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Public Citizen v. Department of Transportation


Public Citizen and others (collectively Public Citizen) challenged three regulations promulgated by the Federal Motor Carrier Safety Administration (FMCSA) under the National Environmental Policy Act (NEPA)[1] and the Clean Air Act (CAA).[2] The Ninth Circuit held that FMCSA failed to conduct adequate environmental assessments.

FMCSA, a branch of the Department of Transportation, promulgated three regulations concerning the application and use of Mexican-domiciled trucks for conducting business across the United States border in recognition of the North American Free Trade Agreement (NAFTA).[3] President Bush subsequently lifted a long-standing moratorium on business conducted by Mexican-domiciled trucks in the United States. For two of the regulations, the Application regulation[4] and Safety Monitoring System regulation,[5] FMCSA conducted an environmental assessment and issued Findings of No Significant Impact (FONSIs). For the third regulation, the Certification regulation,[6] FMCSA did not conduct an environmental assessment because it determined that the regulation was categorically exempted from the requirement, without conducting a conformity determination as required under the CAA. Public Citizen claimed that FMCSA failed to conduct a necessary environmental impact statement (EIS) under NEPA as well as a conformity determination under the CAA and petitioned the Ninth Circuit for review under the Administrative Procedure Act (APA).[7]

The Ninth Circuit first addressed preliminary questions about Public Citizen’s ability to bring suit. For standing, Public Citizen needed to demonstrate injury in fact, causation, and redressability.[8] The Ninth Circuit evaluated standing by considering the procedural injury caused by FMCSA’s failure to perform necessary environmental analyses. Among the plaintiffs were United States residents living along the Mexican border in California and Texas, who claimed that additional emissions from trucks permitted into the United States would create increased health hazards. Relying on Supreme Court precedent,[9] the Ninth Circuit determined that for environmental injury cases, injury in fact could be demonstrated by showing that the plaintiffs’ use of the area would be hampered or lessened by the challenged activity. Public Citizen provided evidence that one of its members reduced outdoor recreation when smog and pollution warnings were issued, thus satisfying the injury in fact requirement.

Public Citizen also met the causation and redressability requirements, standards which the Ninth Circuit held were lowered when the alleged injury is procedural. Concerning causation, FMCSA argued that the regulations themselves did not cause increased emissions because until the President removed the moratorium, there was no probable threat from the regulations. The Ninth Circuit rejected this theory because Public Citizen provided evidence that the President had indicated he would remove the moratorium if safety measures were in place. The court found that this established the reasonable probability of the threat, regardless of the two separate actions that had to occur to create it. The court also determined that, because the regulations would become effective if Public Citizen’s challenge was denied, the likelihood of harm was high. The Ninth Circuit then held that the harm was redressable because the further environmental analyses required by the court could affect the enactment of the regulations causing the harm.

The Ninth Circuit also addressed whether Public Citizen had organizational standing to bring suit. Applying the test defined in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,[10] the court determined that the members would individually have standing, their interests were central to the organization, and suit by the organization would make individual suits unnecessary. Thus the Ninth Circuit summarily determined that Public Citizen had organizational standing.

The final standing issue addressed by the court was whether Public Citizen met APA standing requirements, which call for 1) final adverse agency action and 2) injury that falls within the “zone of interests” of the statute at issue. In this case, the final agency action occurred when the agency promulgated the regulations, and Public Citizen’s aim to protect the environment fit easily within NEPA purposes.

In considering the adequacy of the environmental analyses conducted by FMCSA prior to enactment of the regulations, the Ninth Circuit considered separately the NEPA and CAA claims, keeping in mind the standard that the agency was required to take a “hard look” at the consequences of its actions prior to promulgation.[11]

Under NEPA, an EIS must be conducted for “major Federal actions significantly affecting the . . . human environment.”[12] A less extensive environmental assessment (EA) may first be conducted to determine whether an EIS is necessary.[13] If the EA demonstrates no possible significant impact, the agency may issue a FONSI.[14] For both the Application and Safety Monitoring regulations, the agency issued FONSIs.

Analysis of the necessity for an EIS includes evaluation of whether the action is a “major Federal action” and “whether [that action] may significantly affect the environment.”[15] Under NEPA, a major federal action is one that may have significant effects and may be subject to federal control.[16] In arguing that the regulations were not major actions, FMCSA claimed any environmental effects would result from the revocation of the moratorium by the President, not from the regulations. The Ninth Circuit rejected this assertion because of the requirement that indirect, later effects be considered as part of the overall effect of any given federal regulation.[17] Having already determined that the Presidential action was reasonably foreseeable, the Ninth Circuit determined that the regulations adopted by FMCSA constituted major federal actions.

The Ninth Circuit next determined that the regulations also significantly affected the human environment. Conducting an in-depth evaluation of what “significant” means, the court explained that it entails both context and intensity of the environmental impacts.[18] On the context front, the Ninth Circuit found that FMCSA failed in two ways. First, it did not evaluate the local impacts. Second, it narrowed the scope to only the year 2002. In assessing the intensity of the possible environmental impacts of the regulations, the Ninth Circuit found that FMCSA failed to consider the health effects of increased exhaust emissions, the uncertainty regarding increases in Mexican truck traffic and polluting emissions, the conformity of the regulations with California’s state emission standards, and the substantial dispute of its assessment as embodied by the high percentage of public comments opposing the regulations. Because the regulations arguably constituted a major federal action with a plausible substantial impact on the environment, the agency had a duty to offer a statement of the reasons why it did not think a significant negative environmental impact would occur. Having failed to offer any such rationale, the Ninth Circuit held that FMCSA was required to conduct an EIS rather than an EA.

The Ninth Circuit also rejected FMCSA’s rationale for not conducting environmental analyses for its third regulation, the Certification regulation. Under the CEQ regulations, actions that do not have independent or cumulative significant effects, as found by procedures adopted by a federal agency, are categorically excluded from NEPA requirements.[19] Although the proposed regulation did not fall into any defined categorical exclusion, FMCSA argued it should be excluded because it had no significant environmental impact. The Ninth Circuit rejected this weak argument, holding that the agency had a duty to conduct an environmental analysis.

Finally, the Ninth Circuit considered FMCSA’s compliance with CAA air quality standards. Under the CAA, states create EPA-approved State Implementation Plans (SIPs) for pollutants, which limit emissions and have the purpose of bringing all regions into compliance with air quality standards.[20] While most federal actions require a “conformity determination” to evaluate the conformity with any SIP,[21] two categories of federal actions are exempted from this requirement.[22] These two categories include actions in which the total direct and indirect emissions fall below statutory limits, and those which do not increase emissions.[23] FMCSA argued that the regulations were exempt under both exceptions and thus it had no duty to make conformity determinations. However, the Ninth Circuit rejected this argument because the agency failed to adequately assess emissions levels, instead focusing only at a national assessment of emissions, again attempting to separate the impact of its regulations from the impact after the President lifted the moratorium. The Ninth Circuit also rejected FMCSA’s argument that the second exception applied to all federal regulations. Therefore, the court instructed FMCSA to conduct a conformity determination for all three regulations.

[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[2] 42 U.S.C. §§ 7401-7671p (2000).

[3] North American Free Trade Agreement Implementation Act, 19 U.S.C. §§ 3301-3473 (2000).

[4] Application by Certain Mexico-Domiciled Motor Carriers to Operate Beyond United States Municipalities and Commercial Zones on the United States-Mexico Border, 67 Fed. Reg. 12,702 (Mar. 19, 2002) (to be codified as 49 C.F.R. pt. 365).

[5] Safety Monitoring System and Compliance Initiative for Mexico Domiciled Motor Carriers Operating in the United States, 67 Fed. Reg. 12,758 (Mar. 19, 2002) (to be codified as 49 C.F.R. pt. 385).

[6] Certification of Safety Auditors, Safety Investigators, and Safety Inspectors, 67 Fed. Reg. 12,776 (Mar. 19, 2002) (to be codified as 49 C.F.R. pts. 350, 385).

[7] 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[8] Public Citizen v. United States Dep’t of Transp., 316 F.3d 1002, 1015 (9th Cir. 2003) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))).

[9] Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)).

[10] 528 U.S. 167 (2000).

[11] Public Citizen, 316 F.3d at 1021.

[12] 42 U.S.C. § 4332(2)(C) (2000).

[13] 40 C.F.R. § 1501.4 (2002).

[14] Public Citizen, 316 F.3d at 1021.

[15] Id.

[16] 40 C.F.R. § 1508.18 (2002).

[17] Id. § 1508.7.

[18] Id. § 1508.27.

[19] Id. § 1508.4.

[20] 42 U.S.C. § 7407(a) (2000).

[21] 40 C.F.R. §§ 93.150-93.160.

[22] Id. § 93.153(c)(1)-(2).

[23] Id.

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