Original Source: http://www.nrdc.org/media/pressreleases/031215.asp

Supreme Court Will Review Ruling in Trucks Case Against Administration

Federal Appeals Court Barred Permits for Trucks from Mexico Until Air Pollution Impact is Assessed

Environmental, Consumer and Labor Groups Say Adverse Ruling Will Worsen Air Quality

     LOS ANGELES (December 15, 2003) - The Supreme Court today granted the Bush administration's request to review a federal court order preventing the Department of Transportation from granting Mexico-domiciled trucks full access to U.S. highways without adequately reviewing the impact they would have on air quality.

     "We believe that when the Supreme Court reviews all the facts, the justices will rule that federal environmental laws require the government to determine the health impact of these trucks before -- not after -- they begin rolling through the American heartland," said Joan Claybrook, President of Public Citizen.

     In January, the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled that the Federal Motor Carrier Safety Administration (FMCSA), a federal agency within the Department of Transportation, "acted arbitrarily and capriciously" and violated federal environmental laws by taking steps to give Mexico-domiciled trucks full access to U.S. highways without adequately reviewing the environmental impact. The Ninth Circuit issued the ruling in response to a lawsuit filed in that court in May 2002 by a coalition of environmental, consumer and labor groups, including Public Citizen and the International Brotherhood of Teamsters. NRDC (Natural Resources Defense Council) intervened in the case in support of the coalition.

     "Americans have a right to know that all trucks -- regardless of their origin -- meet our basic environmental and safety standards," said James P. Hoffa, General President, International Brotherhood of Teamsters.

     The Bush administration asked the Supreme Court to step in despite the fact that the Department of Transportation has already begun to assess the environmental impacts in compliance with the court order, by holding nine public meetings across the country, among other measures.

     "The last thing the Bush administration should do is stop this process dead in its tracks. Unfortunately, this administration would rather cut corners than protect the health of Americans," said Gail Ruderman Feuer, a senior attorney at NRDC.

     In addition to finding that the Department of Transportation failed adequately to study the potential environmental impacts, the Ninth Circuit ruled that the Department of Transportation had violated Clean Air Act provisions that prevent the federal government from impeding states' ability to comply with federal air quality standards.

     "As a matter of law, the federal government cannot push states into violating national air quality standards," said Jonathan Weissglass, a partner at Altshuler, Berzon, Nussbaum, Rubin & Demain, which represents several of the groups that brought the suit.

     The Ninth Circuit noted that "a wealth of government and private studies showing that diesel exhaust and its components constitute a major threat to the health of children, contribute to respiratory illnesses such as asthma and bronchitis, and are likely carcinogenic."

     "Asthma rates are skyrocketing and millions of Americans are breathing dirty air. It is dangerous to introduce a massive fleet of older, polluting trucks to American communities that are already struggling to meet federal air quality standards," said Al Meyerhoff, a partner at Milberg Weiss Bershad Hynes & Lerach which represents several of the groups that brought the suit.

     The Ninth Circuit also concluded: "[T]he issues before us do not touch on [the President's] clear, unreviewable discretionary authority to modify the moratorium" on trucks coming over the border and that "neither the validity of nor the United States' compliance with NAFTA is before us." The moratorium on Mexico-domiciled trucks began in 1982 under the Reagan administration.

     In his request that the Supreme Court review the case, the Solicitor General argued that the Ninth Circuit decision "constrained the President's discretion to conduct foreign affairs." Because the lawsuit was brought specifically against the Department of Transportation for violating a congressional mandate, the brief submitted by consumer, labor and environmental groups countered that the case "concerns only the routine application of domestic environmental laws to federal agency action...That FMCSA and the President both have roles to play in making decisions about cross-border trucking does not preclude judicial review of FMCSA's compliance with environmental laws."

     Soon after the January court ruling ordered a complete environmental review, the Department of Transportation hired a contractor to conduct an Environmental Impact Statement under the National Environmental Policy Act (NEPA) and an environmental analysis required under the Clean Air Act. Unlike the government's initial review, the current study must specifically assess the more concentrated potential impacts in California, Texas, Arizona, New Mexico and communities along major trucking routes. The government estimates that the reviews required by the Ninth Circuit could be complete as early as the summer of 2004.

     The court is expected to hear oral argument in the spring of 2004 and issue a ruling by June 2004.

     In addition to the International Brotherhood of Teamsters (IBT) and Public Citizen, petitioners in the Ninth Circuit and respondents in the Supreme Court include the California Federation of Labor, AFL-CIO, the Environmental Law Foundation (ELF), the California Trucking Association, and Brotherhood of Teamsters, Auto and Truck Drivers, Local 70. NRDC (Natural Resources Defense Council) intervened in support of these groups. California Attorney General Bill Lockyer participated in the lawsuit as a friend of the court in support of the groups. The groups are represented by Milberg, Weiss, Bershad, Hynes and Lerach LLP; Altshuler, Berzon, Nussbaum, Rubin & Demain; and other counsel.

Legal Background

     The lawsuit claimed that trucks from Mexico would dramatically increase U.S. air pollution because:

•  At least 30,000 Mexico-domiciled diesel trucks could enter the U.S. in just one year, including many older, pre-1994 trucks that are the most egregious polluters.
  
•  A study shows that by the year 2010 trucks from Mexico will emit twice as much particulate matter and nitrogen oxides as U.S. trucks. Fine particulate matter is considered to be the largest environmental public health problem in the U.S. today and nitrogen oxides help form ozone, which can aggravate asthma and emphysema.
  
•   There is no system in place to systematically inspect the emissions of trucks coming over the border from Mexico.
  
•  Trucks from Mexico may not be covered by a 1998 settlement between the government and trucking manufacturers that requires U.S. trucks to remove "defeat devices" which enabled them to test clean at inspection sites but run dirty on the open road.

      The lawsuit was filed in May 2002 against the Department of Transportation for disregarding requirements of NEPA and the Clean Air Act in its efforts to allow these trucks access to all U.S. highways. On Thanksgiving eve -- November 27, 2002 -- the administration lifted the moratorium on Mexico-domiciled trucks traveling throughout the United States and directed the Department of Transportation to begin processing applications from Mexican truck companies. On December 2, 2002, the groups challenging the failure to conduct environmental reviews filed a request for an emergency stay because the administration was asking the Department of Transportation to take action without giving the Ninth Circuit the opportunity to rule on the previously filed case. On December 5, 2002, the Court ordered the government to inform it of any moves it took to grant the trucking permit applications. In January 2003, before any trucks were granted permits, the Court required full environmental reviews. The federal government requested a rehearing of the decision en banc, which the Ninth Circuit denied on April 10, 2003.

     Although the Department of Transportation had conducted a brief environmental review, the lawsuit challenged the "finding of no significant impact," or FONSI. According to the lawsuit, the review was inadequate because it did not take into account the disparity between emission rates of U.S. and Mexico-domiciled trucks. The administration also only reviewed the impacts on a national scale, ignoring more concentrated potential impacts on cities along major trucking routes, according to the lawsuit.