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AN E-BULLETIN
LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
lii\@lii.law.cornell.edu
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The following decisions have just arrived via the LII's
direct Project HERMES feed from the Supreme Court.
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DEPARTMENT OF TRANSPORTATION V. PUBLICCITIZEN (03-358)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/03-358.ZS.html
Argued April 21, 2004 -- Decided June 7, 2004
Opinion author: Thomas
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The National Environmental Policy Act of 1969 (NEPA) requires
federal agencies to analyze the environmental impact of their
proposals and actions in an Environmental Impact Statement (EIS),
but Council of Environmental Quality (CEQ) regulations allow an
agency to prepare a more limited Environmental Assessment (EA) if
the agency's proposed action neither is categorically excluded from
the EIS production requirement nor would clearly require production of
an EIS. An agency that decides, pursuant to an EA, that no EIS is
required must issue a "finding of no significant impact" (FONSI). The
Clean Air Act (CAA) leaves States to develop "implementation
plans" to comply with national air quality standards mandated by the
Act, and requires federal agencies' actions to "conform" to those state
plans, 42 U.S.C. sect. 7506(c)(1). In 1982, Congress enacted a
moratorium, prohibiting, inter alia, Mexican motor carriers from obtaining
operating authority within the United States and authorizing the
President to lift the moratorium. In 2001, the President announced his
intention to lift the moratorium once new regulations were prepared to
grant operating authority to Mexican motor carriers. The Federal Motor
Carrier Safety Administration (FMCSA) published one proposed rule
addressing the application form for such carriers and another
addressing the establishment of a safety-inspection regime for carriers
receiving operating authority.Congress subsequently provided, in
sect. 350 of a DOT appropriations Act, that no funds appropriated
could be obligated or expended to review or process any Mexican
motor carrier's applications until FMCSA implemented specific
application and safety-monitoring requirements. Acting pursuant to
NEPA, FMCSA issued an EA for its proposed rules. The EA did not
consider the environmental impact that might be caused by the
increased presence of Mexican trucks in the United States, concluding
that any such impact would be an effect of the moratorium's
modification, not the regulations' implementation. Concluding that the
regulations' issuance would have no significant environmental impact,
FMCSA issued a FONSI. In subsequent interim rules, FMCSA
relied on the EA and FONSI to demonstrate compliance with NEPA,
and determined that any emissions increase from the regulations
would fall below the Environmental Protection Agency's (EPA)
threshold levels needed to trigger a conformity review under the
CAA. Before the moratorium was lifted, respondents sought judicial
review of the proposed rules, arguing that their promulgation violated
NEPA and the CAA. The Court of Appeals agreed, finding the EA
deficient because it did not consider the environmental impact of lifting
the moratorium, when that action was reasonably foreseeable at the
time FMCSA prepared the EA and directing FMCSA to prepare an
EIS and a full CAA conformity determination for the regulations.
Held: Because FMCSA lacks discretion to prevent cross-border
operations of Mexican motor carriers, neither NEPA nor the CAA
requires FMCSA to evaluate the environmental effects of such
operations.
Pp. 9-19.
(a) FMCSA did not violate NEPA or the relevant CEQ regulations.
Pp. 9-16.
(1) An agency's decision not to prepare an EIS can be set aside only
if it is arbitrary and capricious, see 5 U.S.C. sect. 706(2)(A).
Respondents argue that the issuance of a FONSI was arbitrary
and capricious because the EA did not take into account the
environmental effects of an increase in cross-border operations of
Mexican motor carriers. The relevant question, under NEPA, is
whether that increase, and the correlative release of emissions, is an
"effect," 40 CFR sect. 1508.8 of FMCSA's rules; if not, FMCSA's
failure to address these effects in the EA did not violate NEPA, and
the FONSI's issuance cannot be arbitrary and capricious. Pp. 9-10.
(2) Respondents have forfeited any objection to the EA on the
ground that it did not adequately discuss potential alternatives to the
proposed action because respondents never identified in their
comments to the rules any alternatives beyond those the EA
evaluated. Pp. 10-11.
(3) Respondents argue that the EA must take the increased cross-
border operations' environmental effects into account because
sect. 350's expenditure bar makes it impossible for any Mexican truck
to operate in the United States until the regulations are issued, and
hence the trucks' entry is a "reasonably foreseeable" indirect effect of
the issuance of the regulations. 40 CFR sect. 1508.8. Critically, that
argument overlooks FMCSA's inability to countermand the
President's lifting of the moratorium or otherwise categorically to
exclude Mexican trucks from operating in the United States. While
sect. 350 restricted FMCSA's ability to authorize such operations,
FMCSA remains subject to 49 U.S.C. sect. 13902(a)(1)'s mandate
that it register any motor carrier willing and able to comply with various
safety and financial responsibility rules. Only the moratorium
prevented it from doing so for Mexican trucks before 2001.
Respondents must rest on "but for" causation, where an agency's
action is considered a cause of an environmental effect even when the
agency has no authority to prevent the effect. However, "but for"
causation is insufficient to make an agency responsible for a particular
effect under NEPA and the relevant regulations. NEPA requires a
"reasonably close causal relationship" akin to proximate cause in tort
law. Metropolitan Edison Co. v. People Against Nuclear Energy, 460
U.S. 766, 774. Also, inherent in NEPA and its implementing
regulations is a "rule of reason," which ensures that agencies determine
whether and to what extent to prepare an EIS based on the
usefulness of any new potential information to the decisionmaking
process. The underlying policies behind NEPA and Congress' intent,
as informed by the "rule of reason," make clear that the causal
connection between the proposed regulations and the entry of
Mexican trucks is insufficient to make FMCSA responsible under
NEPA to consider t
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Bernie Cosell wrote:
---------------------------------------------------------------
AN E-BULLETIN
LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
lii\@lii.law.cornell.edu
---------------------------------------------------------------
The following decisions have just arrived via the LII's
direct Project HERMES feed from the Supreme Court.
=============================================================
DEPARTMENT OF TRANSPORTATION V. PUBLICCITIZEN (03-358)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/03-358.ZS.html
Argued April 21, 2004 -- Decided June 7, 2004
Opinion author: Thomas
=============================================================
Held: Because FMCSA lacks discretion to prevent cross-border
operations of Mexican motor carriers, neither NEPA nor the CAA
requires FMCSA to evaluate the environmental effects of such
operations.
FMCSA has no ability to
countermand the President's decision to lift the moratorium or to act
categorically to prevent Mexican carriers from registering and Mexican
trucks from entering the country; and once the regulations are
promulgated, FMCSA will not be able to regulate any aspect of
vehicle exhaust from those trucks. Pp. 17-19.
316 F.3d 1002, reversed and remanded.
NAFTA should have been thought out a little more, because this is just
stupid. Here we are with all our environmental regulations to help
ensure that the air we breath and the water we drink isn't full of
methyl-ethyl-killya, and yet we now have our doors open for Mexico,
which doesn't seem to care at all about how their residents live or how
much crap they dump in the Rio Grande or any other body of water, to
pollute just like they do in Mexico.
Perhaps a tax paid at the border can help pay for what it costs us to
deal with their pollution... but then that wouldn't be free trade, would
it. I don't blame the Court though, I blame a poor trade agreement
because this should have been resolved within the agreement, though
probably wasn't because the US knew Mexico would have to "borrow" money
to meet basic US standards.
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In article <h9ngc01roq3pvasid0vagcs4nfqqai7tce@4ax.com>,
Mukanil <mukanil@austin.rr.com> wrote:
Held: Because FMCSA lacks discretion to prevent cross-border
operations of Mexican motor carriers, neither NEPA nor the CAA
requires FMCSA to evaluate the environmental effects of such
operations.
NAFTA should have been thought out a little more, because this is just
stupid. Here we are with all our environmental regulations to help
ensure that the air we breath and the water we drink isn't full of
methyl-ethyl-killya, and yet we now have our doors open for Mexico,
which doesn't seem to care at all about how their residents live or how
much crap they dump in the Rio Grande or any other body of water, to
pollute just like they do in Mexico.
Where does it say that? Wouldn't Mexican trucks have to meet the same
standards as any other trucks?
Seth
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In article <h9ngc01roq3pvasid0vagcs4nfqqai7tce@4ax.com>,
Mukanil <mukanil@austin.rr.com> wrote:
Held: Because FMCSA lacks discretion to prevent cross-border
operations of Mexican motor carriers, neither NEPA nor the CAA
requires FMCSA to evaluate the environmental effects of such
operations.
Where does it say that? Wouldn't Mexican trucks have to meet the
same
standards as any other trucks?
Aside from the fact that a far higher percentage of them fail
roadside safety checks, most of their trucks are much older than
ours and weren't built to the same emissions standards as newer ones
on either side of the border. It's much the same as with the '58
Chevy in my garage... It doesn't have a single anti-pollution device
on the engine (not even a PVC valve), and yet it's legal do drive in
any of the 50 states, as emissions laws aren't retroactive. I only
drive it a few miles a year, to and from local car shows, but
imagine what it would do to the air if everyone were driving one on
a daily basis. When you look at the number of miles driven by
commercial truckers and multiply them by the tens of thousands of
trucks crossing the border, it's obvious that there are going to be
some pollution problems that haven't been addressed yet.
Eliyahu
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In article <omcbd0pmitv668fiea0m4np48eogvmo4mm@4ax.com>,
Eliyahu Rooff <lrooff@hotmail.com> wrote:
Where does it say that? Wouldn't Mexican trucks have to meet the
same
Aside from the fact that a far higher percentage of them fail
roadside safety checks,
Presumably, that would have to be corrected before they can be driven
further, so that problem is corrected quickly.
most of their trucks are much older than
ours and weren't built to the same emissions standards as newer ones
on either side of the border. It's much the same as with the '58
Chevy in my garage... It doesn't have a single anti-pollution device
on the engine (not even a PVC valve), and yet it's legal do drive in
any of the 50 states, as emissions laws aren't retroactive. I only
drive it a few miles a year, to and from local car shows, but
imagine what it would do to the air if everyone were driving one on
a daily basis.
My guess is not much: they'd fall apart.
If they hadn't almost completely fallen apart by now, lots of people
_would_ still be driving them, and car shows wouldn't be interested.
Seth
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