United States Department of Transportation v. Public Citizen
In this case, Public Citizen challenges the decision to permit Mexico-domiciled trucks to cross into the United States and travel throughout the country, on the grounds that the federal government has not compiled with the environmental impact statement (EIS) requirements of the National Environmental Protection Act (NEPA) prior to finalizing that decision. The decision in question emerged from a complicated legal setting.
Trucks from foreign countries can only enter the country with permission, which DOT is instructed by statute to grant if the trucks comply with certain regulations. However, since 1982 a two-year moratorium against trucks from contiguous foreign countries entering the United States has been in place, renewed every two years by Presidential order. When President Clinton announced that the moratorium would not be renewed when it expired in 1996, Congress enacted the ICC Termination Act of 1995, which extended the moratorium until such time as the President expressly rescinded it for a valid statutory reason, including "obligations of the United States under a trade agreement." In 2001, an arbitral panel convened under NAFTA concluded that the moratorium violated NAFTA. Subsequently, President George W. Bush "announced his intent to comply [with this ruling] by modifying the moratorium, pursuant to his statutory authority, once FMCSA [was] ready to issue . . . regulations governing Mexico-domiciled [trucks] seeking United States operating authority." The DOT commenced rulemaking proceedings to promulgate safety and inspection regulations applicable to Mexico-domiciled trucks, and while the rulemaking was pending Congress passed an appropriations rider preventing DOT from expending funds to review or process any Mexican truck application until it had a system in place for training of safety compliance auditors and inspectors and until the Secretary of DOT had certified in writing that Mexican trucks did not pose an unreasonable safety risk to the American public. DOT adjusted its rulemaking to comply with the conditions of the rider.
In the course of the rulemakings, DOT performed an environmental assessment (EA) as required by NEPA. DOT concluded that the environmental effects of increased Mexican trucking in the United States would not be attributable to its regulations, but rather to the independent action of the President in lifting the moratorium. Therefore, DOT limited its evaluation of environmental impacts to those associated with the administration of its regulations, such as those associated with inspectors' conduct of roadside safety inspections. On that basis, it issued a finding of no significant impact (FONSI) as to some regulations, and a finding that other regulations were categorically exempt from NEPA review. DOT also determined that its rules were categorically exempt from the "conformity requirement" of the Clean Air Act. That Act prohibits the federal government from "engag[ing] in, support[ing] in any way or provid[ing] financial assistance for, licens[ing] or permit[ting], or approv[ing], of any activity which does not conform to [an approved state] implementation plan." The rules went into effect in 2002. Public Citizen sued in May, 2002, and President Bush lifted the moratorium in November, 2002.
Of the issues in the case, the NEPA issues have the largest potential impact. The government's petition for certiorari argues that the President's action rescinded the moratorium to NEPA review, and that DOT was consequently correct in not incorporating the environmental consequences of the rescission into its EA. Upholding the 9th Circuit decision would, the government argues, interfere with foreign affairs and treaty powers allocated under the Constitution to the President. (All parties agree that the President's decision itself is not subject to challenge under the APA or for NEPA compliance). Public Citizen relies upon existing CEQ guidelines instructing agencies to consider the "reasonably foreseeable" consequences of their actions, even if indirect, and cumulative impacts. Because the President's rescission decision was a reasonably foreseeable consequence of DOT's issuance of the rules - the President had publicly announced he would modify the moratorium once satisfactory rules had been issued - the environmental analysis of the rules should have considered the effects of lifting the moratorium.
Question Presented:
Whether a presidential foreign-affairs action that is otherwise exempt from environmental-review requirements under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and Clean Air
Act, 42 U.S.C. § 7506(c)(1), became subject to those requirements because an executive agency promulgated administrative rules concerning implementation of the President's action.
