Amicus Curiae Brief — Department of Transportation v. Public Citizen

MAR 1 1 2004

No. 03-358 ie aie

IN THE

Supreme Court of the United States

United States Department of Transportation,

Petitioner,

Vv.

Public Citizen, et al.

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE DEFENDERS OF

WILDLIFE, ENVIRONMENTAL DEFENSE, AND

SIERRA CLUB IN SUPPORT OF RESPONDENTS

Kara Gillon Pamela S. Karlan

Defenders of Wildlife (Counsel of Record)

824 Gold SW - . Deborah A. Sivas

Albuquerque, NM 87102 559 Nathan Abbott Way

Stanford, CA 94305

Janea Ashanti Scott (650) 725-4851

Environmental Defense

257 Park Avenue South Sanjay Narayan

17th Floor Sierra Club Environmental

New York, NY 10010 Law Program

85 Second St., Second Floor

San Francisco, CA 94105

March 11, 2004

WILSON-EPES PRINTING CO., INC. — 789-0096 -— WASHINGTON, D.C. 20001

BEST AVAILABLE COPY i

i

TABLE OF CONTENTS

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STATEMENT OF INTERESTS OF AMICI CURIAE.......... |

SUMMARY OF ARGUMENT ............cccccccsccececececsscscesececeeees 2

espn te a STL 5

I. NEPA IS THE NATION’S BEDROCK

ENVIRONMENTAL LAW AND APPLIES TO

ALL MAJOR FEDERAL AGENCY ACTIONG....... 5

A. Congress Intended NEPA to Play a Central Role

in Governmental Decisionmaking ..............: ipenesontens 6

B. NEPA’s Objectives are Achieved Through Full

Consideration and Disclosure of the Environmental

Impacts of Federal Agency Action .........ccccccceccesees 8

Il. NEPA REQUIRED THE FMCSA TO PREPARE AN EIS

CONSIDERING THE ENVIRONMENTAL

EFFECTS ATTRIBUTABLE TO PERMITTING

INCREASED MEXICAN CARRIER TRAFFIC

BEYOND THE BORDER ZONE ..........00c000-.-0---.... 10

A. The FMCSA’s EA Provided No Basis on Which

SESE AE Nae en am 1]

|. An Increase in Mexico-Domiciled Truck

Emissions Outside the Border Zone Is

One Effect of the FMCSA’s Actions................ 11

2. The EA Failed to Analyze Whether Mexican

Carrier Emissions Outside the Border Zone

Will Have a “Significant” Impact on the

a icici teenies te cls, 13

B. The Government’s Argument Rests on an

Unsupportable Notion of Causation ............c..000+. Pe)

|. The FMCSA’s Actions Are a Legal Cause of

Mexican Carriers Operating Outside the

Se iiisiiisetiiaciaeainctaeiteiataaetinimiainitiniiis 1S

2. The Order Lifting the Moratorium Did Not

Excuse the FMCSA from Its Obligations

pT PIE etisicsienctisasinenteceetenmnameentnamseanniiniseiinn 17

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Il. REQUIRING THE FMCSA TO PREPARE AN EIS

SERVES THE IMPORTANT PURPOSES

UNDERL VING NGPA ....ccrcccccovscscvccscesescncssssnsossesonses 18

A. The EIS Would Enable the FMCSA to Choose

Among Alternative Safety Regulations ............... 19

1. The FMCSA’s Mandate Incorporates

Environmental [sve ....ccccssccssssssccssessesesesssssoons 19

2. The FMCSA Has Discretion to Choose

Environmentally Protective Alternatives

When Issuing Regulations .........c:cccccceeseeeeereeees 21

B. The EIS Would Provide Important Information

to the Public, to Congress, and to the President... 23

C. The EIS Would Assist States in Meeting Their

Obligations Under the Clean Air ACt .........ecceeeeee 24

IV. THE FMCSA’S FAILURE TO PERFORM A

CONFORMITY REVIEW VIOLATED THE

CLEAN AUR ACT ..cccccsscccssccssscccnscsccnsssonsesssnncsssnnees 26

CONCLUSION ...ccoscccocsccccsvoscnnsesosnteosoressennessnenesebesesSSnensnnnnns 28

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TABLE OF AUTHORITIES

Cases

Alaska v. EPA, 124 §. Ct. 983 (2004)..........ccccccccccccsccccoceeceeees 2

Andrus v. Sierra Club, 442 U.S. 347 (1979) .oocccccccccccceeeeeees 6.8

Baltimore Gas & Electric Co. v. Natural Resources Defense

Council, Inc., 462 U.S. 87 (1983) ...........cccccceeeeecceeeeees 16, 23

Calvert Cliffs’ Coordinating Committee, Inc. v. Atomic

Energy Commission, 449 T.2d 1109 (CADC 1971)..... 6, 23

Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190

EE SALT 21

City of Chicago v. Environmental Defense Fund, 511 U.S.

LL 2

Comm. for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d

ees 24

Dubois v. United States Dep't of Agric. \02 F.3d 1273 (CAI

Grand Canyon Trust v. Fed. Aviation Admin., 290 F.3d 339

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

Eee 9,11, 16,24

Metropolitan Edison Co. v. People Against Nuclear Energy,

Ee 15, 16

Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d

Ee .

Pacific Legal Foundation v. Andrus, 657 F.2d 829 (CA6

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

EEE -ceeeee PASSIM

Solid Waste Agency of Northern Cook County v. U.S. Army

Corps of Engineers, 531 U.S. 189 (2001) ........ccccceccceeeeeeees 2

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)....... 2

Whitman v. American Trucking Associations, 531 U.S. 457

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Statutes

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Pub. L. 107-87, § 350, 115 Stat. 833 (2002).......0.......... passim

Pub. L. No. 108-199, Div. F, Tit. 1, § 130 (2004) (available on

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Regulations

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Other Authorities

North American Free Trade Agreement, 32 I.L.M. 289 (1993)

Ce 7

10S Cong, Rec. 19.009 (1969) .....ceccoccccscscscscesesceseseseseseseesesees 6

Gan Us RPE UU cxcrensnsiseenesnmnencensesnsatataintesionice 21

68 Fed. Reg. 10,030 (March 3, 2003) ..0........ccccccceseseeeeeeenees 17

68 Fed. Reg. 70,586 (Dec. 18, 2003). ..........ccccccceseeeeeeeeeeeeeees 17

GS Fed. Reg. 9.595 (Feb. 28, 2003) ...........ecececcsscscsceseceseseeees 17

Daniel R. Mandelker, NEPA Law and Litigation (July 2003) 5

vi

http://www.dot.gov/affairs/dot 10702.htm (last visited Mar. 9,

pe 12

S. Rep. No. 91-296 (1969)............ccscscssssssssssssseseseee Dy 2, 24, 25

STATEMENT OF INTERESTS OF AMICI CURIAE'

Defenders of Wildlife is a nonprofit organization

dedicated to the protection of native animals and plants in

their natural communities. It focuses its actions on curtailing

two of the most serious environmental threats to the planet:

the accelerating rate of extinction of species, and habitat

alteration and destruction. Defenders of Wildlife has

thousands of members who live in and enjoy recreating in the

border region of the United States.

Defenders of Wildlife also regularly relies on the judicial

review provisions of the Administrative Procedure Act, 5

U.S.C. 706(1), (2), and the requirements of the National

Environmental Policy Act, 42 U.S.C. 4321 et seq., as well as

the Council on Environmental Quality’s binding regulations,

40 C.F.R. 1500-1508, in bringing cases in federal court to

ensure compliance with laws enacted to protect the

environment.

Environmental Defense (formerly the Environmental

Defense Fund) is a _ national nonpartisan, nonprofit

organization representing more than 400,000 members

nationwide. Since 1967 Environmental Defense has linked

science, economics, and law to create innovative, equitable,

and cost-effective solutions to the most urgent environmental

' The parties have consented to the filing of this brief. Their

letters of consent have been filed with the Clerk of this Court.

Pursuant to this Court's Rule 37.6, amici state that none of the

parties or their counsel wrote the brief in whole or in part. In

addition to amici, their members, and counsel, counsel for amici

were principally assisted by the following students in the Stanford

Law School Supreme Court Litigation Clinic and the Stanford Law

School Environmental Law Clinic: William B. Adams, Brigham

John Bowen, Eric J. Feigin, and Jennifer J. Thomas; clinic

members David M. Cooper, Daniel S. Goldman, and Nicola J.

Mrazek also participated. The Stanford Law School Supreme

Court Litigation Clinic has covered the costs connected with the

brief.

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problems. Environmental Defense has helped design such

landmark clean air programs as the market-based pollution

cap and allowance trading program adopted in the 1990 Clean

Air Act amendments to abate acid deposition. Consistent

with its belief that economic prosperity and markets can be

harnessed to protect public health and the environment,

Environmental Defense supports the North American Free

Trade Agreement and advocates associated public health and

environmental protections. The case before this Court

presents issues integrally related to Environmental Defense's

core mission: protecting public health and the enviromment

from harmful airborne contaminants.

Environmental Defense has appeared in this Court as

amicus or party in many cases involving — federal

environmental statutes, including Alaska v. EPA, 124 S. Ct.

983 (2004); Whitman v. American Trucking Associations, 53}

U.S. 457 (2001); Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers, 531 U.S. 159

(2001); City of Chicago v. Environmental Defense Fund, 5\\

U.S. 328 (1994); and Tennessee Valley Authority v. Hill, 437

U.S. 153 (1978).

The Sierra Club is a national nonprofit organization of

approximately 750,000 members dedicated to exploring,

enjoying, and protecting the wild places of the earth; to

practicing and promoting the responsible use of the earth's

ecosystems and resources; to educating and enlisting

humanity to protect and restore the quality of the natural and

human environment; and to using all lawful means to carry

out these objectives. The Sierra Club's concerns encompass

air pollution and public health. The Club's particular interest

in this case and the issues that the case concerns stems from

the threat it poses to informed agency decisionmaking.

SUMMARY OF ARGUMENT

The question posed by this case is whether the Federal

Motor Carrier Safety Administration (FMCSA) can evade its

3

responsibility under this nation’s environmental laws to

consider the impact that increased foreign truck traffic will

have on the environment. The government concedes, as it

must, that the FMCSA is a federal agency subject to both the

National Environmental Policy Act (NEPA), 42 U.S.C, 4321

et seq., and the Clean Air Act (CAA), 42 U.S.C. 7401 et seq.,

and that it must assess the environmental impacts of its safety

regulations. The statutes, regulations, and consistent

precedents of this Court and the courts of appeals show that

those impacts include the effects on the environment, both

locally and nationally, that will flow over time from a

foreseeable change in the mix of trucks on the road, as older,

more polluting Mexieo-domiciled trucks are substituted for a

domestic fleet that is becoming progressively cleaner due to

Environmental Protection Agency rules governing new truck

engines.

The FMCSA failed sufficiently to assess these impacts. It

declined to prepare the thorough Environmental Impact

Statement that NEPA requires because a deeply flawed, more

preliminary analysis — an Environmental Assessment (EA) —

led it mistakenly to conclude that its rules would not

“significantly affect|] the quality of the human environment.”

42 U.S.C. 4332(2”C). Of the EA’s many errors, the

following three are particularly significant. First, the FMCSA

concluded that it was not required to take into account the

increased emissions produced by the Mexico-domiciled

trucks because the only actual “effect” of its regulations

would be the pollution caused by foreign trucks idling by the

side of the road during individual safety inspections. Second,

the EA’s geographical frame of reference was insufficient:

The FMCSA looked at the incremental effect of Mexico-

domiciled trucks on the national level of pollutant emissions

rather than evaluating, as NEPA requires, the trucks’ impact

on air quality in the areas where they are likely to be

concentrated and where emissions are likely to occur. Third,

its temporal frame of reference was too short: The FMCSA

limited its analysis to a single year, now passed, and failed

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entirely to analyze the long-term environmental effects of

substituting Mexican for domestic carriers, even though the

activity allowed by the FMCSA regulations can continue in

perpetuity.

The FMCSA’s separate refusal to perform a conformity

review under the CAA was similarly flawed. That Act

requires states to comply with national air quality standards.

42 U.S.C. 7410(a). To make sure that federal action will not

interfere with a state’s efforts to do so, the CAA forbids

federal agencies from licensing, permitting, or approving any

activity that does not conform to a state’s implementation

plan. /d. § 7506(c)(1).

The Environmental Protection Agency (EPA) has

promulgated regulations governing federal agencies’ duties

with respect to conformity review. Under these regulations,

an agency must ask whether the direct and indirect air quality

effects of regulated pollutant emissions “caused by the

Federal action” will equal or exceed regional threshold levels

established by the EPA. 40 C.F.R. 93.152. Emissions from

Mexico-domiciled trucks permitted by the FMCSA to travel

beyond the border zone are “caused by” the FMCSA, because

the emissions would not occur without agency-issued permits.

Jd. But the agency's reliance on its flawed Environmental

Assessment led it to conclude that its actions would not create

sufficient air quality effects to trigger conformity review. If

the FMCSA had conducted proper NEPA and CAA

conformity reviews, and if Mexico-domiciled trucks met

emission standards comparable to U.S. standards, there would

be no dispute in this case.

The agency's conclusion that the effects of its action were

insignificant violates not simply the law and the regulations:

It runs afoul of simple common sense. This Court should

therefore affirm the judgment of the Ninth Circuit and require

the FMCSA to comply fully with the requirements of NEPA

and the CAA.

en

5

ARGUMENT

I. NEPA IS THE NATION’S BEDROCK

ENVIRONMENTAL LAW AND APPLIES TO ALL

MAJOR FEDERAL AGENCY ACTIONS

The National Environmental Policy Act of 1969 (NEPA),

42 U.S.C. 4321 ef seq., is “our basic national charter for

protection of the environment.” 40 C.F.R. 1500.1(a); see also

Daniel R. Mandelker, NEPA Law and Litigation § 1.1 (July

2003) (referring to NEPA as “an environmental Magna

Carta”). NEPA requires that “to the fullest extent possible . . .

all agencies of the Federal Government shall . . . include in. .

. major Federal actions significantly affecting the quality of

the human environment, a detailed statement” addressing “the

environmental impact of the proposed action, any adverse

environmental impacts which cannot be avoided

alternatives to the proposed action,” and other environmental

issues. 42 U.S.C. 4332. It further requires that “the policies,

regulations, and public laws of the United States shall be

interpreted and administered in accordance with the policies

set forth” therein. /d.

In enacting NEPA, Congress has demonstrated “a broad

national commitment to protecting and promoting

environmental quality.” Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 348 (1989). NEPA mandates that

environmental issues occupy the forefront of agency

decisionmaking to ensure the development of “new means

and procedures to preserve environmental values in the larger

public interest, to coordinate Government activities that shape

our future environment, and to provide guidance and

incentives for State and local government and for private

enterprise ....” S. Rep. No. 91-296, at 5 (1969). NEPA has

“reorder[ed] national goals and priorities” so that our nation

no longer exclusively emphasizes “the production of goods”

or the “increase [of] gross national product.” /d.

6

A. Congress Intended NEPA to Play a Central Role in

Governmental Decisionmaking

Congress’ purpose in enacting NEPA was not simply to

state a precatory environmental policy, nor is NEPA an empty

shell that federal agencies may circumvent or ignore at will.

Far from merely announcing abstract principles, Congress

“{made] environmental protection a part of the mandate of

every federal agency and department.” Calvert Cliffs’

Coordinating Committee, Inc. v. Atomic Energy Commission,

449 F.2d 1109, 1112 (CADC 1971) (emphasis added). NEPA

therefore requires federal agencies to take a “hard look at

{the} environmental consequences” of their proposed actions.

Methow Valley, 490 U.S. at 350 (quotation marks omitted).

In so doing, NEPA makes certain “that environmental

concerns will be integrated into the very process of agency

decision-making.” Andrus v. Sierra Club, 442 U.S. 347, 350

(1979).

This integration serves two primary purposes. First, “[iJt

ensures that the agency, in reaching its decision, will have

available, and will carefully consider, detailed information

concerning significant environmental impacts.” Methow

Valley, 490 U.S. at 349. As the implementing regulations

make clear, NEPA “is intended to help public officials make

decisions that are based on understanding of environmental

consequences, and take actions that protect, restore, and

enhance the environment.” 40 C.F.R. 1500.1(c). According

to the principal Senate sponsor, NEPA creates a scheme that

“administrators may refer to . . . for guidance in making

decisions . . . [where] environmental values [are] in conflict

with other values.” 115 Cong. Rec. 19,009 (1969) (statement

of Sen. Jackson).

Second, NEPA “guarantees that the _ relevant

[environmental] information will be made available to the

larger audience that may also play a role in both the

decisionmaking process and the implementation of that

decision.” Methow Valley, 490 U.S. at 349. As Congress

ee,

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om

J

noted, NEPA ensures that federal agencies provide sufficient

environmental information about the proposed action for

“subsequent reviewers, both within the executive branch and

in Congress, to consider.” S. Rep. No. 91-296, at 21. By

thoroughly collecting and analyzing this data, federal

agencies educate not only themselves, but also other

governmental actors and the public, about the environmental

ramifications of their proposed action.

Contrary to the United States’ intimations, see U.S. Br. 38

& n.16, 40, the ratification of the North American Free Trade

Agreement (NAFTA), ~ 32 I.L.M. 289 (1993), leaves

untouched the environmental obligations that Congress

created in NEPA. One of NAFTA’s express purposes was to

“STRENGTHEN the development and enforcement of

environmental laws and regulations." NAFTA pmbl., 32

I.L.M. 289, 297 (1993). The Agreement specifically

recognizes the power of the United States to “adopt, maintain

or apply any standards-related measure, including any such

measure relating to safety, the protection of human, animal or

plant life or health, the environment or consumers.”” NAFTA

art. 904(1), 32 LL.M. at 387. Moreover, the North American

Agreement on Environmental Cooperation, NAFTA’s

environmental side agreement, proclaims that one of its

objectives is to “enhance compliance with, and enforcement

of, environmental laws and regulations.” NAAEC pmbl., 32

I.L.M. 1480, 1483 (1993). And by its plain terms, NAFTA’s

implementing statute sustains and protects the integrity of

federal environmental laws: “Nothing in this Act shall be

construed to amend or modify any law of the United States,

including any law regarding . . . the protection of the

environment.” 19 U.S.C 3312(a)(2). These statements

demonstrate that NEPA continues to apply even where a

proposed agency action relates to the United States’

obligations under NAFTA.

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B. NEPA’s Objectives are Achieved Through Full

Consideration and Disclosure of the

Environmental Impacts of Federal Agency Action

When it enacted NEPA, Congress also established the

Council on Environmental Quality (CEQ), an executive body

responsible for reviewing “the various programs and activities

of the Federal Government in light of the policy set forth in

{| NEPA].” Andrus, 442 U.S. at 358 (citing 42 U.S.C. 4344(3)).

The CEQ has issued regulations specifying agencies’

obligations under NEPA, see 40 C.F.R. 1500-1508, and this

Court has concluded that these regulations merit “substantial

deference.” Andrus, 442 U.S. at 358.

The CEQ regulations have clarified that NEPA applies to

all actions that “are potentially subject to Federal control and

responsibility.” 40 C.F.R. 1508.18. Such actions include an

agency's adoption of regulations. /d. § 1508.18(b)(1).

NEPA “supplement[s]” an agency’s existing authority by

requiring it to consider environmental implications even when

its general policymaking authority is more limited. 40 C.F.R.

1500.6; see also 42 U.S.C. 4335; Pacific Legal Foundation v.

Andrus, 657 F.2d 829, 835 (CA6 1981) (“NEPA supplements

the existing goals of agencies and provides that agencies

should also consider environmental concerns.”). Unless a

federal agency immediately determines that a_ full

Environmental Impact Statement (EIS) will be necessary, 40

C.F.R. 1501.3(a), NEPA compliance begins with the

preparation of an Environmental Assessment (EA) — a

document meant to provide “sufficient evidence and analysis

for determining whether to prepare an [EIS].” /d. §

1508.9(a). The regulations dictate that an EA must include a

full and fair discussion “of the need for the proposal, of

alternatives as required by [NEPA], of the environmental

impacts of the proposed action and alternatives, and a listing

of agencies and persons consulted.” /d. § 1508.9(b). Under

certain carefully defined circumstances, the EA may lead to a

9

Finding of No Significant Impact (FONSI) rather than a full

EIS. See id. § 1508.13.

A federal agency must prepare an EIS when an EA

indicates that a proposed action may “significantly affect[] the

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

This critical document must contain a detailed discussion of

the “effects” of the agency’s action. These include both

“direct effects” that are “caused by the action and occur at the

same time and place” and also “indirect effects” that are “later

in time or farther removed in distance, but are still reasonably

foreseeable.” 40 C.F.R. 1508.8(a), (b). The definition of

“effects” also includes “cumulative effects,” id. § 1508.25(c),

which the regulations define as the “incremental impact of the

action when added to other past, present, and reasonably

foreseeable future actions regardless of what agency (Federal

or non-Federal) or person undertakes such other actions.”

Id. § 1508.7 (emphasis added). In addition, the analysis must

consider impacts on human health. /d. § 1508.8. In

evaluating the significance of an action, agencies must

analyze local, as well as national, impacts and must also

consider “both short- and long-term effects.” /d. § 1508.27.

Further, the EIS must “[rJigorously explore and objectively

evaluate all reasonable alternatives” to the agency’s proposed

action. /d. § 1502.14(a). This discussion must address

“appropriate mitigation measures” that the agency could take

to reduce the adverse environmental effects of its proposed

action. /d. § 1502.14(f).

When a federal agency prepares an EIS, it does not do so

simply for its own benefit. Intergovernmental cooperation is

essential to allow “other government agencies to react to the

effects of a proposed action at a meaningful time.” Marsh y.

Oregon Natural Resources Council, 490 U.S. 360, 371

(1989). Thus, the CEQ regulations require federal agencies to

circulate the EIS to “[aJny Federal agency which has

jurisdiction by law or special expertise with respect to any

environmental impact involved and any appropriate Federal,

State or local agency authorized to develop and enforce

10

environmental standards.” 40 C.F.R. 1502.19(a). Indeed, one

of the main functions of the EIS preparation process is to

solicit input from these expert agencies and to modify the

environmental analysis accordingly. /d. Part 1503; see also

Methow Valley, 490 U.S. at 350 (“[W]here the adverse effects

on air quality . . . will be subject to regulation by other

governmental bodies, the EIS serves the function of offering

those bodies adequate notice of the expected consequences

and the opportunity to plan and implement corrective

measures in a timely manner.”). In addition, the CEQ

regulations contemplate that an EIS prepared by one agency

for a particular decision also may be relied upon and used by

other federal, state and local agencies with jurisdiction over

one of the environmental impacts covered by the document.

40 C.F.R. 1506.3, 1508.5.

Il. NEPA REQUIRED THE FMCSA TO PREPARE AN

EIS CONSIDERING THE ENVIRONMENTAL

EFFECTS ATTRIBUTABLE TO PERMITTING

INCREASED MEXICAN CARRIER TRAFFIC

BEYOND THE BORDER ZONE

NEPA expressly applies to “all agencies of the Federal

Government,” 42 U.S.C. 4332(2) (emphasis added). The

government therefore concedes that the FMCSA “must apply

NEPA.” U.S. Br. 38 n.16. But the government seeks to

sidestep the statute’s requirements by offering an

exceptionally cramped view of the obligations NEPA

imposes. See U.S. Br. 24-42. Its position incorrectly

interprets NEPA, its implementing regulations, and the prior

decisions of this Court. All of these authorities indicate that

the FMCSA was required to prepare an EIS assessing the

environmental impacts of Mexican carrier operations beyond

the border zone. |

A. The FMCSA’s EA Provided No Basis on Which to

Issue a FONSI

The FMCSA’s issuance of a FONSI in this case was “not

in accordance with law.” Marsh, 490 U.S. at 375 n.21

(quoting 5 U.S.C. 706(2)(A)). In all cases where an agency

action falls under NEPA, an agency that does not opt simply

to undertake an EIS at the outset must prepare an EA that

“[bjriefly provides] sufficient evidence and analysis for

determining whether to prepare an [EIS] or a [FONSI],” 40

C.F.R. 1508.9(a)(1) (emphasis added). In order for a FONSI

to be justified in place of an EIS, the EA must show that the

agency's action “will not have a significant effect on the

human environment.” /d. § 1508.13.

The EA prepared by the FMCSA in this case fails to

provide “sufficient evidence and analysis” to support such a

conclusion. In preparing its EA, the FMCSA simply ignored

the CEQ’s definitions of “significant” and “effect.” A proper

understanding of these terms demonstrates why the FMCSA’s

EA was entirely insufficient to support a FONSI.

1. An Increase in Mexico-Domiciled Truck

Emissions Outside the Border Zone Is One

Effect of the FMCSA’s Actions

Because it is a “cumulative impact” of the FMCSA’s

promulgation of new safety rules, the travel of Mexico-

domiciled trucks outside the border zone required

environmental analysis.” The CEQ regulations define

* The trucks’ movement also requires NEPA analysis as either

a “direct” or “indirect” effect of the FMCSA’s actions. 40 C.F.R.

1508.8. The trucks’ operations are directly “caused by” the

agency's issuance of operating authority. /d. § 1S5O8.8(a) (defining

direct effects); see also infra at U.B. The movement of the trucks

is also a “reasonably foreseeable” result of the agency's

promulgation of safety regulations. 40 C.F.R. 1508.8(b) (defining

indirect effects); see also infra at 12.

12

“effects” under NEPA to include those “impacts” of an

agency action that are “cumulative” in nature. 40 C.F.R.

1508.8. A “cumulative impact” is any “impact on the

environment which results from the incremental impact of the

action when added to other past, present, and reasonably

foreseeable future actions regardless of what agency (Federal

or non-Federal) or person undertakes such other actions.” /d.

§ 1508.7.

At the time the FMCSA prepared its EA in 2002, there

was no Mexican carrier traffic beyond the border zone for two

reasons. First, there was a trade moratorium on the “entry of

motor carriers domiciled in a contiguous foreign country.”

Pet. App. 9a (quotation marks omitted). Second, the FMCSA

could not process Mexican carriers’ applications for

permission to operate beyond the border zone because in

December 2001 Congress forbade the FMCSA from spending

any funds to process these applications until the FMCSA first

promulgated new safety rules. Pub. L. No. 107-87, § 350,

115 Stat. 864 (“Section 350"). Though the moratorium was

subsequently lifted in November 2002, U.S. Br. 2, Section

350 remains in effect. See Pub. L. No. 108-199, Div. F, Tit. 1,

§ 130 (2004) (available on Westlaw at 2004 HR 2673).

The government concedes that the imminent lifting of the

moratorium was “foreseeable” at the time the EA was

prepared in January 2002. U.S. Br. 41. Anticipating this

event, Mexican carriers began to submit applications to

operate outside the border zone. See

http://www.dot.gov/affairs/dot 10702.htm (last visited Mar. 9,

2004). It was thus eminently foreseeable that if the FMCSA

were to promulgate new safety regulations, some of the

applications would be granted and Mexico-domiciled trucks

would travel beyond the border zone. This foreseeable effect

of the agency's actions required NEPA analysis. 40 C.F.R.

1508.7, .8.

13

2. The EA Failed to Analyze Whether Mexican

Carrier Emissions Outside the Border Zone

Will Have a “Significant” Impact on the

Environment

The cursory and incomplete analysis contained within its

EA did not support the FMCSA’s determination that

emissions from newly licensed Mexico-domiciled trucks

would have “no significant effect on the human

environment.” J.A. 34. Cf. 40 C.F.R. 1508.13. The CEQ

regulations mandate 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.” 40 C.F.R. 1508.27(a) (emphases added).

Moreover, when analyzing significance, “both short- and

long-term effects are relevant.” Id. (emphasis added). The

EA here failed to meet either requirement.

First, rather than analyzing the significance of increased

Mexico-domiciled truck emissions in “several contexts,” the

EA analyzed them solely in one context: national. The EA

merely stated, without more, that “[t}he changes in resulting

emissions are negligible when compared to national levels of

emissions for the operations of [commercial motor vehicles],

all on-road sources, and total emissions from all sources.”

J.A. 167 (emphasis added). Omitted from the EA was any

discussion of the impact upon the “affected region”: the

specific “localit{ies]” of the United States through which the

Mexico-domiciled trucks will actually travel. 40 C.F.R.

1508.27(a). Obviously, many more Mexico-domiciled trucks

will pass through Southern California than will enter Maine;

consequently, Mexico-domiciled truck emissions will

constitute a much higher percentage of emissions in Southern

California than of emissions across the entire United States.

Yet the FMCSA never bothered even to ask how the

emissions would particularly impact specific areas.

Second, the EA neglected to analyze any “long-term

effects” of the Mexican carrier emissions, instead focusing

14

solely on trucks “projected to operate in [Fiscal Year] 2002.”

J.A. 215-17, thls. C-7 — C-9; see also J.A. 147 (stating that the

data for the EA’s air quality analysis appears in Appendix C).

The new safety regulations were scheduled to take effect in

May 2002. 67 Fed. Reg. 12,702 (Mar. 19, 2002). Since

FY 2002 ended on September 30, the EA considered only five

months worth of emissions.

While it would be difficult under any circumstances to

consider a five-month emissions analysis to be “long-term,”

that time frame was particularly inappropriate here. Not only

did the EA fail to justify why future years would follow the

same pattern as Fiscal Year 2002, but there was ample reason

to believe that Fiscal Year 2002 was unrepresentative. First,

total cross-border traffic will likely increase in the future due

to an expansion in trade. While the EA admits that “the total

amount of cargo transported from Mexico into the United

States could increase slightly,” J.A. 148 (emphasis added), it

utterly neglects to justify why this effect would be so “slight”

if it were properly considered over the course of several

years. Second, the relative impact of Mexican carrier

emissions compared to other emissions will likely also

increase over time. Mexice-domiciled trucks, unlike their

counterparts in the United Stites, are outside the jurisdiction

of EPA engine emissions standards. By statutory mandate,

these emissions standards can only grow stricter over time,

see 42 U.S.C. 7521(b)(1(C), and the EPA has promulgated

new rules that will apply to engines beginning with model

years 2004 and 2007. See 40 C.F.R. 86.004-11, 86.007-11.

As a result, emissions from compliant domestic trucks will

decrease, and emissions from noncompliant Mexico-

domiciled trucks will constitute a progressively higher

percentage of the overall pollution burden. The narrow,

short-term time frame taken by the EA utterly ignores this

critical difference in the current and future fleet mix for each

nation.

1S

B. The Government’s Argument Rests on an

Unsupportable Notion of Causation

Despite the fact that Section 350 prevents the

authorization of Mexican carriers to operate beyond the

border zone until the FMCSA issues new safety regulations,

the government nevertheless contends that the moratorium

modification is the sole cause for Mexico-domiciled trucks

traveling beyond the border zone. U.S. Br. 30-42. Under the

government's erroneous conception of causation, “the only

increased emissions resulting from the [FMCSA] regulations”

would be emissions caused by roadside safety inspections

undertaken while processing Mexican carriers’ applications.

U.S. Br. 41. This argument misrepresents both NEPA and the

law of causation.

1. The FMCSA’s Actions Are a Legal Cause of

Mexican Carriers Operating Outside the

Border Zone

In asserting that the FMCSA is responsible for only

inspection-related emissions, the government's argument

ignores the NEPA causation framework that this Court

articulated in Metropolitan Edison Co. v. People Against

Nuclear Energy, 460 U.S. 766 (1983). Metropolitan Edison

supplies a two-part analysis for the question of when NEPA

requires “consideration of a particular effect.” /d. at 773. It

first asks what “change in the physical environment” is

caused by the agency action in question. /d. It then requires

the agency to assess the environmental impact of any effect

with “a reasonably close causal relationship” to that change.

Id. at 774.

In Metropolitan Edison, the Nuclear Regulatory

Commission (NRC) caused a change in the physical

environment by granting permission for the renewed

operation of a nuclear power plant. 460 U.S. at 775. The

Court therefore held that it was proper under NEPA for the

16

NRC to consider the following “direct effects” of granting

that permission: increased radiation, fog, water discharge,

and risk of a nuclear accident. /d. This Court has taken an

identical approach to causation in other NEPA cases. See,

e.g., Marsh, 490 U.S. at 363-65, 385 (finding that a change in

the physical environment in constructing a dam would require

an additional EIS if new and accurate information were

available regarding impact upon fish population and soil

quality); Methow Va.ley, 490 U.S. at 337-39, 350 (finding

that a change in the physical environment by permitting

development of ski resort required an EIS studying, inter alia,

effects on regional air quality).

Like the regulatory actions in those cases, the

promulgation of regulations that allow Mexico-domiciled

trucks to operate beyond the border zone will cause a change

in the physical environment: In this case, that effect will be

increased foreign vehicle traffic. Metropolitan Edison thus

requires the FMCSA to consider environmental effects with a

“reasonably close causal relationship” to that change. 460

U.S. at 774. In the case of the Mexico-domiciled trucks,

these effects of course include the emissions they create and

the concomitant impact upon regional air quality.

In asserting that the FMCSA is responsible for only

inspection-related emissions, the government draws an

artificial line between the process of granting permission (the

inspections) and the resu/t that follows from granting that

permission (the movement of the trucks). That reasoning

ignores the fact that Metropolitan Edison itself involved an

agency's grant of permission. _This Court deemed

Metropolitan Edison’s restarting of the power plant to be a

“change in the physical environment” caused by the NRC's

grant of permission to do so. Metropolitan Edison, 460 U.S.

at 773-75; see also Baltimore Gas & Electric Co. v. Natural

Resources Defense Council, Inc., 462 U.S. 87, 106-107

(1983) (indicating that consideration of “significant health,

socioeconomic, and cumulative consequences” of a power

plant is appropriate when the NRC licenses its operation).

17

The CEQ regulations specifically mention “[a]pproval of

specific projects” such as “by permit or other regulatory

decision” in their definition of “major federal actions” subject

to NEPA analysis. 40 C.F.R. 1508.18. As this Court has

recognized in its prior cases, analyzing an action of this type

would be meaningless unless there is consideration of what

will happen after an agency grants permission for the private

party's action,

2. The Order Lifting the Moratorium Did Not

Excuse the FMCSA from Its Obligations Under

NEPA

The existence of the order lifting the moratorium in no

way undermines the causal link between the FMCSA’s

regulations and the movement of the trucks. The FMCSA

conceded as much when it admitted that, standing alone, a

moratorium modification can have “no practical effect,” since

Section 350 prevents the FMCSA from processing any

applications from Mexican carriers unless and until it

promulgates new safety regulations. J.A. 58.

The government's argument obscures this fact by

implying that the FMCSA’s rulemaking is simply a

' Agencies routinely prepare an EIS when promulgating rules that

regulate private parties, even though in such cases the private parties will

provide the final link in a causal change affecting the environment. For

example, the Federal Railroad Administration recently prepared an EIS for

an interim final rule requiring private railroad companies to sound

locomotive horns when a train approaches and enters a public highway-

rail crossing. 68 Fed. Reg. 70,586, 70,662 (Dec. 18, 2003). Similarly, the

Bureau of Land Management published notice of its intent to prepare an

EIS to address the environmental effects of proposed amendments to

regulations governing the issuance of grazing permits to private parties.

68 Fed. Reg. 10,030 (March 3, 2003). By the same token, the Nuclear

Regulatory Commission recently indicated that it plans to prepare an EIS

to assess the impact of new rules governing the disposition of solid

materials that originate in private NRC-licensed facilities. 68 Fed. Reg.

9.595, 9,601 -02 (Feb. 28, 2003).

18

component of the President’s order. See U.S. Br. 31, 36.

This contention ignores a crucial distinction: The regulations

were promulgated pursuant to a congressional limitation on

the agency's power to authorize Mexican carriers to serve

points beyond the border zone, not pursuant to any

presidential directive related to the moratorium. In fulfilling

the congressional precondition established in Section 350, the

FMCSA exercises independent control over the operation of

Mexican carriers beyond the border zone. Not only must the

FMCSA’s regulations exist before a single truck is allowed to

operate outside the border zone, but each and every truck that

receives such permission must comply with those regulations.

It would subvert congressional intent to provide the

FMCSA with an exemption from NEPA on the basis of a

presidential order issued with regard to the United States’

obligations under NAFTA. Congress has made clear that no

such exemption is warranted. In NAFTA’s implementing

statute, Congress squarely stated that “[nJothing in this Act

jimplementing NAFTA] shall be construed to amend or

modify any law of the United States, including any law

regarding . . . the protection of the environment.” 19 U.S.C.

3312(ay(2)(A). Congress was thus explicit that NAFTA does

not in any way abrogate NEPA. Moreover, by enacting

Section 350, Congress established an independent and

integral role for the FMCSA in the NAFTA-compliant

measure of licensing of Mexico-domiciled trucks to operate

outside the border zone. By making this activity subject to

agency action, Congress brought it squarely within the ambit

of NEPA.

IIl.REQUIRING THE FMCSA TO PREPARE AN EIS

SERVES THE IMPORTANT PURPOSES

UNDERLYING NEPA

Requiring the FMCSA to prepare an EIS in this case

would serve the critical purposes of NEPA. First, an EIS

enables better rulemaking by the FMCSA itself with respect

19

to the operation of Mexico-domiciled trucks beyond the

border zone. See Methow Valley, 490 U.S. at 349 (explaining

that one purpose of NEPA is to provide information to an

agency's decisionmakers about the — environmental

ramifications of their proposed actions). Second, the EIS

educates both other governmental actors and the public by

providing them with environmental information about the

proposed action. See id. Here, the preparation of an EIS that

evaluates and discloses the direct, indirect and cumulative

environmental effects of regulations permitting Mexico-

domiciled trucks beyond the border zone is critical to

informed decisionmaking and to an informed public.

A. The EIS Would Enable the FMCSA to Choose

Among Alternative Safety Regulations

The FMCSA could use the comprehensive environmental

information contained in an EIS to craft specific safety

regulations that have the secondary effect of reducing the

environmental impact, including adverse health effects, from

Mexican carriers. Thus, it is illogical for the government to

claim that an EIS would serve “no purpose” in this case. U.S.

Br. 38. By undergoing proper NEPA review, the FMCSA

would ensure that, “in reaching its decision, [it] will have

available, and will carefully consider, detailed information

concerning significant environmental impacts.” Methow

Valley, 490 U.S. at 349. Without such analysis, the agency

cannot guarantee “that important effects will not be

overlooked or underestimated only to be discovered after

resources have been committed or the die otherwise cast.” /d.

1. The FMCSA’s Mandate _ Incorporates

Environmental Issues

The government’s claim that the FMCSA need not

prepare an EIS because the agency’s mandate is limited to

safety issues, see U.S. Br. 25-27, 32-33, 35-36, is unsound.

20

This characterization is legally untenable because NEPA

provides all federal agencies with the supplemental authority

to consider the environmental effects of their decisionmaking.

See 42 U.S.C. 4335.

Moreover, the government's claim is factually erroneous

because the FMCSA does exercise authority over multiple

areas relating to the environment. For example, the FMCSA

bears primary responsibility for enforcing regulations relating

to the transportation of hazardous materials throughout the

United States. See 49 U.S.C. 113(f) (delegating the FMSCA

authority over 49 U.S.C. 5101 et seg. and 49 U.S.C. 3100 ef

seq.); 49 C.F.R. 386 (describing administrative enforcement

proceedings for, inter alia, violations of regulations

governing the transportation of hazardous materials found in

49 C.F.R. 171-80). Surely, the FMCSA must consider

environmental issues when enforcing rules relating to the

transportation and storage of highly toxic materials, as spills

can harm both human life and the ecosystem. In fact, the

agency's statutory mandate requires that it establish

“minimum levels of financial responsibility” for motor

vehicles to cover “public liability, property damage, and

environmental restoration” during the interstate transportation

of hazardous materials. 49 U.S.C. 31139(c)(1) (emphasis

added). And the FMCSA’s regulations permit it to seek an

injunction in federal court to prevent the transportation of

hazardous materials where the situation “presents a

substantial likelihood that . . . substantial endangerment to

health, property, or the environment may occur before” a

formal administrative proceeding can commence. 49 C.F.R.

386.72 (emphasis added).

Similarly, to ensure commercial motor vehicle safety, the

FMCSA regulates vehicle exhaust, see 49 C.F.R. 393.83,

which can harm the operator, public health, and the

environment. Additionally, the FMSCA has statutory

authority to assist in developing a national intermodal

transportation system that, among other things, is

“economically efficient and environmentally sound.” 49

21

U.S.C. 5501(a) (emphasis added). Since aspects of the

FMCSA’s mandate have an environmental focus, the

agency's mission cannot be as narrow as the government

insists,

Congress drafted NEPA in broad terms, directing that all

federal agencies should comply with NEPA “to the fullest

extent possible.” 42 U.S.C. 4332. It expressly directed that

“no agency shall utilize an excessively narrow construction of

its existing statutory authorizations to avoid compliance.”

115 Cong. Rec. 39,702, 39,703 (1969) (statement of House

conferees); see also Citizens Against Burlington, Inc. vy.

Busey, 938 F.2d 190, 196 (CADC), cert. denied 502 U.S. 994

(1991) (“[A]n agency may not define the objectives of its

action in terms so unreasonably narrow . . . [that] the EIS

becomes a foreordained formality.”). But that is exactly what

the government has done by portraying, albeit incorrectly, the

FMCSA as simply a safety agency with respect to which

environmental issues cannot enter the decisionmaking

process.

2. The FMCSA Has Discretion to Choose

Environmentally Protective Alternatives When

Issuing Regulations

The government again attempts to avoid the force of its

concession that NEPA applies to the FMCSA’s rulemaking

by claiming that the FMCSA’s actions are purely ministerial

and that, therefore, an EIS would not further NEPA’s aim to

influence agency decisionmaking. U.S. Br. 38-39. While it

may be true that the FMCSA must grant authorization to all

motor carriers that are “willing and able to comply with” its

regulations, see 49 U.S.C. 13902(a)(1), and while it is

certainly true that the FMCSA “did not have the discretion to

countermand any determination by the President that Mexican

carriers would no longer be barred,” U.S. Br. 39, those

observations are beside the point. The FMCSA will exercise

discretion and independent judgment in determining (1)

22

whether to promulgate regulations at all, and, if so, (2) the

precise content of those regulations. Neither in Section 350

nor anywhere else has Congress constrained the agency's

discretion over these matters.

Both within the agency proceedings and during this

litigation, the United States has repeatedly recognized a

correlation between safety and environmental concerns when

regulating Mexico-domiciled trucks. As the FMCSA’s EA

candidly explains, the agency “expects to target the highest

risk [trucks] and bring them into compliance with United

States safety and environmental laws, standards, policies,

rules, and regulations.” J.A. 193 (emphasis added). Further,

the FMCSA stated in the court of appeals that its safety

regulations would disproportionately affect older (pre-1993)

Mexican trucks. J.A. 484. These are exactly the subset of

trucks that release the most emissions. The stricter the safety

regulations the agency chooses, the less pollution there will

be from Mexico-domiciled trucks that travel outside the

border zone.

The FMCSA is not constrained by its governing statute or

any other law from considering this acknowledged correlation

between safety and environmental protection in choosing

among regulatory alternatives presented in a comprehensive

EIS. For instance, the FMCSA or another agency charged

with regulating the transportation of hazardous materials like

the Research and Special Programs Administration of the

Department of Transportation, see 49 U.S.C. 112; 49 C.F.R.

171-80, could use data from a properly conducted EIS to

determine whether additional safety regulations are necessary

for Mexico-domiciled trucks that carry hazardous materials,

whether special routes for such trucks should be developed, or

whether increased administrative enforcement may be

necessary. With more comprehensive environmental

information from the EIS, the FMCSA could possibly avert

safety and environmental catastrophes through affirmative

decisionmaking at the front end, just as NEPA intends.

en ee CE De © ~

es HN oe

23

Since the FMCSA retains non-ministerial discretion to

regulate Mexico-domiciled trucks traveling beyond the border

zone, under NEPA the agency “is not only permitted, but

compelled, to take environmental values into account.”

Calvert Cliffs, 449 F.2d at 1112.

B. The EIS Would Provide Important Information to

the Public, to Congress, and to the President

In addition to providing information for the FMCSA,

NEPA’s EIS requirement serves broader informational

purposes. First, NEPA review provides valuable information

to the public, both informing it about the environmental

effects of government action and verifying that the

government has taken those effects into account in making its

decisions. See Methow Valley, 490 U.S. at 349 (recognizing

that the publication of an EIS “provides a springboard for

public comment”); Baltimore Gas, 462 U.S. at 97 (stating that

NEPA “ensures that the agency will inform the public that it

has indeed considered environmental concerns”); Grand

Canyon Trust v. Fed. Aviation Admin., 290 F.3d 339, 342

(CADC 2002) (noting an EA’s purpose of providing relevant

information regarding the cumulative effects of multiple

actions to the public). Providing information to the public

also encourages public involvement in and response to agency

decisionmaking. See Dubois v. United States Dep't of Agric.,

102 F.3d 1273, 1285-86 (CAI 1996), cert. denied sub nom.

Loon Mountain Recreation Corp. v. Dubois, 521 U.S. 1119

(1997) (taking note of NEPA’s purpose of informing the

public and allowing the public to “offer its insight to assist the

agency's decision-making”); Natural Resources Defense

Council, Inc. v. Hodel, 865 F.2d 288, 296 (CADC 1988)

(enunciating NEPA’s purpose of informing “the general

public about the environmental consequences of a certain

action in order to spur all interestéd parties to rethink the

wisdom of the action”).

24

Second, NEPA provides both Congress and the President

with valuable information. See Hodel, 865 F.2d at 296

(declaring that the purpose of NEPA includes informing non-

acting agencies and Congress and noting an EIS’s value as

“environmental source material” for Congress and the

executive); Comm. for Nuclear Responsibility, Inc. v.

Seaborg, 463 F.2d 783, 787 (CADC 1971) (noting

informational value of NEPA statements for Congress and the

President, “who has broad concern even when not directly

involved”); see also S. Rep. No. 91-296, at 21.

The FMCSA’s failure to prepare an EIS in this case has

subverted the informational and disclosure objectives that lie

at the heart of NEPA. Neither the agency decisionmakers nor

the “larger audience” that NEPA was intended to serve, see

Methow Valley, 490 U.S. at 350, have been provided with the

environmental analysis necessary to make an informed choice

among alternatives. As a result, neither Congress, nor the

President, nor the public have been informed of the

environmental effects that will be wrought by the impending

influx of Mexico-domiciled trucks beyond the border zone.

C. The EIS Would Assist States in Meeting Their

Obligations Under the Clean Air Act

The FMCSA’s failure to comply with NEPA also

frustrates NEPA’s central purpose of enabling “other

government agencies to react to the effects of a proposed

action at a meaningful time.” Marsh, 490 U.S. at 371. By

requiring that agencies consider the long-term direct, indirect,

and cumulative effects of their actions, see 40 C.F.R. 1508.7,

8, .25(c), .27(a), NEPA provides other governmental entities

with “the opportunity to plan and implement corrective

measures in a timely manner.” Methow Valley, 490 U.S. at

350 (noting that the analysis of private off-site development

activities in an EIS prepared by the Forest Service serves a

notice and planning function for agencies regulating air

quality and wildlife conservation).

ee ee

25

The need to give notice to other governmental bodies is

nowhere more keenly felt than in the context of states’

obligations under the CAA. State air quality programs must

account for and accommodate all actions affecting state air

quality standards. See 42 U.S.C. 7407. Regions that already

suffer from grave air pollution problems run the serious risk

of losing federal transportation funding if the influx of

pollution from Mexico-domiciled trucks prevents states from

creating transportation plans that comply with CAA

requirements. Information provided by NEPA review is

essential to enable state and regional agencies to fulfill their

CAA obligations. Such data afford states the opportunity to

“implement corrective measures” before the impacts of those

actions are felt. Methow Valley, 490 U.S. at 350.

Contrary to the government's claims, a full EIS in this

case would serve NEPA’s central goals. The FMCSA’s

failure to prepare an EIS that adequately reviews the local

pollution impacts of increased Mexican truck traffic beyond

the border zone has left states whose air quality will

unquestionably be affected by this influx without any of the

“relevant environmental information” they require to meet

their attainment obligations under the CAA. Methow Valley,

490 U.S. at 350. These states lack data regarding the

“expeciey consequences” of both direct agency actions and

foreseeable nonagency actions, which is the very information

NEPA was created to provide. See id.; see also 40 C.F.R.

1508.7, .8, .25(c), .27(a). Moreover, since applications by

Mexican carriers to operate outside the border zone are

regulated solely by the FMCSA, the environmental impacts of

granting these applications might not be measured or

considered at all unless the FMCSA completes an adequate

EIS. NEPA was enacted precisely to prevent such a result.

See 42 U.S.C. 4332; S. Rep. No. 91-296, at 5-9.

26

IV.THE FMCSA’S FAILURE TO PERFORM A

CONFORMITY REVIEW VIOLATED THE CLEAN

AIR ACT

Not only did the FMCSA fas! asequately to perform its

obligations under NEPA, but it also failed to meet its distinct

“conformity review” obligations under the CAA. These

obligations are wholly separate from the agency's obligations

under NEPA. NEPA review is governed by the CEQ

regulations, see 40 C.F.R. 1500 et seq. while CAA

conformity analysis is performed under regulations and

standards promulgated by the EPA. See 42 U.S.C. 7506,

7509, 7510; 40 C.F.R. 93.150-.160. Thus, even if the Court

were to-find that no EIS was required in this case, the court

below nevertheless correctly held that the FMCSA failed to

comply with the separate conformity review provisions of the

CAA.

Under the CAA, all federal agencies carry an “affirmative .

responsibility” to perform a “conformity analysis” of the air

pollution impacts from direct and indirect emissions caused

by agency action. 42 U.S.C. 7506; 40 C.F.R. 93.152, .154.

In promulgating its safety regulations, the FMCSA relied on a

flawed EA to conclude that its actions would not create

sufficient air quality effects to trigger conformity review.

J.A. 146-67. The FMCSA assessment erred in two respects:

it failed to analyze those impacts by region, and it failed to

analyze the proper range of actions and impacts on air quality.

First, the FMCSA was required to review emissions

impacts on a regional basis. The CAA measures air quality

control regionally, and all measurements of attainment or

nonattainment must be taken accordingly. See 42 U.S.C.

7407(a) (requiring attainment of air quality standards “within

each air quality control region”). Conformity analyses must

do the same. See. e.g., 40 C.F.R. 93.152 (defining prohibited

federal actions as those that cause CAA violations at

“location|s] in a nonattainment or maintenance area’); id. §

93.153(b) (“{C]Jonformity determination is required for each

ee ed

27

pollutant . . . in a nonattainment or maintenance area.”). The

FMCSA failed to conduct such an analysis, opting instead to

analyze emissions impacts on a national scale. J.A. 147, 167.

Tellingly, the government's brief fails to address this

requirement at all. Rather, it merely points to the potential

“delay[]” to the President's “effort” to comply with NAFTA

that proper conformity analysis might cause. U.S. Br. 47.

Given that NAFTA in no way alters the requirements of the

CAA, see 19 U.S.C. 3312, the government's non-answer

cannot avoid the inescapable conclusion that the FMCSA’s

failure to analyze emissions impact on a regional basis

violates its CAA conformity obligations.

Second, the FMCSA had to analyze a broader scope of

emissions than it considered in its air quality analysis. EPA

regulations require that federal agencies conduct conformity

review when the sum of direct and indirect emissions “caused

by the Federal action” will equal or exceed regional threshold

levels established by EPA. 40 C.F.R. 93.152. The

regulations further define “caused by” to mean “emissions

that would not otherwise occur in the absence of the Federal

action.” /d. Thus, an emission that would not occur absent

the action in question, regardless of other actions or causes

for those emissions, is “caused by” the action for purposes of

CAA conformity review. Under this regulatory scheme, any

emissions created by Mexico-domiciled trucks operating

beyond the border zone are “caused by” the FMCSA’s

promulgation of safety regulations, since without those

regulations, no such truck traffic would occur. See supra at

12.

The EPA’s definition of “indirect emissions” likewise

compels the FMCSA to analyze Mexican carrier emissions

more broadly. An agency must consider emissions “caused

by” the Federal action when the agency “can practicably

control and will maintain control over [the emissions] due to a

continuing program responsibility of the Federal agency.” 40

C.F.R. 93.152. Through its permitting responsibilities,

inspections, audits, and other compliance programs, the

28

FMCSA both can and will maintain control over Mexican

carriers traveling beyond the border zone. See 49 C.F.R.

385.103 (establishing a “safety monitoring system” with

“frequent roadside inspections” and a safety audit program for

Mexico-domiciled trucks). This control will extend through

an eighteen-month compliance period established for each

Mexican carrier and thereafter through ongoing general

regulation by the FMCSA. /d.; see also id. § 385.119. The

government's representations to the contrary, U.S. Br. 46, are

therefore incorrect.

CONCLUSION

For the foregoing reasons, the judgment should be

affirmed.

Respectfully submitted,

Kara Gillon Pamela S. Karlan

Defenders of Wildlife (Counsel of Record)

824 Gold SW Deborah A. Sivas

Albuquerque, NM 87102 559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-4851

Janea Ashanti Scott Sanjay Narayan

Environmental Defense Sierra Club Environmental

257 Park Avenue South Law Program

17th Floor 85 Second St., Second Floor

New York, NY 10010 San Francisco, CA 94105

March 11, 2004