Amicus Curiae Brief — Department of Transportation v. Public Citizen

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

o

DEPARTMENT OF TRANSPORTATION, ET AL.,

‘Petitioners,

v.

PUBLIC CITIZEN, ET AL.

Sf

) On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

ac Attorneys for Amici Curiae

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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 operate

throughout the United States is subject to an Environ-

mental 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-domicile trucks to operate throughout the United

States will make it difficult for states to comply with federal

air quality standards.

Amici disagree with Petitioner’s statement of the

question presented in this case FMCSA, a federal agency

within the Department of Transportation (“DOT”), adopted

rules governing both applications for admission of Mexico-

domiciled trucks to the United States and the safety of those

trucks. These rules independently determine the type and

quantity of additional trucks that may enter the United

States, and expand the limited border zones in which these

trucks can travel. Petitioners argue that this rulemaking

action has no independent impact because the President

issued an order regarding the same sources regulated by the

FMCSA regulations and because FMCSA has no discretion to

determine environmental impacts. Petitioners attempt to

misdirect the Court’s attention to a review of Presidential

authority. However, without the actions taken by FMCSA, no

trucks would be allowed. The rules are a prerequisite for

Mexico-domiciled trucks to travel outside the designated

border commercial zones. Thus, Amici submit that the

question of Presidential authority is not under review.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................scccccceesesseeeeeeees i

opp gt Fs ne 1

SUMMARY OF ARGUMENT ....................cceceeesseeeeeeeeee 2

ITA TEIIIITE seccescecsccececcnseseensnensssnenssenianaadaeeneeeneaee 4

I. FMCSA’S RULEMAKING SIGNIFICANTLY

IMPACTS THE SOUTH COASTAIR BASIN... 4

II. FMCSA’S RULEMAKING HAD SIGNIFICANCE

INDEPENDENT FROM THE PRESIDEN-

TIAL ORDER LIFTING THE MORATORIUM

ON MEXICAN TRUCKS ....00.0. 0. eeeeseeeeeeeeees 11

III. FMCSA’S ACTIONS ARE WITHIN THE CATE-

GORY OF FEDERAL ACTIONS CAUSING IM-

PACTS TO STATE AND LOCAL INTERESTS

THAT CONGRESS SOUGHT TO AVOID

THROUGH THE ADOPTION OF NEPA AND

CAA REQUIREMENTS ............... cc ceeceeeseseeeeeees 13

A. Congress intended that the FMCSA fully

assess the local impacts of its regulations

under NEPA and mitigate or find alterna-

tives with less severe impacts .................... 14

B. Congress required that the impacts of the

FMCSA’s regulations be fully analyzed

pursuant to the Clean Air Act..................... 19

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TABLE OF AUTHORITIES

Page

CASES:

Public Citizen v. Department of Transp., 316 F.3d

EE 21

STATUTES & REGULATIONS

Cal. Health & Safety Code §40410...0..........0.ccccccccccceeeeeeees 6

Cal. Health & Safety Code §40925...0.0........0.cccccccccccceeeeeeees 8

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

EC 1

42 U.S.C. $7401................ Eee 1,5, 19

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Department of Transportation and Related Agen-

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

87, $350, 115 Stat. 833, 864-68 (2001) ......0......... eee. 13

Interstate Commerce Commission Termination Act

of 1995, Pub. L. No. 104-88, Tit. I, §101, 109 Stat.

804 (49 U.S.C. 1309 et seg.) 49 U.S.C. §13902(c).......... 13

iv

TABLE OF AUTHORITIES — Continued

Page

National Environmental Policy Act of 1969

42 U.S.C. §4321 et seq.:

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40 C.F.R.:

Pt. 93

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MISCELLANEOUS:

67 Fed. Reg. 12,702 (Mar. 19, 2002).....................ccceeeeeeeeeees 2

67 Fed. Reg. 12,758 (Mar. 19, 2002)........................00:0eeeeee0 2

67 Fed. Reg. 12,776 (Mar. 19, 2002).......................:ceeeeeeeeees 2

(Report No. SRO2-04-01) Critical Review of “Safety

Oversight For Mexico-Domiciled Commercial

Motor Carriers, Final Programmatid Environ-

mental Assessment,” prepared by John A. Volpe,

Transportation Systems Center, January 2002,

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1

INTEREST OF AMICI CURIAE

The South Coast Air Quality Management District

(“SCAQMD”), City of Los Angeles, Honorable Mary Bono,

Congresswoman, 45th District, California, and Honorable

Elton Gallegly, Congressman, 24th District, California

(“Amici”) respectfully submit this brief in accordance with

Supreme Court Rule 37.3.' SCAQMD is the regional air

pollution control agency responsible for the South Coast

Air Basin (“Basin”), which encompasses the greater Los

Angeles region. The City of Los Angeles is a municipal

corporation located within the Basin. Congresswoman

Bono is the congressional representative of the 45th

District, which is located in Riverside County and encom-

passes areas within the Basin and in the neighboring

Coachella Valley. Congressman Gallegly is the congres-

sional representative of the 24th District. The 24th Cali-

fornia Congressional District includes portions of Santa

Barbara and Ventura Counties, bordering the Basin to the

North. Both Ventura County and Coachella Valley are

impacted by emissions from the Basin. The Federal Clean

Air Act (“CAA”), 42 U.S.C. §§7401 to 7671q, establishes a

regulatory scheme for air pollution control that makes

states primarily responsible for the control of air pollution

within their jurisdictions. 42 U.S.C. §7401. However,

Congress specifically reserved many mobile sources for

federal regulation. Diesel trucks, subject to the Federal

* The parties consented in writing to the filing of this brief.

Counsel for a party did not author this brief in whole or in part. No

person or entity, other than the Amici Curiae, its members, or its

counsel made a monetary contribution to the preparation and submis-

sion of this brief.

2

Motor Carrier Safety Administration’s (“FMCSA”) regula-

tions at issue in this case, are one such federal source.

Trucks contribute significantly to air pollution within the

nonattainment area under the SCAQMD’s jurisdiction.

The significant emissions caused by the additional truck

traffic allowed by FMCSA regulations are required to be

fully disclosed, analyzed and offset where possible in order

to achieve clean air for the citizens of Southern California

and to comply with federal law.

7

SUMMARY OF ARGUMENT

In March 2002, FMCSA issued three sets of Interim

Final Rules permitting entry of Mexico-domiciled trucks

into this country for operation throughout the United

States.” FMCSA was required to complete an environ-

mental review pursuant to the National Environmental

Policy Act (“NEPA”), as well as a conformity analysis

pursuant to the CAA prior to the adoption of these regula-

tions. However, instead of completing a thorough analysis,

FMCSA presented a cursory environmental assessment for

two of the regulations and engaged in no analysis for the

third. FMCSA certified a Finding of No Significant Impact

(“FONSI”) based on it’s conclusion that “the FMCSA is

* These rules are: (1) Application by Certain Mexico-Domiciled

Motor Carriers to Operate Beyond United States Municipalities and

Commercial Zones on the United States-Mexico Border, 67 Fed. Reg.

12,702 (Mar. 19, 2002); (2) Safety Monitoring System and Compliance

Initiative for Mexico-Domiciled Motor Carriers Operating in the United

States, 67 Fed. Reg. 12,758 (Mar. 19, 2002); and (3) Certification of

Safety Auditors, Safety Investigators, and Safety Inspectors, 67 Fed.

Reg. 12,776 (Mar. 19, 2002).

3

statutorily precluded from considering environmental

issues in deciding whether to grant applications to provide

CMC transportation in interstate or foreign commerce.”

U.S. Department of Transportation, Federal Motor Carrier

Safety Administration, Safety Oversight for Mexico-

Domiciled Commercial Motor Carriers, Final Program-

matic Environmental Assessment, January 2002, herein-

after referred to as “EA,” J.A. 36 at 52. Further, FMCSA

made no attempt to complete a conformity analysis, which

would have determined whether their actions would cause

or contribute to any new violation of any standard, in-

crease the frequency or severity of any existing violation,

or delay timely attainment of any standard or any re-

quired interim emissions reductions in a nonattainment

area. 42 U.S.C. §7506(c)(1)(B). Petitioners do not address

the adequacy of FMCSA’s actions in their brief. Instead,

Petitioners attempt to focus the Court’s attention on the

President’s actions in issuing an order regarding the same

sources regulated by the FMCSA, stating that Respon-

dents want FMCSA to analyze the impacts of the Presi-

dent’s actions. Petitioners’ Brief 19.

Presidential action does not relieve FMCSA of its

responsibilities. FMSCA must recognize that its regula-

tions have impacts that are independent of the President’s

actions and are required to complete the NEPA process

and perform a conformity analysis as Congress mandates.

The rules adopted by FMSCA will determine which trucks

and, thus how many trucks, will be allowed to enter the

United States. The emissions from these trucks will have a

significant impact on the Basin and its residents. The

Basin is designated an “extreme nonattainment area” for

ozone, pursuant to the Federal Clean Air Act. Any emis-

sions increase in excess of 55 pounds per day of NOx is

4

“significant” for the Basin, and it would only take eight

additional trucks to exceed the significance threshold.

An independent researcher hired for Respondents

estimates that there could be 50 tons of NOx per day

representing thousands of additional trucks traveling

through the Basin due to the adoption of the FMCSA

rules. See (Report No. SR02-04-01) Critical Review of

“Safety Oversight For Mexico-Domiciled Commercial

Motor Carriers, Final Programmatic Environmental

Assessment,” prepared by John A. Volpe, Transportation

Systems Center, January 2002, April 16, 2002, Sierra

Research, Inc., hereinafter “Sierra Research Report,” J.A.

307 at 347. The health and welfare of millions of Basin

residents will clearly be adversely affected by the adoption

of the rules by FMCSA. The agency, at a minimum, should

be required to fully analyze and disclose the impacts of its

actions, and select less polluting alternatives or mitiga-

tion, as required by NEPA and the CAA.

«

ARGUMENT

I. FMCSA’°S RULEMAKING’ SIGNIFICANTLY

IMPACTS THE SOUTH COAST AIR BASIN

In March 2002, FMCSA issued three sets of Interim

Final Rules permitting entry of Mexico-domiciled trucks

into this country for operation throughout the United

States. These rules allow Mexican-domiciled truck opera-

tors, who previously could not receive a certificate and

operate in the United States, to apply for a certificate of

authority to operate their trucks within the United States.

These rules also establish a safety monitoring program for

the Mexican trucks, whereby the certificates may be

5

revoked. J.A. 56-72. Trucks emit a variety of air pollutants

including oxides of nitrogen (“NOx”), particulate matter

(“PM10”), volatile organic compounds (“VOC”) and toxic

air contaminants. J.A. 314, 451. NOx and VOC react in

the presence of sunlight to form ozone. J.A. 317. Ozone

causes serious health effects, including inflammation of

lung tissues, temporary reduction in lung capacity, aggra-

vation of asthma, and diminishment of the immune

system making the body more susceptible to respiratory

illnesses. South Coast Air Quality Management District,

2003 Air Quality Management Plan’, hereinafter “AQMP”

at 2-8; Sierra Research Report, J.A. 317. Elevated ambient

fine particulate matter (PM10 and PM2.5) contributes to an

increase in mortality rates, respiratory infections, number

and severity of asthma attacks, and the number of hospital

admissions. In recent years, some studies have reported an

association between long-term exposure to air pollution

dominated by fine particles and increased mortality, reduc-

tion in life span, and an increased mortality from lung

cancer. Recent studies also show lung function growth in

children is reduced with long-term exposure to particulate

matter. AQMP at 2-14; Sierra Research Report, /d.

The Federal Clean Air Act establishes a regulatory

scheme for the prevention of air pollution in which the

states have the primary responsibility of assuring the air

quality for areas within their jurisdiction. CAA §101, 42

U.S.C. §7401. The states accomplish this by meeting

national ambient air quality standards (“NAAQS”) estab-

lished by the United States Environmental Protection

* The AQMP is an official publication issued by the SCAQMD. This

document is available at http//www.aqmd.gov/aqmp/AQMD03AQMP htm.

6

Agency (“EPA”). Within each state, or over the area of

several states, EPA has established air quality control

regions. CAA §107, 42 U.S.C. §7407. California has several

air pollution control regions, and the SCAQMD is the

regional air pollution control agency for the Basin includ-

ing the nondesert portions of Los Angeles, San Bernardino

and Riverside Counties and Orange County. Cal. Health &

Safety Code §40410.

The Clean Air Act requires the states with areas that

do not meet the NAAQS, or are “in nonattainment,” to

submit plans like the AQMP to bring the areas into at-

tainment by a certain date. The plans contain measures to

control specific sources, thereby reducing air pollution.

CAA §§109-110, 42 U.S.C. §§7409-10. NAAQS have been

established for, among other pollutants, ozone and particu-

lates.

The Basin, with a population of approximately 16

million people, is the single most heavily impacted area in

the country by the criteria pollutant ozone. In fact, the

Basin is designated as “extreme nonattainment” of

NAAQS for ozone. J.A. 238, 319-20. Congress established

categories of nonattainment for each pollutant based on

the severity of the pollution levels of an area. For ozone

the categories are: marginal, moderate, serious, severe and

extreme. CAA §181(a), 42 U.S.C. §751l(a). The Basin is

also in the classification of “serious” for nonattainment for

particulate matter (PM). J.A. 320-21. The Basin is re-

quired to demonstrate attainment of the federal PM10

standard by 2006 and the federal 1-hour ozone standard

by 2010. CAA §§181, 183, 42 U.S.C. §§7511, 7513. Addi-

tionally, in 1997 EPA established new NAAQS for PM2.5

and an 8-hour standard for ozone. Significant improve-

ments in air quality will be necessary to bring the Basin

ili

into attainment by these federal deadlines, particularly for

ozone. The AQMP for the Basin sets forth a comprehensive

federal, state and local program containing measures to

control specific sources. The few years remaining to meet

attainment deadlines afford little margin for error in

implementing a comprehensive control strategy. Proper

FMCSA disclosure and analysis and mitigation, where

feasible, are critical to the Basin’s ability to meet feder-

ally-mandated timelines.

The Basin’s severe air pollution problem results from

the emissions from the nation’s second largest urban area,

combined with meteorological conditions that are adverse

to the dispersion of those emissions. The average wind

speed for Los Angeles is the lowest of the nation’s ten

largest urban areas. Additionally, the maximum mixing

height (an index of how well pollutants can be dispersed

vertically in the atmosphere) in Southern California

averages the lowest in the U.S. during the summer.

Finally, the abundant sunshine drives the photochemical

reactions that form pollutants such as ozone. AQMP 2-1.

Since the end of World War II, the Basin has experi-

exced faster population growth than the rest of the nation.

Growth has slowed somewhat, however the region's

population is expected to increase significantly through

2020. AQMP at 1-4. Ozone levels have been reduced by

half over the last 30 years. AQMP at 1-6. Although per-

capita emissions have been brought down substantially in

the Basin through 50 years of implementing pollution

controls, increases in the population over that time have

made overall emission reductions more difficult. Increases

in the number of sources, particularly those growing

proportionally to population, reduce the potential air

quality benefits of new controls. The net result is that,

8

unless significant steps are taken to further control air

pollution, growth will overwhelm much of the improve-

ments expected from the existing control program. AQMP

at 1-4. Additional sources, beyond those predicted in the

AQMP, such as the uncontrolled trucks certified to enter

the United States by the FMCSA rules, interfere with this

region’s ability to reach attainment and thus clean air for

all the Basin’s residents.

In accordance with CAA §110 and the California Clean

Air Act, Cal. Health & Safety Code §40925, requiring

triennial plan updates, and in order to fulfill the

SCAQMD’s commitment to update transportation emis-

sion budgets based on the latest approved motor vehicle

emissions model and planning assumptions, the SCAQMD

revised its AQMP in 2003. AQMP at 1-13. The AQMP

contains updated emissions inventories, new modeling and

modeling assumptions, and state, local and federal control

measures. The AQMP was compiled with the efforts of the

EPA, the California Air Resources Board (“CARB”), the

SCAQMD, Southern California Association of Govern-

ments, environmental and citizens groups, industry and

various other state and local governmental agencies.

AQMP ES-1, ES-3. The AQMP establishes baseline emis-

sions and seeks to reduce 233 tons per day of NOx emis-

sions by the ozone attainment year, 2010. At the end of the

planning process, even with the input of the dozens of

entities involved in its development, there remains 181

tons per day of necessary NOx emissions for which specific

control measure could not be identified, so-called “black

box” emissions. While CARB and the SCAQMD adopted

commitments to reduce the emissions and define control

measures by the next AQMP revision, a tremendous

amount of work remains in actually achieving these

9

reductions. AQMP at 4-32. These efforts are jeopardized by

FMCSA’s actions and its failure to conduct any substan-

tive environmental assessment.

For some areas, such as the Basin, mobile sources

contribute heavily to air pollution. However, Congress

reserved authority to regulate mobile sources such as

automobiles, trucks, locomotives, aircraft and marine

vessels, for the federal government either exclusively or

jointly with the states. See §§209 and 233 of the CAA, 42

U.S.C. §§7543, 7573. According to the SCAQMD’s 2003

AQMP, mobile source emissions account for 89% of the

Basin-wide NOx emissions, with on-road sources (cars,

trucks and buses) accounting for 63%. By 2010, emissions

from sources under SCAQMD authority such as refineries,

factories, power plants and gas stations will account for

only 11% of the total NOx emissions, sources under CARB

authority, 56%, and those under exclusive EPA jurisdic-

tion, 33%. AQMP 3-14 to 3-17. To ultimately achieve

ambient air quality standards and demonstrate attain-

ment, additional long-term emissions reductions will be

necessary from all sources including those primarily under

the jurisdiction of CARB (e.g., on-road motor vehicles, off-

road equipment, and consumer products) and EPA (e.g.,

out of state vehicles, aircraft, ships, trains, and pre-

empted nonroad equipment)’. AQMP 1-1. Without an

adequate and fair-share level of reductions from all

* As explained in the Senate Report to the 1990 Amendments to

the CAA, “[bjecause States have limited resources and many additional

responsibilities, both the State and Federal Government should work

together to assure implementation of programs that improve air

quality.” 1990 U.S.C.C.A.N. at 3389.

10

sources, the emissions reduction burden would unfairly be

shifted to stationary sources that have otherwise done

their part for clean air. AQMP 4-2. .

The SCAQMD has also established significance

criteria pursuant to the California Environmental Quality

Act (CEQA) for emissions of criteria pollutants or their

precursors. NOx emissions are significant if they exceed

55 pounds per day, and PM10 emissions are significant at

150 pounds per day. The standards were derived from the

major source thresholds established by Title I of the CAA.

Any stationary source that contributes more than 10 tons

per day of NOx is a major source. CAA §182(e); 42 U.S.C.

§751la(e). Ten tons per year is equivalent to 55 pounds per

day. These standards would be used for NEPA purposes

also. Taking the emissions rate used by FMCSA for a truck

(J.A. 146, 399) and assuming it travels the length of the

Basin, a distance of approximately 215 miles; it would

take less than 8 additional trucks to exceed the NOx

significance threshold.

However, based on the studies conducted by Sierra Re-

search, the actual make-up of the Mexican fleet has an

emissions rate that is significantly higher than that used by

FMCSA. According to the Sierra Research report, Mexican

trucks can easily contribute 50 tons per day of NOx. J.A.

347. In comparison the entire stationary and area source

inventory (those sources within the jurisdiction of the

SCAQMD) for the Basin is only 89 tons of NOx per day.

AQMP at 3-12. This inventory is made up of thousands of

sources ranging from refineries and power plants to gas

stations, drycleaners and house paint. Pursuant to the CAA

all major stationary sources, and in accordance with

SCAQMD rules, all stationary sources are subject to

stringent control requirements including permitting, best

11

available control technology, offset and reasonably avail-

able control technology. CAA §§165, 182(b)(2), 182(e)(1); 42

U.S.C. §§7475, 751la(b)(2), (e)(1). Therefore, in order to

offset the increased emissions from these trucks, the

SCAQMD would be forced to shut down more than half of

the already stringently controlled stationary sources in the

Basin. Since this clearly is not possible, the emissions from

the Mexican trucks must be analyzed and reduced in some

other manner. While the FMCSA concludes that small

increases in the number of trucks traveling through the

United States is insignificant, for the Basin, a handful of

additional trucks significantly impacts air quality, possibly

delaying attainment of healthful standards for the area

and seriously impacting the health of our residents.

FMCSA must recognize and address the actual impacts in

a comprehensive analysis.

II. FMCSA’S RULEMAKING HAD SIGNIFICANCE

INDEPENDENT FROM THE PRESIDENTIAL

ORDER LIFTING THE MORATORIUM ON

MEXICAN TRUCKS

Amici submit that FMCSA’s decision to issue a FONSI

and not complete a conformity analysis was in error. While

Petitioners concede that the FMCSA rulemakings were

subject to review under NEPA, Petitioners Brief 10,

Petitioners argue that “any environmental consequences of

allowing cross-border operations by Mexican trucks are

not ‘effects’ of FMCSA’s truck-safety rulemakings.” Peti-

tioners Brief 24. Petitioners further state: “FMCSA recog-

nized that the proposed rules would have ‘no practical

impact’ until the occurrence of the ‘intervening event’ of

the President’s modification of the trade moratorium.” But

they also acknowledge that “the President’s anticipated

12

lifting of that moratorium would have no effect until

FMCA promulgated the required regulations.” Petitioners

Brief 10-11. Yet, even though they argue that the effect of

one action does not occur until the other action takes

place, Petitioners summarily conclude that the increase in

the number of trips by Mexican trucks “would be the

result of the modification of the moratorium by the Presi-

dent, not FMCSA’s implementation of the proposed safety

regulations.” Petitioners Brief 11.

However, the decision to admit any given foreign

carrier depends entirely on that carrier’s compliance with

FMCSA regulations. FMCSA is the permitting agency

responsible for regulating, inspecting, and then admitting

qualifying foreign trucks. In determining which carriers

are admitted, FMCSA’s regulations shape every aspect of

the foreign truck fleet that operates in this country,

including the number of trucks, the safety of those trucks,

and their emissions. “The FMCSA works to ensure safety

in CMC operations by developing and enforcing safety

regulations, targeting high-risk carriers and CMV drivers,

improving safety information systems and CMV technolo-

gies, strengthening CMV equipment and operating stan-

dards, and increasing safety awareness.” J.A. 51. As the

permitting agency, FMCSA is continuously responsible for

the characteristics of the fleet of Mexican carriers in this

country. It is this determination of the size and make-up of

the Mexico-domiciled fleet that is at issue, not the inde-

pendent actions of the President.

Petitioners argue that this is a case about the Presi-

dent’s foreign policy power. In fact, lifting the moratorium

was not an act of the President’s constitutional foreign

policy power; rather, it was an exercise of power that

Congress specifically allowed the President to exercise.

13

Under federal law, the President was allowed unilaterally

to lift the congressionally imposed moratorium, Interstate

Commerce Commission Termination Act of 1995, Pub. L.

No. 104-88, Tit. I, §101, 109 Stat. 804 (49 U.S.C. §1309 et

seq.) 49 U.S.C. §13902(c), but Congress still maintains the

ability to impose conditions on cross-border trucking. In

fact, Congress did. In 2001, Congress passed the Depart-

ment of Transportation and Related Agencies Appropria-

tions Act, 2002, which conditioned funding the processing

of permit applications from Mexican carriers on the

FMCSA’'s promulgation of new safety standards. Depart-

ment of Trans. and Related Agencies Appropriations Act,

2002, Pub. L. No. 107-87, §350, 115 Stat. 833, 864-68

(2001). This confirms the independent significance of the

FMCSA rule adoptions.

Because the President’s actions to implement foreign

policy and foreign trade decisions is not the issue, holding

that FMCSA must comply with federal environmental

requirements will not impair that power in any way. Once

the President exercises his authority to lift the barriers, the

trucks are governed by FMCSA regulation. Those regula-

tions have effects and those effects must be analyzed.

III. FMCSA’S ACTIONS ARE WITHIN THE CATE-

GORY OF FEDERAL ACTIONS CAUSING IM-

PACTS TO STATE AND LOCAL INTERESTS THAT

CONGRESS SOUGHT TO AVOID THROUGH THE

ADOPTION OF NEPA AND CAA REQUIREMENTS

The March 2002 Interim Final Rules adopted by

FMCSA permitting entry of Mexico-domiciled trucks into

this country for operation throughout the United States

were subject to the requirements of NEPA and the CAA.

FMCSA recognized that it must comply with NEPA and,

prior to the issuance of these regulations, began the

14

process of completing a preliminary environmental as-

sessment (“PEA”). J.A. 36. However, FMCSA failed to

completely analyze the environmental impacts caused by

its rule adoption. FMCSA narrowly focused the environ-

mental assessment. “This PEA will focus only on the

potential environmental impact and safety operation

implications of the proposed actions and alternatives

based on: (1) the change in the number of Mexico-

domiciled CMC receiving certificates of operating author-

ity pursuant to the revised application forms (i.e., OP-2

and OP-1(MX) Forms), and the associated change in the

number of Mexican CMV operating in the United States;

and (2) the change in the number, method, and frequency

of inspections conducted on Mexican CMV operating in the

United States.” J.A. 48. Because of this limited focus and a

number of unsupported assumptions, such as assuming no

change in the total number of inspections performed,

130,000 of 400,000 Mexican trucks manufactured after

1994, and including no calculations of trucks over U.S.

weight limit of 80,000 pounds, J.A. 203-205, FMCSA found

no significant impacts. Thus, FMCSA issued a Finding of

No Significant Impacts for two of the regulations, and

found it was entirely exempt on the third. FMCSA did not

ever address the need to make a conformity finding for the

Basin pursuant to the CAA. These actions do not comply

with either NEPA or the CAA.

A. Congress intended that the FMCSA fully

assess the local impacts of its regulations

under NEPA and mitigate or find alterna-

tives with less severe impacts

-NEPA requires that “to the fullest extent possible ...

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

15

. major Federal actions significantly affecting the

quality of the human environment, a detailed statement”

with respect to “the environmental impact of the proposed

action, ... alternatives to the proposed action,” and other

environmental issues. 42 U.S.C. §4332. Moreover, “to the

fullest extent possible ... policies, regulations, and public

laws of the United States shall be interpreted and admin-

istered in accordance with the policies set forth in” NEPA.

42 U.S.C. §4332. The NEPA process determines whether

an action is one that “significantly” affects the environ-

ment, including an examination of direct effects and

indirect effects that are “reasonably foreseeable” as well as

“cumulative.” 40 C.F.R. §1508.8. Significant effects include

contextual effects such as ecological, aesthetic, historical,

cultural, economic, social and health impacts as well as an

intensity examination of direct, indirect and cumulative

impacts. 40 C.F.R. §1508.27a. NEPA also requires that

regional and local areas be evaluated for the proposed

action’s impacts upon them. /d. The first step in this NEPA

process was the Environmental Assessment (“EA”). An EA

is required to provide “sufficient evidence and analysis” to

enable an agency to determine whether to prepare a full

Environmental Impact Statement (EIS) or a FONSI, and

to aid the agency in complying with NEPA when no EIS is

prepared or facilitate preparation of an EIS when one is

necessary. 40 C.F.R. §1508.9. The EA shall also include

“brief discussions” describing the need of the proposed

action, alternatives to the action, the environmental

impacts of the proposal and its alternatives and a list of

the agencies and persons consulted. Jd.

The fact that the FMCSA rules were subject to NEPA

is undisputed. FMCSA prepared an EA and a FONSI. J.A.

34-35, 36-231. It is the adequacy of the document that is in

16

dispute. As discussed supra at part II, FMCSA’s actions in

adopting the three rules had independent impacts.

FMCSA failed to comply with the NEPA process when it

‘concluded that the impact need not be analyzed. These

impacts are significant in the Basin, and, therefore,

FMCSA should have prepared an EIS.

The EA failed to account for emissions increases

beyond those created by idling at the inspection stations.

J.A. 48. The EA did not analyze toxic emissions. FMCSA

erroneously concluded there would be no impacts from its

rules beyond the year 2002, yet the safety inspection and

certification programs do not end in 2002. As stated

previously, FMCSA used unsupported assumptions to

obtain a finding of no significance. J.A. 203-205.

FMCSA utilized models based on U.S. vehicles, not

Mexican vehicles. J.A. 205. FMCSA, thus, ignored existing

and future differences between U.S. and Mexican trucks in

their emissions estimations and standards. J.A. 332-335,

391-395. A report prepared for the state of California by

Environ (“Environ”), J.A. 387-413, and the Sierra Re-

search report both concluded that the average Mexican

truck is older than the average U.S. truck. This means

that the average Mexican truck will have more emissions

that the U.S. truck, due to the deterioration of the emis-

sions control system and the difference in standards over

time. J.A. 334-335; 360; 394-395. The fleet of Mexican

trucks has also not been subject to the same emissions

standards as the U.S. fleet, resulting in higher emissions

from Mexican trucks compared to U.S. trucks of the same

model year. J.A. 332-334 and 391-394. Additional stricter

standards apply to U.S. trucks starting in 2007. J.A. 315.

Sierra Research estimates that in 2010, the average

Mexico-domiciled truck will emit between 2-2.4 times more

17

NOx, between 2.2-3 times more PM2.5, between 2.2-3

times more PM10 and between 2.1-2.3 times more VOC

than the average U.S. truck due to age and emissions

differences. J.A. 337.

As previously noted, the SCAQMD updated its AQMP

in 2003 to incorporate new scientific data in the form of

updated emissions inventories, air quality modeling tools

and control measures. It is important to note that no

information was provided to any of the agencies on the

potential increase in emissions due to additional Mexican-

domiciled trucks entering the Basin. Thus, these emis-

sions were not included in baseline emissions, growth

projections or necessary future reductions. Had FMCSA

adequately assessed the impacts of its regulation as

required by NEPA, this information would have been

available to the SCAQMD. An important purpose of NEPA

is to provide “advice and information useful in restoring,

maintaining, and enhancing the quality of the environ-

ment” to states, counties, municipalities, institutions and

individuals. 42 U.S.C. §4332(G). The document prepared

by FMCSA fails to meet this purpose, and yet it is this

informational purpose that is essential to the SCAQMD’s

preparation of an adequate air quality control plan. NEPA

requires FMCSA to provide the information on the nega-

tive impacts the Mexican trucks will have on the Basin’s

air quality.

Perhaps the most important failure of the EA is its

lack of a localized impacts analysis. FMCSA failed to

determine whether its rules would have a significant

impact based on the particular circumstances of} this

extreme nonattainment area. The Environ study estimates

that Mexico-domiciled trucks will produce 40% more NOx

and 100% more PM10 in 2010 than California trucks using

a

18

different models. J.A. 400. These estimates were derived

utilizing the best scientific data currently available and

underscore the importance of a full EIS by FMCSA to

determine the true impacts by the emissions from the

Mexican trucks on air quality in the Basin and other

impacted areas.

The Mexican trucks are also not subject to the CARB

and EPA consent decrees requiring U.S. trucks to be

retrofitted to correct a device that is designed to circum-

vent emissions standards, which EPA expects will reduce

emissions of U.S. trucks built between 1993 and 1998 by

36%, and to meet the national standard earlier in Califor-

nia. J.A. 397. Finally, the Mexican fleet will also purchase

most of its diesel fuel in Mexico that is not as clean as the

low sulfur diesel fuel currently required by California,

adding to significant particulate emissions in the Basin.

J.A. 380, 475.

Even if we were to believe FMCSA’s unfounded

assumptions that Mexican trucks will merely replace U.S.

trucks on the roads rather than increasing the total

number of trucks, significant impacts will be realized for

the above-stated reasons, of lower emissions standards,

dirtier diesel fuel, older trucks, and lack of retrofitting

devices. Sierra Research found that replacing 50% of U.S.

trucks with Mexican trucks in the Basin would result in

an increase of 50 tons per day of NOx emissions and 1.2

tons per day of PM10 emissions in the year 2010 even

without an increase in traffic. J.A. 347. According to

Federal Highway Administration studies, the Basin lies on

one of the major U.S./Mexico truck traffic corridors where

the amount of freight carried by Mexican trucks may

substantially increase. Thus, even a replacement of the

19

U.S. fleet will exacerbate the previously mentioned im-

pacts on air quality. J.A. 322-25.

Regardless of whether the Mexican fleet replaces U.S.

trucks or adds to the truck traffic in the Basin or both,

significant air quality impacts will be realized in an area

that already is in extreme nonattainment and is having

difficulty meeting federal standards of air quality. There-

fore, a complete EIS on the impacts of the Mexico-

domiciled trucks to the environment by FMCSA with the

requisite alternatives and mitigation is necessary in order

to assure that the Basin and other affected areas meet

federal standards for air quality. The EA prepared by

FMCSA is inadequate and does not meet Congressional

intent that federal actions assure the widest range of

beneficial uses of the environment without degradation,

risk to health or safety, or other undesirable and unin-

tended consequences. 42 U.S.C. §4331.

B. Congress required that the impacts of the

FMCSA’s regulations be fully analyzed pur-

suant to the Clean Air Act

The Clean Air Act creates a partnership between

federal, state, and local governments 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. Congress

recognized that the states couldn’t meet these standards

alone. Accordingly, the CAA prohibits the federal govern-

ment from approving or supporting any activity that does

not conform to a plan. 42 U.S.C. §7506(c)(1). This “confor-

mity” provision insures that the federal government does

not interfere with local efforts to meet the demanding

federal and state air quality requirements. The statutory

20

language of the CAA is sweeping: “[n]o department,

agency or instrumentality of the Federal Government

shall engage in, support in any way or provide financial

assistance for, license or permit, or approve, any activity

which does not conform to an implementation plan... .”

Id. All federal agencies are required to affirmatively show

that their actions will not cause or contribute to any new

violation of any standard, increase the frequency or severity

of any existing violation, or delay timely attainment of any

standard or any required interim emissions reductions in a

nonattainment area. 42 U.S.C. §7506(c)(1)(B).

The EPA’s implementing regulations require federal

agencies to issue a conformity determination “for each

pollutant where the total of direct and indirect emissions

in a nonattainment or maintenance area caused by a

Federal action” would equal or exceed specified levels. 40

C.F.R. §93.153(b). As the Basin is classified as an extreme

ozone nonattainment area and a severe PM10 nonattain-

ment area, the applicable levels for increased emissions in

the Basin are 10 tons per year of NOx (the same threshold

as for major sources), 40 C.F.R. §93.153(b)(1), and 70 tons

per year of PM10. 40 C.F.R. §93.153(b)(2). Again, this is

equal to 55 pounds per day of NOx, which is exceeded by a

mere 8 additional trucks. The influx of Mexican trucks due

to the FMSCA regulations, however, will lead to increased

emissions in the Basin that far exceed the threshold levels.

According to the Sierra Research study, the regulations

would result in an increase in NOx emissions by 2010 of

50 tons per day in the Basin. J.A. 347. SCAQMD’s current

AQMP makes no provisions for these increased emissions.

FMSCA has failed to clearly demonstrate that its

actions will not lead to an increase in Basin emissions

above these levels. To the contrary, as the Court of Appeals

21

held, the EA on which FMSCA relies is “inadequate to

comply with the CAA” as it lacks any consideration of the

regional impact that the regulations will have on the

Basin or other nonattainment areas. 316 F.3d at 1030; JA

36-231. Moreover, the Court of Appeals correctly found

that FMSCA “systematically underestimated the emis-

sions that would result from its regulations.” 316 F.3d at

1030. The promulgation and implementation of the regula-

tions will result in Mexican-domiciled trucks being allowed

to travel through the Basin. J.A. 49-50, 58. Under EPA

rules, the increased emissions in the Basin resulting from

this influx of Mexican trucks are indirect emissions caused

by the FMCSA’s actions that must be taken into considera-

tion in a proper conformity determination. EPA defines

“indirect emissions” as those emissions that: “(1) are

caused by the Federal action, but may occur later in time

and/or may be further removed in distance for the action

itself but are still reasonably foreseeable; and (2) the

federal agency can practicably control and will maintain

control over due to a continuing programming responsibil-

ity of the Federal agency.” 40 C.F.R §93.152. While Peti-

tioners do not dispute that the federal action is the cause

of the increased truck traffic through the Basin’, they

* According to the EPA rules, emissions are “caused by” Federal

actions if they “would not otherwise occur in the absence of the Federal

action.” 40 C.F.R. §93.152. Federal action is defined as “any activity

engaged in by a department, agency, or instrumentality of the Federal

government, or any activity that a department, agency or instrumental-

ity of the Federal government supports in any way, provides financial

assistance for, licenses, permits, or approves ... Where the Federal

action is a permit, license, or other approval for some aspect of a non-

Federal undertaking, the relevant activity is the part, portion, or phase

of the non-Federal undertaking that requires the Federal permit,

license, or approval.” Jd.

22

erroneously argue that the increased emissions are not

within the “continuing program responsibility of the

agency.” Petitioners Brief 45. According to the EPA,

“[w]here an agency, in performing its normal program

responsibilities, takes actions itself or imposes conditions

that result in air pollutant emissions by a non-Federal

entity taking subsequent actions, such emissions are

covered by the meaning of continuing program responsibil-

ity.” 40 C.F.R §93.152. By promulgating and implementing

the regulations, the FMSCA has, as part of its normal

program responsibilities, imposed conditions that make it

possible for Mexican-domiciled trucks to travel through

the Basin. Not only will no Mexican trucks be allowed into

the Basin if the FMSCA does not promulgate the rules, but

also each Mexican-domiciled truck that enters the Basin

will do so only because it has complied with FMCSA’s

application and safety regulations and has thereby been

issued a certificate of authority by the agency in accor-

dance with the regulations. Moreover, any change that

FMSCA makes to the regulations has the potential to

change the number and type of trucks admitted into the

United States. Thus, the amount of emissions from Mexi-

can trucks traveling through the Basin will remain under

the FMCSA’s practicable control and part of its continuing

program responsibility.

Allowing the regulations to be implemented without

requiring a conformity analysis of the impact of these

Mexican trucks on SCAQMD’s air quality plan will have a

tremendous impact on the ability of the Basin to meet

state and federal air quality standards and will have

negai:ve isapacts on the health of millions of people.

¢

—. -

en et Ne Pa en

23

CONCLUSION

The judgment of the court of appeals should be up-

held.

Respectfully submitted,

FRANCES L. KEELER

Sr. Deputy District Counsel

Counsel of Record

SOUTH COAST AIR QUALITY

MANAGEMENT DISTRICT

21865 Copley Drive

Diamond Bar, CA 91765

Attorneys for Amici Curiae