International implications: the elephant in the living room in Public Citizen v. Department of Transportation.

I.   INTRODUCTION
II.  BACKGROUND
     A. Facts of the Case
     B. General Findings of the Court
        1. International Law
        2. Domestic Law
           a. Presedential Action or DOT Action?
           b. Scope of the Required Environmental Analysis
              i.  NEPA: DOT's EA--The Application Rule and the
                  Safety Rule
              ii. NEPA: Categorial Exclusion--The Cetification
                  Rule
              iii. Clean Air Act Conformity Analysis
III. THE NINTH CIRCUIT ANALYSIS AND INTERNATIONAL LAW
     A. The Ninth Circuit
        1. U.S. Courts, International Law, and Foreign Affairs
        2. International Law and the Parties' PResentation of the
           Issues
        3. Conclusions
     B. The International Law of Public Citizen
        1. NAFTA
        2. Pacta Sunt Servanda and the Implications of U.S. Actions
IV. SUPREME COURT REVIEW AND FOREIGN AFFAIRS
     A. Separation of Powers
        1. Background
           a. The constitution and the Separation of Powers with
              Respect to International Trade
           b. Separation of Powers in Action: The President Versus
           Congress in the Foreign  Affairs-Related Legislation at
           Issues in Public Citizen
        2. Separation of Powers in Public Citizen
        3. The President's Inherent Foreign Affairs Powers
     B. Supreme Court Review: Outcome
V.   BALANCING THE INTERESTS: GLOBALIZATION AND THE ENVIRONMENT
VI.  CONCLUSIONS
VII. EPILOGUE: A RESPONSE TO THE DECISION OF THE SUPREME COURT IN
     DEPARTMENT OF TRANSPORTATION V. PUBLIC CITIZEN

I. INTRODUCTION

It is an accepted principle of law in the United States that a court should consider only the issues presented and briefed by the parties. (1) Indeed, the adversarial system used by U.S. courts is premised on the assumption that issues are best developed and understood only after both sides have researched them, analyzed them, and used their best efforts to argue their respective positions. (2) In its decision in Public Citizen v. Department of Transportation, (3) the Ninth Circuit scrupulously followed this rule, carefully remaining inside the domestic boundaries set by the parties' framing of the issues, notwithstanding the international and foreign policy aspects of the case.

The dispute arose out of the failure of the Department of Transportation (DOT) to produce an environmental impact statement (EIS) (4) or to perform a Clean Air Act (CAA) (5) conformity analysis (6) when it promulgated regulations allowing Mexican trucks into the United States in conformance with a North American Free Trade Agreement (NAFTA) (7) tribunal's determination that the United States was in violation of NAFTA for not doing so. In their briefs to the Ninth Circuit, neither party mentioned foreign policy at any time, and international law was referenced only in regard to the statement of facts. (8) Public Citizen presented the case as one of compliance with domestic environmental law, (9) while DOT responded with the assertion that its decisions were lawful because its actions would not have any significant environmental effects. (10) Like the proverbial elephant in the living room, international implications loomed large in the case but no one was talking about them. The Ninth Circuit, ruling in favor of Public Citizen, was careful to point out that "neither the validity of nor the United States'[s] compliance with NAFTA is before us. Our task here is relatively narrow: we are asked only to review the adequacy of the environmental analyses conducted by DOT." (11)

In response to this ruling, DOT petitioned the Supreme Court for certiorari. DOT's petition claimed the Ninth Circuit should have acknowledged the international implications of the case and deferred to the President's foreign relations powers. (12) On December 15, 2003, the Supreme Court granted that petition. (13)

This Ninth Circuit case raises two major questions. First, was the Ninth Circuit correct, in this age of increasing internationalization and globalization, to completely ignore the international implications of its decision? Second, does the Ninth Circuit's decision interfere with the President's foreign relations powers? Another way to frame these issues is to ask whether the international implications in this case are best characterized as international law, which courts are free to interpret and apply, or foreign relations, which courts leave to the political branches as nonjusticiable. This Chapter argues that the international dynamics of this case fall more squarely under international law than foreign affairs. Furthermore, even though the international issues were not raised by the parties, the Ninth Circuit could have and should have analyzed the international law implicated in the case. Such an analysis would have shown that the United States's duty to comply with domestic environmental laws does not in this case interfere with its duty to comply with international law. Finally, the President's foreign relations powers do not warrant the deference DOT is seeking. Thus, although DOT was correct in recognizing the need to take international implications into account, it was incorrect in characterizing those implications as interference with the President's foreign relations powers. This Chapter concludes by noting that international issues present some possible gaps in the laws protecting the U.S. environment. Congress, with its constitutional power to regulate foreign commerce, has the power to address these gaps by focusing directly on the relationship between U.S. international obligations and domestic environmental concerns.

II. BACKGROUND

A. Facts of the Case

Public Citizen challenged the United States Department of Transportation under the Administrative Procedure Act (APA). (14) It claimed DOT violated the National Environmental Policy Act (NEPA) (15) by not preparing an environmental impact statement (EIS) (16) and violated the Clean Air Act by not performing a conformance review when it promulgated regulations providing a mechanism for Mexican-owned trucks to operate in the United States beyond the border zone. (17) The Ninth Circuit Court of Appeals, exercising original jurisdiction by virtue of DOT law, (18) upheld Public Citizen's claim. (19)

At the time NAFTA was ratified, the United States had a moratorium in place that prevented Mexican trucks from entering the United States except under specific circumstances. (20) This moratorium was placed by Congress in 1982 and renewed every two years until 1995 when Congress passed legislation requiring the moratorium to remain in place indefinitely. (21) The President was authorized to remove the moratorium when "such a removal would be consistent with ... United States transportation policy or with U.S. obligations under a trade agreement." (22) As part of its commitment to NAFTA, the United States agreed to phase out the moratorium. (23) The phaseout agreement stipulated that Mexican-owned trucks would be allowed to travel throughout the United States by six years after the date of entry into force of NAFTA. (24)

NAFTA entered into force January 1, 1994. (25) No part of the trucking phaseout plan was followed, and by January 1, 2000, when Mexican trucks should have been allowed to travel throughout the United States, they were under the same constraints they had been under in 1994. (26) In January 2000, consultations between the United States and Mexico failed. (27) Pursuant to a request by Mexico originally filed on August 19, 1998, a NAFTA arbitral panel was constituted on February 2, 2000. (28) In February 2001, this panel found the United States in violation of NAFTA for noncompliance with its obligations under the phaseout agreement. (29)

President Bush responded by announcing he would lift the moratorium. (30) In May 2001, DOT issued proposed rules for processing Mexican trucks. (31) Congress, however, concerned about reports from the U.S. government and public interest organizations delineating the safety hazards associated with Mexican trucks, balked. The House of Representatives passed a bill "effectively preclud[ing] the expenditure of U.S. government funds to process any applications by Mexican truckers." (32) Eventually, Congress and the White House reached a compromise, resulting in a rider to the 2002 DOT Appropriations Act "condition[ing] funding for permitting Mexican truck traffic into the United States on DOT's issuance of appropriate safety and inspection rules." (33) In compliance with this Act, DOT modified its proposed regulations, publishing three "interim final rules" on March 19, 2002. (34) These rules govern the process by which a Mexican citizen may apply to operate trucks in the United States (the application rule), (35) the DOT program for monitoring the safety of Mexican trucks (the safety rule), (36) and the process by which personnel become certified to conduct safety inspections (the certification rule). (37)

As part of its rulemaking process, DOT prepared a programmatic environmental assessment, which ended with a finding of no significant impact. (38) DOT argued that its action was limited to processing Mexican trucks while the actual "final agency action" necessary for the trucks to enter the United States lay with the President's removal of the moratorium. (39) DOT therefore limited its environmental assessment to the effects of 1) the change in the number of Mexican trucks in the United States caused only by the changes in its rules, not by the modification of the moratorium, and 2) the safety inspections required by DOT. (40)

B. General Findings of the Court

1. International Law

The Ninth Circuit's consideration of international legal issues occupies three short paragraphs of its thirty-page opinion. After pointing out that NAFTA allows member states to adopt and maintain measures relating to the environment, (41) the court cited NAFTA Implementation Act (42) provisions specifying that federal law prevails over NAFTA in the case of a conflict, (43) and that nothing in NAFTA should be construed as amending any U.S. law. (44) With that as its base, the court was quickly able to reach the conclusion that "[a]lthough we agree with the importance of the United States'[s] compliance with its treaty obligations with its southern neighbor, Mexico, such compliance cannot come at the cost of violating United States law." (45) Without further explanation, the court then turned to its extensive analysis of U.S. law. (46)

2. Domestic Law

The Ninth Circuit's decision hinged on two major analyses: an assessment of the relative roles of the President and DOT in allowing Mexican trucks into the United States, and a determination of the scope of the required environmental analysis.

a. Presidential Action or DOT Action?

If Congress had not attached its rider to the 2002 DOT appropriations bill requiring DOT to promulgate regulations before Mexican trucks could enter the United States, (47) the opening of the border would have been attributable solely to the President. As such, it would not have been reviewable under the APA because the President is not an agency. (48) However, under the compromise reached with Congress, opening the border required two actions--one by the President and one by DOT. This produced the unusual situation in which "two independent parties had the ability to stop an event from occurring, but both had to take action for the event to occur." (49) DOT asserted that it had less power over the situation than the President because its power was dependent on the 2002 DOT appropriations bill, which would run out at the end of the 2002 fiscal year. (50) This argument is a bit disingenuous, falling as it does to take into account the fact that the President's initial unilateral attempt to open the border was impeded by strong congressional disapproval.

The court addressed the relative importance of the roles of the President and DOT in causing Mexican trucks to come into the United States in its analysis of Public Citizen's standing to sue. The court acknowledged the force of DOT's argument, stating, "It usually is difficult to establish causation and redressibility when a plaintiffs alleged injury depends on the actions of a third party not before the court." (51) Nonetheless, the court found standing because the injury claimed by Public Citizen was procedural, thus requiring that there be only a "reasonable probability" that DOT's actions would injure Public Citizen. (52) The court pointed out that DOT's regulations had been issued "in anticipation of a Presidential order lifting" the moratorium, and that indeed, the President had announced he was going to lift the moratorium. (53) Therefore, there was a reasonable probability that as a result of DOT's regulations Mexican trucks would come into the United States, bringing with them increased pollution and causing harm to Public Citizen. (54) Thus the court determined that the agency action, supported by the reasonable probability of the President's action, was sufficient to cause harm, and that the agency's portion of that action was sufficient to confer standing. Although DOT urged the court to return to the importance of the President's role in opening the border in its analysis of the scope of the environmental assessment required, (55) the court refused to do so. (56)

On November 27, 2002, after oral argument but before the court had issued its opinion, President Bush lifted the moratorium preventing Mexican trucks from entering the United States. (57) From that point on, the only action keeping the trucks out of the United States was that of DOT.

b. Scope of the Required Environmental Analysis

NEPA requires an environmental impact statement (EIS) for all "major Federal Actions significantly affecting the quality of the human environment." (58) The EIS must include consideration of any direct impacts, indirect impacts, and cumulative impacts on the environment caused by the action itself as well as consideration of any connected or closely related actions and the effects of cumulative actions. (59) An agency may first prepare a less involved environmental assessment (EA) to determine whether the environmental effects of the agency's action will be significant; (60) if the actions will not be significant, the agency may prepare a finding of no significant impact, and dispense with the EIS. (61)

By definition, promulgating regulations constitutes major federal action. (62) Therefore DOT, in promulgating the safety rules demanded by Congress, was required to engage in the NEPA process. DOT chose to define its task narrowly, limiting its EA to the immediate impacts of its regulations rather than the impact of opening the borders to allow Mexican trucks into the United States. (63) In keeping with this narrow definition, DOT declared that its certification rule was "categorically excluded" from NEPA analysis under DOT NEPA guidelines. (64) The agency's EA, therefore, evaluated only the impacts of the application rule and the safety rule, and did not assess the environmental effects of the certification rule.

i. NEPA: DOT's EA--The Application Rule and the Safety Rule

The analysis of alternative actions is the "heart" of an EIS. (65) DOT outlined three alternatives in its EA: a baseline, reflecting the current state of affairs; a no-action alternative; and a proposed-action alternative. (66) For the application rule, DOT defined the baseline as the situation in which the moratorium denying Mexican trucks access to the United States would be retained and Mexican truckers would continue to use the application forms in use before the promulgation of the new rules. (67) In the no-action alternative, the moratorium would be lifted, but the old application forms would still be used. (68) In the proposed-action alternative, the moratorium would be lifted, and the application forms would be revised as required by Congress. (69) This manner of defining the alternatives allowed DOT to separate the effects of lifting the moratorium from the effects of changing the application form.

Using this framework, DOT determined that under the baseline situation, approximately 63,000 Mexico-domiciled commercial motor vehicles (CMVs) were authorized to operate in the United States, primarily in the border zone. (70) The no-action alternative would increase this number to approximately 73,000 for fiscal year 2002, (71) while the proposed-action alternative would result in 72,000 Mexico-domiciled CMVs in the United States for fiscal year 2002. (72) Thus, according to DOT, the President's modification of the moratorium to allow Mexico-domiciled trucks into the United States would result in the addition of approximately 10,000 Mexico-domiciled trucks in the United States for fiscal year 2002, while DOT's new application, by discouraging Mexican truckers from coming into the United States, would actually cause that number to decrease by 1,000. DOT then looked at the effects of the 9,000 new trucks on the environment throughout the United States rather than just in the border states where they most likely will be. (73) DOT found that the effect of 9,000 new trucks in the United States, which now contains 4.5 million trucks, would be negligible. (74)

For the safety rule, DOT also defined a baseline alternative, a no-action alternative, and a proposed-action alternative. (75) Like the alternatives for the application rule, these alternatives allowed DOT to separate out the effects of the President's modification of the moratorium from the effects of the changes in DOT's rules. The baseline alternative assumed the moratorium would remain in place along with the current safety monitoring program. (76) In the no-action alternative, the moratorium would be modified, but the current safety monitoring program would be used. (77) In the proposed-action alternative, both the moratorium and the safety-monitoring program would be modified. (78) DOT asserted that under the baseline scenario, 170,000 inspections of Mexican CMVs would occur in 2002 out of a total of 2.77 million CMV inspections throughout the United States. (79) Both the no-action and proposed-action alternatives would result in 180,000 inspections of Mexican CMVs in 2002 out of a total of 2.78 million inspections. (80) These figures indicate that the President's modification of the moratorium would increase the number of inspections by 10,000 out of 2.78 million in 2002, while DOT's new safety monitoring program would have no effect whatsoever. DOT determined that this increase was trivial and was caused not by its actions, but by the President's actions. (81)

Not surprisingly, DOT made a finding that its actions would have no significant impact on the environment. (82) The Ninth Circuit called DOT's approach a "novel parsing of the regulations' effects," (83) and found that it failed to meet NEPA's requirement that the environmental effects of government action be considered "to the fullest extent possible." (84)

In its brief to the Ninth Circuit, Public Citizen invoked the NEPA regulation requirement that an environmental assessment include "[i]ndirect effects, which are caused by the action and are later in time ... but are still reasonably foreseeable." (85) Public Citizen pointed (86) to City of Davis v. Coleman, (87) which required an EIS prepared for the construction of a freeway interchange to adequately analyze the indirect effects of future development caused by the interchange, (88) Public Citizen then identified seven defects of DOT's EA. (89) DOT countered with the assertion that all the environmental effects in this case proceed from an action taken by the President, whose actions are not subject to NEPA (90) and are not reviewable under the APA because he is not an agency. DOT claimed it thus properly limited its analysis to the matters within its own control. (91)

The United States Supreme Court has yet to rule on the issue of indirect effects, except to state that an EIS need not include analysis of the psychological effects caused by the perception of risk in reopening the unharmed Three Mile Island nuclear energy plant. (92) This analysis by the Supreme Court is not particularly useful in Public Citizen because the effects in this case are physical and not merely psychological. However, courts generally have accepted that "an indirect effect is an environmental effect caused by the action discussed in the impact statement. A typical case is residential or commercial development caused by the construction of a new highway. The indirect effect is the environmental effect of this development." (93)

The Ninth Circuit took its cue from City of Davis, which stated that when "substantial questions have been raised about the environmental consequences of federal action," federal agencies "should not be allowed to proceed with the proposed action in ignorance of what those consequences will be." (94) Furthermore, the City of Davis court required the environmental impact to be "studied and analyzed in good faith," and would not accept the argument that uncertainty of development made "the 'secondary' environmental effects ... too speculative for evaluation." (95) Following this reasoning, the Ninth Circuit ruled that opening the border to Mexican owned trucks was an indirect effect of DOT's actions that was reasonably foreseeable, and therefore, the environmental effects of opening up the border had to be included in DOT's analysis.

ii. NEPA: Categorical Exclusion--The Certification Rule

The regulations governing the application of NEPA allow an agency to identify actions that "normally do not require either an environmental impact statement or an environmental assessment" (96) because they "do not individually or cumulatively have a significant effect on the human environment and ... have been found to have no such effect." (97) Agencies may categorically exclude identified actions from the NEPA environmental assessment process. (98) After examining its guidelines, (99) DOT determined that the certification rule met its requirements for categorical exclusion from the NEPA process. (100) The Ninth Circuit bluntly responded, "This cannot be the case." (101) The court noted, and DOT concurred, that the certification rule did not fit into any of the actions defined in DOT's guidelines as warranting categorical exclusion. (102) DOT asserted that the certification rule nonetheless should be categorically excluded because it would have no significant environmental impact. (103) The court refused to give deference to this agency interpretation of its own categorical exclusion, finding it "inconsistent with the terms used in the regulation," and therefore arbitrary and capricious. (104)

iii. Clean Air Act Conformity Analysis

Under the Clean Air Act, "no department, agency, or instrumentality of the Federal Government" may support or approve any action that does not "conform to a [state] implementation plan" (105) for attaining the required levels of control of certain criteria air pollutants, (106) including nitrogen oxides (NOx) and particulate matter (PM). (107) If a given action will affect the level of a criteria air pollutant in an area that is not in attainment of the state implementation plan (SIP) for that pollutant, the federal entity must perform a conformity analysis (108) unless 1) "the total of direct and indirect emissions are below [specified] emissions levels," or 2) the action will "result in no emissions increase or an increase in emissions that is clearly de minimis." (109)

DOT, relying on its EA, claimed the nationwide increase in emissions caused by its actions would be insignificant, and thus "clearly de minimis." (110) The court rejected this argument, citing DOT's "failure to consider its regulations' environmental impact on a local or regional basis." (111) DOT then brought forth what the court called an "erroneous, albeit novel assertion" (112) that EPA regulations exempt rulemaking from conformity analysis. (113) The Ninth Circuit ruled that the exemption refers to the process of rulemaking itself, not to the impacts resulting from the implementation of new rules. (114)

III. THE NINTH CIRCUIT ANALYSIS AND INTERNATIONAL LAW

The issues reviewed in Public Citizen implicate not only U.S. law but also the United States's relations in the international realm. In becoming a party to NAFTA, the United States pledged itself to carry out its duties under that agreement. Failure to do so not only invites possible sanctions under NAFTA (115) but also undermines the credibility of the United States in its dealings with other nations in other treaties.

A. The Ninth Circuit

1. U.S. Courts, International Law, and Foreign Affairs

In the United States, international issues can be classified as either international law or foreign policy. Whereas the Constitution explicitly gives federal courts jurisdiction over the international law invoked by treaties, (116) controversies involving foreign policymaking have been seen as nonjusticiable political questions. (117) U.S. courts regularly rule on treaty rights when they are presented, but they have been reluctant to rule on issues of foreign affairs, being "less willing than elsewhere to curb the political branches." (118)

Thus, to the extent the international issues in Public Citizen involve questions of treaty interpretation, the Ninth Circuit was free to take them up. However, the Ninth Circuit was obliged to decline analyzing those aspects of the case revolving around foreign affairs. To be sure, it is not always clear where treaty obligations end and foreign affairs begin. However, in the area of international trade, policy has been increasingly laid down in trade agreements, and the art of foreign affairs has given way to the more rigid codification of international law. (119) The General Agreement on Tariffs and Trade, (120) the World Trade Organization, U.S. bilateral investment treaties, and NAFTA itself limit the discretion of the parties with respect to their actions covered under the agreements. (121) Public Citizen asks whether the government must prepare a full EIS rather than a less detailed EA for an action mandated by a NAFTA panel decision. (122) As discussed more fully in Section IV of this Chapter, the President's foreign affairs powers are only marginally implicated in this question. On the other hand, the United States's legal obligations under both NAFTA and customary international law are central to this issue.

2. International Law and the Parties' Presentation of the Issues

The fact remains that a court should he "fairly put on notice as to the substance of the issue[s]" it is being asked to evaluate. (123) To this end, parties need to "have the opportunity to offer all the evidence they believe relevant to the issues." (124) In presenting the case to the Ninth Circuit, both Public Citizen and DOT described the issues solely in terms of U.S. law. (125) Neither party discussed the international legal issues surrounding the NAFTA tribunal's recommendations. Moreover, although the President's power to modify the moratorium was before the Ninth Circuit, how that power affected foreign affairs was not raised, briefed, or argued before the court. (126) In its petition for certiorari, however, DOT put foreign affairs front and center, implying that it had preserved the argument through its references to the President's power to modify the moratorium. (127) DOT also pointed out that in its Response in Opposition to Petitioner's Motion for an Emergency Stay, (128) it referred to the potential harm to "diplomatic relations and the President's conduct of foreign affairs." (129) However, not even this passing mention was repeated in DOT's brief on the merits to the Ninth Circuit. (130)

In light of these facts, international issues were not squarely before the Ninth Circuit. Passing mention in the emergency stay proceedings did not put the court on notice of the "substance of the issue," and did not give Public Citizen an opportunity to "offer all the evidence" it could in response. However, the Supreme Court has stated, "The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule." (131) Moreover, the "interpretation of international law ... is a question of law and is appropriate for judicial notice in courts in the United States without pleading or proof." (132) Thus, it was within the Ninth Circuit's discretion to discuss the international law aspects of the case.

3. Conclusions

While international issues were not squarely before the Ninth Circuit, that alone was not sufficient to prevent the court from addressing them. In refraining from addressing the foreign affairs implications of the case, the court was following well-established precedent that foreign affairs should be carried on exclusively by the political branches of government and not by the courts. (133) Unfortunately, the Ninth Circuit refrained not only from addressing foreign affairs, but also from analyzing the international law of the case. Because most of the international issues in Public Citizen are governed by NAFTA and the NAFTA arbitral panel's decision, they are issues of international law rather than foreign affairs. As such, they are subject to review by a federal court. DOT, as a zealous advocate for its cause, has been careful to characterize the international aspects of this case as related to foreign affairs. In so doing, DOT deliberately directed attention toward the traditionally prohibited area of foreign affairs and away from the international law of NAFTA and the NAFTA tribunal's decision, which the Ninth Circuit was free to interpret and apply.

B. The International Law of Public Citizen

The international law applicable to Public Citizen includes both NAFTA and the customary international law recognized by the United States governing a party's duty to perform its treaty obligations. (134) NAFTA imposes specific duties on the United States as a party, and carries the threat of economic sanctions for noncompliance. (135) Customary international law presents the more general obligation that states must fulfill their international commitments to remain in compliance with international law.

1. NAFTA

Under the United States Constitution, treaties are ranked with congressional legislation as "the supreme Law of the Land." (136) Because NAFTA was not ratified by a vote of two-thirds of the Senate, it is not, strictly speaking, a "treaty" under the Constitution. (137) International law, however, uses the term "treaty" more broadly to encompass any agreement "concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular description." (138) Generally, courts in the United States have found no difference between treaties ratified by the Senate and international agreements reached by other means. (139) In the ease of NAFTA, the question is rendered moot by the NAFTA Implementation Act, (140) which, as congressional legislation, has the same status under U.S. law as a treaty ratified by the Senate. (141) The NAFTA Implementation Act approves NAFTA and brings it into the law of the United States. NAFTA includes cross-border trucking services in its provisions governing trade in services. (142) Those provisions include several specifically designed to ensure fairness. First is the "National Treatment" standard: Each party must treat service providers of another party no less favorably than it treats its own service providers under like circumstances. (143) Second is the "Most Favored Nation" standard: Each party must treat service providers of another party no less favorably than it treats service providers from any other party or any non-party in like circumstances. (144) In the event these two provisions conflict, each party must use the better of the two treatment standards. (145) However, parties may list measures they wish to exempt from these requirements in Annex I. (146) The United States listed the moratorium on the granting of operating authority to persons of Mexico for "cross-border ... truck services in the territory of the United States." (147) This listing includes provisions for phasing out the moratorium to allow Mexican trucks to provide service to or from border states (California, Arizona, New Mexico, and Texas) by December 17, 1995 (three years after the date of signature of NAFTA, which occurred December 17, 1992), and service to or from the entire United States by January 1, 2000 (six years after NAFTA entered into force, which occurred January 1, 1994). (148)

Taken together, these provisions indicate that the United States has been obligated, since January 1, 2000, to allow Mexican trucks to provide services to or from any place in the United States and Mexico in conformance with the least restrictive regime allowed by the United States to its own trucks or to trucks from any other nation. When the United States refused to lift the moratorium, Mexico, invoking NAFTA's dispute resolution mechanism, requested a hearing by a NAFTA arbitral panel. (149) In front of that panel, the United States argued that NAFTA did not obligate the United States to allow Mexican trucks into its territory because Mexican trucks were not in "like circumstances" due to the differences between Mexico's safety regulations and those in the United States. (150) The panel ruled that NAFTA did not allow the United States to impose a blanket denial of access to Mexican truckers, but required the United States to assess the safety of Mexican trucks on a case-by-case basis. (151)

Under NAFTA, if a "panel determines that there has been a violation of the agreement, NAFTA authorizes the prevailing party in the dispute to impose economic sanctions against the other party unless a 'mutually satisfactory' agreement is reached within thirty days after the final report is received." (152) More than two years have passed since the NAFTA arbitral panel issued its decision that the United States's refusal to allow Mexican trucks into the United States beyond the commercial zone is in violation of NAFTA. Mexico is legally empowered to impose economic sanctions against the United States but has not yet done so. (153)

The panel decision allows the United States to implement measures to determine on a case-by-case basis whether Mexican trucks meet U.S. safety standards before they can operate in the United States (154) (as they are bound to do by the terms of NAFTA). (155) After the panel decision, Congress conditioned funding for carrying out the measures allowed by the NAFTA panel on DOT promulgation of safety-related rules for Mexican trucks operating in the United States. (156) That rulemaking, as all rulemaking does, triggered the requirement for an evaluation under NEPA. (157) In the United States, congressional legislation that is later in time takes precedence over prior international treaty obligations. (158) Thus, under U.S. law, the conditions on DOT appropriations take precedence over NAFTA, and the United States has been acting according to its lawfully enacted laws in responding to the NAFTA panel's decision.

Under international law, however, compliance with a nation's internal law cannot be used as a defense against violation of an international law. (159) According to this doctrine,

   An Act of State must be characterized as internationally wrongful
   if it constitutes a breach of an international obligation, even if
   the act does not contravene the State's internal law--even if under
   that law, the State was actually bound to act that way. (160)

Thus, the fact that the United States is acting in accordance with its own laws does not relieve it of the duty to comply with NAFTA. NAFTA, however, allows each party to determine its own standards for protecting safety, health, and its environment, specifically stating that nothing in the provisions on cross-border trade in services "shall be construed to prevent the adoption or enforcement ... of measures necessary to secure compliance with laws or regulations that are not inconsistent with provisions of this Agreement." (161) Thus, the question becomes whether NEPA's requirement for an environmental assessment of the consequences of Mexican trucks entering the United States is inconsistent with the provisions of NAFTA. If it is not, NAFTA allows it to occur, and the United States's actions to conform to its own laws also are in compliance with NAFTA. The relevant NAFTA provision states specifically,

   Each Party may, in accordance with this Agreement, adopt, maintain
   or apply any standards-related measure, including any such measure
   relating to safety, the protection of human, animal or plant life
   or health, the environment or consumers, and any measure to ensure
   its enforcement or implementation. Such measures include those to
   prohibit the importation of a good of another Party or the
   provision of a service by a service provider of another Party that
   fails to comply with the applicable requirements of those measures
   or to complete the Party's approval procedures. (162)

As a "measure relating to ... the protection of ... the environment," (163) the environmental assessment triggered by the regulations fits squarely within the measures allowed by this article. Congress's requirement that DOT promulgate safety regulations before allowing Mexican-owned commercial trucks into the United States also fits within this article as a "measure relating to safety." (164) Moreover, the type of safety regulations required by Congress specifically were allowed by the ruling of the NAFTA tribunal. (165) Thus, a convincing argument can be made that, although the United States is in violation of NAFTA for not phasing out its moratorium against Mexican trucks, the measures it has taken since, including the application of NEPA, do not of themselves violate NAFTA. Not only are they in conformance with domestic law, they are also in conformance with NAFTA.

Notwithstanding the fact that the measures are allowed by NAFTA, they cause the United States to continue to be in violation of the tribunal's ruling. Both the promulgation of new safety regulations and the consequent environmental analysis prolong the time required before the United States can allow Mexican trucks into the United States. During this time, the United States will remain subject to sanctions by Mexico.

The NAFTA panel ruling actually recommended "that the United States take appropriate steps to bring its practices with respect to cross-border trucking services and investments into compliance with its obligations under the applicable provisions of NAFTA." (166) The panel invoked the necessity for the United States to act "in good faith with respect to a legitimate safety concern," and to "implement differing requirements that fully conform with all relevant NAFTA provisions." (167) In requiring DOT to promulgate the safety rules, Congress was taking "appropriate steps" in good faith with respect to a legitimate safety concern to bring United States's practices into compliance with the panel's decision. As long as DOT worked with due diligence to promulgate the regulations in a reasonable amount of time, the United States was complying with the panel's decision.

One final issue remains under NAFTA: Does the excess time required for the environmental assessment triggered by the promulgation of the safety regulations render the United States's actions to be no longer in compliance with the Panel's recommendations? Certainly any unreasonable delay or lack of good faith on the part of the United States would constitute violation. However, NAFTA allows each party to "adopt, maintain or apply" any measure relating to "the protection of ... the environment." (168) It already has been established that the United States's application of its environmental laws falls within this provision of NAFTA. It would therefore be difficult for a reasonable person to find a breach of good faith in the delay caused by the time required to carry out those laws.

2. Pacta Sunt Servanda and the Effects of U.S. Actions

Pacta sunt servanda ("agreements must be kept") (169) expresses the customary international law regarding the duty of a party to an international agreement to perform the obligations required by that agreement. (170) The United States places the doctrine of pacta sunt servanda "at the core of the law of international agreements" and recognizes it as "perhaps the most important principle of international law." (171) In violating NAFTA, the United States has breached this fundamental duty.

It is necessary to separate the United States's failure to comply with the promised phase out of the moratorium from the United States's insistence that the "appropriate steps" required by the NAFTA arbitral panel include the preparation of an EIS. The United States's failure to phase out the ban on Mexican-owned trucks was a breach of its duty to comply with clearly agreed-upon treaty conditions. Such a breach can only contribute to the already growing international concern about the United States's willingness to adhere to its commitments under international law and detract from the willingness of other nations to enter into treaties with the United States. (172) The good-faith delay in compliance required to assess environmental implications and perhaps institute measures to mitigate environmental impacts does not constitute such a breach. Rather, insisting on the implementation within the territory of the United States of domestic environmental laws expressly allowed by a treaty can only engender respect.

Analysis of international law thus indicates that requiring a broad EIS as part of the United States's response to the NAFTA panel decision that the United States must "take appropriate steps" to open its borders to Mexican trucks does not violate international law. The analysis also indicates that the international issues in this case are almost completely covered by international law.

IV. SUPREME COURT REVIEW AND FOREIGN AFFAIRS

On December 15, 2003, the U.S. Supreme Court granted certiorari to review Public Citizen. (173) DOT grounded its petition for certiorari on the argument that the Ninth Circuit's requirement that DOT produce a full EIS interfered with the President's foreign affairs powers. (174) While DOT was correct to recognize that the court should take international considerations into account, it was incorrect in characterizing those considerations as foreign affairs. As discussed above, the international issues in this case are governed for the most part by U.S. obligations under international law, leaving very little to the discretion of the President's foreign affairs powers. (175) Moreover, analysis of the relevant international law indicates that preparation of a broad EIS does not violate U.S. international legal obligations. (176) Nonetheless, DOT is asking the Supreme Court to reconsider the scope of the environmental analysis required by the Ninth Circuit ruling and to use the President's inherent foreign affairs power to put a thumb on the scales in favor of a narrower EA. (177)

A. Separation of Powers 

The issue before the Supreme Court boils down to one question: Can the President's foreign affairs powers limit the scope of an EIS required by Congress? The Ninth Circuit adroitly dodged this separation-of-powers issue by confining its review of the relative roles of the President and the agency to its analysis of standing. (178) The Ninth Circuit then ruled that DOT must analyze the environmental effects of opening the United States-Mexico border to Mexican trucks because opening the border is an indirect effect of the DOT safety regulations. (179) In its petition for certiorari, DOT asserted that an agency is responsible only for analyzing the indirect environmental effects of its own actions, not the indirect effects of the actions of others--especially not the effects of actions taken by the President. (180) According to DOT, such a responsibility "illogically requires an agency that participates in implementing a policy of the President to treat its own subordinate action as the 'cause' of the action that the President had already determined to take." (181) DOT claimed the President has the right to act without interference from the EIS requirement of NEPA. In fact, NEPA regulations say the President need not perform an environmental assessment of his own actions. (182) DOT would expand this provision to exempt from NEPA review environmental effects of presidential action that are indirect effects of reviewable agency actions required by Congress. The claim is complicated by Public Citizen's international implications. DOT is asking the Supreme Court to determine which takes precedence in this case--the President's power to lift the moratorium, with its foreign affairs implications, or Congress's powers to regulate foreign commerce and protect the environment of the United States.

I. Background

The Constitution and the Separation of Powers with Respect to International Trade

The Constitution gives Congress the power to "regulate commerce with foreign nations," (183) but gives the President the power to "make treaties," albeit "by and with the advice and consent of [two-thirds of] the Senate." (184) This separation of power was a part of the Framers' design to avert tyranny by preventing the accumulation of too much power in any one branch of government. (185) According to Justice Brandeis, "[t]he doctrine of separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power." (186) James Madison, one of the primary architects of the Constitution, called this separation of powers "essential to a free government" (187) and held it to be "more sacred" than any other principle in the Constitution. (188)

b. Separation of Powers in Action: The President Versus Congress in the Foreign Affairs-Related Legislation at Issue in Public Citizen

That the treaty power and the power to regulate foreign affairs are not mutually exclusive has been recognized from the formation of the United States, when trade relations between the United States and other countries were largely governed by bilateral treaties of friendship, commerce, and navigation negotiated by the President. (189) Since that time, Congress and the President have continually challenged one another and ultimately compromised in their trade-related foreign policy actions. (190)

Each of the legislative acts in Public Citizen concerning international trade reflects the struggle between Congress and the President for control over the conduct of foreign commerce. NAFTA itself was approved using the fast-track authority given to the President in the Omnibus Trade and Competitiveness Act of 1988. (191) This Act allowed the President to negotiate a trade agreement with congressional participation (192) and the assurance that the agreement would be acted on, without amendment, within sixty days of being submitted to Congress by the President. (193) The fast-track trade treaty mechanism was the result of years of disagreement between the President and Congress over authority to regulate foreign trade. (194) By enacting the fast-track scheme, Congress recognized that the President is better situated to provide the "discretion and flexibility" required by the negotiation process, (195) but retained some control over the outcome.

In the Bus Regulatory Reform Act of 1982, (196) Congress created the moratorium on the entrance of Mexican trucks into the United States but delegated to the President the power to modify the moratorium if he found it "in the national interest." (197) The original version of the bill as written by the House of Representatives gave the Interstate Commerce Commission "the discretion to deny applications of Mexican or Canadian [trucking or bus] Companies [to operate in the United States] if the Commission determines that Mexico or Canada ... does not treat American companies at least as favorably as it treats its own companies." (198) The Reagan Administration threatened to veto the legislation, finding the bill "too broadly drafted" such that it "would interfere with the work of the U.S. Trade Representative." (199) A compromise solution was reached. (200) The Senate amended the House bill to declare a two-year moratorium on the issuance of grants allowing common contract bus and truck carriers from Mexico or Canada into the United States and to include a provision that "[t]he U.S. Trade Representative, in consultation with the Secretaries of Transportation and State, may remove or modify such restriction if it is in the national interest." (201) The conference committee reached the final language, giving the President the authority to extend the moratorium beyond two years and to "remove or modify the moratorium ... if he finds it is in the national interest and first notifies the Congress." (202) This language was modified in the Interstate Commerce Commission Termination Act of 1995 (203) to reflect the United States's NAFTA obligations. (204) The current provision allows the President to remove or modify the moratorium if he "determines that such removal or modification is consistent with the obligations of the United States under a trade agreement or with United States transportation policy." (205)

When the NAFTA panel found the United States's continuance of the moratorium violated NAFTA, President Bush announced his Administration would do whatever was necessary to open the border by January 1, 2002. (206) Mexico responded that it "would not impose trade sanctions on the United States as long as conciliatory efforts continued." (207) At the request of the President, DOT published proposed regulations in the Federal Register that would allow a Mexican trucker to receive a temporary permit to operate in the United States upon presentation of a written affidavit swearing that all safety conditions had been met. A U.S. inspection of the vehicle and driver would be required within 18 months of receipt of the temporary permit. (208) In response, the U.S. House of Representatives passed the Sabo Amendment, (209) which effectively precluded the expenditure of U.S. government funds to process any applications by Mexican truckers. (210) House members knew this amendment violated NAFTA, but said, "NAFTA is a trade agreement. It is not a suicide pact." (211) Eventually, Congress and the President reached the current compromise, signed by President Bush on December 18, 2001, (212) requiring DOT to promulgate a specific series of safety-related rules before Mexican trucks could come into the United States. (213)

Congress renewed the conditions on the DOT appropriations bill after the Ninth Circuit ruled on this case, thus implying its approval of that ruling. (214) As of February 13, 2004, the appropriations act for 2004 had not yet been passed. However, the legislative history for the 2004 appropriations act explicitly mentions the Ninth Circuit decision, sets no limitations on the environmental impact analysis, and subjects funding to the same conditions as the previous bills (referencing section 350 of the 2002 Appropriations Act, which withholds funding until the safety conditions have been met). (215) Congress knows how to limit environmental review when it wants to, and it has not done so here, even after explicitly acknowledging the Ninth Circuit decision. (216)

2. Separation of Powers in Public Citizen

The Supreme Court has recognized that for analysis of separation of powers issues with respect to the President's right to take unilateral actions, Justice Jackson's concurrence in Youngstown Sheet and Tube Co. v. Sawyer (Youngstown) (217) "brings together as much combination of analysis and common sense as there is." (218) In his opinion, Justice Jackson delineated three possible situations. The first occurs when the President "acts pursuant to an express or implied authorization of Congress" (P+C). (219) According to Jackson, the President's authority in this situation is "at its maximum," because it includes all the power the President has on his own "plus all that Congress can delegate." (220) The second situation occurs when "the President acts in absence of either a congressional grant or denial of authority" (P). (221) In this case, the President's power "is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." (222) In the third situation, "the President takes measures incompatible with the expressed or implied will of Congress." (P-C). (223) In this situation, the President has the least power, because "he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." (224) Jackson cautions that courts can find such action constitutional only "by disabling the Congress from acting upon the subject." (225)

Justice Jackson's analysis provides a good framework for examining the President's actions in Public Citizen. The Bus Regulatory Reform Act gave the President explicit authority to modify the moratorium disallowing Mexican trucks into the United States if he determined that "modification is consistent with the obligations of the United States under a trade agreement or with United States transportation policy." (226) It would seem, therefore, that President Bush's decision to lift the moratorium in response to the NAFTA panel's findings would fit into Jackson's first category--that the President was acting with express consent of Congress (P+C). However, as described above, President Bush's first attempt to modify the moratorium met with substantial congressional opposition, making his actions fall into the P-C, or, at best, simply the P, category. Recognizing that he was on thin ice, the President worked with Congress to reach a compromise that allowed him to open the border with the support of Congress, (227) that is, P+C.

The compromise DOT appropriations bill that gave congressional approval to the President's opening of the border to Mexican trucks required the promulgation of new regulations. (228) The promulgation of these new regulations carried with it an automatic requirement for an environmental assessment. (229) Since Congress has made it clear that the promulgation of new regulations triggers NEPA, if the President had opposed the EA, he would have been acting against the express will of Congress. (230)

DOT does not challenge the need to perform an environmental assessment, however. DOT challenges the required scope of that assessment. (231) The purpose of NEPA indicates congressional intent that EAs should be broad. (232) NEPA requires the federal government to assess the environmental impacts of its actions "to the fullest extent possible." (233) Renewal of the appropriations bill (234) after the Ninth Circuit's decision provides further evidence that Congress approved the court's requirement that a full-scale EIS be done. Congress could have taken that opportunity to exempt the DOT regulations from NEPA, but did not. Therefore, in opposing the need for a broad environmental assessment, DOT is invoking the President's power to justify an act that is against the wishes of Congress, that is, P-C. Jackson cautions that a "[p]residential claim to a power at once so conclusive and preclusive must be scrutinized with caution for what is at stake is the equilibrium established by our constitutional system." (235) Justice Jackson's analysis dictates that a court would have to strike down DOT's claim. According to this analysis, a court could only sustain DOT's opposition "by disabling the Congress from acting upon the subject." (236) Congress has constitutional authority from the Commerce Clause (237) to protect the environment of the United States. (238) The federal actions the EIS is required to evaluate are actions occurring in the United States. Because Congress has explicit powers in the area of dispute, a court would be obligated to strike down DOT's opposition. Thus, DOT cannot invoke the President's power to limit the scope of an EIS that an agency is obligated to prepare.

3. The President's Inherent Foreign Affairs Powers

It is argued, however, that in the international context, the President acquires some additional "inherent power" necessary for him to conduct foreign affairs. In United States v. Curtiss-Wright Export Corp. (Curtiss-Wright), (239) Justice Sutherland declared that "the President alone has the power to speak or listen as a representative of the nation" in the realm of foreign affairs. (240) This power comes to the President as an inherent attribute of U.S. sovereignty, and is necessary to provide the "secrecy and dispatch" often required to settle the "complicated, delicate and manifold" problems found in international negotiations. (241) Justice Jackson counters with his view that only when the President acts with the express or implied authorization of Congress may he "be said to personify the federal sovereignty." (242)

The question of the power of the President has been vigorously debated since the inception of the United States. The contours of the argument were laid down by Alexander Hamilton and James Madison in 1793. (243) Hamilton, believing the country needed a strong President, argued for a "general, interstitial, and residual executive power." (244) He claimed that the enumeration of presidential powers in the Constitution was not the limit of the President's powers, but only a listing of "the principal articles" of executive power. (245) Other presidential powers, he believed, flowed from the Constitution's vesting of all executive power in the President. (246) In support of this argument he pointed out that, although Article I of the Constitution gives Congress only the "legislative powers herein granted," (247) Article II vests the entire executive power in the President. (248) Madison undercut this argument, noting that the President's enumerated power to make treaties is legislative rather than executive in nature. (249) Madison believed that additions to the President's enumerated powers should be exceptions rather than the rule, and these exceptions should be narrowly and strictly made. (250) Madison's view reflected the "unhappy memories of royal prerogative, fear of tyranny, and reluctance to repose trust in any one person" that had led the Framers to separate governmental powers in the first place. (251) Although the arguments staked out by Hamilton and Madison have often been reiterated and elaborated in the 200 years since they were first made, (252) the debate has yielded "no net result." (253)

In Curtiss-Wright the Supreme Court upheld a presidential order prohibiting the sale of machine guns to Bolivia and Paraguay, who were at war with one another. (254) Justice Sutherland's rhetoric notwithstanding, the Court found that the presidential action in Curtiss-Wright had been expressly authorized by Congress. (255) in Youngstown, the Supreme Court struck down a presidential order requiring federal government officials to take over operation of domestic steel plants in order to avert a strike and prevent a shortage of steel during the Korean War. (256) The Court found evidence that Congress opposed the presidential order in Youngstown. (257)

In Dames & Moore v. Regan, (258) a more recent case requiring separation of powers analysis in the context of foreign affairs, the Supreme Court used Justice Jackson's Youngstown analysis to uphold an executive agreement made as part of the settlement of the Iran hostage crisis in 1981. (259) The executive agreement at issue in Dames & Moore suspended claims pending in American courts and required them to be brought before a specially formed international claims tribunal. (260) In upholding the President's order, the Court found that the International Claims Settlement Act of 1949 (261) and the International Emergency Economic Powers Act (262) provided evidence that "Congress ha[d] implicitly approved the practice of claim settlement by executive agreement." (263)

How does Public Citizen line up with these cases? In Dames & Moore and Curtiss-Wright, the Court upheld unilateral presidential actions in the area of foreign affairs. Both Dames & Moore and Curtiss-Wright involved armed International emergencies. The dispute over cross-border trucking does not rise to the level of an armed International emergency. In both Dames & Moore and Curtiss-Wright, the Court found the President's actions were taken in accordance with Congress's express or implied wishes. Evidence in Public Citizen shows that Congress opposes the limitations DOT is trying to put on the scope of the EIS. In Youngstown, the Court struck down unilateral presidential action when it found evidence that the President's action was counter to the wishes of Congress. DOT's assertion that the EIS requirement impinges on the President's foreign affairs powers looks more like Youngstown than like Dames & Moore or Curtiss-Wright. In both Public Citizen and Youngstown there is substantial evidence that the President acted In opposition to the will of Congress in an area over which Congress has authority. Moreover, both Public Citizen and Youngstown involve domestic impacts of Presidential action taken in response to international affairs. Finally, in Youngstown, the need for presidential action was considerably greater than in Public Citizen because the United States needed the steel to pursue the armed conflict with Korea. Even so, the Court struck it down.

Certainly there are times when "foreign negotiations require[] caution, and their success ... depend[s] on secrecy." (264) At those times the President must have the freedom to act quickly and unilaterally. This is not one of those times. No national emergency is at work here; there is no need for secrecy; and no delicate negotiations will be upset by the preparation of a thorough EIS. The circumstances of this case do not warrant invoking the President's foreign affairs powers to limit the scope of environmental review.

B. Supreme Court Review: Outcome

The Supreme Court should rule against DOT. A separation of powers analysis Indicates that because DOT's opposition to the EIS is against the wishes of Congress, it must not be sustained. Consideration of the relevant case law shows that this case resembles Youngstown, in which the Court struck down a President's unilateral action, more closely than other separation of powers cases, In which the Court has upheld presidential action. In addition, this case does not invoke the need for delicate international negotiations or for "secrecy and dispatch" that can justify unilateral presidential actions. Moreover, the environmental review at issue in Public Citizen involves actions solely within the territory of the United States. Finally, rights and duties of the United States in this case are defined to such a great extent by NAFTA that the President's power to settle disputes with foreign nations is restrained.

The EIS is not central to the cross-border trucking dispute, nor does it act to ameliorate or aggravate that dispute. Moreover, Mexico has not objected to the EIS requirement--it has objected, rather, to the safety regulations. (265) In this situation, the words of Justice Jackson are appropriate:

   With all its defects, delays and inconveniences, men have discovered
   no technique for long preserving free government except that the
   Executive be under the law, and that the law be made by
   parliamentary deliberations. Such institutions may be destined to
   pass away. But it is the duty of the Court to be the last, not
   first, to give them up. (266)

V. BALANCING THE INTERESTS: GLOBALIZATION AND THE ENVIRONMENT

Every state has a duty to fulfill international obligations and remain in compliance with international law. (267) This duty must be balanced against the right of a state to protect its people from harm, including harm to health and the environment. The international pressures that led to the dilemma presented in Public Citizen are increasing. The forces of globalization are giving international trade a larger role in the United States--and the world-economy. Advances in the technologies of communication and transportation have made it possible for people today to interact with one another faster, more frequently, over greater distances, and at less cost than ever before. Together with current international market policies advocating the unrestricted movement of capital, deregulation and privatization of industry, and openness to foreign imports and investment, (268) these technologies provide an expressway for the economic component of globalization: the ever faster and freer transfer of goods and money around the globe.

In the 1960s the United States faced an environmental crisis. The Cuyahoga River caught fire, Rachel Carson published Silent Spring, and Congress began enacting laws to protect the environment. (269) Currently, we face a new level of environmental need. Today's globalized market, demanding short-term satisfaction with more goods now, is putting "unprecedented stresses on our physical environment." (270) Even economists have acknowledged that "in too many instances, the benefits of globalization have been less than its advocates claim, ... [and] the price paid has been greater, as the environment has been destroyed." (271) At the same time, scientists are becoming increasingly aware of the global interdependence of the world's ecosystems and the long-range environmental effects of human activities. (272)

Protecting the environment of the United States today requires taking into account the increasing effects of U.S. international actions on the domestic environment. Such expanded environmental analysis will necessarily slow down international processes. However, "[w]e needn't worry much about economic globalization grinding to a halt under the weight of regulation." (273) Slowing down economic development has proved beneficial in the past. (274) In the 19th century, economic activity in the United States moved increasingly from the local or state level to the national level. As it did so, the national government found the power to regulate it. (275) The national regulations "had the effect of subduing capitalism a bit," but managed to provide benefits to society without unduly crippling the marketplace. (276)

Now, as economic activity moves increasingly to the international level, national governments must find new ways to regulate. One solution has been the increasing codification of economic rules in trade treaties (277) and the expansion of the conditions and requirements in those treaties to include concerns such as protection of the environment. (278) This increased codification provides greater certainty for the parties as well as greater protection for national interests. It also provides a body of international law that can be reviewed by courts.

VI. CONCLUSIONS

Given the state of the law at the present time, the Ninth Circuit was not required to analyze the international law pertaining to Public Citizen. Both the parties and the NAFTA Implementation Act framed the issues in terms of domestic law. However, an analysis of the issues makes it clear that the Ninth Circuit should have examined the international implications surrounding Public Citizen. First, reviewable international law governs the international aspects of the case. The President's foreign affairs powers under the circumstances of Public Citizen are small, and are in conflict with congressional intent. Second, the increasing forces of globalization point out the need for increased judicial oversight of domestic effects of U.S. actions under international law. Finally, an examination of international law reveals that requiring the EIS is well within the NAFTA panel's ruling that the United States take the "appropriate steps" to open the border to Mexican trucks.

The United States was founded on the principle that "We the People" (279) authorized a government that derived its "just Powers from the consent of the governed." (280) The Framers of the Constitution were careful to provide a system of checks and balances between the three different branches of the federal government. "We the People" who drafted and approved the Constitution worked hard to avoid establishing a government in which power was concentrated in one person. The separation of powers designed by the Framers divides and distributes power admirably for the purposes of domestic affairs. The division of power in the area of foreign affairs has proved more difficult. The Constitution gives some powers over foreign affairs to the President and some to Congress. Presumably, Congress and the President were to act as checks on each other. From the beginning, however, a strong executive was found necessary to deal with the delicate negotiations required in dealing with foreign nations. An examination of the circumstances of Public Citizen indicates that the factors justifying unilateral presidential action (need for secrecy and dispatch in delicate international negotiations) are not present in this case. Moreover, DOT's opposition to the EIS conflicts with Congress's expressed intent in NEPA.

The Ninth Circuit's characterization of DOT's EA points out the problem nicely. The EA struck the court as "a novel parsing of the regulations' effects" (281) because it stood on an overly technical interpretation of the law that amounted to a ducking of responsibility. It is obvious that the practical effect of DOT's rules will be to open the border and allow Mexican trucks into the United States. In Public Citizen, the United States government is in the uncomfortable position of arguing that it is necessary to bypass protection of its own environment in order to comply with international law. The United States is setting bad precedent if it allows its own environmental laws to be bypassed in order to comply with an international ruling. Bypassing those laws is not necessary to comply with the ruling; but complying with them is, arguably, required by the international agreement giving rise to the ruling. Environmental analysis of U.S. compliance with international agreements should not be allowed to fall between the cracks. The public's interest in the environment requires that the question of whether to require such environmental analysis be aired and debated in Congress, not shoved under the rug or allowed to slip between the cracks of existing law. As communication and transportation become faster, international ties become stronger, and interrelationships between domestic actions and international actions become more complex, the impacts of international obligations on the domestic environment will increase. Congress should face the issue squarely and amend U.S. environmental laws to take into consideration how these impacts should fit in the scheme of international commerce. Once Congress has spoken, treaty negotiators and others responsible for determining the United States's international obligations will know what their environmental constraints are.

VII. EPILOGUE: A RESPONSE TO THE DECISION OF THE SUPREME COURT IN DEPARTMENT OF TRANSPORTATION E PUBLIC CITIZEN

On June 7, 2004, a unanimous Supreme Court overturned the Ninth Circuit by ruling that NEPA does not require the Federal Motor Carrier Safety Administration (FMCSA) to evaluate the environmental impact of opening the United States border to Mexican-owned trucks. (282) The opinion, written by Justice Thomas, is based on the determination that FMCSA has no discretion to modify its actions in any way in response to the environmental impacts of the trucks, and therefore an EIS would serve no purpose. (283) Similarly, the Supreme Court ruled that because FMCSA has no control over vehicle emissions, the agency is not required to perform a Clean Air Act conformity analysis. (284)

The Court's decision is based entirely on domestic environmental law. It does not reach a consideration of the international aspects of the case discussed in this Chapter or of the President's foreign relations powers, except to acknowledge that FMCSA does not have the power "to countermand the President's lifting of the moratorium." (285) Furthermore, according to the Court's ruling, had FMCSA had any authority to respond to environmental concerns, an EIS could have been required. (286) Thus, the decision does not endorse DOT's claim that requiring an EIS impinges on the President's foreign relations powers.

The Court's ruling does, however, set new limits on the indirect effects analysis required by NEPA and relied on by the Ninth Circuit in this case. (287) Refining its determination in Metropolitan Edison Co. v. People Against Nuclear Energy (Metropolitan Edison) (288) that NEPA is triggered only when "a reasonably close causal relationship," similar to that found in the proximate cause requirement of tort law, exists between an environmental effect and the alleged cause, (289) the Supreme Court held that "where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant 'cause' of the effect." (290) DOT had made a similar argument to the Ninth Circuit, (291) which that court rejected on the grounds that the plain language of NEPA requires compliance by all agencies of the federal government. (292) The Ninth Circuit's analysis was in conformity with the decision in Metropolitan Edison, which set a broad standard for indirect effects analysis, exempting only the psychological effects of an agency action from an EIS. (293) The Supreme Court's decision in Department of Transportation v. Public Citizen (294) narrows that standard considerably, relieving an agency of the duty to assess environmental effects over which it has no control, thus endorsing the D.C. Circuit's determination that when "the information that NEPA provides can have no effect on the agency's actions, ... NEPA is inapplicable." (295)

Although NEPA's primary purpose is, as the Supreme Court points out, to aid agencies in making decisions about their actions, (296) NEPA has taught that knowledge about the environmental impacts of an action has a power in and of itself. For this reason, Council on Environmental Quality (CEQ) regulations require federal agencies to comply with NEPA "to the fullest extent possible" (297) to "insure that environmental information is available to public officials and citizens." (298) The Court's decision in Department of Transportation v. Public Citizen undermines this purpose of NEPA by depriving the public (and government agencies) of any knowledge concerning the environmental effects of opening the border to Mexican-owned trucks.

The decision, however, contains within itself the remedy for the problem. The Court includes as part of the "legally relevant" cause of the entry of Mexican-owned trucks into the United States the action "of Congress in granting the President [the authority to lift the moratorium] while simultaneously limiting FMCSA's discretion." (299) The Court thus acknowledges that Congress has the authority to require an environmental assessment. Had Congress required, in section 350 of the DOT appropriations bill (300) for example, that FMCSA take environmental considerations into account, or that any other agency take action regarding the environmental consequences of opening the border to Mexican-owned trucks, an EIS evaluating those consequences would have been required.

The Supreme Court's analysis thus underscores the need for Congress to address directly the effects of the implementation of the United States's international obligations on the domestic environment. Congress can ensure that the U.S. environment is protected from uninformed U.S. decisions in the international sphere by developing a mechanism requiring agencies to assess the effects of U.S. international obligations on the domestic environment.

(1) See, e.g., STEPHAN LANDSMAN, READINGS ON ADVERSARIAL JUSTICE: THE AMERICAN APPROACH TO ADJUDICATION 3 (1988) (describing the principle "that the parties are responsible for producing all the evidence upon which the decision will be based" which "focuses the litigation upon the questions of greatest importance to the parties, making more likely a decision tailored to their needs"); id. at 4 (noting that under this system, "advocates are expected to ... formulate the legal issues"); Stephen Gillers, The American Legal Profession, in FUNDAMENTALS OF AMERICAN LAW 151, 166 (Alan B. Morrison ed., 1996) ("The adversary system proceeds on the assumption that parties to a lawsuit are in the best position to determine its scope and content.").

(2) See, e.g., LANDSMAN, supra note 1, at 2 ("The central precept of the adversary process is that out of the sharp clash of proofs presented by adversaries in a highly structured forensic setting is most likely to come the information upon which a neutral and passive decision maker can base the resolution of a litigated dispute acceptable to both the parties and society."); Gillers, supra note 1, at 167 ("This system is justified on the theory that, when two or more lawyers singlemindedly pursue the interests of their individual clients, the confrontation will lead to the most just result.").

(3) 316 F.3d 1002 (9th Cir. 2003), rev'd, 124 S. Ct. 2204 (2004).

(4) The National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000), requires federal agencies to assess possible environmental impacts that would result from their actions and to create EISs addressing those possible impacts. Id. [section] 4332(2)(c).

(5) 42 U.S.C. [subsection] 7401-7671q (2000).

(6) The Clean Air Act requires federal agencies to perform a conformity analysis to assure approved implementation plans' purposes of reducing violations of ambient air quality standards will be achieved. Id. [section] 7506(c).

(7) North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., 32 I.L.M. 289 [hereinafter NAFTA].

(8) See generally Petitioners' Consolidated Opening Brief, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249), 2002 WL 32100057; Brief for the Respondents, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249), 2002 WL 32102737 (both discussing legal implications of domestic law only, not international law).

(9) Petitioners' Consolidated Opening Brief at 1.

(10) Brief for the Respondents at 2.

(11) Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1020 (9th Cir. 2003), rev'd, 124 S. Ct. 2204 (2004).

(12) Petition for a Writ of Certiorari at 13-14, Dep't of Transp. v. Pub. Citizen, 124 S. Ct. 2204 (2004) (No. 03-358), 2003 WL 22428956.

(13) Dep't of Transp. v. Pub. Citizen, 124 S. Ct. 957 (2003).

(14) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(15) 42 U.S.C. [subsection] 4321-4370e (2000).

(16) This was not the first time Public Citizen tried to force the preparation of an EIS for the environmental effects of NAFTA. In the first case, the D.C. Circuit found that because NAFTA was still in the negotiating stages, agency action was not yet final, so the court had no jurisdiction under the APA. Pub. Citizen v. Office of the United States Trade Representatives, 970 F.2d 916, 917 (D.C. Cir. 1992). In the second case, Public Citizen v. United States Trade Representative, 5 F.3d 549 (D.C. Cir. 1993), the court again ruled that it lacked jurisdiction, this time because the final action lay with the President, whose actions are not reviewable under the APA. Id at 550-51.

(17) The border zone consists of designated commercial zones emending between three and twenty miles north of U.S. border cities in the four border states of California, Arizona, New Mexico, and Texas. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF TRANSP., REP. NO. TR-2000-013, AUDIT REPORT: MEXICO-DOMICILED MOTOR CARRIERS, available at http://www.oig.dot.gov/show_pdf.php?id=220.

(18) See Hobbs Act, 28 U.S.C. [section] 2342(3)(A) (2000) (stating that actions of the Secretary of Transportation under Subtitle IV Part B of Title 49 are directly reviewable in the federal court of appeals). Title 49 Subtitle IV Part B includes motor carrier safety, 49 U.S.C. [section] 13101(a)(1)(B) (2000), which makes it applicable to this case.

(19) Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1020 (9th Cir. 2003), rev'd, 124 S. Ct. 2204 (2004).

(20) The following exceptions to the moratorium authorized approximately 2% of Mexican trucks to travel throughout the United States: 1) Mexican trucks the minority of whose owners are U.S. citizens, 2) Mexican trucks "grandfathered" by having received operating authority before 1982, and 3) Mexican trucks that travel through the United States solely to transport goods to Canada. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF TRANSP., supra note 17, at 2. The moratorium was originally introduced in 1982 in response to Mexico's refusal to allow U.S. trucks into Mexico. NAFTA ARBITRAL PANEL ESTABLISHED PURSUANT TO CHAPTER TWENTY IN THE MATTER OF CROSS-BORDER TRUCKING SERVICES, SECRETARIAT FILE NO. USA-MEX-98-2008-01, FINAL REPORT OF THE PANEL, paras. 37-40 (2001) [hereinafter NAFTA PANEL REPORT], available at http://www.ustr.gov/enforcement/trucking.pdf.

(21) I.C.C. Termination Act of 1995, Pub. L. No. 104-88, [section] 103, 109 Stat. 803.

(22) 49 U.S.C. [section] 13902(c)(3) (2000). Under the moratorium, a drayage, or short haul, system must be used to ferry goods across the United States-Mexican border. This system requires a Mexican long-haul truck to bring export goods to a transfer yard near the border. There the goods are loaded into a Mexican drayage truck, which transports them across the border to a transfer yard on the U.S. side of the border. At this transfer yard, the goods are moved from the drayage truck to a U.S. long-haul carrier for distribution in the United States. Teresa Puente, Mexico Trucking Fight Gears Up, CHI. TRIB., Aug. 27, 2001, at A1, available at 2001 WL 4107757.

(23) NAFTA, supra note 7, at annex 1, 32 I.L.M at 746-17.

(24) Mexican truckers would be able to bring cargo into and out of the United States, but would still not be able to transport cargo other than international cargo between points in the United States. Id. at 747.

(25) NAFTA PANEL REPORT, Supl. note 20, at para. 66.

(26) Carrie Anne Arnett, Comment, The Mexican Trucking Dispute: a Bottleneck to Free Trade. A Tough (Road) Test on the NAFTA Dispute Settlement Mechanism, 25 HOUS. J. INT'L L. 561, 568 (2003).

(27) NAFTA PANEL REPORT, supra note 20, at para. 22.

(28) Id. at paras. 21-23.

29 Id. at paras. 295-96.

(30) NAFTA: Arbitration Panel Decision and Safety Issues With Regard to Opening the US-Mexican Border to Motor Carriers: Notice of Hearing Before the Subcomm. on Highways and Transit of the House Comm. on Transp. and Infrastructure, 107th Cong. para 14 (2001) (stating that after the Panel's decision, "President Bush expressed his intent to comply with it and took steps to prepare the U.S. to honor its NAFTA obligations"), available at http://www.house.gov/ transportation/highway/07-18-01/07-18-01memo.html.

(31) Application by Certain Motor Carriers to Operate Beyond U.S. Municipalities & Commercial Zones on the U.S.-Mexican Border, 66 Fed. Reg. 22,371 (May 3, 2001); Safety Monitoring System & Compliance Initiative for Mexican Motor Carriers Operating in the United States, 66 Fed. Reg. 22,415 (May 3, 2001).

(32) Hale E. Sheppard, The NAFTA Trucking Dispute: Pretexts for Noncompliance and Policy Justifications for US. Facilitation of Cross-Border Services, 11 MINN. J. GLOBAL TRADE 235, 242 (2002).

(33) Department of Transportation and Related Agencies Appropriation Act, 2002, Pub. L. No. 107-87, [section] 350, 115 Stat. 833, 864-68 (2001). Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1012 (9th Cir. 2003), rev'd, 124 S. Ct. 2204 (2004). According to one commentator,

   The legislation bars the use of any appropriated funds to finalize
   Mexican applications until the Federal Motor Carrier Safety
   Administration (FMCSA) and the DOT Inspector General satisfy an
   extensive list of conditions. The conditions imposed upon the FMCSA
   require that the agency perform extensive safety reviews on all
   vehicles, including proof of U.S. insurance, evaluation of the
   carrier's history, on-site inspections, and electronic verification
   of Mexican operators' driver licenses. The legislation requires the
   FMCSA to publish various regulations in final form, which primarily
   requires development and implementation of a broad regulatory
   scheme. The legislation imposes additional requirements on the DOT
   Inspector General. Three distinctively rigid requirements are
   directed at synchronizing Mexican and U.S. regulatory systems.
   These sections require the Mexican government to make changes within
   Mexico; the Mexican government must: maintain a reliable information
   infrastructure, create a database of information on Mexican
   operators accessible by the United States, and develop an
   enforcement scheme similar to that in the United States.

Arnett, supra note 26, at 603 (internal citations omitted).

(34) Application by Certain Mexico-Domiciled Motor Carriers to Operate Beyond United States Municipalities and Commercial Zones on the United States Mexican Border, 67 Fed. Reg. 12,702 (Mar. 19, 2002) (codified at 49 C.F.R. pt. 365); Safety Monitoring System and Compliance Initiative for Mexico-Domiciled Motor Carriers Operating in the United States, 67 Fed. Reg. 12,758 (Mar. 19, 2002) (codified at 49 C.F.R. pt. 385); Certification of Safety Auditors, Safety Investigators, and Safety Inspectors, 67 Fed. Reg. 12,776 (Mar. 19, 2002) (codified at 49 C.F.R. pts. 350, 385). The term "interim final rules" indicates that though the rules are final, they are not permanent. Pub. Citizen, 316 F.3d at 1019.

(35) Application by Certain Mexico-Domiciled Motor Carriers to Operate Beyond United States Municipalities and Commercial Zones on the United States Mexican Border, 67 Fed. Reg. 12,702.

(36) Safety Monitoring System and Compliance Initiative for Mexico-Domiciled Motor Carriers Operating hi the United States, 67 Fed. Reg. 12,758.

(37) Certification of Safety Auditors, Safety Investigators, and Safety Inspectors, 67 Fed. Reg. 12,776.

(38) Pub. Citizen, 316 F.3d at 1013.

(39) Id. at 1022.

(40) Id. at 1022-24.

(41) Id. at 1011 (quoting NAFTA, supra note 7, art. 904(1), 32 I.L.M. at 387).

(42) North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1998) (codified in scattered sections of 19 U.S.C. and in other scattered titles of U.S.C.).

(43) Pub. Citizen, 316 F.3d at 1011-12 (citing 19 U.S.C. 3312(a)(1) (2000)).

(44) Id. at 1012 (citing 19 U.S.C. [section] 3312(a)(2)) (2000).

(45) Id. at 1009.

(46) After the President lifted the moratorium against Mexican trucks on November 27, 2002, the Ninth Circuit asked for post argument briefing on the significance of this action. DOT claimed that granting Public Citizen relief 1) would be tantamount to enjoining presidential action and 2) would affect NAFTA's viability. The court disagreed with both of these assertions with minimal explanation. Id. at 1020.

(47) See supra text accompanying note 33.

(48) Franklin v. Massachusetts, 505 U.8. 788, 800-01 (1992).

(49) Pub. Citizen, 316 F.3d at 1017.

(55) Id.

(51) Id. (quoting Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 447 (9th Cir. 1994)).

(52) Id. at 1017-18.

(53) Id. at 1017.

(54) Id. at 1020.

(55) Brief for the Respondents at 49, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249), 2002 WL 32102737.

(56) Pub. Citizen, 316 F.3d at 1019.

(57) Determination Under the Interstate Commerce Commission Termination Act of 1995, 67 Fed. Reg. 71,795 (Dec. 2, 2002) (lifting the moratorium on Nov. 27, 2002).

(58) 42 U.S.C. [section] 4332(C) (2000).

(59) 40 C.F.R. [section] 1508.25 (2003).

(60) Id. [subsection] 1501.3-.4.

(61) Id [section] 1501.4(e).

(62) Id. [section] 1508.18(a) ("Actions include ... new or revised agency rules, regulations, plans, policies, or procedures.").

(63) Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1023 (9th Cir. 2003), rev'd 124 S. Ct. 2204 (2004).

(64) Certification of Safety Auditors, Safety Investigators, and Safety Inspectors, 67 Fed. Reg. 12,776, 12,778 (Mar. 19, 2002) (stating without further explanation that the certification rule "would be among the type of regulations that would be categorically excluded from any environmental assessment").

(65) 40 C.F.R. [section] 1502.14 ("This section [requiring an assessment of alternatives] is the heart of the environmental impact statement.").

(66) FED. MOTOR CARRIER SAFETY ADMIN., U.S. DEP'T OF TRANSP., SAFETY OVERSIGHT FOR MEXICO-DOMICILED COMMERCIAL MOTOR CARRIERS FINAL PROGRAMMATIC ENVIRONMENTAL ASSESSMENT 4-1 to 4-3 (2002) [hereinafter EA].

(67) Id. at 4-1.

(68) Id. at 4-2.

(69) Id. at 4-3.

(70) Brief for the Respondents at 25-26, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249), 2002 WL 32102737.

(71) EA, supra note 66, at 4-2

(72) Id. at 4-3.

(73) Petitioners' Consolidated Opening Brief at 35, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249), 2002 WL 32100057.

(74) EA, supra note 66, at 4-3.

(75) Id. at 4-4, 4-5.

(76) Id. at 4-4.

(77) Id. at 4-5.

(78) Id.

(79) Id. at 4-4.

(80) Id. at 4-5, 4-6.

(81) Id. at 4-7.

(82) FED. MOTOR CARRIER SAFETY ADMIN., FINDING OF NO SIGNIFICANT IMPACT FOR REVISION OF REGULATIONS AND APPLICATION FORM FOR MEXICO-DOMICILED MOTOR CARRIERS TO OPERATE IN UNITED STATES MUNICIPALITIES AND COMMERCIAL ZONES ON THE UNITED STATES-MEXICO BORDER; APPLICATION BY CERTAIN MEXICO-DOMICILED MOTOR CARRIERS TO OPERATE BEYOND UNITED STATES MUNICIPALITIES AND COMMERCIAL ZONES ON THE UNITED STATES-MEXICO BORDER; SAFETY MONITORING SYSTEM AND COMPLIANCE INITIATIVE FOR MEXICO-DOMICILED MOTOR CARRIERS OPERATING IN THE UNITED STATES; PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION, CERTIFICATION OF COMPLIANCE WITH FEDERAL MOTOR VEHICLE SAFETY STANDARDS (2002).

(83) Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1022 (9th Cir. 2003), rev'd, 124 S. Ct. 2204 (2004).

(84) Id. at 1022 (quoting 42 U.S.C. [section] 4322 (2000)).

(85) 40 C.F.R. [section] 1508.8(b) (2003).

(86) See Petioners' Consolidated Opening Brief at 19, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (NON. 02-70986, 02-71249) (quoting City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir. 1975), for the proposition that "consideration of secondary impacts may often be more important than consideration of primary impacts"), 2002 WL 32100057.

(87) 521 F.2d 661 (9th Cir. 1975).

(88) Id. at 679.

(89) Petioners' Consolidated Opening Brief at 30-42. The defects identified by Public Citizen include the following: 1) DOT failed to consider the effect of increased trade-related truck traffic from Mexico that would follow from Mexican trucks being allowed free access to the United States. Id. at 30-32. 2) DOT failed to consider the difference in emissions regulation between U.S. trucks, which had to comply with heavy-duty emissions standards long before 1993, and Mexican trucks, which are not built to the same standards, and most of which were built prior to 1993 when Mexico started regulating its trucks' emissions. Id. at 32-35. 3) DOT considered the effects of the emissions only nationally, and failed to consider the local effects of the emissions, i.e., the effects of emissions in the states that will bear the brunt of Mexican truck traffic--border states in the Southwest--areas of which are already in nonattainment of CAA ambient air quality standards. Id. at 35-36. 4) DOT failed to consider the long-term effects of the entry of Mexican trucks into the United States despite evidence that the differences in emissions between trucks from the two countries will increase in the future. Id. at 36-37. 5) DOT failed to consider the effect of Mexican trucks' not having to comply with a 1999 federal consent decree that requires certain manufacturers' engines to have lower emissions than the limit generally allowed by law. Id. at 37-38. 6) DOT failed to address the lack of any program in place that would enforce Mexican trucks' compliance with U.S. emissions standards. Id. at 38-40. 7) DOT failed to consider the controversial nature of the effects of increased Mexican truck traffic in the United States as required by regulation. Id. at 40-42.

(90) 40 C.F.R. [section] 1508.12 (defining "Federal agency" to exclude the President).

(91) See Brief for the Respondents at 54, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249) (citing Citizens Against Rails-to-Trails v. Surface Transportation Board, 267 F.3d 1144, 1151 (D.C. Cir. 2001), for the proposition that "when the information that NEPA provides can have no effect on the agency's actions, ... NEPA is inapplicable"), 2002 WL 32102737. The brief also cites for this proposition Marbled Murrelet v. Babbitt, 111 F.3d 1447, 1449-50 (9th Cir. 1997), and Sierra Club v. Babbitt, 65 F.3d 1502, 1512-13 (9th Cir. 1995). Brief for the Respondents at 54.

(92) Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 775-77 (1983). The Three Mile Island facility included two nuclear energy plants, both of which were shut down after one malfunctioned. This case concerned the reopening of the plant that had not malfunctioned and was therefore unharmed. Id. at 768.

(93) DANIEL R. MANDELKER, NEPA LAW AND LITIGATION 10-96 (2d ed. 1992).

(94) City of Davis v. Coleman, 521 F.2d 661, 675 (9th Cir. 1975).

(95) Id. at 676.

(96) 40 C.F.R. [section] 1507.3(b)(2)(ii) (2003).

(97) Id. [section] 150.4.

(98) Id.

(99) DOT Order 5619.1C includes exclusions for administrative procurements, contracts for personal services, personnel actions, project amendments that do not significantly affect the environmental impact of an action, operating or maintenance subsidies that do not change the environmental effects of an action, and other actions identified by operating administrations. DEP'T OF TRANSP., ORDER 5610.1C, PROCEDURES FOR CONSIDERING ENVIRONMENTAL IMPACTS 23.

(100) Brief for the Respondents at 64, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249), 2002 WL 32102737.

(101) Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1029 (9th Cir. 2003), rev'd, 124 S. Ct. 2204 (2004).

(102) Id.

(103) Id.

(104) Id.

(105) 42 U.S.C. [section] 7506(c)(1) (2000).

(106) Id. [subsection] 7408-09.

(107) Section 7408 of the CAA gives the Environmental Protection Agency (EPA) the task of promulgating regulations identifying criteria air pollutants and setting limits for those pollutants. Id. [section] 7408. NOx and PM are two of the six air pollutants EPA has so far identified as criteria air pollutants. The others are carbon monoxide, lead, ozone, and sulfur dioxide. 40 C.F.R. [section] 50 (2003).

(108) 40 C.F.R. [subsection] 93.150-.160 (2003).

(109) Id. [section] 93.153(c)(1)-(2).

(110) EA, supra note 66, at 4-17, 4-19. DOT concludes that the increase in emissions resulting from the proposed-action alternative would be "indiscernible" from the increase in emissions resulting from the no-action alternative. Id. at 4-19. DOT characterizes the increase in emissions resulting from the no-action alternative as "insignificant ... given its negligible contribution to all on-road and national emissions." Id. at 4-17.

(111) Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1030 (9th Cir. 2003), rev'd, 124 S. Ct. 2204 (2004).

(112) Id.

(113) 40 C.F.R. [section] 93.153(c)(2) (including "rulemaking and policy development and issuance" in its list of "actions which would result in no emissions increase or an increase in emissions that is clearly de minimis").

(114) Pub. Citizen, 316 F.3d at 1030-31.

(115) NAFTA, supra note 7, at art. 2019, 32 I.L.M. at 697.

(116) U.S. CONST. art. III.

(117) Maria Frankowska, The Vienna Convention on the Law of Treaties Before United States Court, 28 VA. J. INT'L L. 281, 302 (1988).

(118) LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 132 (2d ed. 1996).

(119) Frederick M. Abbott, NAFTA and the Legalization of World Politics: A Case Study, in LEGALIZATION AND WORLD POLITICS 135, 135 (Judith L. Goldstein et al. eds., 2001) ("The form of legalization represented in NAFTA is characteristic of a trend toward higher levels of precision, obligation, and delegation in international trade regulation that has been ongoing since the adoption of the General Agreement on Tariffs and Trade (GATT) in 1947.").

(120) General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194. 121 Abbott, supra note 119, at 135-36 (discussing the high degree of precision these acts and treaties impose).

(122) Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1032 (9th Cir. 2003), rev'd, 124 S. Ct. 2204 (2004).

(123) Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000).

(124) Singleton v. Wulff, 428 U.S. 106, 120 (1976).

(125) Public Citizen presented two issues for review:

1. Whether administrative rules governing the operation of Mexico-domiciled trucks throughout the United States can be implemented, even though those trucks will emit significantly larger quantities of harmful air pollutants than U.S. trucks, in the absence of an Environmental Impact Statement that fully discloses and evaluates the serious environmental effects as required by the National Environmental Policy Act, 42 U.S.C. [section] 4332.

2. Whether the same administrative rules can be implemented despite the failure to conduct an analysis for conformity with State Implementation Plans as required by the Clean Air Act, 42 U.S.C. [section] 7506.

Petitioners' Consolidated Opening Brief at 1-2, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249), 2002 WL 32100057.

DOT presented four issues for review..

(1) Whether Petitioners lack standing to challenge the FMCSA rules at issue in this case, because they have not demonstrated any concrete and particularized injury and cannot show that the general environmental harm alleged was caused by the rulemaking or can be redressed in this action.

(2) Whether the FMCSA reasonably decided not to prepare an Environmental Impact Statement under the National Environmental Policy Act ("NEPA") when issuing safety rules for Mexico-domiciled motor carriers ("Mexican carriers") operating in the United States, given that the rules themselves will have no significant impact on the environment, notwithstanding any Impacts that may result from a Presidential order modifying a trade moratorium relating to the scope of Mexican-carrier operations in the United States.

(3) Whether the FMCSA properly treated a rule establishing training and certification requirements for motor carrier safety auditors as "categorically exempt" from NEPA requirements.

(4) Whether the FMCSA correctly determined that the rules at issue in this case were exempt from Clean Air Act conformity requirements because the rules will not cause direct or indirect emissions in excess of de minimis thresholds and fall under a categorical exemption for "rulemaking."

Brief for the Respondents at 2-3, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249), 2002 WL 32102737.

(126) Public Citizen did not bring up the issue for the obvious reason that it did not serve its interests. In its brief to the Ninth Circuit, DOT mentioned the President's powers only in relation to the moratorium, not to foreign relations. See, e.g., Brief for the Respondents at 3 (referring to the "Presidential order modifying a trade moratorium;"); id. at 6 (stating that FMCSA's obligations "did not extend to impacts attributable to international-trade decisions committed to the discretion of the President;"); id. at 12 (stating that the President can modify moratorium upon a finding that it would be consistent with US obligations "under a trade agreement" (internal quotations omitted)); id. at 41 ("[t]he environmental harms alleged can occur only ff and when the President modifies the trade moratorium on the granting of new operating authority to Mexican carriers. Any such action would be 'independent' action of an actor not before this Court and not subject to this Court's jurisdiction." (capitalization omitted)); id. at 42 (noting that Congress gave the President authority to modify or remove the moratorium upon his determination that "such modification is consistent with the obligations of the United States under a trade agreement" (internal quotations omitted)); id. at 51 (referring to "Presidential decision on the moratorium ... [b]y statute, any such decision may be based on a variety of factors relating to trade and transportation policy"); id. at 52 (noting the "President's discretionary action on the moratorium").

(127) The Question Presented in DOT's petition for certiorari was, "whether a presidential foreign-affairs action ... became subject to [NEPA and the CAA] because an executive agency promulgated administrative rules concerning implementation of the President's action." Petition for a Writ of Certiorari at I, Dep't of Transp. v. Pub. Citizen, 124 S. Ct. 2204 (2004) (No. 03-358), 2003 WL 22428956.

(128) On May 2, 2002, the Ninth Circuit ruled not to grant the stay.

(129) Reply Brief for the Petitioners at 5, Dep't of Transp. v. Pub. Citizen, 124 S. Ct. 2204 (2004) (No. 03-358) (quoting Government Response in Opposition to Petitioner's Motion for an Emergency Stay Under Circuit Rule 27-3, at 17 (internal quotations omitted)), 2003 WL 22896667.

(130) See Brief for the Respondents, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249), 2002 WL 32102737.

(131) Singleton v. Wulff, 428 U.S. 106, 121 (1976).

(132) RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 113(1) (1987) (emphasis added); see also The Paquete Habana, 175 U.S. 677, 708 (1900) (stating that "[t]his rule of international law is one which prize courts, administering the law of nations, are bound to take judicial notice of, and give effect to").

(133) See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952) (noting that matters relating to "the conduct of foreign relations ... are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference"); Regan v. Wald, 468 U.S. 222, 242 (1984) (quoting Harisiades); Plyer v. Doe, 457 U.S. 202, 237 (1982) (same).

(134) Customary international law is discussed in Section III.B.2, infra.

(135) See NAFTA, supra note 7, at art. 2019(1), 32 I.L.M. at 697 (noting that "such complaining Party may suspend the application to the Party complained against of benefits of equivalent effect until such time as they have reached agreement on a resolution of the dispute").

(136) U.S. CONST. art. VI, cl. 2.

(137) U.S. CONST. art. II, [section] 2, cl. 2 grants the President the power to make treaties, "provided two thirds of the Senators present concur."

(138) Rossi v. Brown, 467 F. Supp. 960, 963 (D.D.C. 1979), rev'd, 642 F.2d 553 (D.C. Cir. 1980), rev'd sub nom. Weinberger v. Rossi, 465 U.S. 25 (1982).

(139) RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 111, cmt. e (1987). See, e.g., B. Altman & Co. v. United States, 224 U.S. 583, 601 (1912) (construing the Circuit Court of Appeals Act to include international compacts not ratified by the Senate in the term "treaty"); Weinberger v. Rossi, 456 U.S. 25, 36 (1982) (including executive agreement in the term "treaty" used in a statute prohibiting discrimination against U.S. citizens for purposes of employment on military bases overseas); United States v. Belmont, 301 U.S. 324, 331 (1937) (stating that all international compacts and agreements have the same supremacy as treaties under U.S. law).

(140) North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993) (codified in scattered sections of 19 U.S.C. and other scattered titles of U.S.C.).

(141) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 115 (1) (1987). See also id. [section] 115 reporters' note 1 ("The principle that United States treaties and federal statutes are of equal authority, so that in case of inconsistency the later in time should prevail, was derived early from the Supremacy Clause, Article VI of the Constitution.").

(142) NAFTA, supra note 7, art. 1201(1), 32 I.L.M. at 649.

(143) Id. art. 1202 (defining National Treatment), 32 I.L.M at 649.

(144) Id. art. 1203 (defining Most Favored Nation Treatment), 32 I.L.M. at 649.

(145) Id. art. 1204, 32 I.L.M. at 649.

(146) Id. art. 1206, 32 I.L.M. at 650.

(147) Id. annex I, 32 I.L.M. at 746.

(148) Id. 32 I.L.M. at 747.

(149) NAFTA's Chapter 20 provides that "all disputes between the Parties regarding the interpretation or application of this Agreement or wherever a Party considers that an actual or proposed measure of another Party is or would be inconsistent with the obligations of this Agreement" may be settled by invoking the GATT resolution process or by a NAFTA arbitral panel. Id. arts. 2004, 2005, 2008, 32 I.L.M. at 694, 695.

(150) NAFTA PANEL REPORT, supra note 20, at paras. 153-67.

(151) Id. at paras. 295-301.

(152) Patricia Isela Hansen, Judicialization and Globalization in the North American Free Trade Agreement, 38 TEX. INT'L L.J. 489, 490 (2003).

(153) John Nagel, Mexico Seeks Urgent Meeting to Discuss Implementation of Cross-Border Trucking, 20 Int'l Trade Rep. (BNA) 521, 522 (2003). Mexico claims it is losing "billions of dollars worth of business because of [truckers'] inability to make deliveries in the United States." Id.

(154) NAFTA PANEL REPORT, supra note 20, at para. 301.

(155) NAFTA, supra note 7, art. 904(1), 32 I.L.M. at 387.

(156) Department of Transportation and Related Agencies Appropriations Act, 2002, Pub. L. No. 107-87, 115 Stat. 833 (2001).

(157) 42 U.S.C. [section] 4332(2)(C) (2000).

(158) RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 115(1)(a) (1987).

(159) Id. [section] 115(1)(b). This rule is codified in Article 27 of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331,339. Although the United States is not a party to the Vienna Convention, the convention "has been recognized as an authoritative source of international treaty law by the courts ... and the executive branch" to which the United States is bound. Coplin v. United States, 6 Cl. Ct. 115, 122 n.5 (C1. Ct. 1984), rev'd on other grounds, 761 F.2d 688 (Fed. Cir. 1985), aff'd sub nom. O'Connor v. United States, 479 U.S. 27 (1986).

(160) J. CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY 86 (2002).

(161) NAFTA, supra note 7, art. 2101(2), 32 I.L.M. at 699.

(162) Id. art. 904(1), 32 LL.M. at 387.

(163) Id.

(164) Id.

(165) NAFTA PANEL REPORT, supra note 20, at para. 301.

(166) Id. at paras. 299, 301.

(167) Id. at para. 301.

(168) NAFTA, supra note 7, art. 904(1), 32 I.L.M. at 387.

(169) BLACKS LAW DICTIONARY 1133 (7th ed. 1999).

(170) See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 321 ("Every international agreement in force is binding upon the parties to it and must be performed by them in good faith.").

(171) Id. [section] 321 cmt. a. The doctrine of pacta sunt servanda is codified in Article 26 of the Vienna Convention on the Law of Treaties. Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 1155 U.N.T.S. 331, 339. Article 26 requires a state to perform in good faith the requirements to winch it has agreed in any treaty to winch it is a party. Id.

(172) See, e.g., Paul Krugman, Victory Won't End Distruct of Bush, INT'L HERALD TRIB., March 19, 2003, at 8 ("Victory in Iraq won't end the world's distrust of the United States because the Bush administration has made it clear, over and over again, that it doesn't play by the rules."), available at http://www.iht.com/articles/90179.html. The United States has stretched its credibility in international circles by, among other things, invading Iraq without approval from the United Nations Security Council, MARY ELLEN O'CONNELL, THE AMERICAN SOCIETY OF INTERNATIONAL LAW, THE MYTH OF PREEMPTIVE SELF-DEFENSE 2 (2002), available at http://www.asil.org/taskforce/oconnell.pdf, and eschewing the requirements of the Geneva Conventions regarding treatment of prisoners in Iraq, see, e.g., John Barry, et al., Special Report, NEWSWEEK, May 24, 2004, at 28, 29-31 (describing the Bush Administration's justification for "sidestep[ping] the historical safeguards of the Geneva Conventions, winch protect the rights of detainees and prisoners of war"); Seymour M. Hersh, The GrayZone: How a Secret Pentagon Program Came to Abu Ghraib, THE NEW YORKER, May 24, 2004, at 38, 42 (discussing reactions within the Judge Advocate General's Corps to Secretary of Defense Donald Rumsfeld's "apparent disregard for the requirements of the Geneva Conventions"); Hendrik Hertzberg, Comment." Unconventional War, THE NEW YORKER, May 24, 2004, at 31, 32 ("George W. Bush's Administration has never had much use for international agreements. As soon as it took office, it set about un-encumbering itself from those it considered irksome, such as the Kyoto environmental protocol, the Anti-Ballistic Missile treaty, and the statute of the International Criminal Court. After the attacks of September 11, 2001, the Geneva Conventions, among other niceties, were added to its list of obstacles to be got around.").

(173) Dep't of Transp. v. Pub. Citizen, 124 S. Ct. 957 (U.S. Dec. 15, 2003).

(174) DOT presented the following question in its petition for certiorari:

   Whether a presidential foreign-affairs action that is otherwise
   exempt from environmental review requirements under [NEPA and the
   CAA], became subject to those requirements because an executive
   agency promulgated administrative rules concerning implementation
   of the President's action.

Petition for a Writ of Certiorari at I, Dep't of Transp. v. Pub. Citizen, 124 S. Ct. 2204 (2004) (No. 03-358), 2003 WL 22428956. In the case before the Supreme Court, DOT is not challenging the Ninth Circuit's ruling on standing, id. at 14 n.6, nor its determination that the Auditor Certification Rule is not categorically excluded from NEPA review, id. at 13. Nor is DOT questioning the Ninth Circuit's decision that EPA's de minimis exemption of rulemaking from CAA conformity analysis is inapplicable in this case. Id. at 10 n.4.

(175) See supra Section III.B.

(176) See supra Section III.B.

(177) This argument differs from that put forth in the Ninth Circuit. In the Ninth Circuit, DOT argued that the environmental impacts of the opening of the border to Mexican trucks were a result of the President's power to modify the moratorium granted by Congress. Brief for the Respondents at 52, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249), 2002 WL 32102737. Here DOT is adding to that argument the President's inherent power to govern foreign affairs. Petition for a Writ of Certiorari at 3.

The first issue before the Supreme Court will be whether or not the issue has been preserved for review. Almost every page of analysis in DOT's petition for certioriari asserts interference with the President's foreign relations powers. See, e.g., id. at 1-3, 13-16, 18-20, 24, 26. Because the foreign affairs element of this case was neither briefed nor argued before the Ninth Circuit, there is a good argument that DOT has waived its right to make this assertion. When reviewing a case on a writ of certiorari, the Supreme Court "may consider all issues in the case that have been properly raised below." CHARLES ALAN WRIGHT & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: PRACTICE DESKBOOK [section] 115 (2002). Public Citizen urges that interference with the President's foreign relations powers was not at issue in the Ninth Circuit. Respondents' Brief in Opposition at 15, Dep't of Transp. v. Pub. Citizen, 124 S. Ct. 957 (No. 03358). Thus the first question before the Supreme Court is whether the issue was preserved. DOT makes the argument that it referred to potential harm to foreign diplomacy in its Response in Opposition to Petitioner's Motion for an Emergency Stay. Reply Brief for the Petitioners at 5, Dep't of Transp. v. Pub. Citizen, 124 S. Ct. 2204 (2004) (No. 03-358), 2003 WL 22896667.

By granting certiorari, the Supreme Court seems to have accepted DOT's argument as at least plausible. But the real issue for review is the required scope of the environmental analysis. DOT is renewing its argument that the President's involvement in opening the border to Mexican trucks limits the scope of the required analysis. Id. at 10. DOT is also renewing its argument that the agency is not responsible for the effects of the President's actions, and is augmenting that argument by invoking the President's foreign relations powers. Id. at 5-6. Because the basic issue was before the Ninth Circuit, albeit without the heightened aura of DOT's current foreign affairs contentions, the Supreme Court will likely find the issue preserved.

(178) See supra Section II.B.2.a.

(179) See supra Section II.B.2.b.ii.

(180) Petition for a Writ of Certiorari at 15-16.

(181) Id. at 16.

(182) 40 C.F.R. [section] 1508.12 (2003).

(183) U.S. CONST. art. I [section] 8 cl. 3.

(184) U.S. CONST. art. II [section] 2 cl. 2.

(185) HENKIN, supra note 118, at 25.

(186) Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).

(187) THE FEDERALIST NO. 48, at 273 (James Madison) (E.H. Scott ed., 1894).

(188) HENKIN, supra note 118, at 333 (quoting 1 ANNALS OF CONG. 604 (Joseph Gales, Sr. ed., 1789) (statement of James Madison)).

(189) John Linarelli, International Trade Relations and Separation of Powers Under the United States Constitution, 13 DICK. J. INT'L L. 203, 208 (1995).

(190) Id. at 208-22.

(191) Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. [subsection] 1901-2906 (2000). Article 101(a) of the NAFTA Implementation Act states that NAFTA was approved pursuant to the Omnibus Trade and Competitiveness Act of 1988. 19 U.S.C. [section] 3311 (2000).

(192) 19 U.S.C. [section] 2902(c)-(d) (2000).

(193) Id. [section] 2191(d)-(e).

(194) For good descriptions of the struggle between the President and Congress in the realm of treaties regulating international trade, see John Linarelli, supra note 189, at 203, and Lawrence M. Reich, Foreign Policy or Foreign Commerce?: WTO Accessions and the U.S. Separation of Powers, 86 GEO. L.J. 751 (1998).

(195) GORDON SILVERSTEIN, IMBALANCE OF POWERS: CONSTITUTIONAL INTERPRETATION AND THE MAKING OF AMERICAN FOREIGN POLICY 165 (1997) (citing Representative Jonathan Bingham discussing the Trade Reform Act of 1978-1974).

(196) Bus Regulatory Reform Act of 1982, Pub. L. No. 97-261, 96 Stat. 1102, superseded by Interstate Commerce Commission Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (codified as amended in scattered sections of 49 U.S.C.).

(197) 49 U.S.C. [section] 13902(c)(3) (2000).

(198) H.R. CONF. REP. NO. 97-780, at 38 (1982), reprinted in 1982 U.S.C.C.A.N. 2342, 2347.

(199) 128 CONG. REC. 15,487 (1982).

(200) Id. at 15,485. Senator Danforth stated,

   As chairman of the Subcommittee on International Trade of the
   Finance Committee, I believe that an effective trade policy must be
   the product of the President's trade negotiating entity, working in
   cooperation with other agencies. Our trade laws grant the President
   extensive authority to investigate foreign unfair trade practices
   and to negotiate for their removal or take retaliatory measures
   against them.

Id. Speaking about the compromise, Senator Danforth added, "We have now managed to work out appropriate language which accomplishes the original intent of the committee and at the same time is acceptable to the Special Trade Representative and the administration." Id. at 15,487.

(201) H.R. CONF. REP. NO. 97-780, at 38 (1982), reprinted in 1982 U.S.C.C.A.N. 2342, 2349.

(202) Id.

(203) Interstate Commerce Commission Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803.

(204) H.R. REP. NO. 104.311, at 85 (1995), reprinted in 1995 U.S.C.C.A.N. 793, 797.

(205) 49 U.S.C. [section] 13902(c)(3) (2000).

(206) Under Secretary of State for Economic, Business and Agricultural Affairs Alan Larson, Remarks to 54th Plenary of the U.S.-Mexico Business Committee (March 5, 2001), available at http://www.state.gov/e/rls/rm/2001/1133.htm.

(207) Sheppard, supra note 32, at 240 (citing US. Misses Deadline for Mexican Truck Access; Society Concerns Postpone Policy Required by NAFTA, ST. LOUIS POST DISPATCH, Mar. 8, 2001, at A13).

(208) Federal Motor Carrier Safety Administration, Revision of Regulations and Application Form for Mexican-Domiciled Motor Carriers To Operate in U.S. Municipalities and Commercial Zones on the U.S.-Mexico Border, 66 Fed. Reg. 22,328, 22,416 (May 3, 2001).

(209) H.R. 2299, 107th Cong. [section] 341 (2001).

(210) Sheppard, supra note 32, at 242.

(211) Id. at 243.

(212) Press Release, The White House, President Signs Transportation Appropriations Act (Dec. 18, 2001), http://www.whitehonse.gov/news/releases/2001/12/20011218-4.html.

(213) Department of Transportation and Related Agencies Appropriations Act, 2002, Pub. L. No. 107-87, [section] 350, 115 Stat. 833, 864-68 (2001).

(214) Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, div. I, tit. III, [section] 348, 117 Stat. 11, 419 (2003).

(215) H.R. REP. NO. 108-243, at 84 (2003) (accompanying Departments of Transportation and Treasury and Independent Agencies Appropriations Bill, 2004, H.R. 2989, 108th Cong. (2003)).

(216) Id.

(217) 343 U.S. 579 (1952). Justice Jackson concurred in the Court's opinion that that the President's order to seize the Youngstown Sheet and Tube Company during the undeclared Korean War was unconstitutional. Id. at 634 (Jackson, J., concurring).

(218) Dames & Moore v. Regan, 453 U.S. 654, 661 (1981).

(219) Youngstown, 343 U.S. at 635 (Jackson, J., concurring).

(220) Id.

(221) Id. at 637.

(222) Id.

(223) Id.

(224) Id.

(225) Id.

(226) 49 U.S.C. [section] 13902(c)(3) (2000).

(227) Department of Transportation and Related Agencies Appropriations Act, 2002, Pub. L. No. 107-87, [section] 350, 115 Stat. 833, 864-68 (2001).

(228) Id.

(229) 40 C.F.R. [section] 1508.18(a) (2000).

(230) Id.

(231) Petition for a Writ of Certiorari at 16-18, Dep't of Transp. v. Pub. Citizen, 124 S. Ct. 2204 (2004) (No. 03-358), 2003 WL 22428956.

(232) See, e.g., 42 U.S.C. [section] 4321 (2000) ("The purposes of this chapter are: To declare a national policy which will ... promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man."); id. [section] 4331(b) (requiring the federal government "to use all practicable means, consistent with other essential considerations of a national policy, to improve and coordinate Federal plans, functions, programs, and resources" to protect the environment); id [section] 4332(1) (requiring the federal government, "to the fullest extent possible," to interpret and administer the "policies, regulations, and public laws of the United States ... in accordance with the policies set forth in this chapter").

(233) Id. [section] 4332(2)(C).

(234) Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, div. I, tit. III, [section] 348, 117 Stat. 11, 419.

(235) Youngstown, 343 U.S. 579, 638 (1952) (Jackson, J., concurring).

(236) Id. at 637-38.

(237) U.S. CONST. art. I, [section] 8, cl. 3.

(238) See Hodel v. Va. Surface & Mining Reclamation Ass'n, 452 U.S. 264, 284 (1981) (holding that the Commerce Clause power was broad enough for Congress to regulate air and water pollution and other environmental hazards that affect more than one state); Hodel v. Indiana, 452 U.S. 314, 324 (1981) (holding that protection of farm land was a legitimate exercise of Commerce Clause power).

(239) 299 U.S. 304 (1936).

(240) Id. at 319.

(241) Id.

(242) Youngstown, 343 U.S. 579, 636 (1952) (Jackson, J., concurring).

(243) KERMIT L. HALL ET AL., AMERICAN LEGAL HISTORY 94 (1996) (discussing the Helvidius-Pacificus essays of 1793 written by James Madison (Helvidius) and Alexander Hamilton (Pacificus)).

(244) Id.

(245) ALEXANDER HAMILTON, Pacificus No. I, in THE PAPERS OF ALEXANDER HAMILTON 34, 39 (Harold C. Syrett ed., 1969).

(246) Id.

(247) U.S. CONST. art. I, [section] 1.

(248) HAMILTON, supra note 245, at 39.

(249) JAMES MADISON, LETTERS OF HELVIDIUS 7 (Philadelphia, Smith 1796).

(250) Id. at 8.

(251) HENKIN, supra note 118, at 27-28.

(252) See, e.g., HENKIN, supra note 118; H. JEFFERSON POWELL, THE PRESIDENT'S AUTHORITY OVER FOREIGN AFFAIRS (2002); SILVERSTEIN, supra note 195.

(253) Youngstown, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).

(254) Curtiss-Wright, 299 U.S. 304, 311-12 (1936).

(255) Id. at 319-20.

(256) Youngstown, 343 U.S. at 589.

(257) Id. at 585-88.

(258) 453 U.S. 654 (1981).

(259) Id. at 688.

(260) Id at 680.

(261) 22 U.S.C. [subsection] 1621-1627 (2000).

(262) 50 U.S.C. [subsection] 1701-1702 (2000).

(263) Dames & Moore, 453 U.S. at 680.

(264) Curtiss-Wright, 299 U.S. 304, 320 (1936) (quoting GEORGE WASHINGTON, 1 MESSAGE AND PAPERS OF THE PRESIDENTS 194).

(265) Nagel, supra note 153, at 521 (stating that Mexico finds the new regulations discriminatory).

(266) Youngstown, 343 U.S. 549, 655 (1952) (Jackson, J., concurring).

(267) RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 321 (1987) (stating that every international agreement in force is binding upon the parties to it and must be performed by them in good faith).

(268) See, e.g., William Finnegan, The Economics of Empire: Notes on the Washington Consensus, HARPER'S MAG., May 2003, at 41-42 (describing these policies as the "Washington Consensus").

(269) The Cuyahoga River caught fire in 1969, Rachel Carson published Silent Spring in 1962, and NEPA was signed in 1970.

(270) JEFFREY D. SACHS, GLOBALIZATION AND THE RULE OF LAW 12 (1998).

(271) JOSEPH STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 8 (2002).

(272) For example, scientists have found toxic pollutants in the Arctic, thousands of miles from where they were introduced into the environment. THEO COLBORN ET AL., OUR STOLEN FUTURE 107-09 (1996).

(273) ROBERT WRIGHT, NONZERO--THE LOGIC OF HUMAN DESTINY 233-34 (2000).

(274) Id. at 232-34.

(275) Id. at 233.

(276) Id. (describing labor laws and other regulations slowing the pace of material growth as a successful "preemptive strike against chaos" that could result if growth continued unchecked by governance).

(277) The number of bilateral investment treaties, for example, mushroomed to nearly 2,000 by the end of the 1990s. UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT, U.N. DOC. ITE/IIA/2, BILATERAL INVESTMENT TREATIES 1959-1999, at 1 (2000), available at http://www.unctad.org/en/docs//poiteiiad2.en.pdf.

(278) Such requirements include NAFTA's provisions that each party may adopt measures to protect the public safety and health of its people and its own environment. NAFTA, supra note 7, at art. 904(1), 32 I.L.M. at 387.

(279) U.S. CONST. pmbl.

(280) THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776).

(281) Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1022 (9th Cir. 2003), rev'd, 124 S. Ct. 2204 (2004).

(282) Dep't of Transp. v. Pub. Citizen, 124 S. Ct. 2204, 2209 (2004).

(283) Id.

(284) Id. at 2218.

(285) Id. at 2214.

(286) Id. at 2215-16.

(287) See Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1022 (9th Cir. 2003) (noting that CEQ regulations require an agency to evaluate the reasonably foreseeable indirect environmental effects of its actions, that the President's rescission of the moratorium was reasonably foreseeable, and that therefore, DOT's environmental analysis must include a consideration of the effects of the President's rescission of the moratorium).

(288) 460 U.S. 766 (1983).

(289) Dep't of Transp. v. Pub. Citizen, 124 S. Ct. at 2215 (quoting Metropolitan Edison, 460 U.S. at 774).

(290) Id. at 2217.

(291) Brief for the Respondents at 53-54, Pub. Citizen v. Dep't of Transp., 316 F.3d 1002 (9th Cir. 2003) (Nos. 02-70986, 02-71249) (citing Marbled Murrelet v. Babbitt, 111 F.3d 1447, 1449-50 (9th Cir. 1997), and Sierra Club v. Babbitt, 65 F.3d 1502, 1512-13 (9th Cir. 1995), in support of its assertion that the Ninth Circuit had "consistently recognized that NEPA obligations do not apply where an agency lacks decisionmaking discretion."), 2002 WL 32102737.

(292) Pub. Citizen v. Dep't of Transp., 316 F.3d at 1027. The Ninth Circuit stated,

   We are similarly unpersuaded by DOT's last-ditch argument that, as
   an agency with no jurisdiction over environmental matters, it need
   not consider the environmental consequences of its actions. This
   argument flies in the face of the text of NEPA, which requires that
   "all agencies of the Federal Government shall ... include in every
   ... major Federal action[] significantly affecting the quality of
   the human environment, a detailed statement by the responsible
   official on ... the environmental impact of the proposed action."

Id. (citing 42 U.S.C. [section] 4332(2) (2000) (emphasis added))

(293) Metropolitan Edison, 460 U.S. at 774. (finding the psychological harm caused by the perception of risk in reopening the unharmed Three Mile Island nuclear energy plant "too remote from the physical environment" to be required in an EIS).

(294) 124 S. Ct. 2204 (2004).

(295) Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1151 (D.C. Cir. 2001).

(296) Dep't of Transp. v. Pub. Citizen, 124 S. Ct. at 2215.

(297) 40 C.F.R. [section] 1500.2 (2003).

(298) Id. [section] 1501.1(b).

(299) Dep't of Transp. v. Pub. Citizen, 124 S. Ct. at 2216.

(300) Department of Transportation and Related Agencies Appropriation Act, 2002, Pub. L. No. 107-87, [section] 350, 115 Stat. 833, 864-68 (2001).

KATHERINE G. SHIREY, [c] Katharine G. Shirey, 2004. Ninth Circuit Review Member, Environmental Law, 2003-2004; J.D. and Certificate in Environmental and Natural Resources Law 2004, Lewis & Clark Law School; B.S. 1972, Antioch College (Chemistry). The author thanks Glenn Wiser (Center for International Environmental Law) and Professors Greg Block and Stephen Kanter for stimulating discussions and valuable guidance. The author also thanks Rebecca Watkins, 2003-2004 Ninth Circuit Review Editor, Environmental Law, for insightful comments and suggestions.