Mexican truckers score huge victory in Supreme Court.

On June 7, the U.S. Supreme Court decided on the controversial Nafta trucking case. The case came from the 9th Circuit Federal Appeals Court, which had ruled that the environmental assessment (EA) conducted by the Federal Motor Carrier Safety Administration (FMCSA) was deficient. The Court had ordered the organization to conduct a more detailed environmental impact statement (EIS) and a full Clean Air Act conformity determination to provide a detailed evaluation of the environmental impact of opening the U.S. border to Mexican trucks pursuant to Nafta's transportation chapter.

The background of this case provides an interesting view into the legal issues involved in implementing U.S. presidential decisions.

Under the National Environmental Policy Act (NEPA), federal agencies must analyze the environmental impact of their proposals in an EIS. However, the Council of Environmental Quality regulations allow certain agency actions to prepare a more limited evaluation using the EA format. The agency must then issue a "finding of no significant impact" with respect to its proposed action.

On the transportation front, in 1982 the U.S. Congress enacted a moratorium prohibiting Mexican motor carriers from obtaining operating authority within the United States. In 2000, Nafta's transportation chapter lifted the moratorium. The Clinton administration, concerned with safety regulations, did not ease the restriction and, in 2001, an international arbitration panel ruled against the U.S. position. President Bush then announced his intention to abide by Nafta and the FMCSA prepared a proposal for new regulations governing grants of operating authority for Mexican motor carriers.

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Acting pursuant to Environmental Policy Act, the FMSCA issued an assessment for the proposed rules that did not consider the environmental impact that might be caused by Mexican trucks in the U.S. The reasoning was that any impact would occur due to the lifting of the moratorium and not the enactment of its regulations. Further, based upon this assumption, the FMSCA found that there would be no significant environmental impact and that no additional reviews were necessary for the implementation of the regulation of Mexican motor carriers.

At that point, opponents filed their lawsuit based upon the argument--ultimately supported by the 9th Circuit--that the FMCSA did not conduct the proper environmental assessment prior to enactment of its regulations.

The Supreme Court took a narrow view of the argument and found that the FMSCA did not violate federal environmental law.

Specifically, it noted that the key question under the law is whether the anticipated increased traffic of Mexican motor carriers is a direct effect of the agency's rules or of the president's decision to lift the moratorium. Since the agency could only implement the decision and regulate the activity, and not countermand it, the court found an insufficient link between the agency and the activity to trigger the environmental impact statement requirements.

Consistently, the court rejected the similar argument with respect to the Clean Air Act conformity analysis stating that Mexican truck emissions are not directly or indirectly caused by the issuance of the agency's action.

In conclusion, the High Court found that the FMSCA acted properly and that no additional environmental studies will be required prior to implementing the agency's regulations of the operations of Mexican motor carriers in the United States.

Edward M. Ranger is the only U.S. environmental lawyer licensed to practice in Mexico. He may be contacted at [e-mail].