

environmental effects, and then confirmed this by twice

reenacting the preconditions after the court of appeals

required an EIS. See supra at pp. 26-30.

In addition, NEPA must be applied “to the fullest extent

possible.” 42 U.S.C. § 4332. With that command in mind,

NEPA has two aims: “It ensures that the agency, in reaching

its decision, will have available, and will carefully consider,

detailed information concerning significant environmental

impacts”; and it “guarantees that the relevant information will

be made available to the larger audience that may also play a

role in both the decisionmaking process and the imple-

mentation of that decision.” Robertson, 490 U.S. at 349

(emphases added); see also Baltimore Gas & Elec. Co. v.

NRDC, 462 U.S. 87, 97 (1983); 40 C.F.R. §§ 1500.2, 1502.1.

FMCSA’s preparation of an EIS would advance both of

these aims.

1. An EIS would ensure that FMCSA considers the envir-

onmental effects of allowing Mexico-domiciled trucks to

travel into the interior of the United States before it is too late

for the agency to do anything to mitigate the effects. See

Robertson, 490 U.S. at 349.

NEPA specifically makes its policies and goals “supple-

mentary to those set forth in existing authorizations of

Federal agencies.” 42 U.S.C. § 4335 (emphasis added). The

statute ensures that environmental issues are considered

along with more traditional priorities. See, e.g., 42 U.S.C.

§ 4332(2)(B). Petitioners claim FMCSA does not have

“expertise” in issues beyond safety and need not “step back

from the immediate safety-related task at hand and evaluate

under NEPA the environmental effects.” Pet. Br. 3, 35. This

contention is at odds with NEPA. This Court has made clear

that NEPA constrains agencies possessing statutory duties

that do not explicitly address environmental issues, and which

undertake tasks that are not environmental in nature. See,

e.g., Aberdeen, 422 U.S. at 318-19 (regarding Interstate

Commerce Commission’s general revenue proceeding).'°

The only exception is if compliance with NEPA is impos-

sible. See 40 C.F.R. § 1500.6. Petitioners do not argue

'S Petitioners cite Aberdeen for the proposition that an EIS is not war-

ranted here because it would not serve a purpose in informing FMCSA’s

decision. See Pet. Br. 38. But Aberdeen supports requiring FMCSA to

prepare an EIS because the Court there held only that “no purpose” would

be served by ordering an agency to explore environmental issues when

the same agency was already doing so in another proceeding. 422 U.S.

at 325.

FMCSA’s statutory authorization makes compliance impos-

sible. See Pet. Br. 38 n.16. )

Petitioners characterize FMCSA’s rules as “ministerial.”

Pet. Br. 39. But petitioners do not dispute that the agency has

meaningful discretion over how to satisfy the preconditions in

Section 350. See J.A. 481. Among other examples, FMCSA

could add to the nine safety audit areas of Section

350(a)(1)(B), as the agency did by requiring that trucks have

“other basic safety management controls in place.” Pet. App.

116a. The agency further used its discretion to provide a

detailed explanation of the criteria FMCSA would use for

safety audits. /d. at 118a-24a. FMCSA also could deter-

mine whether to conduct safety) audits in Mexico or the

United States. See id. at 114a. The agency likewise enjoys

ae over the frequency of inspections. See J.A.

7 Indeed, besides providing the agency broad discretion over how

stringent to make the safety standards, Congress nowhere stated that

FMCSA had to promulgate rules meeting the preconditions specified in

Section 350, only that the agency must do so before spending appro-

priated funds to process applications for cross-border trucking. Pub. L.

No. 107-87, § 350(a), 115 Stat. 864. Congress certainly knows how to

require agencies to adopt rules, but did not do so here. Nor do other

statutes governing FMCSA mandate that the agency meet the numerous

preconditions in Section 350, as demonstrated by the dramatic differences

between the original proposed Application and Safety Monitoring Rules

and the more extensive rules promulgated after Section 350. Compare 66

Fed. Reg. at 22377 and 66 Fed. Reg. at 22419-20 with Pet. App. 107a-24a

and 1|83a-202a. Petitioners’ only claim to the contrary is a passing

reference to the effect that, because FMCSA must grant authority to

“particular carriers” that satisfy requirements (Pet. Br. 22-23; see also J.A.

52), the agency is “effectively require[d]” to promulgate rules that meet

the conditions of Section 350. Pet. Br. 35. This point is inapposite

because the issue is FMCSA’s discretion whether or not to promulgate

rules (which the agency enjoys), not to ignore them in particular instances

once promulgated (the issue petitioners discuss).

Given this discretion over the content of the rules, FACSA

could decide, in light of an EIS, to consider enacting more

restrictive safety standards that would also mitigate the

environmental effects of Mexico-domiciled trucks operating

throughout the United States.

The agency concedes that there is a correlation between

safety and environmental concerns in that older, less safe

trucks pollute more. In the court of appeals, FMCSA

suggested that increased emissions from Mexico-domiciled

trucks will not be as great because “the heightened standards

put into 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.” J.A. 484; see also Pet.

Br. 12; J.A. 67, 98, 193, 201.

The relation between tighter safety rules and more envir-

onmental protection makes eminent sense as Mexico-

domiciled trucks began meeting United States safety and

environmental standards at approximately the same time (see

id. at 255), and hence the same, older trucks are both more

dangerous and more polluting. By making the safety rules

more stringent, FMCSA could thus help mitigate the serious

environmental and public health problems resulting from

cross-border trucking.'’ In light of the agency’s discretion,

'’ Petitioners do not dispute any of this; they only claim that the point

is waived because it was raised in response to FMCSA’s argument below

(J.A. 484) that the more stringent the agency made the safety standards,

the fewer older, more polluting, trucks would be allowed entry. See Pet.

Br. 28-29. The agency also acknowledged this tie between the stringency

of the safety rules and the environment in the EA. See J.A. 67, 98, 193,

201. The court of appeals properly addressed and decided the issue, as it

plainly had the discretion to do. See Pet. App. 42a; County of Suffolk v.

Secretary of Interior, 562 F.2d 1368, 1385 (2d Cir. 1977). This Court has

long held that it will entertain arguments that were either pressed or

passed on below. See, e.g., United States v. Williams, 504 U.S. 36, 41

(1992).

there should be no serious dispute that FMCSA was required

to prepare an EIS.'*

Further, FMCSA may have additional ways to mitigate the

adverse effects of certifying Mexico-domiciled trucks to

travel to interior points within the United States. For exam-

ple, FMCSA could engage in cooperative agreements with

other agencies, such as with the Environmental Protection

Agency (“EPA”) to include emissions inspections with its

safety inspections. NEPA’s requirement that the EIS

consider alternatives, 42 U.S.C. § 4332(2)(C)(iii), is meant to

stimulate agencies to identify and examine innovative options

for protecting the environment. See, e.g., Robertson, 490

U.S. at 351-52; 40 C.F.R. § 1502.14.

The lower court cases petitioners rely on regarding agency

discretion do not help them. See Pet. Br. 39. Every one

involves a situation where the agency was stripped of all

significant discretion over the challenged action.'? In

* Indeed, given FMCSA’s undoubted discretion over the stringency of

the safety rules and the plain relationship between safety and envir-

onmental concerns, FMCSA should have prepared an EIS with respect to

the environmental effects of various possible rules even in the absence of

Section 350.

'? See Citizens Against Rails-to-Trails v. Surface Transp. Bd, 267 F.3d

1144, 1151-53 (D.C. Cir. 2001) (agency was required to issue authori-

zation); Goos v. ICC, 911 F.2d 1283, 1293-96 (8th Cir. 1990) (same); City

of New York v. Minetia, 262 F.3d 169, 178 (2d Cir. 2001) (agency had no

discretion regarding take-off and landing slot exemptions); Sac & Fox

Nation v. Norton, 240 F.3d 1250, 1262 (10th Cir. 2001) (agency had no

discretion about acquiring land); American Airlines, Inc. v. Dep't of

Transp., 202 F.3d 788, 803 & n.11 (Sth Cir. 2000) (agency lacked

discretion over whether to allow increased flights); Aircraft Owners and

Pilots Ass'n v. Hinson, 102 F.3d 1421, 1425 (7th Cir. 1996) (agency had

no discretion with respect to closure of airport); Sierra Club v. Babbitt, 65

F.3d 1502, 1512-13 (9th Cir. 1995) (agency had no discretion to modify

construction of logging road); Milo Cmty. Hosp. v. Weinberger, 525 F.2d

144, 147-48 (Ist Cir. 1975) (agency had no discretion over decertification

of hospital).

contrast, where an agency has significant discretion it must

prepare an EIS. See Forelaws on Board v. Johnson, 743 F.2d

677, 681 (9th Cir. 1985) (finding that even when Congress

mandated contracts for power delivery, agency had discretion

over content of contracts and had to prepare EIS). Given

FMCSA’s substantial discretion here, the agency action can

hardly be termed ministerial.”°

2. In addition to helping guide FMCSA’s decision, an EIS

would also perform an important informational role. Pub-

lication of an EIS “provides a springboard for public

comment,” and offers governmental entities other than the

agency “adequate notice of the expected [environmental]

consequences and the opportunity to plan and implement

corrective measures in a timely manner.” Robertson, 490

U.S. at 349-50; see also Marsh, 490 U.S. at 371 (“NEPA per-

mits the public and other government agencies to react to the

effects of a proposed action at a meaningful time.”).

An EIS would inform the public and other governmental

bodies of the environmental issues implicated by allowing

Mexico-domiciled trucks to travel into the interior of

the United States. An EIS would also permit state and local

authorities with responsibility for air quality control to

determine what the effect of the trucks will be on compliance

with air quality standards so that, inter alia, they can adjust

requirements on other sources of the relevant pollutants

accordingly. Moreover, an EIS would allow Congress, other

governmental bodies, and the public at large to examine, and

potentially implement, alternatives and mitigation measures

outside of FMCSA’s authority. Petitioners do not discuss any

of this, but instead explain why in their view an EIS would

”° Petitioners’ assertion that “FMCSA did not have discretion to coun-

termand any determination by the President that Mexican carriers would

no longer be barred” (Pet. Br. 39) is irrelevant. The issue is whether

FMCSA has discretion in its own rulemaking action, which it does.

not be helpful to the President alone. See Pet. Br. 36. That is

simply not the standard.

3. Finally, the lower court’s decision does not “contra-

vene[] the ‘rule of reason’” agencies employ in preparing

their NEPA documents. Pet. Br. 37. Section 350 gave

FMCSA control over environmental effects regardless of the

President’s decision on the moratorium. As petitioners’ main

case suggests, “[a]pplication of the ‘rule of reason’ . . . turns

on the value of . . . information to the still pending decision-

making process.” Marsh, 490 U.S. at 374. An EIS is invalu-

able, for the reasons discussed above, in aiding FMCSA’s

decision to adopt the rules and how strict to make them, as

well as bringing the environmental consequences of

FMCSA’s actions to the attention of the public and other

governmental bodies.

Petitioners’ complaints about the Purported delays and

monetary expense of preparing an EIS (see Pet. Br. 37-38) are

meritless. FMCSA could have completed an EIS long ago

had it properly fulfilled its responsibilities under NEPA.

Moreover, an EIS is already well underway and could be

complete as early as this summer. See Pet. Cert. 15 n.7;

Resp. Br. Opp. Cert. 10. There is no evidence that FMCSA

will Save any money if it prevails here. More fundamentally,

nothing in NEPA permits an agency to elevate the costs of

an EIS above the potential harm to the environment and

public health.”!

IV. FMCSA MUST COMPLY WITH CLEAN AIR

ACT CONFORMITY REQUIREMENTS

A. The Federal Government Cannot Allow Ac-

tions That Impinge On States’ Ability To Meet

Federal Air Quality Standards

The Clean Air Act was enacted to prevent pollution and to

protect and enhance the quality of national air resources. 42

* Moreover, petitioners raised none of these arguments below, and the

court of appeals did not address them. They are therefore waived.

U.S.C. § 7401. The CAA requires EPA to promulgate

National Ambient Air Quality Standards (“NAAQS”) for air

pollutants to protect the public health and welfare. 42 U.S.C.

§§ 7409(a), (b); see also Alaska Dep't of Envtl. Conservation

v. EPA, 5440 US. _, __, 124 S. Ct. 983, 991 (2004);

Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 462, 465

(2001). Once EPA has promulgated NAAQS for particular

pollutants, the “primary responsibility” for attaining and

maintaining those standards shifts to the states. E.g., Union

Electric Co. v. EPA, 427 U.S. 246, 256 (1976); see also

Alaska Dep't of Envtl. Conservation, 124 S. Ct. at 1012 (Ken-

nedy, J., dissenting); 42 U.S.C. § 7401(a)(3). In particular,

the states must promulgate State Implementation Plans

(“SIPs”) to attain and maintain the NAAQS. 42 U.S.C.

§ 7410(a); see also Alaska Dep't of Environmental Conser-

vation, 124 §. Ct. at 991-92; Union Electric, 427 U.S. at

249-50. This requirement imposes a “lengthy and expensive

task” on the states. Whitman, 531 U.S. at 479.

Congress provided the states broad discretion to determine

how to meet the NAAQS. See, e.g., Union Electric, 427 U.S.

at 266 (“So long as the national standards are met, the State

may select whatever mix of control devices it desires.”). But

Congress was clear that those standards must be met. See,

e.g., Whitman, 531 U.S. at 479; Union Electric, 427 U.S. at

249-50. The CAA imposes penalties on states that fail to

attain and maintain the NAAQS by providing for limitations

on federal funds for state highways and restrictions on new

sources of pollution in nonattainment areas (42 U.S.C.

§§ 7509(a), (b))}—that is, areas that do not meet the NAAQS

(see General Motors Corp. v. United States, 496 U.S. 530,

534 (1990)). Put another way, the CAA manifests Congress’

“determination to tak[e] a stick to the states . . . to guarantee

the prompt attainment and maintenance of specified air

quality standards.” Union Electric, 427 U.S. at 249 (internal

quotation marks omitted; alteration in original).

Thus, the CAA “made the States and the Federal Govern-

ment partners in the struggle against air pollution.” General

Motors, 496 U.S. at 532: see also Alaska Dep't of Envil.

Conservation, 124 S. Ct. at 1018 (Kennedy, J., dissenting).

To ensure that the federal government holds up its end of the

partnership and does not interfere with a state’s efforts to

comply with the CAA and thereby risk federally imposed

sanctions, the CAA further provides: “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 [a SIP].” 42 U.S.C. § 7506(c)(1) (emphasis

added). Conformity teans that the activities conform to a

SIP’s “purpose of eliminating or reducing the severity and

number of violations of the [NAAQS]” and will not (i) cause

or contribute to a new air quality violation, (ii) increase the

frequency or severity of an existing violation, or (iii) delay

attainment of any standard or required emission reductions or

other milestones. 42 U.S.C. § 7506(c)(1).

In enacting the conformity requirement in 1977, Congress

understood the threat that actions taken by federal agencies

like FMCSA posed to state efforts to attain and maintain the

NAAQS. The 1977 Senate Report concluded:

The requirement that Federal licenses, permits, and other

activities must conform to implementation plans may be

one of the most important in assuring the eventual

attainment of the ambient standards. Without the ability

of a State or local planning agency to consider and

provide for control of emissions from Federally licensed

activities such as Outer Continental Shelf oil or gas

leasing, it would be considerably more difficult for some

areas to attain the oxidant standards.

S. Rep. No. 95-127, 95th Cong., Ist Sess. 40-41 (1977). As

states would frequently be powerless to regulate federal

activities directly, Congress imposed on federal agencies an

independent obligation to ensure that those federal activities

were incorporated into the state planning process and did not

make it more difficult for a state to conform to its federally

mandated plan to achieve the CAA’s air quality goals.

B. FMCSA Improperly Failed To Prepare A Con-

formity Analysis

The challenged rules fall directly under the “support in any

way” provision of 42 U.S.C. § 7506(c)(1). EPA regulations

governing the applicability of the conformity requirements to

federal agency actions require federal agencies to make a

determination that an action conforms to applicable SIPs

under certain conditions. See 40 C.F.R. §§ 93.150(b), 93.154.

In particular, the regulations require a conformity determina-

tion “where the total of direct and indirect emissions” in

certain areas will exceed specified threshold levels. 40

C.F.R. § 93.153(b) (emphasis added). The regulations define

“indirect emissions” to mean emissions that:

(1) Are caused by the Federal action, but may occur

later in time and/or may be further removed in distance

from the action itself but are still reasonably foresee-

able; and

(2) The 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 (emphases added).

Despite these broad regulations, petitioners contend

FMSCA need not perform a conformity analysis because the

agency (i) cannot control the President’s decision to lift the

moratorium, (ii) has “no significant ability to control the

emissions of Mexican motor carriers engaged in cross-border

operations” and (iii), has no “continuing program respons-

ibility” under 40 C.F.R. § 93.152 for those emissions. Pet.

Br. 46. These arguments are misplaced.

First, whether or not FMCSA can control the President's

action is irrelevant, as, once again, respondents are chal-

lenging FMCSA’s separate action, not the President’s action

in lifting the moratorium. The Statutory issue is whether

FMCSA action would “support in any way” cross-border

trucking. 42 U.S.C. § 7506(c)(1). In line with this broad

language, EPA in 40 C.F.R. § 93.152 has defined “caused by”

to mean “emissions that would not otherwise-occur in the

absence of the Federal action.” 40 C.F.R. § 93.152. This

regulation embraces the “condition precedent” analysis

explicated with regard to NEPA. See supra at pp. 32-33. The

emissions at issue “would not otherwise occur in the absence”

of the challenged rules because Section 350 prohibits

FMCSA from authorizing Mexico-domiciled trucks to travel

into the interior of the United States in the absence of

FMCSA meeting the congressional preconditions. Hence,

emissions will be “caused by” the rules, although they “may

occur later in time.” 40 C.F.R. § 93.152.

Second, FMCSA can control emissions from Mexico-

domiciled trucks. As respondents have shown, Section 350

gives control to the agency. In addition, FMCSA has the

ability to increase or reduce emissions by making the safety

standards more or less stringent, and thereby determine

how many older, more heavily polluting, trucks will be

allowed to travel into the interior of the United States. The

agency need not have sole control over the activity, a

conclusion that would read out of the statute the “support in

any way” language.

Third, FMCSA has a “continuing program responsibility”

under 40 C.F.R. § 93.152. The agency must rene

inspections and take such other actions that are necessary to

enforce its rules after they have been properly promulgated.

Indeed, under the Safety Monitoring Rule, during the time

that Mexico-domiciled trucks retain “provisional” Status, they

are “subject to intensified monitoring through frequent

roadside inspections.” J.A. 185a-86a. The more effectively

the agency enforces the safety requirements, the fewer

heavily polluting Mexico-domiciled trucks will be allowed to

operate within the United States interior. Moreover, FMCSA

has the continuing responsibility to reevaluate the regulations

and make the safety restrictions more or less stringent based

on practical experience.

EPA’s regulations confirm this common-sense conclusion:

“When an agency, in performing its normal program respons-

ibilities, takes actions itself or imposes conditions that result

in air pollutant emissions by a non-Federal entity taking

subsequent actions, such emissicas are covered by the mean-

ing of a continuing program responsibility.” 40 C.F.R.

§ 93.152. The challenged rules, the promulgation of which is

certainly part of FMCSA’s normal program responsibilities,

will “result in air pollutant emissions by a non-Federal entity

taking subsequent actions” because the rules will result in

Mexico-domiciled trucks traveling beyond the border zones

and emitting pollution. Again, this is consistent with the

extremely broad “support in any way” language of 42 U.S.C.

§ 7506(c)(1) and Congress’ intent in enacting the conformity

provisions to counter the serious threat to the ability of states

to fulfill their federal obligations.

Accordingly, as petitioners do not dispute any of the other

requirements for performing a conformity analysis, FMCSA

was required to do so.”

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

2 Petitioners’ suggestion that the court of appeals erred by requiring an

EIS and conformity analysis rather than remanding for FMCSA to decide

how to proceed (Pet. Br. 36-37 n.14) is meritless. First, it was not raised

below and is therefore waived. Second, petitioners do not contest in this

Court the court of appeals’ findings concerning the potential serious

environmental effects from cross-border trucking. See Pet. App. 31a-43a,

47a-48a.

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted,

GAIL RUDERMAN FEUER STEPHEN P. BERZON

JULIE MASTERS Counsel of Record

ADRIANNA QUINTERO SOMAINI JONATHAN WEISSGLASS

MELISSA LIN PERRELLA ADAM B. WOLF

ZAHIRAH WASHINGTON ALTSHULER, BERZON,

NATURAL RESOURCES DEFENSE NUSSBAUM, RUBIN & DEMAIN

COUNCIL 177 Post Street, Suite 300

1314 Second Street San Francisco, CA 94108

Santa Monica, CA 90401 (415) 421-7151

Attorneys for Respondents Public Citizen, International

Natural Resources Defense Brotherhood of Teamsters,

Council and Planning and AFL-CIO, California Labor

Conservation League Federation, AFL-CIO,

DAVID C. VLADECK and Environmental Law

PUBLIC CITIZEN Foundation

1600 20th Street, N.W.

Washington, D.C. 20009 '

(202) 588-1600

Attorneys for Respondent

PATRICK J. SZYMANSKI WILLIAM S. LERACH

General Counsel PATRICK J. COUGHLIN

INTERNATIONAL BROTHERHOOD ALBERT H. MEYERHOFF

OF TEAMSTERS STANLEY S. MALLISON

25 Louisiana Ave., N.W. MILBERG WEISS BERSHAD

Washington, D.C. 20001 HYNES & LERACH LLP

(202) 624-6945 355 South Grand

Attorney for Respondent precy ae toy sad

International Brotherhood

of Teamsters, AFL-CIO THOMAS O. MCGARITY

UNIVERSITY OF TEXAS

DAVID ROSENFELD

SCHOOL OF LAW

WEINBERG, ROGER & 777 Eos eile

ROSENFELD East Dean

; Austin, TX 78705

180 Grand Avenue, Suite 1400

Oakland, CA 94612 (512) 232-1384

(510) 839-6600 Attorneys for Respondents

Attorneys for Respondent International Brotherhood

Brotherhood of Teamsters, of Teamsters, AFL-CIO,

Auto and Truck Drivers Brotherhood of Teamsters,

Local 70 Auto and Truck Drivers,

Local 70, California Labor

Federation, AFL-C1/O,

California Trucking

Association, and

Environmental Law

Foundation

APPENDIX

Additional Provisions Involved

1. North American Free Trade Agreement Implementa-

tion Act

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. National Environmental Policy Act

a. 42 U.S.C. § 4335 provides:

The policies and goals set forth in this chapter are

supplementary to those set forth in existing authori-

zations of Federal agencies.

b. 40 C.F.R. § 1500.6 provides:

Each agency shall interpret the provisions of the Act

as a supplement to its existing authority and as a man-

date to view traditional policies and missions in the light

of the Act’s national environmental objectives. Agen-

cies shall review their policies, procedures, and

regulations accordingly and revise them as necessary to

insure full compliance with the purposes and provisions

of the Act. The phrase “to the fullest extent possible” in

section 102 means that each agency of the Federal

Government shall comply with that section unless

existing law applicable to the agency’s operations

expressly prohibits or makes compliance impossible.

c. 40 C.F.R. § 1508.17 provides:

Legislation includes a bill or legislative proposal to

Congress developed by or with the significant coopera-

tion and support of a Federal agency, but does not

include requests for appropriations. The test for signifi-

cant cooperation is whether the proposal is in fact

predominantly that of the agency rather than another

source. Drafting does not by itself constitute significant

cooperation. Proposals for legislation include requests

for ratification of treaties. Only the agency which

has primary responsibility for- the subject matter

involved will prepare a legislative environmental impact

statement.

d. 40 C.F.R. § 1508.18 provides:

Major Federal action includes actions with effects

that may be major and which are potentially subject to

Federal control and responsibility. Major reinforces but

does not have a meaning independent of significantly

(§ 1508.27). Actions include the circumstance where the

responsible officials fail to act and that failure to act is

reviewable by courts or administrative tribunals under

the Administrative Procedure Act or other applicable

law as agency action.

(a) Actions include new and continuing activities, ~

including projects and programs entirely or partly

financed, assisted, conducted, regulated, or approved

by federal agencies; new or revised agency rules,

regulations, plans, policies, or procedures; and legis-

lative proposals (§§ 1506.8, 1508.17). Actions do not

include funding assistance solely in the form of

general revenue sharing funds, distributed under the

State and Local Fiscal Assistance Act of 1972, 31

U.S.C. 1221 ef seg., with no Federal agency control

over the subsequent use of such funds. Actions do not

include bringing judicial or administrative civil or

criminal enforcement actions.

(b) Federal actions tend to fall within one of the

following categories:

(1) Adoption of official policy, such as rules,

regulations, and interpretations adopted pursuant to

the Administrative Procedure Act, 5 U.S.C. 551 ef

seq.; treaties and international conventions or

agreements; formal documents establishing an

agency's policies which will result in or sub-

stantially alter agency programs.

(2) Adoption of formal plans, such as official

documents prepared or approved by federal

agencies which guide or prescribe alternative uses

of federal resources, upon which future agency

actions will be based.

(3) Adoption of programs, such as a group of

concerted actions to implement a specific policy or

plan; systematic and connected agency decisions

allocating agency resources to implement a specific

statutory program or executive directive.

(4) Approval of specific projects, such as con-

struction or management activities located in a

defined geographic area. Projects include actions

approved by permit or other regulatory decision as

well as federal and federally assisted activities.

e. 40 C.F.R. § 1508.27 provides:

Significantly as used in NEPA requires considera-

tions of both context and intensity:

(a) Context. This means that the significance of an

action must be analyzed in several contexts such as

society as a whole (human, national), the affected

region, the affected interests, and the locality.

Significance varies with the setting of the proposed

action. For instance, in the case of a site-specific

action, significance would usually depend upon the

effects in the locale rather than in the world as a

whole. Both short- and long-term effects are relevant.

(b) Intensity. This refers . the severity of impact.

Responsible officials must bear in mind that more

than one agency may make decisions about partial

aspects of a major action. The following should be

considered in evaluating intensity:

(1) Impacts that may be both beneficial and ad-

verse. A significant effect may exist even if the

Federal agency believes that on balance the effect

will be beneficial.

(2) The degree to which the proposed action af-

fects public health or safety.

(3) Unique characteristics of the geographic area

such as proximity to historic or cultural resources,

park lands, prime farmlands, wetlands, wild and

scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality

of the human environment are likely to be highly

controversial.

(5) The degree to which the possible effects on

the human environment are highly uncertain or

involve unique or unknown risks.

(6) The degree to which the action may establish

a precedent for future actions with significant

effects or represents a decision in principle about a

future consideration.

(7) Whether the action is related to other actions

with individually insignificant but cumulatively

significant impacts. Significance exists if it is

reasonable to anticipate a cumulatively significant

eat tae ode as

NL thr aes 0 ea ites 3 ae

impact on the environment. Significance cannot be

avoided by terming an action temporary or by

breaking it down into small component parts.

(8) The degree to which the action may adversely

affect districts, sites, highways, structures, or

objects listed in or eligible for listing in the

National Register of Historic Places or may cause

loss or destruction of significant scientific, cultural.

or historical resources.

(9) The degree to which the action may adversely

affect an endangered or threatened species or its

habitat that has been determined to be critical under

the Endangered Species Act of 1973.

(10) Whether the action threatens a violation

of Federal, State, or local law or requirements

imposed for the protection of the environment.

3. Clean Air Act

40 C.F.R. § 93.152 provides in part:

Caused by, as used in the terms “direct emissions” and

indirect emissions,” means emissions that would not

otherwise occur in the absence of the Federal action.

. 4. Section 348 of the Consolidated Appropriations Resolu-

tion, 2003, Pub. L. No. 108-7, Div. I, Tit. II, 117 Stat. 11

419, provides:

Funds appropriated or limited in this Act shall be subject

to the terms and conditions stipulated in section 350 of

Public Law 107-87, including that the Secretary submit a

report to the House and Senate Appropriations Commit-

tees annually on the safety and security of transporta-

tion into the United States by Mexico-domiciled motor

carriers.

5. Section 130 of the Consolidated Appropriations Act,

2004, Pub. L. No. 108-199, Div. F, Tit. I, 118 Stat. 3,

298, provides:

Funds appropriated or limited in this Act shall be subject

to the terms and conditions stipulated in section 350 of

Public Law 107-87, including that the Secretary submit a

report to the House and Senate Appropriations Commit-

tees annually on the safety and security of transpor-

tation into the United States by Mexico-domiciled

motor carriers.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.