Amicus Curiae Brief — Department of Transportation v. Public Citizen

In The LosRCE OF THE cum

Supreme Court of the United States ——

.

DEPARTMENT OF TRANSPORTATION, ET AL.,

Petitioners,

v.

PUBLIC CITIZEN, ET AL..,

Respondents.

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On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

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QUESTIONS PRESENTED

1. Whether, under the National Environmental Policy

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

prerequisite to allowing Mexico-domiciled trucks to oper-

ate throughout the United States is subject to an Envi-

ronmental Impact Statement that will disclose and

evaluate the serious environmental effects caused by such

trucking.

2. Whether, under the conformity provision of the Clean

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

an analysis into the extent to which permitting Mexico-

domiciled trucks to operate throughout the United States

will make it difficult for states to comply with federal air

quality standards.

ll

TABLE OF CONTENTS

Page

INTEREST OF AMICI STATES ...................::0::e0eeeeeeee0 1

STATEMENT OF THE CASE...................sccsssseeeceseeeeeee 1

SUMMARY OF ARGUMENT ..................ccccccccccesreceeeees 4

STITT cinnsninctuinniiabnbnieanenmiinintatupionnimaieiiiaaniie 7

I. THIS COURT HAS HELD THAT ITS SOLE

TASK IN A CASE LIKE THIS IS TO APPLY

TRADITIONAL RULES OF STATUTORY

CONSTRUCTION TO THE APPLICABLE

STATUTES, WHICH HERE ARE THE

CLEAN AIR ACT, NEPA, AND SECTION 350.

THE PRESIDENTS CONSTITUTIONAL

FOREIGN AFFAIRS POWERS AND THE

NAFTA — WHICH ITSELF ALLOWS THE

U.S. TO ENFORCE ITS ENVIRONMENTAL

STANDARDS — ARE IRRELEVANT TO THE

MEANING OF THESE STATUTEG.................. 7

A. The President’s Foreign Affairs Powers

Are Not Implicated By This Case............... 7

B. Congress Has Directed That NAFTA Com-

pliance Should Not Change Or Diminish

Federal Compliance With U.S. Environ-

I I ccnncstcniiicensnenensniennentintiinate 10

Il. FMCSA HAS VIOLATED THE CLEAN AIR

ACT’S CONFORMITY REQUIREMENT BY

FAILING TO ANALYZE THE AIR POLLU-

TION EFFECTS OF ITS REGULATIONS

PRIOR TO ISSUING THE REGULATIO™S.... 11

III.

ill

TABLE OF CONTENTS - Continued

Page

A. The Conformity Requirement Is An Af-

firmative Responsibility Of Every Federal

Agency, Intended To Ensure That Federal

Actions Dovetail With And Do Not Un-

dermine State Air Quality Plans................ 11

B. A Conformity Analysis Is Required For

FMCSA’s Regulations, Because They Are

Likely To Worsen Violations Of The Fed-

eral Air Quality Standards, In Direct Con-

travention Of The Clean Air Act................. 13

1. FMCSA’s Regulations Support And Ap-

prove The Mexican-domiciled Trucks’

Increased Pollution, Because The

Regulations Permit And Enable The

Trucks To Operate In The United

States Beyond The Border Area............ 15

2. Under Its Regulations, FMCSA Will

Have Continuing Program Responsi-

bility For The Emissions Of The Mexi-

can-domiciled trucks, Rendering Them

Subject To The Conformity Regula-

GED ccncnncsnsssansnnsssennsntanniimamenciieinenss 18

C. FMCSA Is Fully Able To Comply With The

Conformity Requirement. If It Finds That

Requirement Too Onerous, Its Remedy

Lies With Congress, Not The Courts.......... 19

FMCSA ALSO VIOLATED NEPA WHEN IT

FAILED TO PREPARE AN EIS ........................ 21

A. FMCSA’s Causation Rule Would Conflict

With NEPA And CEQ Regulations............. 22

iv

’ TABLE OF CONTENTS - Continued

Y Page

1. Under NEPA, The Scope Of The

Agency’s Action, Not Its Authority, De-

termines The Action’s Effects................ 22

2. Under NEPA, Agencies Must Construe

Their Authority Broadly In Favor Of

NEPA’s Purposes Unless Compliance Is

Sr ITIEIIcncijasiebiniiieidiideinpenigmmnuenitidgmaniinesiaiees 24

B. FMCSA’s Causation Rule Would Deprive

States, Local Governments, And The Pub-

lic Of Information They Need To Mitigate

The Harmful Effects Of Federal Actions.... 26

NR crersntcsncncectinenatscnmentesemnniaimemanmnneeseann 30

v

TABLE OF AUTHORITIES

Page

CASES

Aberdeen and Rockfish Railroad Co. v. Students

Challenging Regulatory Agency Procedures, 422

lela 22, 23

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

ITT issiGoendnciehetsindadniteaiieaatiintelncamtmiatenibduaniaiaiantindpenbbineuminateepiatite 11, 20

Ass’n of Civilian Technicians v. FLRA, 269 F.3d

TTL ITE, HITE coinecncrnensianiidinntatieniniubbiscnsnedoeuneinen 18

Barclays Bank PLC v. Franchise Tax Board of

California, 512 U.S. 298 (1994)................cccccccsssesserssseeees 9

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984).....................0.ccccceeee 18

Connecticut v. Environmental Protection Agency,

ge 11

Dames and Moore v. Regan, 453 U.S. 654 (1981)............... 9

EDF v. EPA, 167 F.3d 641 (D.C. Cir. 1999)...........0.... 12, 20

Flint Ridge Development Co. v. Scenic Rivers

Association of Oklahoma, 426 U.S. 776 (1976)....... 24, 25

Izaak Walton League of America v. Marsh, 655 F.2d

346 (D.C. Cir. 1981), cert. denied, sub nom. Atchi-

son, T. & S. F. R. Co. v. Marsh, 454 U.S. 1092

Japan Whaling Association v. American Cetacean

Society, 478 U.S. 221 (1966) ...................seccccsceeseseees 7, 8,9

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983) ...........:cccccccesseeeesereeeees 25, 26

Robertson v. Methow Valley Citizens Council, 490

ne ST tains adtaacnaciaaiaiiaatarainueslainianasi 26, 27, 28

vi

TABLE OF AUTHORITIES - Continued

Page

United States v. Guy W. Capps, Inc., 204 F.2d 655

(4th Cir. 1953), aff’d, 348 U.S. 296 (1955)... 9

Watt v. Alaska, 451 U.S. 259 (1981)... cccc cece eeees 25

CONSTITUTION

I 9

E:T en nena EEE 9

FEDERAL STATUTES

a a acre iene nse ciect iesiaeil iia aiade 1

ee ee ecctncrenncseniionnnncniensimvesesveniomticen 10

8 EE ee 27

EET ee ee aE 24

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EN ES 2

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Sy ETT Ae Ta TTD Aceehatnssneciiihceninecchnpainennitaibieiimntintindaiaiaeiciaitata is siasiaaemai 11

8 EE 12, 13, 15, 20

I le la ea 21

Vii

TABLE OF AUTHORITIES -— Continued

Page

Es Oe i eccccncsninenistenccninineninitstniliinusiiniapiiibaiicataiis 21

es Oe PED icicrtrcnosinscintetitariisenmeinimnipeideiiiaiiiidmaial 21

Oe I iivstteaciceliniciestcitnicrenenninaipiammamuniabadeieatis 21

es Oe ei cciciectnsiinsccicnaiistneiniemsiiaiinnreanmnmapisgiiiaiiias 21

es Or ED cchitincsstinntenionsianindnbiemmunmnianienial 1

ee ee cnihiiissinisaieinidsitatittiniiiiimaaiaieanaiiiaaiinenaiiaiiaitl 1

FEDERAL REGULATIONS ;

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es Oe iiiaiesnsiaieiaeniciaiinsitititiaas ainictata candace 24, 25

ec iiitiitciicisiiceiiaaiaahleiiiitiiteiiitlcateaaaeaiaeataal 27

ee Oe I iicticinnciiesinicnhictensiiceaciinccinapileeiapuitiniicipaamssiaiass 27

es Oe MITT ciiietiisinisitsiiteniiaicecaitiishaiiiiadaaaaaenieatl 27

es i St csseibeiteeinsniiainiainaiiaaisiiealineiaiieaimaaaaie 27

nn ON I sinicicnicacischietthaeeniieiaiihcaiiarateiimata 27

40 C.F.R. § 1508(18) ..................008. shdiiadinlaadeabatdiadiaet 2, 22

40 C.F.R. § 1508.8.......... Diiviesicaicneeeiiastiaeeatilidiiinntapenienebaaaiaeasiiinied 22

es ee iaicicieciininitiicieininiiniianieisiniiciniptiieraeabaieapasssl 23

eens i TTTITTTTTITssssesisitbcieeciniiassinbnicdtinciassinstiniaiitinsanenipasinanies 27

es et icesiceicscteisiariinitisiniatticenritnntsinnsintaiieanainiibiieseciparinnaiias 17

A IT icxrsriirenincincntiaiapiniaiinanesitennetignimuenisimuanaies 22

Ss TTT ionssnssssinicieptnanssinniaiciintiaetbtetatimmaanmemieentl 27

TT cine ctasscitpereettinatiemiaenietaantabiarianaainsia 28

ee Oe I cicnncisnnrnienetctinduninnienaauensabiiehinianss 29

Vili

TABLE OF AUTHORITIES — Continued

Page

eI sssistiicsiniteshpinnianneieuienniindindeliaiaiiciiaiaataiaiigmaaia 19

I aia caaidilalendaciienainieanabaniimaia 19

actinic adits dein 19

I IIT TTT uisiasiiciiiaiieseinheiniainiieibneadiieiaceindiaaniiaiéeed 19

SE een ean Ten ne NTN 19

TTT iicsicnisniinsiicsiniteenisetinipenininanetianddnanenainivainnaiiiieesiiis 19

I ais italiani cr hinateaildliameaigindiaitad 19

58 Fed. Reg. 63214 (Nov. 30, 1993) ................cccccceeeeeeeeeeees 13

STATE REGULATIONS AND STATUTES

Health and Safety Code

| Sa EES, Se ee Ee ee eR Ee 29

California Code of Regulations, title 17

REISE ERC AE SCE SENS SOIC ee 29

California Code of Regulations, title 22

CRT ie Poo ee ee ee ee 14

OTHER AUTHORITIES

Consolidated Appropriations Resolution, 2003 Pub.

I,. No. 108-7, Div. I, Tit. III, § 348, 117 Stat. 419............ 2

Consolidated Appropriations Act, 2004 Pub. L. No.

RE SE I Ss OF Si icinicerecintesnccescnssednantatbenvcianenidn 2

DOT Appropriations Act Pub. L. 107-87, § 350(a),

8 REREEEER IRE INREL Feemone ny Sa nOny nav OmER 2, 7,16

1

INTEREST OF AMICI STATES

Amici States submit this brief in support of Respon-

dents because regulations adopted by the Federal Motor

Carrier Safety Administration in purported furtherance of

the North American Free Trade Agreement would allow

Mexican diesel trucks that lack the full range of air

pollution controls found on trucks that meet U.S. EPA and

State of California emissions standards to enter already

polluted air basins, raising the level of ozone and toxic

pollutants that potentially millions of amici States’ resi-

dents must breathe. Amici States do not know the full

extent of the environmental damage FMCSA’s regulations

may cause, because FMCSA has not complied with NEPA

and made the analysis and full public disclosure that

would provide that information. They are sure that the

impacts will be serious enough to require mitigation, but

cannot know what level of mitigation to plan for, because

the federal agency here has not complied with its obliga-

tions under NEPA. Neither has it complied with its obliga-

tions under the Clean Air Act to perform a “conformity

analysis” to determine whether registering Mexican-

domiciled trucks and allowing them to operate across the

country would violate or conform to state clean air plans.

Amici States urge the Court to affirm the judgment of the

Court of Appeals.

¢

STATEMENT OF THE CASE

NAFTA was signed by then-President Clinton in 1992,

and enacted by a majority vote of each house of Congress

in 1993. 19 U.S.C. §§ 3301-3473. One part of NAFTA was

an agreement between the United States and Mexico

to address a long standing dispute between those two

2

countries regarding the ability of trucks owned by Mexican

carriers to operate in the United States. In 1980, in

response to unfair competition concerns, Congress passed

the Bus Reform Act. 49 U.S.C. § 10922(1)(1) (repealed).

That law banned Mexican-domiciled trucks from operating

in the U.S. beyond a narrow (usually 20 miles) zone at the

U.S. border. Congress later specifically gave authority to

the President to lift the ban if he made certain findings. 49

U.S.C. § 13902(c)(3), reprinted in Appendix to FMCSA

brief at 10a-lla. President Bush lifted the moratorium in

response to a decision by a NAFTA arbitration panel.

Before the President lifted the moratorium, Congress

enacted Section 350 to the DOT Appropriations Act of

2002; it subsequently renewed Section 350 for 2003 and

2004. See Consolidated Appropriations Resolution, 2003,

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

Consolidated Appropriations Act, 2004, Pub. L. No. 108-

199, Div. F, Tit. I, § 130. Section 350 (reprinted in the

Appendix to FMCSA’s brief at 12a-20a) sets out truck-

safety requirements that FMCSA must ensure before it

may expend any funds to register trucks for operation

outside the border area.

In response to Section 350, FMCSA issued regula-

tions. The agency also prepared an Environmental As-

sessment (EA) for the regulations, as called for by the

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

§ 4332(2)(c); 40 C.F.R. § 1508(18). The EA examines air

quality emission impacts for only a one-year fixed period,

2002. The EA did not assess the air quality impacts of

increased emissions and increased ambient pollutant

levels resulting from operation of the Mexican-domiciled

trucks on any local areas in the U.S. Nor did the EA make

a localized analysis of air quality impacts on any areas

that currently do not comply with existing federal air

quality standards, or more stringent state air quality

standards, see EA, at C-1 to C-10, despite the fact that

compliance with state and federal air quality standards is

analyzed under the Clean Air Act on an air-basin level, not

the national-average level assessed by the EA. JA 316. The

independent report submitted to FMCSA by the California

Attorney General did a localized analysis of the potential

impacts on California’s Imperial Valley from the operation

there of Mexican-domiciled trucks, and that analysis

showed an increase of nearly one-third of a ton per day of

oxides of nitrogen from these trucks. JA 402. The Mexican-

domiciled trucks currently emit, on average, about 1.3

times as much oxides of nitrogen, nearly twice as much

particulate matter, and twice as many volatile organic

compounds as the average U.S.-domiciled truck. The

disparity will increase with time, so that in 2020 the

average Mexican-domiciled truck will emit about 6.7 times

as much oxides of nitrogen and about four times as much

particulate matter as its U.S. counterpart. JA 426. In

addition, the EA did not assess cancer or other health

risks from the increased pollutant emissions of the Mexi-

can-domiciled trucks.

FMCSA also did not include, as part of its rule-making

process, an analysis of the conformity of its regulations

with State Implementation Plans (“SIPs”) prepared and

adopted by the States under the Clean Air Act to meet the

national ambient air quality standards. 42 U.S.C. § 7410.

Petitioners below brought a challenge in the Ninth

Circuit Court of Appeals to the issuance of these regula-

tions without adequate compliance with NEPA and the

Clean Air Act. FMCSA contended that the President’s

action in lifting the moratorium was the sole effective

4

cause of all emissions from Mexican-domiciled trucks, and

that the President was exempt from both NEPA and the

Clean Air Act. The Court of Appeals held that both NEPA

and the Clean Air Act’s conformity requirements were

applicable to FMCSA’s regulations, and that FMCSA had

failed to comply adequately with either statute.

¢

SUMMARY OF ARGUMENT

The States are concerned about FMCSA’s parsimoni-

ous view of the Clean Air Act and NEPA, two seminal

statutes that represent sweeping federal commitments to

the environment, to states, and to citizens. They are also

concerned about FMCSA’s unfounded attempt to justify its

actions through portrayal of this case as a foreign affairs

crisis of constitutional magnitude. This brief focuses on

the harm that FMCSA’s positions would cause to the law

and to the federal government’s commitment to help the

States meet federal air quality mandates, rather than

hinder them.

This case presents no constitutional issue, nor does it

impinge upon the President’s foreign affairs powers.

Statutes, as this Court has squarely held, do not mean

something different merely because they affect foreign

commerce or foreign affairs. The Clean Air Act and NEPA

apply to FMCSA with precisely the same meaning and

vigor here as they would in any other situation. More-

over, because of its plenary power over foreign commerce,

Congress is free to place conditions on the manner in

which Executive Branch agencies implement trade

agreements. Congress expressly preserved federal envi-

ronmental laws when it passed NAFTA’s authorizing

-

legislation. FMCSA is not being asked to review the effects

of an action by the President, just its own action. This

Court has already held that its sole task in such a case is

to determine the scope of the federal agency’s duties under

the applicable statutes (here, the Clean Air Act and

NEPA), using traditional rules of statutory construction,

with no special deference to the Executive Branch’s foreign

affairs concerns.

FMCSA is required to perform an analysis, determine

whether its action is in conformity with the States’ clean

air plans, and either mitigate, provide emissions offsets

for, or abandon that action if the action is not in confor-

mity. FMCSA’s narrow view of the Clean Air Act would

undermine the Act’s purpose, structure, and effectiveness.

The Clean Air Act has an ambitious goal: clean, healthy

air in every community in the nation. Using a structure of

cooperative federalism, Congress directed the States to

meet federal air quality standards but gave them broad

discretion on how to formulate plans to do so, i.e., in their

“State Implementation Plans” (SIPs). Congress also made

an extraordinary pledge that no instrumentality of the

federal government shall engage in, support in any way,

permit, or approve any activity that does not conform to

the applicable SIP. Thus, prior to taking any action that

could do so, every federal agency must review the applica-

ble SIP for conformity and make an affirmative finding

that its activities will not hinder the state’s efforts.

FMCSA’s issuance of the regulations at issue would

remove a bar to Mexican-domiciled trucks — a discretion-

ary decision that Congress vested in FMCSA. There is no

question that the truck emissions will undermine state air

quality implementation plans, particularly in those states

where air is already heavily polluted — areas where huge

6

decreases, not increases, in emissions are vital to meeting

the federal clean air standards. FMCSA must perform a

conformity analysis for its regulations, and may be

obligated to provide significant mitigation measures or

offsetting reductions in existing pollutant emissions to

compensate for the increased truck emissions that will

occur if the Mexican-domiciled trucks operate nationwide.

Our discussion of the NEPA question focuses on the

problems with FMCSA’s proposed new causation rule. If

adopted, FMCSA’s rule could allow an agency to disclaim

responsibility for the environmental effects of its own

discretionary actions, based on a narrow reading of the

“division of responsibilities” between federal agencies.

Under NEPA, however, the effects for which an agency is

responsible are primarily determined by the scope of the

federal agency’s discretionary action, not statutes that

allocate agency responsibilities, such as authorizing

statutes. If an agency has discretion to take action, it

presumably also has authority to do so, and NEPA makes

it liable for full disclosure of all of the foreseeable signifi-

cant effects on the physical environment of its action.

Moreover, this Court has held that NEPA requires federal

agencies to interpret statutes broadly in favor of NEPA’s

purposes unless another statute renders compliance

impossible, which is not the case here. Additionally,

FMCSA offers no standards for courts to apply its rule,

and none are evident in the language, purposes, or legisla-

tive intent of NEPA. Finally, FMCSA’s proposed rule would

undermine NEPA’s informational purpose and deprive

states and local communities of NEPA’s benefits.

¢

7

ARGUMENT

I. THIS COURT HAS HELD THAT ITS SOLE

TASK IN A CASE LIKE THIS IS TO APPLY

TRADITIONAL RULES OF STATUTORY CON-

STRUCTION TO THE APPLICABLE STAT-

UTES, WHICH HERE ARE THE CLEAN AIR

ACT, NEPA, AND SECTION 350. THE PRESI-

DENT’S CONSTITUTIONAL FOREIGN AF-

FAIRS POWERS AND THE NAFTA - WHICH

ITSELF ALLOWS THE U.S. TO ENFORCE ITS

ENVIRONMENTAL STANDARDS - ARE IR-

RELEVANT TO THE MEANING OF THESE

STATUTES.

A. The President’s Foreign Affairs Powers

Are Not Implicated By This Case.

As a threshold matter, it is necessary to dispose of two

arguments that FMCSA makes as part of its attempt to

inject foreign affairs concerns into this case. First, FMCSA

claims that its statutory duties are altered by the Presi-

dent’s constitutional foreign affairs powers. FMCSA Br. 20.

Second, FMCSA obliquely suggests that a different rule of

statutory construction applies in this case, i.e., the Clean

Air Act and NEPA should be interpreted to avoid interfer-

ence with the Executive Branch’s foreign trade policies.

FMCSA Br. 37. In an era of global trade, domestic statutes

such as NEPA and the Clean Air Act will often affect

foreign affairs and foreign commerce. But that fact does

not change the meaning or scope of the statutes or en-

croach upon the President’s constitutional foreign affairs

powers.

This Court confronted a similar conflict between a

congressional enactment and the Executive Branch’s

foreign policy in Japan Whaling Association v. American

8

Cetacean Society, 478 U.S. 221 (1986). Congress enacted a

law that required the President to impose specific eco-

nomic sanctions on a country if the Secretary of Commerce

certified that the country had undermined an interna-

tional convention that sets quotas on whale harvests.

Japan violated a quota. But the Secretary did not make

the certification, and, rather than impose sanctions, the

Executive Branch negotiated an agreement with Japan.

The question was whether the relevant statutes required

the Secretary to make the certification. Two lower courts

held that it did. In this Court, a group of Japanese peti-

tioners attempted to convert the statutory issue into a

constitutional one when they argued that the case pre-

sented a nonjusticiable political question because a deci-

sion against the Secretary would effectively require the

Executive Branch to repudiate an agreement with a

foreign country. Jd. at p. 229.

This Court held that the foreign affairs implications

were irrelevant. “We are cognizant of the interplay be-

tween [the statutes at issue] and the conduct of this

Nation’s foreign relations, and we recognize the premier

role which both Congress and the Executive play in this

field. But under the Constitution, one of the Judiciary’s

characteristic roles is to interpret statutes, and we cannot

shirk this responsibility merely because our decision may

have significant political overtones.” Jd. at 230. Indeed,

the case presented “a purely legal question of statutory

interpretation,” said the Court. Jd. “The Court must first

determine the nature and scope of the duty imposed on the

Secretary by the [statutes], a decision which calls for

applying no more than the traditional rules of statutory

construction, and then applying this analysis to the

particular set of facts presented below.” Jd.

9

Here, too, the foreign affairs implications of FMCSA’s

compliance with the law are irrelevant. The Court must

determine the nature and scope of the duty imposed on

FMCSA by NEPA and the Clean Air Act. This is a purely

legal question, and the relevant statutes must be inter-

preted according to traditional rules of statutory construc-

tion. The statutes apply to FMCSA with the same meaning

and vigor that they would apply in any other situation.

Finally, FMCSA’s concern that its compliance with the

law would be expensive and time-consuming, or that it

would impair trade with Mexico, is an issue for Congress,

not the courts. Because Congress has plenary power over

foreign commerce, U.S. Const., art. I, § 8, cl. 3, it is free to

place conditions on Executive Branch agencies that im-

plement trade agreements. If the President believes that

the conditions interfere with his foreign trade agenda, his

opinion is “merely precatory.” See, Barclays Bank PLC v.

Franchise Tax Board of California, 512 U.S. 298, 329-30

(1994). The President has no discretion to order FMCSA to

“act contrary to the will of Congress when exercised within

the bounds of the Constitution.” Japan Whaling, 478 U.S.

at 233; see also, Dames and Moore v. Regan, 453 U.S. 654,

669 (1981) (“when the President acts in contravention of

the will of Congress, ‘his power is at its lowest ebb,’ and

the Court can sustain his actions only by disabling the

Congress from acting on the subject.”); United States v.

Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953) (declaring

void an executive agreement between the United States

and Canada that conflicted with a congressional enact-

ment), aff’d, 348 U.S. 296 (1955). The President’s role is to

“take Care That the Laws be faithfully executed.” US.

Const., art. II, § 3.

10

B. Congress Has Directed That NAFTA Com-

pliance Should Not Change Or Diminish

Federal Compliance With U.S. Environ-

mental Statutes.

Congress, of course, has done nothing to suggest that

FMCSA or any other agency may forgo compliance with

federal environmental laws when they implement NAFTA.

On the contrary, when it enacted NAFTA’s implementing

legislation, Congress expressly preserved federal environ-

mental law: “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)A)ii). Consequently, if this Court

holds that FMCSA must prepare an EIS and comply with

the Clean Air Act, the Court would merely be requiring an

Executive agency to follow the will of Congress.’

In short, this case presents no constitutional issue,

and no special deference is owed FMCSA merely because

the Court’s decision may have foreign affairs implications.

The Court’s task is to apply traditional rules of statutory

construction to the Clean Air Act, NEPA, and Section 350.

The President’s constitutional foreign affairs powers and

foreign trade goals are not relevant to the meaning of

these statutes.

* Moreover, we note that Congress appears less concerned with

delay here than the Executive Branch, in light of the fact that Congress

blocked Mexican-domiciled trucks through moratoria or funding

restrictions no less than five times in the past 22 years, including three

times after the President expressed his desire to allow the trucks.

FMCSA Br. 4-5, 9-10.

11

Il. FMCSA HAS VIOLATED THE CLEAN AIR

ACT’S CONFORMITY REQUIREMENT BY

FAILING TO ANALYZE THE AIR POLLUTION

EFFECTS OF ITS REGULATIONS PRIOR TO

ISSUING THE REGULATIONS.

A. The Conformity Requirement Is An Af-

firmative Responsibility Of Every Federal

Agency, Intended To Ensure That Federal

Actions Dovetail With And Do Not Under-

mine State Air Quality Plans.

The Clean Air Act is a paradigm of cooperative feder-

alism, Connecticut v. Environmental Protection Agency,

696 F.2d 147, 151 (2d Cir. 1982), with state and federal

governments working together to protect public health.

However, although Congress gave to the federal govern-

ment the lead role in deciding how clean the air must be to

assure protection of the public health, it gave to the state

governments the lead role in deciding how the air will

actually be cleaned and kept clean. American Trucking v.

Whitman, 531 U.S. 457, 470 (2001) (“It is to the States

that the Act assigns initial and primary responsibility for

deciding what emissions reductions will be required from

which sources.”)

As part of that commitment to respect and assist the

primary role of the States in controlling air pollution,

Congress enacted the “conformity” requirement, 42 U.S.C.

§ 7506. It provides, in pertinent part:

No department, agency, or instrumentality of the

Federal Government shall engage in, support in

any way or provide financial assistance for, li-

cense or permit, or approve, any activity which

does not conform to a [State] implementation

12

plan after it has been approved or promulgated

under Section 7410 of this title.

42 U.S.C. § 7506(c)(1). Congress’ intent in the conformity

requirement is simple and two-fold. First, having assigned

to the States the task of meeting federal clean air stan-

dards, Congress has simultaneously forbidden the federal

government and all its agencies and instrumentalities

from taking, approving, or supporting actions that would

get in the way of the States as they endeavor to meet this

congressional mandate. Second, Congress has specified the

method that federal agencies must use to ensure that they

do not get in the States’ way: They must ensure that

federal actions are consistent — that they “conform” to —

the mix of strategies, emissions control measures, per-

centages of required emissions reductions, land use

controls, and other regulations and requirements that

make up the State’s SIP. /d.

A finding of conformity with the SIP is an affirmative

duty of the head of the federal agency prior to undertaking

the action. 42 U.S.C. § 7506(c)(1); EDF v. EPA, 167 F.3d

641, 643 (D.C. Cir. 1999). Congress defined conformity to a

SIP, in pertinent part, as a finding by the federal agency:

(B) that [federal] activities will not —

(i) cause or contribute to any new violation

of any (federal air quality] standard... .”

(ii) imerease the frequency or severity of

any existing violation of any standard ... ; or

(iii) delay timely attainment.of any stan-

dard or any required interim emission reduction

or other milestones in any area.”

13

42 U.S.C. § 7506(c)(1). This definition is very broad. The

new pollutan? emissions will not be in conformity with a

SIP if they will either cause or contribute to any new

violation of a federal air quality standard, and if they will

merely delay, not actually prevent, attainment of a federal

standard.

Federal agencies whose actions would not conform to

the applicable SIP can bring those actions into conformity

by mitigation measures that reduce the emissions, or by

providing or obtaining offsetting reductions in some source

of current emissions, so that the total of emissions in the

affected area does not rise because of the federal action. 58

Fed.Reg. 63214, 63238 (Nov. 30, 1993).

B. A Conformity Analysis Is Required For

FMCSA’s Regulations, Because They Are

Likely To Worsen Violations Of The Fed-

eral Air Quality Standards, In Direct Con-

travention Of The Clean Air Act.

FMCSA failed to prepare any conformity analysis for

its regulations. However, evidence submitted to FMCSA by

the State of California, and to the Ninth Circuit by re-

spondents, shows that such a conformity analysis is re-

quired under the Clean Air Act and that FMCSA acted in

an arbitrary and capricious manner by not performing one.

As that evidence shows, many of the areas through which

the Mexican-domiciled trucks would be driving have ambi-

ent air pollutant concentrations that currently far exceed

the health-based federal air quality standards for oxides of

nitrogen and particulate matter, pollutants that heavy-duty

diesel trucks produce. JA 330. In such areas, the air is

already so bad that any additional pollutant emissions

must and will “increase the frequency or severity of any

14

existing violation of any standard,” and may also “contrib-

ute to” new violations of the standards. An analysis and

prediction of the increased emissions that can be expected

from these trucks was done by both California and re-

spondents. JA 332-339, 397-403. The increased emissions

will also almost certainly “delay timely attainment” of

“required interim emission reduction or other milestones”

in areas where federal clean air standards are already

exceeded by wide margins, and huge decreases in emis-

sions are needed to meet even interim goals on the way to

meeting the federal standards. See Brief of amicus curiae

South Coast Air Quality Management District. In such

States as California, Arizona, and Texas, where the trucks

would drive through areas designated as having “serious,”

“severe,” or “extreme” ozone pollution, JA 100, 319-320,

the additional contribution from the trucks would worsen

an already critical air pollution problem. In addition, the

particulate emissions from diesel vehicles are carcino-

genic, Cal. Code of Regs., tit. 22 § 12000, and have been

estimated to be responsible for up to 70% of the cancer risk

from air pollution in the greater Los Angeles area. JA 405.

According to a prominent toxicologist who has served as a

consultant to the EPA’s Clean Air Scientific Advisory

Committee, the increased diesel emissions could cause

actual cancers and deaths; this is a real and not an aca-

demic problem. JA 445-446.

FMCSA does not dispute that the Mexican carrier

trucks will further pollute already critically polluted

areas. Rather, FMCSA argues that its regulations are not

covered by the conformity requirement because the agency

15

has insufficient control over the emissions of the trucks

that would be registered under its regulations.” FMCSA

misreads the statute and applicable regulations.

1. FMCSA’s Regulations Support And Ap-

prove The Mexican-domiciled Trucks’

Increased Pollution, Because The Regu-

lations Permit And Enable The Trucks

To Operate In The United States Beyond

The Border Area.

FMCSA claims exemption from the conformity re-

quirement because its regulations are not the cause of the

increased air pollution that the trucks would add to

California’s and other States’ air. It argues that only the

act of the President’s lifting of the moratorium, in pur-

ported furtherance of the NAFTA trade agreement, is

responsible for these increased emissions. FMCSA Brief at

42-43. FMCSA is wrong.

The Clean Air Act conformity provision is not predi-

cated on actual “but-for” causation. Rather, Section

7506(c)(1) is much broader; it forbids federal agencies from

“supportling] in any way ... licens[ing] or permit(ting], or

approv(ing]” any activity that does not conform to a SIP

42 U.S.C. § 7506(c\1) (emphasis added). FMCSA’s regis-

tration of the trucks falls within the conformity require-

ment because it supports their operation by enabling the

Mexican-domiciled trucks to operate where they otherwise

: In the Ninth Circuit, FMCSA argued that it also qualified for an

exemption for rule-making activities. It has explicitly waived that

argument here. FMCSA Brief at 14, note 6.

16

cannot. FMCSA’s registration of the trucks is also covered

by the prohibition on licensing, permitting, or approving

new pollution sources that are not accounted for in the

applicable SIP. Under the plain words of the statute,

FMCSA’s discretionary decision to adopt regulations falls

squarely within the conformity requirement, because the

regulations support and approve the operation of these

trucks.

Both the President’s action in lifting the moratorium

and FMCSA’s action in carrying out Section 350 are

necessary before Mexican-domiciled trucks can operate

throughout the United States. The President’s lifting of

the moratorium did not itself cause any truck emissions,

since his lifting of the moratorium did not allow the trucks

to enter the U.S. beyond the border area. Congress made

the FMCSA’s assurance of truck safety a separate and

independent requirement that must be met before the

trucks can enter. As such, FMCSA’s activities support and

approve the truck operation and emissions, and fall within

the ambit of the conformity provision.

Section 350 is also more than the imposition of a duty;

it is a grant of discretion. Congress did not require FMCSA

to adopt regulations applicable to Mexican-domiciled

trucks, indeed, it did not order FMCSA to act at all.’

* FMCSA suggests that it was required to issue regulations in light

of the President’s decision to lift the moratorium and that Congress did

not intend section 350 to bar trucks in the event that the President

chose to do so. FMCSA Br. 35. Not so. Congress relied upon FMCSA and

the Department of Transportation to determine, for example, whether

tle “Mexican government had the adequate information infrastructure

and law enforcement resources for an effective program; whether there

is sufficient border capacity to permit meaningful inspections; and

(Continued on following page)

17

Rather, Congress required that if the trucks were to

operate beyond the border area, they could do so only if

FMCSA could ensure their safety through safety inspec-

tions, verification of safety management practices, insur-

ance, and other means. And Congress forbade FMCSA to

process any applications for permission to operate outside

the border zone until it has ensured that safety. Appendix

to FMCSA’s Brief at 12a-13a. The means by which FMCSA

was to perform its verifications and reviews, as well as

how it was to carry out many more general standards,

such as an “evaluation” of a carrier’s safety practices, were

not specified by Congress, but were left to FMCSA’s

discretion. The agency’s choice to carry out Section 350

through adoption of regulations, as well as the form,

content, and scope of those regulations, was an exercise of

discretion by FMCSA. FMCSA exercised that discretion in

its regulatory choices as to the precise requirements,

timing, methods of showing compliance, and so on, by

which generalized congressional standards were to be met.

See 40 C.F.R. § 1508.23 (federal action subject to NEPA

arises “at the stage in the development of an action when

an agency subject to the Act has a goal and is actively

preparing to make a decision on one or more alternative

means of accomplishing that goal... .”) FMCSA could also

use that same discretion to limit the operation of the

oldest and most polluting trucks beyond the border area,

reducing emissions. By not doing so, it is supporting,

whether, overall, “the opening of the border does not pose an unaccept-

able safety risk to the American public.” Pet. App. 20a. It did not specify

how FMCSA was to carry out these responsibilities. When Congress

definitely intends that an agency adopt regulations, it knows how to say

so unambiguously. 42 U.S.C. §§ 7411(d), 7412(d).

18

permitting, licensing, and approving these new sources of

toxic air contaminants without determining whether

applicable SIPs account for such sources.

2. Under Its Regulations, FMCSA Will

Have Continuing Program Responsibil-

ity For The Emissions Of The Mexican-

domiciled trucks, Rendering Them Sub-

ject To The Conformity Regulations.

FMCSA further disclaims any obligation to perform a

conformity analysis for its regulations because: (1) the

emissions from the trucks it registers ands regulates do

not occur at the time of registration, and are therefore not

“direct” emissions under the EPA conformity regulations;

and (2) the emissions of trucks after registration are not

sufficiently within FMCSA’s control to fit the definition of

“indirect emissions” that are covered under U.S. EPA's

conformity regulations. This is a misreading of the EPA

regulations.*

EPA’s conformity regulations provide that the emis-

sions caused by a federal action must be included in the

conformity analysis as “indirect emissions” if the emis-

sions are “reasonably foreseeable,” and the agency has

“continuing program responsibility” relating to those

emissions, and can “practicably control” them in some

‘ While FMCSA is entitled to deference from the courts for

reasonable interpretations of its own statute, interpretation of the

conformity requirement is entrusted to EPA, not FMCSA. Accordingly,

FMCSA’s interpretation of the Clean Air Act and the EPA regulations

are not entitled to deference under Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984). Ass'n of Civilian

Technicians v. FLRA, 269 F.3d 1112, 1115-16 (D.C. Cir. 2001).

Po

19

fashion. 40 C.F.R. § 93.152. FMCSA does have continuing

program authority over the trucks under the regulations

at issue here. Those regulations allow FMCSA to register

the trucks, and they provide that the agency will regulate

and verify inspections of the trucks on a continuing basis

as part of its regular responsibilities for regulating motor

carrier safety. 49 C.F.R. § 365.511; 49 C.FR. Parts 382,

383, 384, 391, 393, 395. Further, as discussed previously,

actions that will directly affect the amount of pollutants

that will be emitted by the trucks are fully within FMCSA’s

control. FMCSA can control the stringency of the safety

standards it prescribes in its regulations, and the degree of

stringency it chooses will directly affect which trucks are

given permission to operate outside the border area and

which are not. This is sufficient control to bring the truck

emissions within the definition of “indirect emissions.”

C. FMCSA Is Fully Able To Comply With The

Conformity Requirement. If It Finds That

Requirement Too Onerous, Its Remedy

Lies With Congress, Not The Courts.

FMCSA also argues that it should be excused from

complying with the Clean Air Act’s conformity mandate

because compliance is too burdensome:

If FMCSA were required to complete [a confor-

mity] analysis, and if it concluded that the Presi-

dent’s decision to open United States markets to

Mexican carriers will cause an increase in air

[pollutant] emissions above regulatory thresholds

in any of the studied regions, then FMCSA would

not be able to promulgate its safety rules — and

the President’s efforts to bring the United States

into compliance with its obligations under

NAFTA and the arbitration decision of February

20

2001 would be further delayed — unless “confor-

mity” to state air-quality plans somehow could be

achieved.

FMCSA Brief, at 47.

FMCSA here asks this Court to choose among the

statutes it will enforce, and asks the Court to allow the

agency to help carry out NAFTA at the expense of the

Clean Air Act. But as the District of Columbia Circuit has

said, “li]f this legislative scheme |[i.e., conformity] is too

onerous, it is up to Congress to provide relief, not this

court.” EDF v. EPA, supra, 167 F.3d at 651.

Congress specifically directed that “no department,

agency, or instrumentality of the Federal government” can

undertake, support, permit, or approve any action that is

not in conformity with the applicable SIP. 42 U.S.C.

§ 7506(c)(1) (emphasis added). Congress did not provide an

exemption for actions that forward compliance with

NAFTA or, indeed, with any other federal goals.”

FMCSA is not without a means of assuring conformity,

since it can do what a private business in a similar

* By contrast, Congress did provide a compelling national interest

exemption in its waiver of federal sovereign immunity in the Clean Air

Act. Section 118(b) of the Clean Air Act allows the President to exempt

any federal agency’s own emissions sources from the Act’s waiver of

sovereign immunity “if he determines it to be in the paramount interest

of the United States to do so.” 42 U.S.C. §7418(b). That Congress

provided an exemption to another federal-government-wide require-

ment in the Clean Air Act, but provided no such exemption to the

conformity provision, is textual evidence that Congress intended no

such exemption. American Trucking v. Whitman, 531 U'S. at 467.

21

situation would do: It can obtain offsets for the pollutant

emissions its actions will cause. That is, FMCSA can

obtain decreases in existing emissions from other federal

agencies in the areas where such decreases are needed, or

can pay existing private sources of pollutant emissions to

reduce their emissions in an amount that offsets the

increases from the Mexican-domiciled trucks, to the point

where the emissions expected from these trucks do not

exceed what was planned for in the applicable SIPs. This

alternative is already required of businesses that wish to

build a new source of pollution in an area that currently

violates federal air quality standards. See 42 U.S.C.

$§ 7503 and 7511la(a)(4), (b)(5), (ce) 10), (d)(2), (e)( 1).

Ill. FMCSA ALSO VIOLATED NEPA WHEN IT

FAILED TO PREPARE AN EIS.

FMCSA proffers a new causation rule for assessing

the agency's obligations under NEPA. FMCSA urges that a

“manageable line” be drawn between the environmental

effects for which it is responsible and those for which the

President is responsible, based on each one’s statutory and

constitutional responsibilities, FMCSA Br. 34, and the

“structure of the government.” FMCSA Br. 37. FMCSA’s

proposed NEPA rule could apply broadly in other cases

where an agency would ordinarily have a duty to prepare an

EIS — i.e., where the agency has discretion to take action,

and the action would cause significant effects on the physi-

cal environment.” Its rule would allow an agency to disclaim

* FMCSA argues separately that it lacks discretion. FMCSA Br. 38-

40. It concedes that its action is at least a but-for cause of the emis-

sions. FMCSA Br. 33-34.

22

responsibility for effects caused by its own discretionary

action on the grounds that another entity is more “respon-

sible” for the effects.

This approach has no basis in NEPA or its implement-

ing regulations; it would undermine NEPA’s informational

purpose, and it would deprive states and local communi-

ties of NEPA’s benefits. Federal agencies are responsible

for all the significant effects on the physical environment

caused by their own discretionary decisions.

A. FMCSA’s Causation Rule Would Conflict

With NEPA And CEQ Regulations.

1. Under NEPA, The Scope Of The Agency’s

Action, Not Its: Authority, Determines

The Action’s Effects.

Under NEPA, the effects for which an agency is

responsible are primarily determined by the nature and

scope of the proposed action. Aberdeen and Rockfish

Railroad Co. v. Students Challenging Regulatory Agency

Procedures, 422 U.S. 289, 318-19 and 322-28 (1975)

(“SCRAP IT”); 40 C.F.R. § 1508.18 (defining a major federal

action), § 1508.25 (discussing scope of an action in EIS).

NEPA mandates that “all agencies of the Federal Govern-

ment shall ... include in every recommendation [on]

major Federal actions ... a detailed statement [on] the

environmental impact of the proposed action.” 42 U.S.C.

§ 4332(C)(i) (emphasis added). Thus, the CEQ regulations

define both direct and indirect effects as those effects

“which are caused by the action,” without regard for the

authority of the agency that is taking the action. 40 C.F.R.

§ 1508.8 (emphasis added).

23

Nothing in NEPA supports FMCSA’s attempt to inject

authorization statutes into the causal relationship be-

tween an action and its effects. Congress need not con-

tinually think about NEPA, much less allocate NEPA

responsibilities, when it passes authorizing legislation,

because Congress has already provided that NEPA’s duties

are triggered by the agencies’ discretionary actions.

Consequently, the key issue here is the scope of the

major federal action. That issue turns largely on whether,

under Section 350, FMCSA has discretion to issue the

regulations. As explained above, Section 350 grants

FMCSA that discretion. The NEPA analysis then becomes

clear. The “major federal action” for NEPA purposes

includes FMCSA’s discretionary decision to issue regula-

tions. See 40 C.F.R. § 1508.18(a) (major federal action

includes new or revised regulations). The requisite causal

link between the action and Mexican-domiciled truck

emissions is manifest: No regulations, no emissions. See,

e.g., SCRAP II, 422 U.S. 289, 299 (1975) (agency decision

to increase railroad rates included effects of diverting

“traffic to trucks, which are allegedly heavier polluters

than trains”). That is simply the consequence of Congress's

decision to bar Mexican-domiciled trucks until FMCSA

chooses to take action.

FMCSA's remedy is to convince Congress to grant it

an exemption. “Congress has shown that it is fully capable

of expressing its desire to exempt projects from NEPA.”

Izaak Walton League of America v. Marsh, 655 F.2d 346,

367 (D.C. Cir. 1981), cert. denied, sub nom. Atchison, T. &

S. FR. Co. v. Marsh, 454 U.S. 1092 (1981). The somewhat

peculiar NEPA consequences of Section 350 are unlikely to

pose a widespread problem in the future. They are not a

reason for this Court to adopt a new causation rule that

24

will have broad and uncertain implications for future

cases.

2. Under NEPA, Agencies Must Construe

Their Authority Broadly In Favor Of

NEPA’s Purposes Unless Compliance Is

Impossible.

By allowing an agency to rely on a statute outside

NEPA to disclaim responsibility for the effects of its own

actions, FMCSA’s rule would conflict with Section 102 of

NEPA, which directs agencies to interpret all public laws,

regulations, and policies of the United States in support of

NEPA4’s policies “to the fullest extent possible.” 42 U.S.C.

§ 4332. Moreover, rather than permit an agency to claim,

as FMCSA does here, that it is not responsible for air

pollution because it is only authorized to consider truck

safety, NEPA requires FMCSA to “interpret the provisions

of the Act as a supplement to its existing authority and as

a mandate to view traditional policies and missions in

light of the Act’s national environmental objectives,” 40

C.F.R. § 1500.6; see 42 U.S.C. § 4335, and to develop “a

systematic interdisciplinary approach” to environmental

protection in its decision-making. 42 U.S.C. § 4332(A).

In fact, this Court has held that Section 102 requires

agencies to comply with NEPA unless another statute

makes compliance impossible. Flint Ridge Dev. Co. v.

Scenic Rivers Assn. of Oklahoma, 426 U.S. 776 (1976). In

Flint Ridge, an agency claimed that its duty to prepare an

EIS conflicted with a statute that required it to act within

30 days (leaving insufficient time for an EIS). The Court

observed, “NEPA’s instruction that all federal agencies

comply with the impact statement requirement and with

all other requirements of § 102 ‘to the fullest extent

25

possible’ is neither accidental nor hyperbolic.” Jd. at 787.

Reconciling this broad mandate with the fact that NEPA

does not repeal by implication any other statute, the Court

held that NEPA gives way only “where a clear and un-

avoidable conflict in statutory authority exists. ...” Jd. at

788. Similarly, the CEQ regulations state: “The phrase ‘to

the fullest extent possible’ in Section 102 means that each

agency of the Federal Government shall comply with that

section unless existing law applicable to the agencies’

operations expressly prohibits or makes compliance impos-

sible.” 40 C.F.R. § 1500.6 (emphasis added). FMCSA’s

proposed rule invites both agencies and the courts to

ignore their obligation to give effect to NEPA, absent a

direct and inescapable conflict. Flint Ridge, 426 U.S. at

788; cf. Watt v. Alaska, 451 U.S. 259, 267 (1981).’

FMCSA mistakenly relies on a footnote in Metropoli-

tan Edison Co. v. People Against Nuclear Energy, 460 U.S.

766 (1983) as authority for its proposed rule. In that

decision, the Court acknowledged that tort concepts can be

useful for examining causation under NEPA. Id. at 774.

But, it then qualified this notion by explaining that

" FMCSA claims that Flint Ridge only concerns whether NEPA

applies at all, not the scope of NEPA. FMCSA Br. 38 n.16. But it ignores

how its rule would work. Fundamentally, FMCSA is relying on an

alleged conflict between NEPA and other statutes (e.g., the moratorium

statute). Without a conflict (that is, if it simply had no duty to prepare

an EIS under the terms of NEPA itself), its rule would be unnecessary.

Flint Ridge sets the standard for determining whether a statutory

conflict relieves an agency of its duty to orepare an EIS. Flint Ridge,

426 US. at 788 (“the question we must resolve is whether assuming an

environmental impact statement would otherwise be required in this

case, requiring the Secretary to prepare such a statement would create

an irreconcilable and fundamental conflict. . . . ”)

26

causation under NEPA and causation under tort law are

not identical. Jd., at 774, n.7. Courts must “look to the

underlying policies and legislative intent in order to draw

a manageable line” that marks the limits of causation

under NEPA. Id. The Court simply meant that causation

ultimately turns on Congress’s intent, as expressed in

NEPA’s language and policies. See id. at 772 (examining

NEP4A’s language and policies to resolve causation issue).

FMCSA asks the Court to draw a line that is based,

instead, on the “division of responsibility” between agen-

cies. FMCSA Br. 34. If anything, Metropolitan Edison

stands for a contrary proposition: NEPA’s language and

policies define its limits.

In any event, FMCSA offers no useful standards for

courts to draw the manageable line that it urges — cer-

tainly, no standards that are evident in NEPA’s text,

legislative history, or objectives. FMCSA’s reliance on the

“‘rule of reason’ that is inherent in NEPA,” FMCSA Br. 37,

is an implicit admission that the rule cannot be found

anywhere in NEPA’s text. Indeed, FMCSA makes no

serious attempt to reconcile its proffered rule with the

“strong precatory language,” “action-forcing procedures,”

and “sweeping policy goals” of NEPA itself. Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 348-50

(1989).

B. FMCSA’s Causation Rule Would Deprive

States, Local Governments, And The Pub-

lic Of Information They Need To Mitigate

The Harmful Effects Of Federal Actions.

The result of FMCSA’s causation rule, if adopted, is

that federal agencies will disclose fewer environmental

effects of their actions, and they will prepare fewer

27

environmental impact statements. The effects that would

trigger an EIS could be deemed to be somebody else’s

responsibility. When a federal agency fails to prepare an

EIS, however, it deprives states, local governments and

the public of an important means of protecting their

interests and their communities, which is a key purpose of

NEPA.

Although NEPA does not require the federal govern-

ment to mitigate the environmental damage that its

actions will cause, this Court unanimously explained in

Robertson that an EIS “serves a larger informational role.”

Robertson, 490 U.S. at 352-53. It “provides a springboard

for public comment.” Jd. at 349. It gives state and local

governments “adequate notice of the expected conse-

quences and the opportunity to plan and implement

corrective measures in a timely manner.” Jd. at 350; see 40

C.F.R. § 1503.1 (requiring federal agencies to obtain

comments from states, local governments, tribes, and

affected or interested members of the public); 40 C.FR.

§ 1502.9 (requiring federal agencies to address in final EIS

opposing views not adequately addressed in draft EIS);

42 U.S.C. §4331. And it requires the federal agency

to discuss mitigation measures, even if the agency ulti-

mately chooses not to adopt them. See Robertson, 490 U.S.

at 352-53, 40 C.F.R. §§ 1508.25(b), 1502.14(f), 1502.16(h),

1505.2(c) and 1508.20.

“Without such a discussion, neither the agency nor

other interested groups and individuals can properly

evaluate the severity of the adverse effects.” Robertson,

490 U.S. at 352. Without an EIS, states and interested

groups do not have a legal forum to force the agency at

least to consider alternative measures that would soften

its effects on the environment or avoid impeding state and

28

local laws or projects. Without an EIS, States and inter-

ested groups do not have accurate information on the

effects of the federal action to formulate their own mitiga-

tion measures. An EIS is the key to the action-forcing

procedures that ensures NEPA’s “broad national commit-

ment to protecting and promoting environmental quality.”

Id. at 348.

Amici briefly highlight a few examples of what

FMCSA’s environmental assessment did not do. Its fail-

ures illustrate how an EIS would have served the crucial

informational purposes that NEPA promises to state and

local communities.

e The EA fails to examine the air quality impacts on any

actual community.

The EA compared the emissions increases from the

Mexican-domiciled trucks to national levels of emissions —

a fictional national air, rather than the real, heavily

polluted air that exists in actual communities. FMCSA

made no distinction between areas that currently attain

the federal standards and those that do not, but lumped

them all together. JA 147-154. NEPA requires federal

agencies ‘to examine the significance of their action, not

only on “society as a whole,” but also on “the affected

region” and “the locality.” 40 C.F.R. § 1508.27(a). People

breathe air locally, not nationally. FMCSA did not provide

any state or local community a useful assessment of the

effect of its action on the air that their citizens breathe.

e The EA examines the air quality impacts for only a

single year.

Although the rules and their air quality effects may

last years, FMCSA only examined emissions data for a

single projected year, 2002. JA 152, 331-332. Consequently,

29

FMCSA provided no state or local community a useful

assessment of how much, or in what manner, their air

quality will deteriorate in future years.

¢ The EA fails to examine state and local air quality

standards or the applicable SIPs.

NEPA requires an agency to consider “[w]hether the

action threatens a violation of federal, State, or local law,

or requirements imposed for the protection of the envi-

ronment.” 40 C.F.R. § 1508.27(b)(10). California, for

example, has its own air quality standards, which are

more stringent than the federal standards. Cal. Health

and Saf. Code § 39606; Cal. Code of Regs., tit. 17, § 70100.

The emissions from Mexican-domiciled trucks may make it

impossible for California to meet its standards. JA 324,

330, 410-412. The EA, however, does not attempt to

evaluate the effect of the rules on any state or local stan-

dards.

Interested parties like the California Attorney Gen-

eral commented on the EA, pointed out these and other

shortcomings, provided data and testimony, and requested

that FMCSA prepare an EIS. JA 283-306, 372-386. With-

out an EIS, NEPA’s informational purpose cannot be

served.

30

CONCLUSION

Amici States respectfully ask this Court to affirm the

judgment of the Court of Appeals.

Respectfully submitted,

BILL LOCKYER

Attorney General of the

State of California

MANUEL M. MEDEIROS

Solicitor General of the

State of California

TOM GREENE

Chief Assistant Attorney General

THEODORA BERGER

Senior Assistant Atterney General

CRAIG C. THOMPSON

Supervising Deputy Attorney General

GORDON B. BURNS

Deputy Attorney General

SUSAN L. DURBIN

Deputy Attorney General

Counsel of Record

Counsel for California Attorney General

ed Vows