Amicus Curiae Brief — Department of Transportation v. Public Citizen

Supreme Court of the @

DEPARTMENT OF TRANSPORTATION, et al.,

Petitioners,

Vv.

PUBLIC CITIZEN, et al.

ai | * ‘Lisa GOLDMAN, Staff Attorney

saith, Se gee te 7 Institute for Public Representation

GEORGETOWN UNIVERSITY Law

CENTER

yk eee : ~ 600 New Jersey Avenue, N.W.

Se DN eee Suite 312

LE ectoee ats Washington, D.C 2001

A ea ee gts EOS ue Y Pex: 202.662 0694

5 ee i, a . :

alia a American Public Health

ate: % ‘5 o tn and Ph He

od ae | “ re

%, . ~ . &

= ~ ~ :

¥ t% Ko 5?

e ot ' a .

oa ¢ oe Oe

meat eS ee

+

, Pr 7 4 i* a

Fe So

ss Ste, soa *

pet ye SAE ifs

eT

B4* ane

* + >

€- ete Met eon

TABLE OF CONTENTS

SPE GO CREE cvccicsesvececccenssensssenevescessosnnsonens

SUMMARY OF ARGUMENT. .................ccsssssseeeeeeeeees

EE inicio

I.

Il.

IIT.

Pollutants in Diesel Exhaust Emissions

Have Significant and Severe Impacts on Pub-

TTT cciceeeaettinaieciunbettniieiiianipaidipeiabieldlimaimicionione

A. Teemdte Temmpeete Of POG ...0.ccccqscccsscsecccscese0.

B. Health Effects of NO. ...................ssceceeeees

C. Economic and Social Welfare Impacts of

Be Se consesiesseneisenssnnmiminaunestinnsons

FMCSA Violated NEPA by Failing to Prepare

an Environmental Impact Statement Inform-

ing the Public of the Significant Public

Health Effects of its Regulations...................

FMCSA Should Have Prepared a CAA Con-

formity Analysis for the Regulations Because

the Resulting Emissions May Violate the

CAA State Implementation Plans of States

Where the Mexican Trucks Will Operate.......

EI sxcenccesescosseconssmnassessececsvcvsnsevenesessososeces

11

13

ii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Evans, 350 F.3d 815 (9th Cir. 2003)........ 17, 21

Andrus v. Sierra Club, 442 U.S. 347 (1979).........cccccccceeees 14

Baltimore Gas & Electric Co. v. Natural Resources

Defense Council Inc., 462 U.S. 87 (1983) ...............eeee 13

Indiana Forest Alliance, Inc. v. U.S. Forest Service,

ee f Ey, Lt | 21, 22

Middle Rio Grande Conservancy Dist. v. Norton,

294 F.3d 1220 (10th Cir. 2002) ........ ee ceceeeeeees 14, 17

Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7 (2d Cir:

BIDE D cvseseccescesssececseeseonseneneesonnensenimmiensanunnnniiannaiananen 14

Nat'l Parks & Conservation Assoc. v. Babbitt, 241

eo b, ff: Lt} | aE 14, 15

Public Citizen, et al. v. Dept. of Transp. et al., 316

* 8 fl RR ere 18

Robertson v. Methow Valley Citizens Council, 490

Ce SEE CIID cccconsesosescccccnscccsescsedsasendinininiasannnnnn 13

United States v. Caterpillar, Inc., No. 98-02544

GREED GHATINGD. BED cocvecsccccetcsvesecennsesseiinlinnaneisaaianannan 20

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

CPV ED vccesecccnsscesensoesssconsiennenstienessmnemaenanaaannnn 13

FEDERAL STATUTES

GB USS. 9 GRD CO cneccceccecccecconseniniiemsecsesisuianaan 14

GB UB.G. © FERRIED GI ccccesecccessssusctcntimimamaan 23

GB UDBA.G. § FEBR Ge ccecececcssccsetssssnniescndsuniannmemanall 23

ili

TABLE OF AUTHORITIES — Continued

Page

re 23

42 U.S.C. § 7407(d (1 MA) (2004) 20. ceceeeeeceeeeeeees 24

Se es Oe IED GED ccccccccccscsccescecscesesersocososocessoe 23

ee 23

ae 21, 24

FEDERAL REGULATIONS

40 C.F.R. § 81.305 (2004)...............cccccccssccesseeeees atin 25

cca 24

a 19

Ee 19

a 24

| 24

40 C.F.R. § 93.153(b)(1) (2004) 0. cece eeeeeeeeeeeeees 24, 25

a 14

ee Oe RE Gi accccccccccscccscscsesesescscsccccccsesecoscoss 14

ec 14

a 14, 15

Ss ccessnonnecon 14

ce 14

40 C.F.R. § 1508.27(a) (2004) 00... ccceccccceteeeeeeeeees 15, 17

40 C.PR. § 1606.27(B) (ZOOS) .........ccccccccerccccseserccesseeeceeesees 15

40 C.F.R. § 1508.27(b)(2) (2004) oo. cccceceeeeeeeneee 16, 21

40 C.F.R. § 1508.27(b)(4) (2004) ooo. ccceeeeeees 21, 22

iv

TABLE OF AUTHORITIES — Continued

Page

4B CFR. S LESB.DTHOMS) (BGO E) .cccccccccccccccccccccsccccscccsccoscess 20

40 C.F.R. § 1GOS. BTN 1G) (BOOS) ...cccccccccccccocceccccsccesccesssess 21

STATE STATUTES

Cal. Health & Safety Code § 25249.5 (2004) ................0004.. 8

Cal. Health & Safety Code § 25249.8 (2004)... 8

STATE REGULATIONS

Cal. Code Regs. tit. 22, § 12000(b) (2004)... ee. 8

OTHER SOURCES

Annette Peters et al., Increased Particulate Air

Pollution and the Triggers of Myocardial Infarc-

tion, 103 Circulation 2810 (2001)............ccccccceeceeeeeeeeeeees 6

Audrey Galizia & Patrick L. Kinney, Long-Term

Residence in Areas of High Ozone, 107 Envtl.

Health Persp. 675 (1999), available at http://ehp.

niehs.nih.gov/members/1999/107p675-679galizia/

eee ccnssecccccenienninienemanntapuinndnininndtiiatbddninnnts 10

C. Arden Pope III et al., Lung Cancer, Cardiopul-

monary Mortality, and Long-Term Exposure to

Fine Particulate Air Pollution, 287 JAMA 1132

C. Arden Pope III et al., Particulate Air Pollution as

a Predictor of Mortality in a Prospective Study of

U.S. Adults, 151 Am J. Respir. Crit. Care Med.

GP CRIED enscsressssssssesecensesscesessacssensnsnssnsscnnenssenuasasecsnensess 7

TABLE OF AUTHORITIES — Continued

Page

California Air Resources Board and Office of

Environmental Health Hazard Assessment, Re-

port to the Air Resources Board on the Proposed

Identification of Diesel Exhaust as a Toxic Air

Contaminant, Executive Summary, available at

http://www.oehha.ca.gov/air/toxic_contaminants/

pdfi/diesel%20exhaust.pdf (April 22, 1998) ................... 5

California Air Resources Board and Office of

Environmental Health Hazard Assessment, Re-

port to the Air Resources Board on the Proposed

Identification of Diesel Exhaust as a Toxic Air

Contaminant, Part B: Health Risk Assessment for

Diesel Exhaust, available at http://www.arb.ca.

gov/toxics/dieseltac/part_b.pdf (April 22, 1998).............. 5

Committee of the Environmental and Occupational

Health Assembly of the American Thoracic Soci-

ety, Health Effects of Outdoor Air Pollution (Pt.

1), 153 Am. J. Respir. Crit. Care Med. 3 (1996) ...... 5, 6,9

David E. Abbey et al., Long-Term Particulate and

Other Air Pollutants and Lung Function in Non-

smokers, 158 Am. J. Respir. Crit. Care Med. 289

ei cirescsntsiocanesiinceceettastpenitcinisnlllnteninnaiapeiiatasdesinasitiaiaaiciaasaciiaaiass 7

David E. Abbey et al., Long-Term Inhalable Parti-

cles and Other Air Pollutants Related to Mortal-

ity in Non-smokers, 159 Am. J. Respir. Crit. Care

Se: Ce ncsteiarteincecriilintantrncticindateaiandmineiiemaiinimiiatin 5, 8

Diesel Exhaust in the United States, available at

http://www.epa.gov/otaq/retrofit/documents/f02048.

vi

TABLE OF AUTHORITIES -— Continued

Douglas W. Dockery et al., An Association Between

Air Pollution and Mortality in Six U.S. Cities,

329 New Eng. J. Med. 1753 (1993)...............cccseseseeseeeeeees 7

Edward Avol et al., Respiratory Effects of Relocating

to Areas of Differing Air Pollution Levels, 164

Am. J. Respir. Crit. Care Med. 2067 (2001) .................... 7

EPA, Air Quality Criteria for Particulate Matter

Vol. 1, pp. 3-144, 145, Table 3-15, EPA/600/P-

95001laF (1996), available at http://cfpub.epa.gov/

ncea/cfm/recordisplay.cfm?deid=2832 ...................... 4,5,6

Francesca Dominici et al., On the Use of General-

ized Additive Models in Time-Series Studies of

Air Pollution and Health, 156 Am. J. Epidemiol-

ee rctsccennsnsnsnnaniinnnannsiennmenmnennees 6

Francine Laden et al., Association of Fine Particu-

late Matter from Different Sources with Daily

Mortality in Six U.S. Cities, 108 Envtl. Health

ND, Tie Ga connacenavcncnsmmensensananatenseatessenmmeneinpenneces 4,5

Frank D. Gilliland et al., The Effects of Ambient Air

Pollution on School Absenteeism Due to Respira-

tory Illness, 12 Epidemiology 43 (2001) ........................ 11

Health and Environmental Effects of Ground-Level

Ozone, available at http://www.epa.gov/ttn/oarpg/

a 9, 10

Health Effects Institute, Reanalysis of the Harvard

Six Cities Study and the American Cancer Soci-

ety Study of Particulate Air Pollution and Mor-

tality, at iii-iv (July 2000), available at www.

healtheffects.org/pubs-special htm .................ccccccccceeeeees 7

ere

Vii

TABLE OF AUTHORITIES -— Continued

J. Sunyer et al., Effect of nitrogen dioxide and ozone

on the risk of dying in patients with severe

asthma, 57 Thorax 687 (2002)...............ccssseececsseeeseeseees 10

Janneane F. Gent et al., Association of Low-Level

Ozone and Fine Particles With Respiratory Symp-

toms in Children With Asthma, 290 JAMA 1859,

a aeiiinestiialansicacmasaiihiniettaialtaeatait alana 10

Jonathan M. Samet et al., Fine Particulate Matter

Air Pollution and Mortality in 20 U.S. Cities, 343

New Eng. J. Med. 1742 (2000).................ccccccceceeeeeeeeeeeeeees 6

Kathleen M. Mortimer et al., The Effect of Ozone on

Inner City Children with Asthma, 162 Am. J.

Respir. Crit. Care Med. 1838 (2000) .................cceccceeeeeeees 9

NOx: how nitrogen oxides affect the way we live

and breathe, available at http://www.epa.gov/

oar/noxfldr. pdf ........... cereidieateiaianeasabaeniapaiaiiaaniaiisiatinsibiiianitnmenenmas 8

Particle Pollution and Your Health, available at

http://www.epa.gov/airnow/particle/pm-color.pdf............ 4

Rob McConnell et al., Asthma in Exercising Chil-

dren Exposed to Ozone: A Cohort Study, 359 The

ESTEE ET ee nO Ee 10

Senate Report No. 101-228, at 10-12 (1989)...........0000000... 25

Sources of Indoor Air Pollution - Organic Gases

(Volatile Organic Compounds - VOCs), available

at http://www.epa.gov/iag/voc. html ...................ccccceeeeeeees 9

South Coast Air Quality Management District,

Multiple Air Toxics Exposure Study in the South

Coast Air Basin (MATES.-II), available at http://

www.aqmd.gov/matesiidffes. pdf ..................ccccccceeeeeeeeeeees 8

vill

TABLE OF AUTHORITIES — Continued

Page

William S. Linn et al., Air Pollution and Daily

Hospital Admissions in Metropolitan Los Ange-

les, 108 Envtl. Health Persp. 427 (2000) ...............:::::0000 6

W. James Gauderman et al., Association between

Air Pollution and Lung Function Growth in

Southern California Children: Results from a

Second Cohort, 166 Am. J. Respir. Crit Care Med.

SEITE cenenetisininscenniaiistenettnitienenedtinbicimmunniantenemtennem 7

1

INTEREST OF AMICI’

Amici American Public Health Association (“APHA”)

is the world’s oldest and largest organization of public

health professionals, representing over 50,000 health care

professionals from over 50 health occupations. The APHA

concerns itself with a broad set of issues, notably environ-

mental health. Through publication of The American

Journal of Public Health and The Nation’s Health, and

various advocacy efforts, the APHA strives to improve the

overall quality of public health.

The American Lung Axsociation (“ALA”), one of the

nation’s oldest voluntary health organizations, was

founded in 1904. Since the 1960s, the ALA has supported

national and local initiatives to combat smoking and

reduce air pollution in order to reduce these threats to

lung health. Recently, the ALA led initiatives to tighten

Environmental Protection Agency (“EPA”) regulations to

reduce ambient levels of ozone and particulate air pollu-

tion, including tighter emissions standards for diesel

trucks and buses and for diesel engines used in construc-

tion and other off-road equipment.

Physicians for Social Responsibility (“PSR”) is a

leading public policy organization of 30,000 members that

' Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief either in whole or in part. No persons other than

counsel for the amici made any monetary contributions to its prepara-

tion or submission. Both Petitioners and Respondents consented to this

filing and letters of consent are being submitted with the brief. This

brief was authored by Hope Babcock and Lisa Goldman of the Institute

for Public Representation, with the assistance of law student Christo-

pher Reames.

2

works towards a variety of goals, including promotion of a

healthy environment. Since the early 1990s, PSR has

worked to combat various environmental problems,

including smog, airborne pollutants, and the specific

threat posed to children by particulate matter pollution.

Amici support respondents’ position because of the

significant environmental health effects associated with

diesel exhaust emissions.

+

SUMMARY OF ARGUMENT

Under the National Environmental Policy Act

(“NEPA”), federal agencies must consider and disclose to

the public the significant environmental effects of their

actions. The regulations promulgated by the Federal

Motor Carrier Safety Association (“FMCSA”) will allow the

operation of tens of thousands of heavily polluting Mexi-

can diesel trucks in areas of the United States where they

are currently not permitted to operate. Heavy-duty diesel

engines, like those in Mexican diesel trucks, emit danger-

cus pollutants, notably particulate matter (“PM”) and

oxides of nitrogen (“NO,”), which have significant adverse

public health effects. These trucks could cause a substan-

tial increase in diesel exhaust emissions with significant

environmental impacts, including adverse public health

effects, which FMCSA must consider and disclose under

NEPA. The effects of these trucks are most likely to be felt

in southwestern states that are already facing crushing air

pollution problems. The regulations also potentially impair

the ability of these states to comply with their federally

required air quality plans under the Clean Air Act

(“CAA”). In order to comply with NEPA and the CAA,

3

FMCSA must prepare an EIS and conduct a conformity

analysis of the regulations.

¢

ARGUMENT

I. Pollutants in Diesel Exhaust Emissions Have

Significant and Severe Impacts on Public

Health.

PM and NO,, two of the main pollutants in diesel

engine exhaust, have numerous adverse health effects,

including increased risk of heart attacks and stroke, lung

cancer, and premature death. While most current heavy-

duty diesel vehicles emit these pollutants in their exhaust,

Mexican diesel trucks emit higher average levels of PM

and NO, than U.S. trucks. See, e.g., J.A. 239-243, 287, 332-

339. Therefore, exposure to Mexican diesel exhaust emis-

sions is more dangerous than exposure to similar emis-

sions from U.S. trucks. In 2002 alone, FMCSA’s

regulations will permit the operation of at least 34,000

Mexican diesel trucks in the U.S. beyond the small border

zone where they currently operate.’ J.A. 67. These trucks

will emit significant amounts of dangerous pollutants,

including PM and NO,, in areas, like Phoenix, Los Ange-

les, and Houston, that already have serious air pollution

problems. J.A. 320, 341-342, 346-347, 427. The increased

* Mexican diesel trucks are currently restricted to operations in a

small commercial zone along the U.S.-Mexico border called the border

zone. J.A. 61-62, 253. The border zone varies in size, but is normally no

niore than 20 miles wide, though in certain areas of Texas (the Rio

Grande Valley zone) and in San Diego, the zone extends to 70 miles in

width. J.A. 61.

4

PM and NO, levels from these emissions could increase the

significant adverse health effects associated with those

pollutants in the areas where Mexican diesel trucks will

operate.

A. Health Impacts of PM

According to the EPA, PM is a “mixture of microscopic

solids and liquid droplets suspended in the air” and

consists of a number of different components including

acids, chemicals, metals, soils, dust, and allergens like

pollen. Particulate Pollution and Your Health, available

at http://www.epa.gov/airnow/particle/pm-color.pdf (last

viewed 3/10/2004); see also EPA, Air Quality Criteria for

Particulate Matter Vol. 1, pp. 3-144, 145, Table 3-15,

EPA/600/P-95001laF (1996), available at http://cfpub.epa.

gov/ncea/cfm/recordisplay.cfm?deid=2832 (last viewed

3/10/2004) [hereinafter PM Criteria]. Diesel engines emit

combustion PM in their exhaust. Depending on its size

and composition, PM can damage lung tissue, aggravate

existing respiratory and cardiovascular disease, decrease

lung function, cause cancer, and lead to premature death.

Particulate Pollution and Your Health; PM Criteria at 1-

11, 2-22; J.A. 211. Particles smaller than 10 pm in diame-

ter, which are further distinguished as either “coarse”

(diameter 10 pm-2.5 pm) or “fine” (diameter < 2.5 pm), are

the most dangerous to human health. Particulate Pollu-

tion and Your Health; PM Criteria at 6-7. Consisting

“mainly of combustion particles from motor vehicles and

the burning of coal, fuel oil, and wood,” fine PM is more

troubling from a public health perspective because it is

deposited deep in the alveolar region of the lungs and is

not cleared efficiently. Francine Laden et al., Association of

Fine Particulate Matter from Different Sources with Daily

5

Mortality in Six U.S. Cities, 108 Envtl. Health Persp. 941,

945 (2000). Coarse PM, by contrast, consists mainly of

crustal particles generated from activities like agriculture,

transportation, construction, and mining and does not

deeply penetrate the lungs. See id. Diesel exhaust parti-

cles fall almost exclusively into the fine PM designation,

as over 90% of these particles are smaller than 1 pm.

California Air Resources Board and Office of Environ-

mental Health Hazard Assessment, Report to the Air

Resources Board on the Proposed Identification of Diesel

Exhaust as a Toxic Air Contaminant, Executive Summary,

at ES-6, available at http://www.oehha.ca.gov/air/toxic_

contaminants/pdf1/diesel%20exhaust.pdf (April 22, 1998)

(last viewed 3/10/2004); California Air Resources Board

and Office of Environmental Health Hazard Assessment,

Report to the Air Resources Board on the Proposed Identifi-

cation of Diesel Exhaust as a Toxic Air Contaminant, Part

B: Health Risk Assessment for Diesel Exhaust, at 3-1,

available at http://www.arb.ca.gov/toxics/dieseltac/part_

b.pdf (April 22, 1998) (last viewed 3/10/2004). Both acute

(short-term) and chronic (long-term) PM exposure can

cause health problems.

The greatest health concern associated with acute

exposure to PM pollution is premature death. Committee

of the Environmental and Occupational Health Assembly

of the American Thoracic Society, Health Effects of Out-

door Air Pollution (Pt. 1), 153 Am. J. Respir. Crit. Care

Med. 3, 28-29 (1996) [hereinafter Health Effects of Outdoor

Air Pollution Part 1]; PM Criteria at 1-11, 2-22. In particu-

lar, PM,, levels (particles less than 10 pm in size, including

both fine and coarse particles) have been associated with

death from all natural causes in males, David E. Abbey

et al., Long-Term Inhalable Particles and Other Air

6

Pollutants Related to Mortality in Non-smokers, 159 Am.

J. Respir. Crit. Care Med. 373, 375 (1999) [hereinafter

Abbey et al., 1999], and appear to contribute to overall

deaths from cardiovascular and pulmonary disease, see

Jonathan M. Samet et al., Fine Particulate Matter Air

Pollution and Mortality in 20 U.S. Cities, 343 New Eng. J.

Med. 1742, 1744-1745 (2000) (updated in Francesca

Dominici et al., On the Use of Generalized Additive Models

in Time-Series Studies of Air Pollution and Health, 156

Am. J. Epidemiology 193 (2002)). Not surprisingly, since

fine PM, particularly from mobile sources like diesel

trucks, is of greater concern than coarse PM, see Laden et

al., at 944-945, as levels of fine PM from mobile sources go

up, daily mortality rates do so as well. See id. (finding that

each increase of 10 pg/m* of mobile source fine PM was

associated with a 3.4% increase in daily mortality).

Acute PM exposure has other serious health effects.

See Health Effects of Outdoor Air Pollution Part 1, at 29-

30 (discussing studies showing associations between PM

levels and hospital admissions, respiratory symptoms,

reduced lung function, and aggravation of asthma at-

tacks); see also PM Criteria at 1-11, 2-22. For instance,

researchers have observed associations between elevated

PM,, levels and increased hospital admissions for cardio-

vascular and pulmonary disease in year-round and some

seasonal analyses of admissions. William S. Linn et al.,

Air Pollution and Daily Hospital Admissions in Metropoli-

tan Los Angeles, 108 Envtl. Health Persp. 427, 429-430

(2000). There are also indications of an association be-

tween exposure to elevated PM,, concentrations and the

risk of having a heart attack a few hours to one day

following the exposure. See Annette Peters et al., Increased

et

7

Particulate Air Pollution and the Triggers of Myocardial

Infarction, 103 Circulation 2810, 2814 (2001).

Chronic PM exposure produces significant health

impacts as well. Chronic exposure to elevated ambient PM

levels over a long period has been associated with de-

creased lung function in certain groups of people, includ-

ing children and teenagers. David E. Abbey et al., Long-

Term Particulate and Other Air Pollutants and Lung

Function in Nonsmokers, 158 Am. J. Respir. Crit. Care

Med. 289, 295 (1998); W. James Gauderman et al., Asso-

ciation between Air Pollution and Lung Function Growth

in Southern California Children: Results from a Second

Cohort, 166 Am. J. Respir. Crit Care Med. 76, 79-80 (2002);

Edward Avol et al., Respiratory Effects of Relocating to

Areas of Differing Air Pollution Levels, 164 Am. J. Respir.

Crit. Care Med. 2067, 2068-2069 (2001). PM exposure

increases the risk of death from cardiopulmonary disease

and lung cancer. See Douglas W. Dockery et al., An Asso-

ciation Between Air Pollution and Mortality in Six U.S.

Cities, 329 New Eng. J. Med. 1753 (1993); C. Arden Pope

III et al., Particulate Air Pollution as a Predictor of Mor-

tality in a Prospective Study of U.S. Adults, 151 Am J.

Respir. Crit. Care Med. 669 (1995); reviewed in Health

Effects Institute, Reanalysis of the Harvard Six Cities

Study and the American Cancer Society Study of Particu-

late Air Pollution and Mortality, at iii-iv (July 2000),

available at www.healtheffects.org/pubs-special.htm (last

viewed 3/10/04); C. Arden Pope III et al., Lung Cancer,

Cardiopulmonary Mortality, and Long-Term Exposure to

Fine Particulate Air Pollution, 287 JAMA 1132, 1137

(2002) (associating each 10 pg/m’ increase in long-term

average ambient PM,, concentration with an approxi-

mately 4%, 6%, and 8% increased risk of death from all

causes, cardiopulmonary causes, and lung cancer, respec-

tively); see also Abbey et al., 1999, at 376 (associating long-

term PM,, exposure levels with increased lung cancer

death rates in males).

In particular, PM from diesel exhaust poses a poten-

tially high risk of cancer. California has identified diesel

exhaust as a carcinogen. Cal. Health & Safety Code

§§ 25249.5, 25249.8 (2004); Cal. Code Regs. tit. 22,

§ 12000(b) (2004); J.A. 235, 383, 405. In fact, 70% of all

cancer risk due to ambient toxics in California’s South

Coast Air Basin is likely attributable to PM from diesel

exhaust. South Coast Air Quality Management District,

Multiple Air Toxics Exposure Study in the South Coast Air

Basin (MATES-II), ES-3, available at http://(www.aqmd.

gov/matesiidf/es.pdf (last viewed 3/10/2004); J.A. 383, 405.

EPA has also recognized that diesel exhaust is likely

to cause cancer. Diesel Exhaust in the United States,

available at http://www.epa.gov/otaq/retrofit/documents/

f02048.pdf (last viewed 3/10/2004).

B. Health Effects of NO,

In addition to PM, diesel exhaust emissions also

contain NO., a term denoting gases containing nitrogen

and oxygen. NO, is formed by combustion processes, like

those used in heavy-duty diesel engines. NO_; how nitrogen

oxides affect the way we live and breathe, available at

http://www.epa.gov/oar/noxfldr.pdf (last viewed 3/10/2004).

NO, has significant health effects, primarily as a precursor

to ground-level ozone, a dangerous pollutant with numer-

ous negative health impacts. /d.

9

NO, combines with volatile organic compounds

(“VOCs”)’ in the presence of heat and sunlight to form

ground level ozone. Health and Environmental Effects of

Ground-Level Ozone, available at http://www.epa.gov/

ttn/oarpg/naagsfin/o3health.html (last viewed 3/10/2004)

{hereinafter Effects of Ground-Level Ozone). Acute expo-

sure to ground level ozone can cause-chest constrictions,

irritation of the mucous membranes, J.A. 211, and, at high

concentrations, shortness of breath, aggravation of

asthma, emphysema and other respiratory conditions. J.A.

317. Acute exposure also imposes a number of significant

health effects on groups like children, who are more

vulnerable to air pollution because they breathe more air

per pound than adults and have developing respiratory

systems. Effects of Ground-Level Ozone. Asthmatics are

also more susceptible to ozone pollution. See id.; Health

Effects of Outdoor Air Pollution Part 1, at 20 (discussing

associations between hospital admissions for asthma and

elevated ozone levels). Studies of asthmatics suggest an

association between increased respiratory symptoms and

episodes of summertime air pollution like ozone. Health

Effects of Outdoor Air Pollution Part 1, at 24. Among

asthmatics, certain groups may be even more vulnerable

to ozone, including children who were born prematurely or

with a low birth weight. Kathleen M. Mortimer et al., The

Effect of Ozone on Inner City Children with Asthma, 162

* VOCs are emitted by numerous sources, including motor vehicles,

consumer and commercial products like paints, aerosol sprays and

cleaners, and various industrial processes. See Effects of Ground-Level

Ozone; Sources of Indoor Air Pollution - Organic Gases (Volatile

Organic Compounds - VOCs), available at http://www.epa.gov/iaq/

voc. html (last viewed 3/10/2004).

10

Am. J. Respir. Crit. Care Med. 1838, 1842-1843 (2000).

Individuals with severe asthma may also face a greater

risk of dying on days with higher concentrations of ozone.

J. Sunyer et al., Effect of nitrogen dioxide and ozone on the

risk of dying in patients with severe asthma, 57 Thorax

687, 691 (2002) (also finding an increased risk of death for

severe asthmatics on days with higher levels of nitrogen

dioxide).

Chronic ozone exposure results in significant negative

health effects. Prolonged exposure to ozone may lead to

decreased lung function in the general population. Health

Effects of Outdoor Air Pollution Part 1, at 26-27. See also

Audrey Galizia & Patrick L. Kinney, Long-Term Residence

in Areas of High Ozone, 107 Envtl. Health Persp. 675

(1999), available at http://ehp.niehs.nih.gov/members/

1999/107p675-679galizia/galizia-full. html (finding that

people living in communities with high levels of ozone may

have an increased risk of diminished lung function and

incidence of respiratory symptoms). Children who spend

large amounts of time playing sports outdoors in high

ozone areas may also be particularly vulnerable to ozone.

See Rob McConnell et al., Asthma in Exercising Children

Exposed to Ozone: A Cohort Study, 359 The Lancet 386,

388-389 (2002) (finding an association between children

playing multiple team sports and the development of

physician-diagnosed asthma). Even children with well-

controlled asthma may be especially vulnerable to ozone

exposures at levels below EPA standards. See Janneane F.

Gent et al., Association of Low-Level Ozone and Fine

Particles With Respiratory Symptoms in Children With

Asthma, 290 JAMA 1859, 1865 (2003) (finding daily

ambient ozone levels to be associated with increased risk

of respiratory symptoms and increased use of rescue

11

medication in children with asthma severe enough to

require maintenance medication).

C. Economic and Social Welfare Impacts of

Diesel Exhaust

Relying solely on data concerning hospitalizations and

deaths understates the true adverse impact of exposure to

diesel exhaust from Mexican truck emissions because such

exposure imposes costs on society beyond deaths, reduced

health, and decreased quality of life. Health care costs will

rise, compared with what they would be otherwise, as a

result of the health impacts associated with diesel exhaust

from Mexican trucks. See J.A. 436-437 (stating that

adverse health effects attributable to increased fine PM

from Mexican truck emissions “can be expected to” lead to

increased health care costs). Additionally, the health

problems caused by these increased emissions will likely

lead to “thousands of days of lost work and tens of thou-

sands of days of restricted activity” each year in cities like

Houston, which are likely to see increased Mexican truck

traffic. See J.A. 446.

Diesel exhaust pollutants produce other serious social

and economic impacts, like lost school days. See Frank D.

Gilliland et al., The Effects of Ambient Air Pollution on

School Absenteeism Due to Respiratory Illness, 12 Epide-

miology 43, 47-48 (2001) (finding an association between

ozone and illness-related (particularly respiratory-based)

absences from school). Such school absences are costly to

students, educators, and parents. Students who miss

school are likely to suffer academically and to frustrate

educators’ efforts to teach them. Parents of children who

are too sick to go to school often face a dilemma between

12

missing work in order to care for their children, leaving

their sick children home alone, or locating childcare, a

resource that is already extremely scarce and costly. When

school absences and other serious impacts of air pollution

related illnesses are examined, the potential health effects

of diesel exhaust exposure grow even more significant.

FMCSA has estimated that its regulations would lead

to 34,000 Mexican trucks operating beyond the border

zone in 2002 alone.‘ J.A. 67. This would likely expose vast

numbers of Americans to increased levels of diesel exhaust

“pollutants and their corresponding health risks. As noted

above, acute and chronic exposure to PM and NO, two of

the pollutants in Mexican diesel truck exhaust, can lead to

adverse health effects and death. Acute and chronic

exposures to these pollutants can also impose high social

welfare costs in the form of increased health care expendi-

tures, lost work days, and increased school absences.

* The government's reference to the number of applications filed by

Mexican commercial motor carriers for operating authority in 1995,

Pet. Brief at 8 n.3, does not indicate how many trucks those applica-

tions would have covered, as an application for operating authority may

be submitted on behalf of a number of trucks. For example, FMCSA has

estimated that 10,900 Mexican commercial motor carriers would

operate 72,000 trucks in the U.S. under the regulations (38,000 in the

border zone, 34,000 beyond the border zone). J.A. 67. Therefore, the

number of applications for operating authority, by FMCSA’s own

admission, is smaller than the expected number of trucks.

13

II. FMCSA Violated NEPA by Failing to Prepare an

Environmental Impact Statement Informing

the Public of the Significant Public Health Ef-

fects of its Regulations.

NEPA is designed to ensure that agencies disclose the

environmental impacts of their actions to the public, show

that they have considered environmental concerns, and

provide “a springboard for public comment.” Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

See Baltimore Gas & Electric Co. v. Natural Resources

Defense Council, Inc., 462 U.S. 87, 97 (1983) (stating that

NEPA “ensures that the agency will inform the public that

it has indeed considered environmental concerns in its

decision-making process”); Robertson, 490 U.S. at 349

(discussing the informational role of NEPA). As an “action-

forcing” statute, NEPA requires an agency to take a “hard

look” at the environmental impacts of its actions and

inform the public about those impacts. Id. at 350.

Once an agency has fulfilled its procedural obligations

to consider and disclose information on environmental

impacts, however, it is not substantively bound to avoid

those impacts. See Robertson, 490 U.S. at 349-350 (stating

that NEPA does not mandate particular substantive

results or constrain an agency from deciding that other

values outweigh environmental concerns); Vermont Yankee

Nuclear Power Corp. v. Natural Resources Defense Council,

Inc., 435 U.S. 519, 558 (1978) (emphasizing that NEPA’s

“mandate ... is essentially procedural”). Therefore,

contrary to Petitioners’ assertions, Pet. Brief at 15, 26,

merely requiring FMCSA to disclose the significant public

health effects of Mexican truck operation beyond the

border zone will not dictate a particular policy outcome or

restrict the President’s power to conduct foreign affairs.

14

To achieve NEPA’s procedural and informational

goals, agencies must prepare an Environmental Impact

Statement (“EIS”) for all major federal actions signifi-

cantly affecting the quality of the human environment. 42

U.S.C. § 4332(c) (2004) (emphasis added). If an agency

is unsure whether an EIS is required, it must prepare

an Environmental Assessment (“EA”), 40 C.FR.

§§ 1501.4(b), (c), 1508.9 (204), and issue a Finding of No

Significant Impact (“FONSI”), 40 C.FR. §§ 1501.4(e),

1508.13 (2004), if the action will not significantly affect the

quality of the human environment. “A party challenging

the agency’s decision not to prepare an EIS must show

only that there is a substantial possibility that the action

may have a significant impact on the environment, not

that it clearly will have such an impact.” Nat’ Audubon

Soc’y v. Hoffman, 132 F.3d 7, 18 (2d Cir. 1997).

Under regulations promulgated by the Council on

Environmental Quality (“CEQ”),’ significance is deter-

mined by reference to both context and intensity. 40 C.F.R.

§ 1508.27 (“§ 1508.27”) (2004). Courts use the CEQ regula-

tions in determining whether to require preparation of an

EIS. See Middle Rio Grande Conservancy Dist. v. Norton,

294 F.3d 1220, 1229-30 (10th Cir. 2002) (finding proposed

action significant under CEQ regulations on context and

intensity). An agency must prepare an EIS if its action will

have effects that, because of their intensity, are significant

in their relevant context, id.; see also Nat'l Parks & Con-

servation Assoc. v. Babbitt, 241 F.3d 722, 731 (9th Cir.

* Courts give the CEQ regulations substantial deference. See

Andrus v. Sierra Club, 442 U.S. 347, 358 (1979) (stating that the

“CEQ’s interpretation of NEPA is entitled to substantial deference”).

15

2001) (“Context simply delimits the scope of the agency’s

action ... [iJntensity relates to the degree to which the

agency action affects the locale and interests identified in

the context part of the inquiry”), and must consider

several contexts, including the affected region and any

long-term effects. § 1508.27(a). Intensity is determined by

reference to ten factors, including public health impacts,

uncertainty of impacts, illegality, and controversy;

§ 1508.27(b), any one of which could be sufficient to

require the preparation of an EIS. See Nat'l Parks, 241

F.3d at 731 (stating that either uncertainty or controversy

might be sufficient to require preparation of an EIS “in

appropriate circumstances”).

Here, the FMCSA erred in issuing a FONSI because

the public health impacts that will result from the opera-

tion of Mexican diesel trucks throughout the southwest

United States are so severe, in terms of both their context

and intensity, that FMCSA must consider them in an EIS.

An EA, which is an abbreviated preliminary analysis of

whether an EIS is warranted, is not adequate for regula-

tions of this potential severity. See 40 C.F.R. § 1508.9

(2004) (stating that the EA is meant to be a “concise public

document” that “briefly provide[s] sufficient evidence and

* Petitioners’ contention that the regulations will have no, or

minimal, environmental impact, see Pet. Brief at 24, is undercut by the

FMCSA’s acknowledgement that the application of its regulations may

result in the denial of operating authority to the least safe Mexican

trucks, which are most likely to be the oldest and most polluting of the

Mexican truck fleet. J.A. 484. Therefore, FMCSA’s regulations may

have a beneficial environmental impact that could be improved by the

promulgation of even stricter safety regulations. /d.

16

analysis for determining whether to prepare an [EIS] or a

[FONSI)”).

The EA prepared by FMCSA in this case considerably

understates the environmental impacts of the regulations

on public health and welfare, as discussed in greater detail

below. Under the CEQ guidelines, the serious health risks

associated with diesel exhaust pollutants indicate that

FMCSA's regulations are likely to have a significant

impact on the quality of the human environment. As noted

previously in Section I, the health effects of the regula-

tions include damage to lung tissue and lung function,

aggravation of respiratory and cardiovascular disease,

cancer, and even death, with attendant detrimental

impacts on social and economic welfare. As will be dis-

cussed below, such health effects are likely to increase as

greater numbers of Mexican trucks enter the U.S. and

emit proportionally higher levels of pollutants over time.

These public health effects, when properly accounted for,

render the regulations intense and significant under the

CEQ regulations and require preparation of an EIS. 40

C.F.R. § 1508.27(b)(2).

Moreover, as noted previously, see Section II.A, these

health effects will fall particularly hard on the southwest

region of the country. Trucks governed by the new FMCSA

regulations are likely to operate in major trucking corri-

dors in southwest urban areas, particularly cities like

Phoenix, Houston, and Los Angeles, that are in nonat-

tainment with federal air quality standards. J.A. 320, 330.

Thus, the diesei exhaust emissions associated with the

regulations are likely to fall on localities that already have

poor air quality and are struggling to come into compli-

ance with federal air quality standards. Jd. Despite indica-

tions of such regional impacts, FMCSA did not consider

17

the impact of Mexican trucks on the southwest region of

the country in its EA. Rather, it compared the increase in

emissions from Mexican trucks with all U.S. on-road and

total U.S. emissions (including all transportation sources,

industrial sources, etc.). See J.A. 147; Pet. Brief at 12 n.5

(comparing 34,000 Mexican trucks — one-half of the ap-

proximately 72,000 trucks subject to the new regulations —

operating beyond the border zone to 4.5 million trucks

operating throughout the U.S.), thus masking the regional

significance of the regulations in areas where those trucks

are most likely to operate.’ As a result, FMCSA must

prepare an EIS in order to fully address these regional

impacts, as required under the CEQ regulations. See

§ 1508.27(a); Anderson v. Evans, 350 F.3d 815, 835 (9th

Cir. 2003) (requiring an EIS where an agency failed to

adequately address the local impacts of allowing a tribe to

hunt whales); Middle Rio Grande, 294 F.3d at 1229 (re-

quiring an EIS, in part, because the local effects of critical

habit designation were significant).

FMCSA also failed to examine the potentially signifi-

cant long-term effects of its regulations, despite the fact

that the CEQ regulations require an examination of both

short-term and long-term effects. 40 C.FR. § 1508.27(a).

Mexican trucks are less expensive to operate and, thus,

likely to displace U.S. trucks in the future, J.A. 331-332,

as both the EA and Petitioners’ brief acknowledge. J.A.

" FMCSA’s choice to conduct even this national analysis, thus

acknowledging that its regulations will have some effect on emissions

in the U.S., undermines its argument that any increase in Mexican

truck traffic would result from the lifting of the Presidential morato-

rium and not the regulations themselves. J.A. 59-60.

18

135; Pet. Brief at 12 n.5. As Mexican trucks pollute more,

on average, than U.S. trucks, J.A. 315, the displacement of -

U.S. trucks by Mexican vehicles will lead to increased

pollution in the areas where they operate. J.A. 330-332. In

addition, Mexican truck traffic will likely increase due to

continuously increasing freight traffic from, and trade

with, Mexico, further increasing pollution levels where

Mexican trucks operate. J.A. 62, 66, 123, 331. Despite

evidence that both the number of Mexican trucks, and

their pollution levels, will increase over time, FMCSA only

evaluated the effects of Mexican trucks for the year 2002

in its EA. J.A. 67, 331, 423-424.

Additionally, the FMCSA’s analysis of the environ-

mental impacts of its regulations did not address the

condition of the Mexican trucks that are likely to operate

in the U.S. under the regulations. Mexican trucks manu-

factured prior to 1993 pollute more than their U.S. coun-

terparts, which have been subject to stricter US.

emissions regulations. J.A. 334, 356-358, 379, 392-393.

Although FMCSA assumed that approximately one-third

of Mexican trucks were manufactured after 1994, J.A. 203,

and would pollute less because they were subject to

stricter emissions standards, this assumption is consid-

erably higher than more reliable estimates reported by

Environ and the General Accounting Office, which place

the percentage at 10% (post-1993 trucks) and 20% (post-

1994 trucks), respectively. J.A. 394-395, 255. Unlike

FMCSA’s estimate, the other estimates were “at least

founded on some analysis of raw data, and based on some

ascertainable methodology.” Public Citizen, et al. v.

Dept. of Transp., et al., 316 F.3d 1002, 1025 (9th Cir.

2003) (discussing FMCSA’s analysis of the regulations’

effects). FMCSA, therefore, potentially underestimated

19

the number of higher polluting Mexican trucks operating

in the U.S. as a result of the regulations. It also underes-

timated the increase in emissions under the regulations

because it used data on U.S. truck emissions in its analy-

sis of Mexican trucks, J.A. 205, despite the fact that

Mexican trucks manufactured before model year 1993

likely emit higher quantities of pollutants because they

were subject to less strict emissions requirements. J.A.

334, 356-358, 379, 392-393.

The faulty nature of the FMCSA’s environmental

analysis of its regulations is further underscored by the

fact that Mexican trucks are not likely to meet future U.S.

emissions standards. The United States has adopted

significantly stricter diesel emissions regulations for

model year 2004 and 2007 diesel engines. 40 C.FR.

§§ 86.004-11, 86.007-11 (2004). In order to meet these new

standards, U.S. diesel engine manufacturers will have to

install devices in diesel engines that are intended solely to

reduce emissions. J.A. 432. However, since these devices

increase engine cost, it is unlikely that manufacturers will

install them in any engines for sale in countries, like

Mexico, which do not have emissions standards requiring

their use.” J.A. 433-434. Therefore, Mexican trucks are

likely to be even more polluting relative to comparable

* Mexico has not yet matched the new U.S. emissions standards,

nor has it indicated that it plans to do so. Since model year 2004

vehicles are already being manufactured and sold in the U.S., Mexican

trucks are already behind U.S. trucks in emission standards at this

point. Thus, Mexican trucks are currently emitting, and will continue to

emit, more pollutants than US. trucks.

20

U.S. trucks in 2004 and beyond, increasing the environ-

mental impact of Mexican trucks entering the United

States.

Furthermore, six U.S. diesel engine manufacturers

are bound by consent decrees that require them to retrofit

their diesel engines and to reduce emissions to meet model

year 2004 emissions goals early. Accordingly, the majority

of new U.S. trucks are already substantially cleaner than

their Mexican counterparts. See, e.g., Consent Decree,

United States v. Caterpillar, Inc., No. 98-02544 (HHK)

(D.D.C. 1999); Public Citizen, 316 F.3d at 1026; J.A. 388-

389, 396-397, 474. Because Mexican diesel engine manu-

facturers are not bound by the stricter U.S. emissions laws

or the consent decrees, id., the disparity in emissions

between Mexican trucks and comparable U.S. trucks has

already begun to widen and will do so at an accelerated

rate beginning in 2004.

FMCSA’s failure to include in its analysis the number

of Mexican trucks that will enter the U.S. after 2002,

combined with its inaccurate assessment of the condition

of the Mexican truck fleet and the projected difference in

Mexican and U.S. truck emissions, not only dilutes the

true environmental effects of the new regulations, but also

renders the extent of their future environmental effects

impossible to predict accurately and, therefore, uncertain

under the CEQ regulations. 40 C.F.R. § 1508.27(b)(5).

Given this uncertainty, it is likely that the environmental

health effects of the regulations may be substantially

worse than anticipated. Because FMCSA failed to address

the uncertain effects of the regulations adequately in its

EA, and because the severity of the impacts that may

result will likely depend on the number and condition of

Mexican trucks entering the U.S., FMCSA must prepare

21

an EIS. 40 C.FR. § 1508.27(b)(2), (5); Anderson, 350 F.3d

at 835.

The regulations may also have significant effects,

within the meaning of the CEQ regulations, because they

will likely run afoul of state and federal environmental

protection laws. 40 C.F.R. § 1508.27(b)(10). Under the

CAA, California has the authority to control emissions of

criteria pollutants from mobile sources by imposing

standards that are more stringent than federal regula-

tions. J.A. 452. Attempts by the California Air Resources

Board (“CARB”) to control heavy-duty diesel emissions will

likely be frustrated, however, because CARB cannot apply

its standards to Mexican trucks. J.A. 324, 452-454. Emis-

sions from Mexican trucks may well violate California’s

more stringent emissions laws. Jd. Additionally, because

the regulations threaten to interfere with the ability of

states to comply with the CAA, they may violate the

conformity provisions of the Act, as discussed in greater

detail in Section III of this brief. See 42 U.S.C. § 7506(c)(1)

(2004) (barring federal agencies from engaging in activi-

ties that do not conform to federally mandated state

implementation plans). These potential violations of state

and federal environmental laws are significant and re-

quire the preparation of an EIS under 40 C.FR.

§ 1508.27(b)(10).

Additionally, FMCSA must prepare an EIS because

the effects of the regulations are highly controversial and,

therefore, significant. 40 C.F.R. § 1508.27(b)(4). The effects

are controversial because there is a substantial dispute

between FMCSA and other interested parties over the

“size, nature or effect” of the regulations, and because

FMCSA has not adequately considered or addressed this

dispute in its EA. See Indiana Forest Alliance, Inc. v. U.S.

22

Forest Service, 325 F.3d 851, 857-858 (7th Cir. 2003)

(stating that if there is a dispute over the size, nature, or

effect of an action, “NEPA then places the burden on the

agency to come forward with a ‘well-reasoned explanation’

demonstrating why opinions disputing an EA’s conclusions

‘do not suffice to create a public controversy based on

potential environmental consequences’”). Here, members

of the public have disputed the size, nature, and effect of

FMCSA’s regulations, including the uncertain number of

trucks that will enter the U.S., their impact on the south-

west region of the country, the amount of pollutants that

these trucks will emit, and the FMCSA’s ultimate finding

that the regulations would have no significant environ-

mental impact. This dispute does not constitute simple

opposition to FMCSA’s decision to promulgate the regula-

tions, but, rather, goes directly to the regulations’ envi-

ronmental effects. See id. (holding that controversy under

the CEQ regulations must consist of more than opposition

to a particular action). The controversy over the size,

nature, and effect of the FMCSA regulations renders their

effects significant and requires preparation of an EIS. 40

C.F.R. § 1508.27(b)(4).

Given their potentially significant impacts under the

CEQ regulations, the FMCSA regulations are major

federal actions that will significantly affect the quality of

the human environment. An EA was not the proper

mechanism for examining the environmental impacts of

the regulations because it did not allow the FMCSA to

consider fully the extent of their effects. The regulations

may well lead to increased diesel exhaust emissions from

Mexican trucks operating beyond the border zone where

they currently operate. These diesel exhaust emissions,

which have significant adverse health effects generally,

23

will be particularly harmful in the southwest United

States, where Mexican trucks are most likely to operate.

These effects will also extend well into the future, as

growing numbers of higher-polluting Mexican trucks

operate in the United States. The future effects of the

regulations, while uncertain, are also highly controversial

and will likely include, in addition to adverse public health

effects, the violation of state and federal environmental

laws. For these and other reasons, the regulations will

significantly affect the quality of the human environment,

requiring preparation of an EIS.

Ill. FMCSA Should Have Prepared a CAA Confor-

mity Analysis for the Regulations Because the

Resulting Emissions May Violate the CAA State

Implementation Plans of States Where the

Mexican Trucks Will Operate.

Finaing that air pollution had resulted in “mounting

dangers to the public health and welfare,” Congress

enacted the CAA, the purpose of which is to “protect and

enhance the quality of the Nation’s air resources so as to

promote the public health and welfare and the productive

capacity of its population.” 42 U.S.C. §§ 7401(a)(2), (b\(1)

(2004). The CAA employs state implementation plans

(“SIPs”), among other mechanisms, to protect public

health. Under the CAA, states must submit SIPs to the

Environmental Protection Agency (“EPA”) providing for

“implementation, maintenance, and enforcement” of EPA’s

national ambient air quality standards (“NAAQS”). 42

U.S.C. §§ 7407(a), 7410(a) (2004). EPA must set NAAQS

for criteria pollutants, such as PM, NO., and ozone, at a

level to protect health. 42 U.S.C. § 7409(b)(1) (2004). Thus,

24

SIPs serve to protect the public health by reducing emis-

sions of harmful pollutants.

In order to ensure that the federai government does

not hinder a state’s ability to comply with its SIP, the CAA

bars federal agencies from engaging in any activity that

does not conform to an approved SIP. 42 U.S.C.

§ 7506(c)(1) (2004). EPA regulations require federal agen-

cies to prepare a conformity determination for “each

pollutant where the total direct and indirect emissions in a

nonattainment or maintenance area” caused by the regu-

lations would equal or exceed levels set in 40 C.FR.

§ 93.153(b)(1), or where the regulations would result in an

emissions increase which is more than de minimis. 40

C.F.R. § 93.153(b) (2004). This conformity determination

must be made before an agency can promulgate its regula-

tions. See 40 C.F.R. § 93.150(b) (2004) (“[a] Federal agency

must make a determination that a Federal action con-

forms . . . before the action is taken”).

Because emissions from Mexican trucks operating

under the FMCSA regulations will exceed regulatory

thresholds in certain areas of the southwest United States

currently in nonattainment with EPA’s NAAQS, such as

Houston and Los Angeles, J.A. 320, 330, FMCSA must

conduct a conformity analysis of the effect of its regula-

tions. For example, Houston is in severe nonattainment

for ozone.” 40 C.F.R. § 81.344 (2004); J.A. 341, 427. Some

estimates indicate that in Houston, by 2007, emissions

* Areas which do not meet “the national primary or secondary air

quality standard” for a given pollutant are designated as nonattain-

ment areas. 42 U.S.C. § 407(d 1X AXi) (2004).

25

increases from Mexican trucks could drastically eclipse the

daily emissions conformity threshold for NO. in a severe

ozone nonattainment area.” J.A. 342, 427. Similarly, by

2010, increased NO, and PM emissions in the South Coast

Air Basin (including Los Angeles), which is in extreme

nonattainment for ozone and serious nonattainment for

PM,,, 40 C.F.R. § 81.305 (2004); J.A. 346-347, 427, may

also exceed daily emissions conformity thresholds. J.A.

347, 427.

Because FMCSA prepared no conformity determina-

tion before issuing the regulations under review in this

case, it is unclear what effect the increased emissions from

Mexican trucks will have on the ability of southwest states

and California to meet the requirements of their SIPs.

Given the substantial increases in emissions that may

result from the FMCSA’s regulations, it seems likely that

these states will have a difficult time complying with their

SIPs. Meeting SIP requirements has proved difficult in the

past, S. Rep. No. 101-228,-at 10-12 (1989), and it is possi-

ble that states will simply be unable to absorb the emis-

sions increases from Mexican trucks and still achieve the

NAAQS. If this occurs, then public health will suffer

because the air quality goals of the SIPs will go unmet.

In attempting to meet the NAAQS, states will likely

have to cut back on other sources of pollution. J.A. 245-

246. Since states cannot control the emissions of Mexican

trucks or the entry of those trucks into their jurisdictions,

* The conformity thresholds are defined as a yearly limit, 40 C_F.R.

§ 93.153(bX1) (2004), which can then be broken down into a daily

threshold by dividing the yearly limit by 365. J.A. 342, 346-47, 427.

26

they will likely be compelled to tighten emissions controls

on local industry and commerce, which may impose

significant costs and job losses. In states like California,

for example, some industries are already heavily regulated

and could face further tightening of emissions controls as

the state struggles to absorb the increased emissions from

Mexican trucks operating beyond the border zone. 7d.

Because the increased emissions from Mexican trucks

operating pursuant to FMCSA’s regulations may hinder

states’ abilities to meet the requirements of their SIPs and

achieve a clean and healthy atmosphere, FMCSA must

prepare a conformity determination for its regulations

under the CAA.

e

CONCLUSION

For the foregoing reasons, the Court should affirm the

Court of Appeals’ ruling.

Respectfully submitted,

Hope M. Bascock, Director

Lisa GOLDMAN, Staff Attorney

Institute for Public Representation

GEORGETOWN UNIVERSITY LAw

CENTER

600 New Jersey Avenue, N.W.,

Suite 312

Washington, D.C. 20001

Phone: 202-662-9535

Fax: 202-662-9634

Attorneys for Amici