Reply Brief — Department of Transportation v. Public Citizen

— —ü— — —

— } Supreme Court, US

fae FILED

1 APR 14 2004 |

No. 03-358 .

se

In the Supreme Court of the United States

DEPARTMENT OF TRANSPORTATION, ET AL.,

PETITIONERS

PUBLIC CITIZEN, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20520-0001

(202) 514-2217

TABLE OF CONTENTS

A. Congress has charged the President with sole

responsibility to decide whether to open

United States markets to Mexican carriers 2

1. Section 350 does not authorize FMCSA to

exclude Mexican carriers on environmental

grounds 2

2. Congress did not ratify the court of —

EE ——— 6

B. FMCSA does not have any — ability

to mitigate air- quality impacts that may result

from the President's trade decision . . 8

1. Respondents’ mitigation arguments are un-

timely * 8

2. Respondents’ mitigation argument is without

GENTE, ccsccsssessssnssnsssennssencssssnsessesnssnnssesussnssnesesqesessesenessetenee 10

C. Preparation of an 8 n

Statement evaluating the effects of cross-border

trucking would not assist FMC SA in its rule-

making 13

D. FMCSA was not required to conduct a con-

formity review under the Clean Air Act 16

TABLE OF AUTHORITIES

Cases:

Appalachian Power Co. v. EPA, 251 F.3d 1026

(D.C. Cir. 2001) 9

Central Bank of Denver, N.A. v. First Interstate

Bank of Denver, N.A., 511 U.S. 164 (1994) . — “4,8

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

Bd., 267 F.3d 1144 (D.C. Cir. 2001) * 15

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

451, amended, 92 F.3d 1209 (D.C. Cir. 1996) 16

(I)

II

Cases Continued: Page

Flint Ridge Dev. Co. v. Scenic Rivers Ass’n, 426

U.S. 776 (1976) ... 15

Lorillard v. Pons, 434 U.S. 575 (1978) 7

Robertson v. Methow Valley Citizens Council,

490 U.S. 343 (1989) 13-14, 15

Vermont Yankee Nuclear Power Corp. v. Natural

Res. Def. Council, Inc., 435 U.S. 519 (1978) 9

Weinberger v. Catholic Action of Haw., 454

U.S. 189 (1981) 13

Statutes and regulations:

Clean Air Act, 42 U.S.C. 7401 et seq.:

42 U.S.C. 75060601) 1, 16

42 U.S.C. 7521 et seg. . . 10

42 U.S.C. 7522) (1) 10

Consolidated Appropriations Resolution, 2003,

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

— wes 6

Consolidated Appropriations Act, 2004, Pub. L. No.

108-199, Div. F, Tit. I. § 130, 118 Stat. 298 6

Department of Transportation and Related Agencies

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

115 Stat. 833:

§ 350, 115 Stat. 864 .. 2, 3, 4, 5, 6, 7, 8, 18

§ 350(a), 115 Stat. 864 4,5

§ 350(a)(1)(B)(v), 115 Stat. 864 6

§ 350(c)(2), 115 Stat. 868 4

National Environmental Policy Act of 1969,

42 U.S.C. 4332(2\(C) 1,15

49 U.S.C. 13902(a) 3, 4, 12

49 U.S.C. 13902(c) 2 2, 3

40 C. F. R.:

1 er 10

Pt. 93:

Sections 93. 150-93. 160 16

Section 93.152 17, 18

III

Pts. 350-399

Section 393.83

Miscellaneous:

Determining Conformity of General Federal Actions

to State or Federal Implementation Plans,

58 Fed. Reg. (1993):

p. 63.214

pp. 63,219-63,244

p. 63,221

66 Fed. Reg. (2001):

p. 22,377

p. 22,418

H.R. Rep. No. 243, 108th Cong, Ist Sess. (2008)

S. Rep. No. 146, 108th Cong., Ist Sess. (2003)

10

10

In the Supreme Court of the United States

No. 03-358

DEPARTMENT OF TRANSPORTATION, ET AL.,

PETITIONERS

v.

PUBLIC CITIZEN, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

Respondents contend that provisions of the National En-

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

4332(2)(C), and the Clean Air Act (CAA), 42 U.S.C.

7506(c)(1), require the Federal Motor Carrier Safety Admi-

nistration (FMCSA) to evaluate whether increased cross-

border trucking following the President’s decision to lift a

moratorium on such operations by Mexico-domiciled com-

mercial carriers (Mexican carriers) could adversely affect air

quality. Respondents, however, fail to confront four critical

considerations: (a) Congress has vested the President,

rather than FMCSA, with responsibility for determining

whether to open new United States markets to Mexican

carriers; (b) FMCSA has no meaningful ability to mitigate

any air quality consequences that may result from the

President’s decision, in response to the ruling by the inter-

national arbitration panel, to lift the moratorium on cross-

border operations by Mexican carriers; (c) the NEPA

evaluation respondents seek would not assist FMCSA in

completing the challenged safety-related rulemaking; and (d)

FMCSA has no practicable ability to control, for purposes of

the CAA conformity requirement, any air-quality conse-

quences that may result from the President’s decision to

(1)

2

open United States markets to Mexican carriers. There is,

in truth, no meaningful connection between FMCSA’s regu-

latory authority over motor carrier safety and any air

quality effects that might result from the President's deci-

sion to allow Mexican carriers to conduct cross-border opera-

tions. The court of appeals’ decision to set aside FMCSA’s

safety rules—thereby delaying implementation of the Presi-

dent's decision—has no basis in law and represents an im-

proper interference with the President’s powers over foreign

affairs and trade.

A. Congress Has Charged The President With Sole

Responsibility To Decide Whether To Open

United States Markets To Mexican Carriers

1. Section 350 does not authorize FMCSA to exclude

Merican carriers on environmental grounds. Respondents

do not dispute that Congress has given the President

responsibility, as part of his authority over foreign affairs

and trade, to determine whether to open United States

markets to Mexican carriers. See 49 U.S.C. 13902(c); Gov't

Br. 21-23. Respondents contend, however, that Congress

gave FMCSA separate authority over the access of Mexico-

domiciled trucks to the United States through an appro-

priations rider, Section 350 of the Department of Trans-

portation (DOT) and Related Agencies Appropriations Act,

2002 (Pub. L. No. 107-87, 115 Stat. 864) (reproduced at Gov't

Br. App. 12a-20a). Supporting amici likewise describe Sec-

tion 350 as a “grant of discretion” (see Cal. Br. 16), and argue

that FMCSA exercises “independent control” over the entry

of Mexican carriers to United States markets by “fulfilling

the congressional preconditions” in Section 350. Defenders

of Wildlife Br. 18. Those arguments rest on a mistaken

understanding of Section 350’s content and purpose.

Respondents acknowledge that Section 350 constitutes a

“restriction” on FMCSA’s authority to spend appropriated

funds. See Resp. Br. 22. Respondents fail to recognize, how-

ever, that Section 350 operates in the context of the agency’s

3

pre-existing regulatory powers. Under its enabling legisla-

tion, FMCSA has no authority to exclude Mexican carriers,

as a class, from United States markets. To the contrary,

FMCSA is obligated to register for United States operation

any carrier, foreign or domestic, “willing and able” to comply

with federal motor carrier safety rules. See 49 U.S.C.

13902(a). Only the President or his delegate may exclude

Mexican carriers based on their nationality or Mexican domi-

cile. See 49 U.S.C. 13902(c). The President has not dele-

gated that trade authority to FMCSA or any other agency.

Consistent with the legislative limitations on its powers,

FMCSA has not claimed any power to determine whether or

under what conditions Mexican carriers should be allowed to

operate in the United States. Rather, FMCSA initiated the

rulemaking at issue in this case to fulfill the agency’s

statutory responsibility to register Mexican carriers that the

President has determined should be allowed to operate in

the United States. The rulemaking established procedures

respecting motor carrier safety (specifically, application and

monitoring requirements) for the agency to use in fulfilling

that statutory obligation. As respondents now concede

(Resp. Br. 32 n.11), FMCSA’s rulemaking did not cause the

President to make the decision—pursuant to his authority

under 49 U.S.C. 13902(c)—to comply with the North Ameri-

can Free Trade Agreement (NAFTA) and open United

—ͤ markets to Mexican carriers.

Respondents incorrectly insist that FMCSA i is responsible

for the environmental effects of the President’s decision

solely on the basis of Section 350. To be sure, Section 350

prohibited FMCSA from implementing the President’s trade

decision until that agency incorporated specific safety-

related measures into its application and monitoring pro-

cedures for Mexican carriers. As a result, those carriers

would not enter the United States, and no corresponding en-

vironmental consequences of their entry would result, until

FMCSA completed its rulemaking. But Congress did not

thereby give FMCSA “separate control over whether (cross-

1

border trucking by Mexican carriers] could occur.“ Resp.

Br. 32 (emphasis added).

Congress has directed FMCSA to register any and all

“willing and able” Mexican- carrier applicants that are made

eligible, by Presidential decision, to operate in the United

States. See 49 U.S.C. 13902(a). Section 350 does not em-

power FMCSA to veto the President's decision by with-

holding the issuance of registration requirements with which

Mexican carriers must comply. Rather, Section 350 makes

FMCSA responsible for imposing specific application and

monitoring requirements—which Congress itself deemed

necessary to ensure the safe operation of Mexican carriers in

the United States—as part of FMCSA’s statutory obligation

to implement the President's decision.

Importantly, Section 350 does not empower FMCSA to

place new conditions on the entry of Mexican carriers be-

yond the fundamental condition, imposed by Congress, that

every carrier, foreign or domestic, seeking U.S. operating

authority prove its willingness and ability to comply with

motor carrier safety rules. See 49 U.S.C. 13902(a). Section

350 simply mandates certain procedures governing the exer-

cise of FMCSA’s authority in applying this standard. Before

the enactment of Section 350, FMCSA had broader discre-

tion to determine the requirements that Mexican carriers

In addition to the preconditions related to FMCSA's rulemaking, see

generally Pub. L. No. 107-87, § 350(a), 115 Stat. 864, Congress also pro-

vided that FMCSA could not process applications by Mexican carriers

until the DOT Inspector General conducted a review of border operations

and the Secretary of Transportation certified to Congress, based on that

border review, that “opening of the border does not pose an unacceptable

safety risk to the American public.” See § 350(c)(2), 115 Stat. 868. While

those provisions authorized DOT to prevent the entry of Mexican carriers

upon a determination that an “opening of the boruer” would present un-

acceptable safety risks,” DOT certified to Congress that there would be no

unacceptable safety risk. Respondents do not challenge that certification.

Thus, contrary to amici's suggestion (Cal. Br. 16 & n.3), the additional

safety-related duties in Section 350 do not give FMCSA the authority “not

* * * to act at all” with respect to registration of Mexican carriers.

1 A

5 2 —

2 RAS

-

ö——̊ — —

°

5

would need to fulfill to prove their willingness and ability to

comply with United States motor carrier safety rules.

Under Section 350, FMCSA must adopt the procedures that

Congress has dictated for Mexican carriers. See generally

Pub. L. No. 107-87, § 350(a), 115 Stat. 864. While Congress

left FMCSA with a narrow range of discretion in fashioning

the final registration procedures, Congress did not empower

FMCSA to change the fundamental condition for entry.

Consequently, and contrary to amici’s assertion (South Coast

Air Quality Management District (SCAQMD) Br. 12), it is

the actions of Congress and the President, not FMCSA’s

rulemaking, that will “shape” the characteristics of the

Mexican truck fleet that will operate in the United States.

Because Section 350 does not augment FMCSA’s regula-

tory authority, there is no basis for respondents’ claim

(Resp. Br. 23) that Section 350 made the entry of Mexican

carriers contingent on further environmental review. Of

course, FMCSA’s rulemaking was subject to NEPA compli-

ance obligations to the same extent that all final agency

actions not categorically excluded (see generally 40 C. F. R.

1501.4) are subject to those obligations. But the specific

issue here is whether an Environmental Assessment (EA),

which FMCSA began before enactment of Section 350, was

(and remained) sufficient to satisfy FMCSA’s NEPA obliga-

tion. Because Section 350 did not enlarge the scope of

FMCSA’s authority or the reach of its rulemaking, FMCSA

reasonably determined that Congress did not intend any

additional environmental analysis. If Congress had intended

to require further analysis, Congress could have easily writ-

ten that requirement into Section 350. But Congress took no

such action. Section 350 required FMCSA (and DOT) to

complete numerous specific tasks with respect to motor

2 FMCSA initially determined that an EA was not necessary for the

proposed rules, see 66 Fed. Reg. 22,377 (2001) and 66 Fed. Reg. 22,418

(2001), but the agency changed its position before Congress enacted Sec-

tion 350. See J. A. 57. Contrary to respondent's suggestion (Resp. Br. 6-8),

FMCSA did not prepare an EA in response to that legislation.

6

carrier safety, but Section 350 did not once mention NEPA,

FMCSA’s ongoing NEPA review, the CAA, or environ-

mental concerns relating to vehicle emissions.“

2. Congress did not ratify the court of appea's’ ruling.

There is also no merit to respondents’ argument (Resp. Br.

26-30) that Congress manifested an intent to require further

environmental review by reenacting Section 350 after the

court of appeals’ ruling. The legislation extending the terms

of Section 350 to DOT’s 2004 appropriation, see Consolidated

Appropriations Act, 2004, Pub. L. No. 108-199, Div. F, Tit. I,

§ 130, 118 Stat. 298, was accompanied by committee reports

noting that the Ninth Circuit had set aside the rules

mandated in Section 350. See S. Rep. No. 146, 108th Cong.

Ist Sess. 69-70 (2003); H.R. Rep. No. 243, 108th Cong., Ist

Sess. 81 (2003). But Congress did not change the terms of

Section 350 in the 2004 legislation or the earlier “reenact-

ment” of Section 350 for fiscal year 2003, see Pub. L. No. 108-

199, Div. F, Tit. I, § 130, 118 Stat. 298 and Pub. L. No. 108-7,

Div. I, Tit. III, § 348, 117 Stat. 419. The Senate and House

reports express no opinion on the merits of the Ninth

Circuit’s ruling. Consequently, the apparent intent of Con-

gress was simply to retain the safety requirements dictated

by Section 350, while FMCSA’s rulemaking (and thus the

While Section 350 requires FMCSA to ensure Mexican-carrier

preparedness “to comply with * * * Hazardous Materials rules and regu-

lations,” see Pub. L. No. 107-87, § 350(a)(1)(B)(v), 115 Stat. 864, the

reference to those rules, which are within DOT’s own substantive safety

jurisdiction, does not support amici’s suggestion (Defenders of Wildlife Br.

20) that FMCSA had—or was given in Section 350—authority over

environmental issues concerning Mexican trucks generally or the particu-

lar air-quality issues in this case. In proceedings below, respondents

never argued, and the court of appeals never found, that FMCSA failed

adequately to consider hazardous-materials issues. Amici’s attempts now

to assert unfounded hazardous-materials claims (id. at 22), as well as

unfounded claims about truck safety and drug trafficking (Eagle Forum

Education & Legal Defense Fund Br. 14-21), are inappropriate and with-

out merit.

7

final content of the rules) remained unfinished and this litiga-

tion ran its course.

Moreover, even if Congress’s reenactment of Section 350

could somehow be viewed as an endorsement of the court of

appeals’ ruling, that supposed endorsement is entitled to no

weight. In determining that FMCSA was obligated, before

promulgating the challenged rules, to prepare an EIS and a

CAA conformity analysis of the effects of the President’s

decision to open U.S. markets to cross-border trucking, the

court of appeals relied on its finding that the President’s

decision was “reasonably foreseeable” and its determination

(in the context of its decision on standing) that Section 350

provided bare “but for” causation between promulgation of

the rules and implementation of the President’s decision.

See Pet. App. 30a-3la, 47a, 19a-23a. The court of appeals did

not determine—as respondents and their amici now errone-

ously contend (Resp. Br. 32; see Cal. Br. 16)—that Section

350 gave FMCSA discretion to determine whether Mexican

carriers may engage in cross-border trucking or that Section

350 itself required FMCSA to engage in further environ-

mental analysis.* |

Respondents’ reliance on the “ratification doctrine” (Resp.

Br. 26) is accordingly misplaced. When called upon to dis-

cern the meaning of statutory language that Congress has

reenacted in the wake of “consistent judicial construction,”

the Court may presume that Congress intended to adopt

that construction. See Central Bank of Denver, N.A. v.

First Interstate Bank of Denver, N.A., 511 U.S. 164, 185

(1994); see also Lorillard v. Pons, 434 U.S. 575, 580 (1978).

But in this case, the statutory language that Congress re-

4 As explained in the government’s opening brief (Gov't Br. 30-40, 45-

47), the court of appeals’ failure to address FMCSA’s lack of discretionary

control over the environmental effects at issue constitutes the funda-

mental error in the court’s analysis. By ignoring that issue, the court of

appeals effectively treated the agency’s lack of discretion as irrelevant for

NEPA and CAA purposes. Respondents make no effort to defend that

position, which is clearly contrary to established law. See id. at 39.

8

enacted—Section 350—played no relevant part in the court

of appeals’ analysis of FMCSA’s substantive obligations.

Rather, the court of appeals reasoned that NEPA and the

CAA themselves obligated FMCSA to conduct additional

environmental analysis. Thus, even if the legislative reports

could be construed as endorsing the Ninth Circuit’s ruling

(which they did not), those reports could be viewed as en-

dorsing only a suspect interpretation of other pre-existing

legislation—NEPA and the CAA—that was not then before

Congress. See Central Bank of Denver, 511 U.S. at 185

([Wie have observed on more than one occasion that the

interpretation given by one Congress (or a committee or

Member thereof) to an earlier statute is of little assistance in

discerning the meaning of that statute.”).

B. EMCSA Does Not Have Any Meaningful Ability To

Mitigate Air-Quality Impacts That May Result

From The President’s Trade Decision

1. Respondents’ mitigation arguments are untimely.

Respondents contend, as an alternative to the assertion that

FMCSA has a discretionary role in causing the opening of

United States markets to Mexican carriers and the atten-

dant environmental effects, that FMCSA is responsible for

the environmental effects of the President’s trade-liberaliza-

tion decision because the agency can “mitigate” those effects

through its rulemaking. See Resp. Br. 38-42; see also

Defenders of Wildlife Br. 20-22; Cal. Br. 17-19. According to

respondents, FMCSA could have chosen alternatives to the

challenged rules that would offset increases in the air pollu-

tion that respondents allege will result from the President’s

decision, and FMCSA is therefore responsible under NEPA

for analyzing, and under the CAA for evaluating and

controlling, all the effects of the President’s decision. That

claim, however, is unsound at the threshold because it was

not raised in a timely manner and therefore is not properly

before the Court.

— — — — —

— —

9

As explained in the government's opening brief (Gov't Br.

27-29), respondents did not urge, either in their eomments

submitted during administrative proceedings before

FMCSA or in their initial court of appeals’ brief, that

FMCSA should adopt or study rulemaking alternatives be-

yond those evaluated in FMCSA’s EA. Respondents now

insist (Resp. Br. 40)—without even now identifying any par-

ticular alternatives—that because FMCSA “could * * *

enact[] more restrictive safety measures that would also

mitigate the environmental effects of [Mexican] trucks oper-

ating throughout the United States,” an EIS is necessary to

study such unidentified alternatives. Ibid.; see Cal. Br. 27-

28; Defenders of Wildlife Br. 10. Respondents’ belated claim

warrants no consideration by this Court. Because respon-

dents failed to raise that claim when FMCSA was consider-

ing its rules, FMCSA was not given the opportunity to

explain, as part of the administrative record, that there are

no such alternatives reasonably available to FMCSA.

It is “black-letter administrative law” that, absent special

circumstances, courts will not consider objections to an

agency’s actions that were not raised during administrative

proceedings. Appalachian Power Co. v. EPA, 251 F.3d

1026, 1036 (D.C. Cir. 2001). Indeed, in the specific context of

NEPA, this Court has made clear that persons challenging

agency compliance with NEPA have a responsibility, during

administrative proceedings, to “structure their participation

so that it * alerts the agency to the [parties’] position

and contention,” to allow the agency to give the issue mean-

ingful consideration. Vermont Yankee Nuclear Power Corp.

v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978).

Respondents give no explanation for their failure to urge dif-

ferent alternatives during administrative proceedings.

Rather, after failing to give FMCSA a reasonable opportu-

nity to respond to their claim—either during administrative

proceedings or even in the initial briefing below—respon-

dents now erroneously assert to this Court that FMCSA

doles] not dispute” the availability of reasonable “mitiga-

10

tion” alternatives. Resp. Br. 40 n.17. As explained below,

FMCSA does dispute that claim. But the Court should re-

ject that claim outright because respondents never gave

FMCSA a reasonable opportunity to address it during ad-

ministrative proceedings.”

2. Respondents’ mitigation argument is without merit.

If the Court reaches respondents’ claim that FMCSA could

impose additional measures to mitigate emissions from Mexi-

can carriers, the Court should reject it. Respondents over-

look the critical fact that FMCSA is responsible for ad-

ministering and enforcing motor carrier safety rules, and not

for regulating vehicle emissions that might impair air qual-

ity. See, e.g., J.A. 51-52 (describing the scope of FMCSA’s

regulatory authority). FMCSA's elaborate and detailed

regulations, which focus on the safe design and operation of

commercial motor vehicles, do not include environmental

standards for vehicle emissions. See generally 49 C.F.R.

Pts. 350-399."

Congress has mandated, through the CAA’s “mobile-

source” program (42 U.S.C. 7521 et seq.), manufacturing

standards for vehicles and vehicle engines sold within or im-

ported into the United States, to control emissions from

these sources. See 42 U.S.C. 7522(a)(1); see also 40 C. F. R.

Pt. 86 (emissions standards). However, EPA—and not

FMCSA—enforces those standards. Further, the CAA con-

> Respondents have essentially no answer to this waiver argument.

The only authority they cite for the proposition that they may urge other

alternative safety rules before a reviewing court, even though they did not

make that argument before FMCSA, is an appellate decision that

predated this Court’s decision in Vermont Yankee. See Resp. Br. 40 n.17.

6 Amici argue that FMCSA regulates vehicle “exhaust” (Defenders of

Wildlife Br. 20), but the cited regulation—49 C.F.R. 393.83—actually

regulates exhaust systems for safety purposes; i.e., to ensure that engine

exhaust is not vented in a location that could cause fire or otherwise harm

vehicle passengers. The fact that FMCSA can and must require Mexican

carriers, as well as all domestic carriers, to comply with that equipment-

safety standard does not demonstrate that FMCSA has authority to

regulate the constituents of vehicle exhaust for air-quality purposes.

a ae

11

tains no specific restrictions on foreign-domiciled carriers

(either Mexican or Canadian) that transport goods between

their home countries and the United States in trucks pur-

chased and maintained outside the United States. And

respondents do not contend that the CAA’s general mobile-

source standards, as implemented by EPA, apply to such

trucks. To the contrary, respondents’ principal claim of

environmental harm—that the opening of new United States

markets to cross-border operations by Mexican carriers will

increase domestic air pollution—is predicated on the notion

that Mexican carriers will operate trucks that were not (and

will not be) manufactured to United States emission stan-

dards. See, e.g., Resp. Br. 10; SCAQMD Br. 16-19; American

Public Health Association (APHA) Br. 17; Defenders of

Wildlife Br. 4; Cal. Br. 3.

Absent any basis for concluding that FMCSA can regulate

vehicle emissions, respondents are left to argue that FMCSA

can control emissions from Mexican carriers indirectly: (a)

by making the safety-registration process “more onerous”;

or (b) by removing older more polluting trucks through more

effective enforcement of motor-carrier safety standards. See

Resp. Br. 9, 40. Those arguments are unsound. The former

claim is predicated largely on FMCSA’s statement in the EA

for the challenged rules (J.A. 66-67) that, when compared to

taking no action (i.e., registering Mexican carriers under pre-

existing rules), imposing heightened procedural require-

ments on Mexican carriers could “deter” some applicants and

thereby incrementally reduce the number of Mexican trucks

that will operate in the United States. In making this obser-

vation, FMCSA did not state that the deterrent effect would

be significant for air-quality purposes, or that there were

additional application and monitoring requirements that

7 For this reason, respondents’ claim (Resp. Br. 41) that FMCSA can

address emissions from Mexican carriers by engagling] in cooperative

agreements with other agencies, such as the [EPA], to include

emissions inspections with [FMCSA’s] safety inspections,” is internally

inconsistent.

12

FMCSA could reasonably impose on Mexican carriers above

and beyond the already heightened requirements in the pro-

posed rules. Because FMCSA cannot exclude Mexican

carriers that are willing and able to meet federal motor car-

rier safety rules, see 49 U.S.C. 13902(a), the agency cannot

make its registration rules more stringent than necessary to

achieve that safety objective. Significantly, respondents do

not contend that additional restrictions are necessary for

purposes of motor-carrier safety.

Respondents also fail to show that there is any meaningful

correlation, much less an “extremely close connection” (see

Resp. Br. 34), between enforcement of motor carrier safety

rules and mitigation of the alleged environmental harms in

this case. In suggesting that connection (id. at 40; see

Defenders of Wildlife Br. 22), respondents rely on FMCSA’s

statement—in its court of appeals brief (J.A. 484)—that the

heightened procedural requirements in the challenged rules

would “tend to restrict” the number of older trucks used by

Mexican carriers in cross-border operations. FMCSA based

that statement on the commonsense notion that older trucks

may be more likely than newer trucks to have equipment-

safety problems. FMCSA did not determine, nor have re-

spondents otherwise shown, that most older Mexican trucks

have equipment-safety problems or that stricter enforce-

ment of equipment-safety rules (which would apply in any

event) would significantly alter the age distribution (and

emissions profile) of trucks in the Mexican cross-border

fleet. The emissions profile would change only if safety

Because Mexico did not mandate emission standards for truck

engines sold in Mexico until 1993 (J.A. 356), several years after the United

States adopted such standards, trucks sold in Mexico prior to 1993 might

emit more pollutants than their United States counterparts. Some older

Mexican trucks, however, may have been originally sold in the United

States to United States carriers and, thus, have been manufactured to

United States pollution control standards. Between 1993 and 2003,

Mexico and the United States subjected truck engines sold within their

respective borders to the same standards. Ibid. The United States since

13

enforcement caused a significant reduction in the use of older

trucks, as opposed to simply compelling improved main-

tenance of such trucks. Moreover, respondents do not dis-

pute FMCSA’s finding, in its EA, that increased safety

enforcement can have a negative impact on emissions con-

trol. J.A. 164-165. In particular, more frequent roadside

inspections of Mexican carriers for safety purposes will in-

crease engine-operation time and, to that extent, increase

emissions in the United States. /bid.

Ultimately, there is no reason to believe that more strin-

gent registration rules would both be appropriate in the

context of FMCSA’s statutory duty to register all willing-

and-able applicants and significantly affect the claimed air-

quality consequences from the Mexican carriers’ operations.

For example, amici cite potential air-quality impacts of

cross-border trucking in future years in southern California

and other border areas, but they attribute those impacts

largely to the fact that Mexican carriers might not be subject

to California’s low-sulphur fuel requirement or progressively

tighter United States emissions standards that go into effect

between 2004 and 2007. See SCAQMD Br. 17-19; Cal. Br. 3;

-APHA Br. 17-19, 23; see also J.A. 379-380. Respondents do

not contend that tighter enforcement of motor-carrier safety

standards—through additional (and as-of-yet unidentified)

application or inspection registration requirements—could

meaningfully address those specific air-quality impacts.

C. Preparation Of An Environmental Impact State-

ment Evainating The Effects Of Cross-Border

Trucking Would Not Assist FMCSA In Its

Rulemaking

Congress enacted NEPA to improve agency decision-

making by “inject{ing] environmental considerations into the

federal agency’s decisionmaking process.” Weinberger v.

Catholic Action of Haw., 454 U.S. 139, 143 (1981); see Robd-

has adopted new and more stringent standards to go into effect between

2004 and 2007, which Mexico has not yet adopted. See ibid., J. A. 484-485.

14

ertson v. Methow Valley Citizens Council, 490 U.S. 343, 349

(1989). The court of appeals’ order requiring FMCSA to

prepare an EIS evaluating the effects of cross-border truck-

ing would not enhance FMCSA’s rulemaking because, as the

government explained in its opening brief (Gov't Br. 35-36),

FMCSA has no role to play in that trade-policy decision,

which rests with Congress and the President.”

The government has already a“ essed the flaws in re-

spondents’ untimely—and waived-—*!.im that an EIS is nec-

essary to help FMCSA develop alternatives to the chal-

lenged rules. See pp. 10-13, supra. Faced with the absence

of any basis to argue that an EIS would provide information

meaningful to FMCSA’s rulemaking, respondents and the

amici are left to argue that an EIS should be required

because its preparation would not be impossible, see Cal. Br.

24, and because an EIS might provide useful information for

Congress and government agencies other than FMCSA,

Resp. Br. 42-43; SCAQMD Br. 17; Cal. Br. 26-27; Defenders

of Wildlife Br. 23-25. Those arguments are without merit.

First, this Court’s holding that an agency is excused from

NEPA compliance where a statutory conflict renders compli-

* FMCSA fully evaluated the air-quality and other environmental im-

pacts of its own rulemaking—as distinguished from the President's action

—and made a finding of no significant impact (FONSI). Contrary to the

assertion of amici (SCAQMD Br. 15-16), the adequacy of FMCSA’s EA

and FONSI in that respect is not before this Court. Although the court of

appeals stated that the EA suffered from various methodological flaws,

including errors in emissions modeling (Pet. App. 37a-39a), the court made

those statements in the context of its overriding determination (id. at 30a-

3la) that FMCSA was responsible for evaluating all emissions attributable

to the President's action in lifting the moratorium and opening the border.

Significantly, the court never addressed FMCSA's argument (JA. 487-

488) that the professed methodological flaws were not defects when

viewed in the context of FMCSA’s limited obligation to analyze the emis-

sions effects of its rulemaking. Nor did respondents challenge that argu-

ment in their briefs below. Thus, the question before this Court is simply

whether FMCSA acted arbitrarily and capriciously in limiting the scope of

its EA to matters within the scope of its own discretion in conducting the

rulemaking.

15

ance impossible, see Flint Ridge Dev. Co. v. Scenic Rivers

Ass'n, 426 U.S. 776, 787-790 (1976); see also 40 C. F. R. 1500.6

(same), does not mean that federal agencies are otherwise

obligated to prepare an EIS whenever possible. The thresh-

old question is always whether the agency’s proposed action

will “significantly affect” the environment. 42 U.S.C.

4332(2\(C). As the government explained in its opening brief

(Gov't Br. 39), the courts of appeals have uniformly held that,

where an agency does not have discretionary control over

actions that may cause adverse effects, the effects cannot be

deemed the result of agency action for NEPA purposes.

See, e.g., Citizens Against Rails-to-Trails v. Surface Transp.

Bd., 267 F.3d 1144, 1151 (D.C. Cir. 2001) (stating that it he

touchstone of whether NEPA applies is discretion”). Con-

trary to respondents’ assertion (Resp. Br. 41), this is a case

in which FMCSA clearly lacks “significant discretion over

the challenged action”—viz., the President's decision to

allow cross-border trucking.

Second, while this Court has observed that NEPA was de-

signed to serve a “larger informational role,” see Robertson,

490 U.S. at 349, the Court explained that the core purpose of

providing information to the public and other interested

agencies is to allow the “larger audience [to] play a role in

* * the [agency’s] decisionmaking process.” Ibid. This

Court has never held—nor do respondents cite any case

holding—that an agency must prepare an EIS where there is

no reasonable expectation that the EIS will influence, or will

be material to, the agency’s decisionmaking. Contrary to

respondents’ assertion (Resp. Br. 36), this case does not

present the common situation in which a federal agency has

partial control, along with state or private actors not subject

to NEPA, over an action that will have environmental

effects. Rather, this case presents a situation in which the

relevant federal agency has no meaningful control over the

activity in question. The actors with control over the open-

ing of United States markets to cross-border trucking by

- ~ eo --+-+ ͤ•—„k @

16

Mexican carriers—the Congress and the President—are

expressly exempt from NEPA. See 40 C. F. R. 1508.12.

The court of appeals’ decision has not improved FMCSA’s

own decisionmaking process on the narrow vehicle safety

issues before it. Instead, the court’s decision has interfered

with a joint congressional-executive judgment respecting an

important and sensitive matter of foreign relations and trade

policy. If allowed to stand, the court’s decision would not

inject any relevant environmental consideration into the

agency's designated decisionmaking role. Rather, it would

inject needless confusion, expense, and delay.

D. FMCSA Was Not Required To Conduct A

Conformity Review Under The Clean Air Act

Respondents incorrectly assert that the CAA requires

this Court to determine, under 42 U.S.C. 7506(c)(1), whether

FMCSA’s rulemaking can be seen to “support in any way”

an activity (the opening of United States markets to cross-

border trucking by Mexican carriers) that respondents con-

tend “does not conform” to an applicable state implementa-

tion plan (SIP). See Resp. Br. 47; see also Cal. Br. 15. As

the government has explained (Gov't Br. 45-47), EPA has

issued regulations that define, for federal agencies, what it

means to “support” an activity for purposes of the confor-

mity requirement. See 40 C.F.R. 93.150-93.160; see also

Determining Conformity of General Federal Actions to

State or Federal Implementation Plans, 58 Fed. Reg. 63,214

(1993). Those regulations, which respondents do not chal-

lenge and which have been upheld by the D.C. Circuit, are

entitled to deference. See Environmental Defense Fund,

Inc. v. EPA, 82 F.3d 451, 464 (per curiam), amended, 92 F. 3d

1209 (1996). The relevant question, accordingly, is whether

FMCSA’s decision not to perform a conformity analysis re-

flects a proper understanding of EPA’s conformity regula-

tions.

FMCSA’s decision is firmly supported by EPA’s regula-

tions. The regulations state that an agency is not responsi-

17

ble for indirect emissions that are caused by the agency’s

actions if the emissions are beyond the agency’s “practicable

control” and “program responsibility.” 40 C.F.R. 93.152

(definition of “indirect effects”). Under that test, emissions

from Mexican carriers operating in the United States as a

result of the President’s trade decision can be attributed to

FMCSA’s rulemaking only if FMCSA can practicably control

those emissions through its ongoing authority over motor

carrier safety. As already demonstrated (p. 2-6, supra),

FMCSA can exercise no such control. Contrary to the claims

of respondents and amici (Resp. Br. 47; Defenders of Wildlife

Br. 28), FMCSA’s ongoing control over Mexican-carrier

safety (through registration, inspections, and audits) does

not equate to control over vehicle emissions.

Respondents’ reliance (Resp. Br. 48) on EPA’s definition

of “continuing program responsibility” is equally misplaced.

The definition states in full:

Emissions that a Federal agency has a continuing pro-

gram responsibility for means emissions that are specifi-

cally caused by an agency carrying out its authorities,

and does not include emissions that occur due to sub-

sequent activities, unless such activities are required by

the Federal agency. When an agency, in performing its

normal program responsibilities, takes actions itself or

imposes conditions that result in air pollutant emissions

by a non-Federal entity taking subsequent actions, such

emissions are covered by the meaning of a continuing

program responsibility.

10 In contrast, FMCSA does exercise continuing program control over

emissions resulting from the increased safety inspections called for in the

challenged rules. As explained in the government’s opening brief (Gov't

Br. 14), FMCSA determined that emissions attributable to increased

safety inspections will be below the regulatory thresholds that trigger the

obligation to perform a conformity analysis. See Pet. App. 65a-66a, 155a.

Respondents do not challenge that determination. Likewise, in asserting

that emissions will exceed relevant regulatory thresholds (APHA Br. 23;

SCAQMD Br. 20), amici focus on emissions from cross-border trucking

and not emissions from motor-carrier safety inspections.

18

40 C.F.R. 93.152. Quoting only the second sentence of this

definition, respondents assert that FMCSA is responsible for

emissions by Mexican carriers that are eligible to operate in

the United States as a result of the President’s decision,

because the promulgation of the safety regulations is part of

FMCSA’s “normal program responsibilities” and will “result

in air pollution emissions by a non-Federal entity taking sub-

sequent actions” (i.e., Mexican-domiciled trucks crossing the

border and emitting pollution). Resp. Br. 48.

The regulation respondents quote, read as a whole, in fact

refutes their position. Looking to the first sentence of the

regulation, any emissions by Mexican trucks in the United

States are not “specifically caused” by FMCSA. FMCSA

itself does not take any action (except for roadside inspec-

tions) that “cause” such emissions in the “specific” sense nec-

essary to place them within FMCSA’s continuing program

responsibility, and any “activities” by the carrier that occur

“subsequent” to registration—i.e., any actual entry of the

carrier's trucks into the United States, the selection of

routes they travel, and any emissions that occur—are not

“required” by FMCSA. Looking to the second sentence,

which is an elaboration of the first, FMCSA does not “take

actions itself” (again, except for roadside inspections) that

result in air pollutant emissions, because FMCSA’s issuance

of regulations and approval of applications do not themselves

result in pollution. Nor does FMCSA “impose[] conditions”

(i.e., requirements) on the subsequent operations of Mexican

carriers that result in such emissions; the conditions FMCSA

imposes are directed to safety issues. See Determining

Conformity of General Federal Actions to State or Federal

Implementation Plans, 58 Fed. Reg. 63,214, 63,221 (1993)

(“The EPA does not believe that Congress intended to

extend the prohibitions and responsibilities to cases where,

although licensing or approving action is a required initial

step for a subsequent activity that causes emissions, the

agency has no control over that subsequent activity, either

because there is no continuing program responsibility or

— ——

——

19

ability to practicably control.“); ibid. (federal agency has no

responsibility to attempt to limit emissions that are outside

its “legal control” or to “leverage” its own legal authority to

influence or control nonfederal activities that it cannot

practicably control, are not subject to continuing program

responsibility, or that lie outside the agency’s own legal

authority); see generally id. at 63,219-63,224.

The amici States posit (Cal. Br. 19-21) that FMCSA could

obtain emissions reductions from other sources to offset any

emissions increases resulting from the President’s decision

to open United States markets to cross-border trucking by

Mexican carriers. Because the President is not subject to

the conformity requirement (see Gov’t Br. 47-48)—a matter

that respondents do not dispute—FMCSA cannot be com-

pelled to make the President’s action conform. And FMCSA

itself has no continuing responsibility for emissions by Mexi-

can trucks that could trigger any occasion for FMCSA to try

to obtain emission offsets. Tellingly, moreover, amici iden-

tify nothing that FMCSA could do within its regulatory

authority to obtain emissions offsets. Rather, amici argue

(Cal. Br. 20-21) that FMCSA could go to Congress for relief,

apparently for funds to purchase emissions reductions (pollu-

tion credits) from “private sources” or for the authority to

barter for emissions reductions from other federal agencies

or programs. Nothing in the CAA required FMCSA to go to

such extraordinary lengths before fulfilling its statutory

duties over the limited subject of truck safety.

At bottom, respondents and their amici would transfer

control over important foreign policy and trade issues from

Congress and the President to individual agencies and the

courts. Congress and the President have determined that

the United States should open United States markets to

cross-border trucking by Mexican carriers. If that decision

has any significant effect on United States air quality, the

principal reason will be the different emission characteristics

of United States trucks and Mexican trucks used in cross-

border transportation. See J.A. 379-380, 388; see also Defen-

20

ders of Wildlife Br. 4; APHA Br. 18-19). FMCSA’s regula-

tions addressing vehicle safety issues can prevent vehicle

accidents that might arise from allowing Mexican carriers to

engage in cross-border trucking, but they cannot resolve the

environmental issues that may arise from that trade policy

decision.

As respondents acknowledge, Congress has authority, not

affected by NAFTA, to require foreign carriers to meet

United States environmental standards as a condition of

entry into United States markets. Resp. Br. 22. If, in accord

with the arguments of respondents’ and their amici, Con-

gress has not required foreign cross-border carriers to

operate trucks manufactured to United States emissions

standards (or their equivalent) as a condition of entry to

United States markets, respondents’ remedy rests with Con-

gress, and not in setting aside motor-carrier safety proce-

dures with which respondents have no identified substantive

quarrel.

For the foregoing reasons and those stated in the gov-

ernment’s opening brief, the judgment of the court of ap-

peals should be reversed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

APRIL 2004