Department of Transportation v. Public Citizen – Oral Argument – April 21, 2004

Media for Department of Transportation v. Public Citizen

Audio Transcription for Opinion Announcement – June 07, 2004 in Department of Transportation v. Public Citizen

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William H. Rehnquist:

We’ll hear argument next in No. 03-358, the Department of Transportation v. Public Citizen.

Mr. Kneedler.

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court:

In February of 2001, an international arbitration panel, convened under the North American Free Trade Agreement, concluded that the United States’ continuation of a blanket ban or a moratorium on the operation of Mexican domiciled commercial carriers beyond the border zone in the United States violated NAFTA.

Soon thereafter, the President made clear… excuse me… his intention to comply with the arbitration decision by invoking power specifically vested in him by Congress to lift the moratorium in order to comply with an international trade agreement.

And the President in fact did lift the moratorium in November of 2002.

In this case, the Ninth Circuit held that the Federal Motor Carrier Safety Administration, an agency in the Department of Transportation that is limited to a… a safety mandate, was required to conduct an elaborate and complex environmental analysis of the President’s foreign trade and foreign policy decision before it could enter or issue procedural safety regulations that were necessary to implement the President’s decision.

The Ninth Circuit set aside the procedural regulations on that ground and thereby prevented the agency from granting certification to carriers that under the President’s decision were eligible to receive it.

The Ninth Circuit’s decision is incorrect and it has frustrated the President’s ability to comply with NAFTA.

Congress and the President, the two entities whose joint action brought about the lifting of the moratorium, are not subject to either NEPA or the provisions of the Clean Air Act that respondents rely on to require an environmental analysis.

Accordingly, the agency acted entirely reasonably in choosing to take the President’s action as a given, including any increased traffic or trade that might occur as a result of the President’s decision and to, instead, focus its own environmental analysis on the effects of its own procedural regulations.

FMCA’s government… governing statute requires it to grant registration to any carrier that is willing and able to comply with applicable safety, safety fitness, and financial responsibility requirements.

The agency has no authority to deny operating permission to a carrier, foreign or domestic, based on environmental concerns or foreign trade concerns.

It has no authority to countermand the President’s decision or to refuse to issue the regulations that were necessary to implement the President’s decision.

Ruth Bader Ginsburg:

Mr. Kneedler, just a… a background fact.

Perhaps I missed it, but was there any parallel in Canada?

We’re talking about Mexico or Mexican vehicles.

I understood that originally there was the same limitation for both.

Edwin S. Kneedler:

There was.

And… and soon thereafter, the… the moratorium was imposed in 1982 originally, but it conferred on the President the power to lift the moratorium, and an agreement was arrived at soon thereafter with Canada.

So since the early ’80’s, Canadian carriers have been… have been permitted to enter.

The… the moratorium was remained in… retained in effect by the President through subsequent actions into the ’90’s.

In the North American Free Trade Agreement, the United States included a reservation to a complete opening of the border for transporter operations by carriers subject to a phase-out, initially a phase-out that would allow carriers from Mexico to operate in any of the border States… that was 3 years after the agreement was signed… and then by the year 2000, to allow the carriers to operate anywhere in the United States.

The President decided not to go forward with that because of concerns about whether the safety regulatory regime in Mexico was sufficient to prepare the Mexican carriers to come into the United States.

So that is the reason why it was held up.

And… and the basis of the NAFTA arbitration panel’s decision was that a blanket prohibition on that ground was not… was… was not permissible under NAFTA and that the United States had to consider applications from Mexican carriers on a case-by-case basis.

It could adopt special procedures to ensure that the carriers who would be permitted to come in under the President’s lifting of the moratorium would satisfy the substantive safety standards.

And that is the set of regulations that are at issue here.

But it’s important to recognize that these are not substantive safety standards.

The substance… the standards that… that Mexican carriers, like… like other foreign and domestic carriers in the United States have to comply with, are… have already been in place.

Edwin S. Kneedler:

All that we are talking about here are essentially procedural or administrative regulations.

John Paul Stevens:

Mr. Kneedler, can I ask you a question?

Because I’m really kind of confused about this.

I’m trying to think through the case.

Assume the President wasn’t involved at all and Congress had decided to lift the moratorium and enact it and did everything the President did and said, but before you do it, we want you to, as a precondition, adopt these safety regulations.

Would your position be any different?

Edwin S. Kneedler:

Oh, yes, yes.

And it… I think it’s the same situation.

The FMCSA, as a subordinate agency in the executive branch, I think would have to take as a given that act of Congress just… just as it was… it was–

Antonin Scalia:

It wouldn’t be any different.

I… you… you–

Edwin S. Kneedler:

–No, no.

I–

Antonin Scalia:

–I thought you were saying it’s–

–Your position would be the same.

Edwin S. Kneedler:

–The same.

Yes.

Antonin Scalia:

Oh, well–

Edwin S. Kneedler:

That’s what I… I’m sorry.

Antonin Scalia:

–You scared me for a minute.

Edwin S. Kneedler:

No, no.

I… I misspoke.

[Laughter]

I’m sorry.

I misspoke.

The position would be exactly the same and… and for very similar reasons, that that’s essentially a political decision, in the one case by Congress in your example, or… or by the President.

And… and that’s why Congress traditionally vests an authority such as this in the President because he is responsible for foreign relations and foreign trade.

John Paul Stevens:

But… but in either event, it would not have been the kind of major Federal action that must be preceded by an EIS.

Edwin S. Kneedler:

That’s correct.

John Paul Stevens:

That’s your basic position.

Edwin S. Kneedler:

That’s… that’s correct.

It’s part of the context in which the agency is operating, but it would be presumptuous of the agency to take upon itself a… a determination to evaluate or to second guess effectively the President’s determination.

Antonin Scalia:

Well, but… but it wouldn’t be a question of second guessing, would it, if the agency regulations in question could reduce somehow the… the impact that the… the known action by the President, who’s pretty sure this was going to happen, would cause?

And… and so it’s sort of relevant, it seems to me, whether these rules issued by the agency could, if there had been an environmental impact statement, have been adjusted in such a way as to reduce the… the environmental impact.

Is there any relationship between these rules and the environmental impact that the respondents are concerned about?

Edwin S. Kneedler:

Two things I’d like to say about that.

The first one is that the… that respondents’ claim in this case and the Ninth Circuit’s holding in this case are not premised on the sort of tinkering with the application and monitoring rules that… that you may be referring to.

The… the premise of the Ninth Circuit’s decision was that… that the President’s lifting of the moratorium was foreseeable and therefore FMCSA had to evaluate the… the much broader question of whether Mexican trucks should be permitted to come in at all.

Antonin Scalia:

No, but I mean, my point is it… it seems to me obvious that you don’t have to evaluate in an environmental impact statement something that you have no power–

Edwin S. Kneedler:

Right.

Antonin Scalia:

–to… to remedy.

Edwin S. Kneedler:

Right.

As to your second point, though, that… that the agency might have been able to refine the regulations in some way, that is not an argument that respondents made to the agency.

And under Vermont Yankee… and this is critical to the operation of… of NEPA and the corresponding Clean Air Act provisions is that an agency can only evaluate or… or identify errors if they’re called to its attention.

William H. Rehnquist:

When did respondents first make this point?

You say they didn’t make it in–

Edwin S. Kneedler:

The… the first place that this point… I mean, it was really just in a sentence… was in a reply brief in the court of appeals that they… that they… that they… they said that the agency might have been… been able to come up with some modified version of… of the regulations.

But it’s not very realistic to think that what the agency could do… could permissibly do… could have a significant effect on… on emissions because–

David H. Souter:

–Well, Mr. Kneedler, on… on that… going to that point, I mean, that goes to something Justice Scalia raised and I wanted to raise it too.

He… he expressed, as a premise to his question… and I had assumed when I started out on this case… that the agency does not have to prepare an impact statement which takes into consideration effects that the agency itself does not have the authority to avoid.

Edwin S. Kneedler:

–Right.

David H. Souter:

And… and I’m looking… by the way, I’m on page… what is it… 2a of… of your brief where you set out the statute down at the bottom of the page, Roman (i).

One of the things the agency has got to disclose is the environmental impact of the proposed action.

That I understand.

They could avoid that in… theoretically in… in the general rule.

They could say, well, we won’t take the proposed action if it has a very bad effect.

And that’s consistent with what he assumed and what I assumed.

But then you get to Roman (ii) and Roman (ii) says they’ve got to disclose any adverse environmental effects which cannot be avoided should the proposal be implemented.

And that seems to be broader.

That seems to say if your proposal, which in itself may be environmentally benign, is the trigger for action by other agencies or other people, which is not environmentally benign, you’ve got to disclose the effects that will come about when you take the triggering action even though you’re triggering action is clean.

David H. Souter:

Am I… am I misreading that?

Edwin S. Kneedler:

Well, respondents have not relied on that provision, but… but my… my understanding of that is that that refers… that refers to effects that… that are within the agency’s control.

The… the critical point… and this… this is reflected in the… in the regulations on page 4a, the things that an agency is responsible for taking account of under NEPA, are direct… things that are directly caused or indirectly caused.

And caused is the… is the operative word.

And this Court said in the Metropolitan Edison case that it’s… that… that strict but-for causation is not enough under NEPA.

David H. Souter:

But if… if that’s the… if… if the… if… I’ll call it (C)(ii) here… is… is being read in that way, then I take it what it means… let’s forget the presidential action here.

Let’s just take conventional government action.

If you had, let’s say, six Government agencies, each of which on a coordinated basis was going to do something to bring about a result, and the effect of the action of each one of those agencies by itself really didn’t amount to much, but the action of all six together amounted to a very great deal environmentally, there never would be an environmental impact statement that would take into effect the cumulative action.

Edwin S. Kneedler:

Right.

David H. Souter:

Is… is that fair to say?

Edwin S. Kneedler:

And… and I was just going to say there is a separate requirement under the… CEQ has elaborate regulations that… that flesh this out.

And… and CEQ has a regulation that the Ninth Circuit relied upon and… and respondents have… have abandoned any reliance on it, which is that an agency has to evaluate cumulative impacts.

It has to… it has to essentially evaluate the incremental contribution that its own action will make toward a–

David H. Souter:

Then why doesn’t that apply here?

Edwin S. Kneedler:

–Because the… the… first of all, the agency did that.

It evaluated its incremental… its incremental impact.

What… what it did–

David H. Souter:

But I’m talking about the cumulative effect.

I… I thought… maybe I misunderstood what you’ve said.

Edwin S. Kneedler:

–It… it–

David H. Souter:

I thought under the Council of Environmental Quality reg, at some point they had to take into effect… they had to disclose the cumulative effect.

Edwin S. Kneedler:

–Well, if you mean… if you mean with the… the–

David H. Souter:

The effect of all the agencies together in my hypothesis.

You’ve got six agencies.

Each of them does a little thing.

Add the six together.

You get a big thing.

I thought you were saying that under the Council on Environmental Quality regs, somewhere along the line somebody has got to disclose in an… in an impact statement–

Edwin S. Kneedler:

–Yes, and… and–

David H. Souter:

–the cumulation.

Edwin S. Kneedler:

–Right, and… and what… what the–

David H. Souter:

So why wasn’t it done here?

Edwin S. Kneedler:

–Well, the… the agency here was the only one taking action, and all the cumulative impact requirement requires it to do is to isolate what its incremental contribution will be–

David H. Souter:

Well, that’s under Roman (i), but under Roman (ii) it’s broader, and you said, I thought, under the Council on Environmental Quality regs, at some point you’ve got to disclose the cumulative effect of all of it.

So on my hypothesis, it’s… when… who… what agency and when has to disclose the cumulative effect–

Edwin S. Kneedler:

–Well, if… if there are–

David H. Souter:

–and why wasn’t it done here?

Edwin S. Kneedler:

–If there are… if there are two agencies working in tandem… see, the… again, the President–

David H. Souter:

So you’re saying–

Edwin S. Kneedler:

–the President–

David H. Souter:

–it… it would have been done here but for the fact that the President is not an agency.

Edwin S. Kneedler:

–If two agencies… if two agencies are taking parallel action, they are supposed… or coordinated action, they’re supposed to coordinate the–

David H. Souter:

Right, and you’re saying because the President is not an agency, that doesn’t apply here.

Edwin S. Kneedler:

–Right.

Right.

And… and–

David H. Souter:

Now, does the… does the Council on Environmental Quality regulation say that the… that the disclosure of cumulative effect depends upon the action of many agencies as opposed to the actions of many persons to which an agency contributes?

Edwin S. Kneedler:

–It is… it is… it’s addressed–

David H. Souter:

Yes, but what is it?

Edwin S. Kneedler:

–more… it… it includes more–

David H. Souter:

But is it–

Edwin S. Kneedler:

–It’s not just limited to other agencies, but there’s an–

David H. Souter:

–Then why didn’t it apply here?

We’ll assume the President is not an agency.

Why didn’t that requirement apply here?

Edwin S. Kneedler:

–The agency did comply by saying this is the context in which we were acting.

What they said is we have no control.

And this is the–

David H. Souter:

Yes.

Edwin S. Kneedler:

–literally the language there.

Edwin S. Kneedler:

We have no control over what the President is going to do.

It projected… it projected increases in traffic or… or increases in trade that might… might result or discussed that.

So that’s really what the cumulative impact analysis requires is to… for the agency to put its own action in context.

But where the agency’s own action is marginal, which is the case here, it can be expected… these are basically administrative undertakings by the agency, application forms, and… and on-site inspections.

That… that where the agency’s own action is going to contribute so marginally to environmental impacts, the rule… the general rule of reason under… under NEPA does not require an agency to, for… for example, conduct a… a nationwide study of Clean Air Act possible effects of Mexican trucks in order to determine that its own contribution is going to be minimal.

And… and what… what… as I mentioned, the agency’s contribution here arises simply from developing an application form, a… a preapproval analysis, on-site analysis, of… of the carrier in Mexico in most cases, or… or on paper, and then follow-up monitoring and inspections.

And the only real contribution to emissions that any of that would have are the… are the roadside inspections where the engine might be… will be idling a little bit while the truck is inspected and the agency fully evaluated its contribution to increased emissions for that and concluded that they would be negligible, looked at in that way.

And neither the Ninth Circuit nor respondents have ever challenged that.

And as I… as I mentioned, although the… the Ninth Circuit treated the President’s action as… as a… a consequence of what the agency did, the respondents have receded from that position as well.

And they have… they have relied on this appropriations provision, section 350, as it’s been referred to in this litigation, which required FMCSA to do certain things before it could spend any money to approve individual applications of carriers that would be eligible under the… under the President’s lifting of the moratorium.

But section 350 reinforces our position because it reinforces the proposition that the agency’s role was limited to safety matters.

William H. Rehnquist:

Did 350 limit itself in its directions to the agency to safety matters?

Edwin S. Kneedler:

Yes.

There’s not… there’s no mention of… of environment… environmental issues in… in it.

And in fact, what it did is it further constrained FMCSA’s discretion.

Whatever discretion… and it… and it overrode or made more strict the agency’s initial proposed regulations by requiring safety evaluations in Mexico and stringent evaluations afterward.

It added some very strict requirements because Congress wanted to make sure that the agency was going to impose–

William H. Rehnquist:

Mr. Kneedler?

Edwin S. Kneedler:

–stringent qualifications.

John Paul Stevens:

Mr. Kneedler, can I ask you another kind of preliminary question?

I was just reexamining the statute that Justice Souter was calling your attention to.

And the President, of course, is not an agency within the meaning of the introductory paragraph.

Does that mean that an action taken by the President is not a major Federal action within the meaning of subparagraph (C)?

Edwin S. Kneedler:

Yes, because it… it–

John Paul Stevens:

Because if I’m an agency–

Edwin S. Kneedler:

–They kept it… the duty… the duty is imposed on the agency.

That’s the way it has been understood.

John Paul Stevens:

–I see.

Edwin S. Kneedler:

And the agency shall include in it–

John Paul Stevens:

It should read any major Federal action undertaken by the agency–

Edwin S. Kneedler:

–Yes.

John Paul Stevens:

–is implicitly–

Edwin S. Kneedler:

Because it says include in every… the agency in… in the introductory part shall include in every recommendation or report on proposals or major Federal action.

I think it’s referring to its own proposal for a major… a major Federal action.

John Paul Stevens:

–And… and we’ve held that?

It’s certainly a permissible reading of it.

I’m not sure it’s a necessary reading.

Edwin S. Kneedler:

I don’t know that this Court has ever specifically addressed it, but I think that’s been the common understanding.

And I think it follows in this case from the exemption of the President from… from NEPA at all.

And the… I… I mentioned before that section 350 serves to confine the agency’s discretion here.

And the… the agency’s decision that an environmental assessment was all that was necessary and a full-blown environmental impact statement was not required is reinforced in this case by the… by decisions of a number of courts of appeals that have said that where an agency does not have discretion, it does not have to prepare an environmental impact statement because the purposes of NEPA are really to inform the agency’s own decision-making process and to inform the public so it can participate in the agency’s decision-making process.

Where the agency essentially has no discretion about whether to… to go forward, as the agency here did not, then to require a full-blown environmental impact statement of… of clean air issues, which are exceedingly complex, before the agency would go… could go forward would not further the purposes of… of NEPA and would only serve, in fact, to slow down the process of complying with NAFTA.

William H. Rehnquist:

Well, in fact, an agency could produce an EIS that said what we propose to do is disastrous and nevertheless go ahead, could it not?

Edwin S. Kneedler:

Yes, yes.

NEPA imposes no substantive requirement.

But… but in this case there was really a need for expedition, and it’s… and that’s… that’s made evident here by the fact that the statute that authorized the President to lift the moratorium provided for the President to give notice and allow public comment for that, but allowed him to waive that where expeditious action was required.

And when the President lifted the moratorium in November of 2002, he specifically invoked that provision, dispensed with further opportunity for public comment because he determined that expeditious action was required.

It’s very much like this Court’s decision in Crosby several terms ago in that way because the… although here it’s a subordinate Federal agency rather than a State, but the result is to interfere with the ability of the President to respond promptly to an international disagreement that had arisen out of a foreign trade agreement.

I did want to spend just a moment on the Clean Air Act conformity analysis point which the… the conclusion on that we think follows directly from the conclusion on NEPA.

Under… under EPA regulations that were promulgated in 1993, respondent doesn’t challenge them here, and the D.C. Circuit has upheld them.

Under those regulations an… an agency is required to conduct a conformity analysis and to conform its action only where its action causes emissions, but beyond that, where… where the emissions are subject to the agency’s practicable control and where the agency will maintain that control through continuing program authority–

Antonin Scalia:

That is… that is set forth in the regulations?

Edwin S. Kneedler:

–Yes.

That… that… and that regulation is set forth in our… in our brief on page 8a of… of the brief, the definition of the term, indirect emissions, which elsewhere is described as the emissions for which the agency is responsible.

And in this case, it’s… it’s very clear that the FMCSA does not have any control over or continuing responsibility for the President’s decision to lift the moratorium, for the determination of whether carriers that get registration will actually bring trucks into the United States, what routes they will travel while in the United States, and what emissions they will have once they’re in the United States.

Those are all things that are beyond the agency’s control.

Anthony M. Kennedy:

Mr…. Mr. Kneedler, I… I read the regs the same way you do.

The… the interesting thing to me was, although it’s probably… I guess it’s academic here is that the statute seems to be broader than the regs because the… the statute would… would require attention… and I’m reading from page 45 of your… your brief where you set it out in the carryover paragraph.

The… the statute would… would require attention to… to anything by… done by the agency which would not only cause but contribute to a new air quality… to an air quality violation.

And I… I would suppose even on the kind of the… the low-level effect that the agency has disclosed here, idling motors and so on, that the… that the statute would cover it, although the regs are narrower and the regs wouldn’t cover it.

Anthony M. Kennedy:

Do you read the statute the same way?

Edwin S. Kneedler:

The… the regulations are an interpretation of the statute the–

Anthony M. Kennedy:

Yes, yes.

Edwin S. Kneedler:

–that the agency adopted through notice and comment rulemaking, and the… the preamble to that regulation contains a very extensive and persuasive discussion by EPA about why it’s necessary to draw a line between the things that… for which a Federal agency can be reasonably held accountable or responsible and those for which the… after all, the States are primarily responsible in developing–

Anthony M. Kennedy:

Yes.

Edwin S. Kneedler:

–implementation plans.

And one of the… one of the things that… that EPA specifically concluded, that it’s unrealistic to think that Congress meant that just because you need a permit at the very outset… we… we quote this in our reply brief.

Just because you need a permit to do something should not render the agency responsible for every subsequent thing that somebody who gets a permit might do, get a driver’s license, for example, doesn’t… yes, it’s a precondition to driving, but it doesn’t mean that the permitting agency should be responsible for evaluating of all the… all the–

Anthony M. Kennedy:

But they would have to disclose it.

I mean, if… if you read the statute literally, without the narrow… I… I don’t mean to load the dice when I say narrowing… without the agency interpretation, the statute would be broad enough at least to… to require this agency to disclose its contribution.

Edwin S. Kneedler:

–Well, I suppose under the broadest reading, but I think even that might… might be a extensive reading of the regulation.

And let me also just say again that respondents have not challenged the validity of the regulation.

John Paul Stevens:

I know.

May I… may I ask this other question just in displaying my ignorance of the whole problem?

But is it not conceivable that consistently with the statute, that the agency could be compelled to prepare an environmental impact statement but nevertheless not suspend the… or nevertheless let the trucks come in?

Edwin S. Kneedler:

I… it… it could voluntarily do that, but the… but the… the case law–

John Paul Stevens:

No.

Assume you read the statute to require them to make a statement.

Does it necessarily follow that the… the… there must be an injunction against the trucks coming in while they… while they do that?

I know normally it’s… it’s done that–

Edwin S. Kneedler:

–No.

No, it… no, it would not follow and… and–

John Paul Stevens:

–Which the converse of that is that even if you’re right, conceivably… I mean, even if your basic concern is right that the trucks should come in, conceivably the duty to prepare the statement might remain.

Edwin S. Kneedler:

–NEPA has… has not been interpreted that way over the years where an–

John Paul Stevens:

But this… this case involves the President, so it’s a very unusual case.

Edwin S. Kneedler:

–But… but even in the non-presidential case where an agency does not have discretion, because the EIS is designed to inform the agency’s decision-making power, and if it really has no… no latitude in its decision-making, it would be essentially pointless to prepare it.

Antonin Scalia:

Yes, but assuming it was an agency that had some discretion in the matter, my understanding is it… it can’t go ahead without first making the environmental impact statement.

Edwin S. Kneedler:

No, that’s true, but… but we do think that there is some room for remedial discretion where… where even if there’s a violation, the… not to mention the… the principle of prejudicial error under the APA that if there’s… if there’s a defect, it doesn’t always have to result in setting it aside.

If I may reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Kneedler.

William H. Rehnquist:

Mr. Weissglass, we’ll hear from you.

Jonathan Weissglass:

Mr. Chief Justice, and may it please the Court:

Congress gave FMCSA important choices to make about safety before any trucks come over the border from Mexico.

Those choices will determine which trucks come in and how many.

The reason for that is because as the safety rules are made more stringent, fewer trucks will be able to meet the requirements and those that do will be newer.

Antonin Scalia:

But this wasn’t your argument.

Your argument was, as… as I understood it, that the reason the EIS had to be prepared was not because there would be any substantial environmental impact from the nature of the safety standards, but because no trucks at all can come in until… until the agency comes out with this… with these standards.

Isn’t that right?

Jonathan Weissglass:

The… the argument is that because Congress promulgated section 350–

Antonin Scalia:

Right.

Jonathan Weissglass:

–no trucks can come in until the agency makes these safety choices.

Antonin Scalia:

Okay.

Therefore, that’s a consequence of the agency action.

Therefore, the agency has to do an EIS.

Jonathan Weissglass:

That is correct.

And in addition, the–

Antonin Scalia:

Now, just let me ask.

The… that happens because the President’s action is triggered by or cannot occur until the agency takes this action.

Suppose you have a mad millionaire who has applied for a… a license from the Federal Communications Commission and there are others who are competing for the same license, and he announces that if he is denied the license and the license is given to somebody else, he is going to unleash a flood of trucks around the country, pouring out emissions and… and greatly affecting the… the air quality throughout the country.

Does the FCC, knowing that this is going to be the consequence of their granting the license to this particular individual… does it have to do an environmental impact statement?

Jonathan Weissglass:

–The… the question–

Antonin Scalia:

Concerning, you know, what the environmental impact of the… of the mad millionaire’s actions are going to be?

Jonathan Weissglass:

–The… the only question is whether the… first… there are two questions.

First, whether that the agency has control over… over the choices that it’s making, and second–

Antonin Scalia:

Has no control over the mad millionaire, just as this agency has no control over the President.

Jonathan Weissglass:

–If… if the… if the… if it comes down to foreseeability, when the agency takes–

Antonin Scalia:

The mad millionaire put it in writing.

It… it’s sworn to.

It’s absolutely certain he’s going to do it.

He really is crazy.

Antonin Scalia:

[Laughter]

Jonathan Weissglass:

–The… the critical point is… is whether the agency has a choice about the… the options that it is going to take.

If the agency has control over what it’s going to do, and in the reasonably foreseeable–

Antonin Scalia:

It does.

It can deny the license to this person and give it to somebody else.

Jonathan Weissglass:

–Right.

Then… then the question just becomes foreseeability, and if it’s foreseeable, the agency then has to take account the… the effects of the–

Antonin Scalia:

So the FCC would have to do an EIS in this situation.

Jonathan Weissglass:

–In that situation, that is correct.

Antonin Scalia:

That’s absurd.

Jonathan Weissglass:

But that–

Stephen G. Breyer:

Fine.

Now, suppose–

–That is so absurd.

–instead of the mad millionaire, what the… we have the mad millionaire.

But now what the statute says is every license that’s issued for safety… safety purposes… has to be a stamp that you put in the car, and then there’s a rule that says, no stamp shall issue until the Post Office Department certifies it will be red or blue.

All right?

And moreover, there could be an environmental impact just from the red and blue.

I mean, one reflects the–

Now, the Post Office knows that if it tells you what color it is, then they’ll have it, and if they have it, they give out the license.

And if they give out the license, the mad millionaire is going to let loose smoke throughout the Nation.

Does that mean that the Post Office Department has to write an environmental impact statement about the mad millionaire?

No.

The answer is clearly no.

Isn’t it?

But the only problem is your theory doesn’t tell me why.

Jonathan Weissglass:

–The… the reason is this.

In… in this case the agency has significant choices to make about safety.

Congress–

Stephen G. Breyer:

And so does the Post Office.

Stephen G. Breyer:

It’s going to be red or blue.

Now, the relationship between the red and blue choice and environmental being wrecked through the smoke of the mad millionaire is zero.

And now, you want to say that’s not true with this safety regulation.

So explain why.

Jonathan Weissglass:

–Because it’s… it’s what Congress… it’s how Congress set up the… the situation.

Congress said that no trucks come in until the agency makes these choices and Congress gave the agency discretion about those choices and those choices will determine which trucks come in and how many and therefore the environmental effects.

Now, just because the… there is… there is another actor that has to make decisions and has to take action before there will be any environmental effects does not remove this from major Federal action.

That’s the Robertson case that this Court decided where the agency has to decide yes or no to issue a permit.

Upon issuing the permit, nothing will happen until a private construction company builds a ski resort.

That… that is… that is what… what is going on here.

The… the agency has this significant choice to make about what to do in its… in its regulations, and once it makes that choice, but only then, will the trucks be over–

William H. Rehnquist:

Now, was this basis for the Ninth Circuit decision?

Jonathan Weissglass:

–I… I believe this was the basis for the Ninth Circuit decision.

The President and the agency have separate actions to take, and it’s not that–

Antonin Scalia:

But… but in… in–

–But the Ninth Circuit seemed to me to speak in terms of but-for causation and that just because the agency knew that many more trucks were going to be coming in, even though as a result of somebody else, the fact that the agency… that they couldn’t come in until the agency acted meant that the agency had to do an EIS.

That… that seems a very doubtful proposition to me.

Jonathan Weissglass:

–It really is very similar to the Robertson scenario.

The construction company couldn’t take any action until they got the permit.

Antonin Scalia:

Yes, but the permit could have forbidden the action.

The permit related to whether… the… the agency’s decision related to whether this construction company could build a ski resort or not.

This agency’s action has no bearing upon… upon the environment.

It has no bearing upon whether the… the President can take his independent action.

It’s just been artificially connected just the way the mad millionaire’s was.

Jonathan Weissglass:

Justice Scalia, the… the difference–

Antonin Scalia:

They… they were not part of the… of the program to decide whether the ski resort is going to be built.

Jonathan Weissglass:

–The… the difference here is that the agency has significant choices to make about safety.

It can determine, in fact, how many older trucks are going to be coming in.

And it’s the older trucks that are more polluting.

And… and–

David H. Souter:

No, but can’t the… isn’t the agency’s discretion to determine whether older trucks come in or not a discretion which is supposed to be exercised on the basis of safety considerations rather than environmental considerations?

Jonathan Weissglass:

–But that’s the point of NEPA, that… what NEPA says is just because you have a safety agency doesn’t mean it can divorce its safety considerations from the environment.

It doesn’t have to–

Antonin Scalia:

Those safety considerations that are within its control that would be affected by its safety regulations are minimal.

I don’t think anybody said that this would have been a major Federal action requiring an environmental impact statement if there were nothing involved except whether these safety rules are going to cause more pollution or not.

Your… what you’re using to require the EIS is the fact that, boom, once they come out with their safety rules, floods of… of Mexican trucks come into the country.

Jonathan Weissglass:

–That’s part of it, but the… but it’s also true that what the agency does can… can have a huge effect in terms of how many trucks are actually going to come over.

Even if you assume that some trucks are definitely going to come over, what the agency does is… is going to have a big effect.

The agency specifically says that the rules are going to target high-risk trucks… and this is from the environmental assessment… to, quote, bring them into compliance with United States safety and environmental laws.

The agency knew that there was this correlation between safety and the environment.

And we’re talking about tens of thousands of trucks, and a Mexican fleet that is skewed much older than the U.S. fleet.

Stephen G. Breyer:

Well, don’t… don’t the rules have to be such that American trucks and Mexican trucks are treated alike?

Jonathan Weissglass:

I… there’s… actually the… the arbitral panel in NAFTA specifically said that the U.S. could treat Mexican trucks differently than U.S. trucks as long as it has a good reason.

But the Court doesn’t even–

Stephen G. Breyer:

It doesn’t.

Would it be a good reason… I mean, I take it you’re here not being against Mexicans.

You’re against environment.

Jonathan Weissglass:

–We’re for environment.

Stephen G. Breyer:

So if in fact… yes.

I mean for environment.

[Laughter]

You’re against bad environment.

All right.

We’re all against that.

Now, if in fact it turns out that there is some kind of problem, is… does the agency have the power to say if there’s too much smoke or there’s too much bad effect, we want American trucks to have to tighten up too?

We don’t want just Mexican trucks to have to.

We want everybody to have to.

Jonathan Weissglass:

Yes.

Stephen G. Breyer:

Was that your position in front of the agency?

Jonathan Weissglass:

The agency does have that… that power.

Jonathan Weissglass:

The… the–

Stephen G. Breyer:

All right.

Then do they also have to study the impact of the American trucks?

Jonathan Weissglass:

–If… if the agency takes major action with respect to emissions of U.S. trucks, yes.

Stephen G. Breyer:

No, no.

But I mean, here you’re saying that this 350 requires them to start looking at all the smoke and so forth that comes up from the Mexican trucks because their safety regs could have an impact on that.

Well, if in fact the overall framework of this inquiry is to make certain that we don’t pollute the environment or that we’re safe in a context where Mexicans and Americans are to be treated alike, wouldn’t they have to go into the whole thing?

Jonathan Weissglass:

No, because the agency rulemakings that we challenge deal solely with the… with… with trucks coming over from Mexico.

Now, if they were to do a rulemaking about U.S. trucks, then that might be an issue.

But this is relating solely to Mexico.

And… and there are numerous… numerous things that the agency can do that… that… about safety of… of trucks coming over from… the border from Mexico that will cause the older trucks that are both less safe and more polluting not to be able to come in.

William H. Rehnquist:

Were… were these points pressed on the agency during the proceedings?

Jonathan Weissglass:

The… the agency–

William H. Rehnquist:

Can you answer yes or no?

Jonathan Weissglass:

–Yes.

William H. Rehnquist:

Okay.

Jonathan Weissglass:

The… there were numerous comments to the agency about safety, and the agency, as I mentioned before–

William H. Rehnquist:

But to say there were numerous comments about safety doesn’t certainly answer my question.

Jonathan Weissglass:

–The… the agency said that it was going to target high-risk trucks to be in compliance with safety and environmental laws.

And because the rules only deal with safety, that’s a concession that safety choices affect the environment.

Nothing else needed to be told to the agency.

William H. Rehnquist:

Well–

–So your… your answer to my question is no I guess, that you did not press on the agency this point.

You say the agency already knew it.

Jonathan Weissglass:

The… right.

The agency knew it and the public was not required to cause the agency to connect the dots.

Antonin Scalia:

Knew… knew what?

Jonathan Weissglass:

The agency knew that there was a–

Antonin Scalia:

That… that high-risk trucks are what?

More polluting?

Jonathan Weissglass:

–The… the agency knew that… that older trucks are both less safe and more polluting, that there’s a correlation–

Antonin Scalia:

Between pollution and age.

Jonathan Weissglass:

–And… and that… and it specifically–

Antonin Scalia:

And was that brought to the agency’s attention as one of the things that they should take into account in… in their safety rules?

Jonathan Weissglass:

–The… the agency had it… said it in its environmental assessment and what I just said.

And the public commented that the older trucks are more polluting.

And the agency admits it’s a matter of common sense that the older trucks are less safe.

Antonin Scalia:

The agency did take it into account in its environmental assessment and concluded that there was no significant environmental impact just from the content of its rules, and therefore they didn’t have to do an EIS.

And I… I had thought that it was not that call that you’re challenging.

I had thought that what you’re challenging is that may well be true, that… that just from the content of the rules, there’s no significant impact.

However, the rules trigger the presidential action which lets in the Mexican trucks and that is the significant environmental impact.

Wasn’t that the accurate… an accurate description of your case?

Jonathan Weissglass:

Yes, both that and the choices that the agency makes which will determine not only whether any trucks come in but how many.

Antonin Scalia:

Not the choices alone.

I do… I do not… I do not understand you to have claimed that purely on the basis of what safety choices the agency makes, there is a significant impact upon the environment which would be enough to trigger a requirement for an EIS.

Is… is that claim made in your–

Jonathan Weissglass:

We absolutely did… did make that claim in… in–

Antonin Scalia:

–All right.

Can you point to that?

Because that… to me, that’s what your answer to the problem, you know, with the decal color.

It… it really depended on that.

And I do believe that they’re saying… and on that one, it seems to me, look, you have choice A at the agency, B, or C, and this is more polluting than that and the other isn’t.

I don’t see why they wouldn’t have to write an EIS for that.

But I think that’s what they’re saying you never raised before the agency.

So could you tell me or could I get somewhere or is it in here the place that’s particularly before the agency where all this was gone into and raised?

And too, where it was raised before the Ninth Circuit.

Yes.

Jonathan Weissglass:

–If I could, I’d like to start with the Ninth Circuit.

We raised it in our reply brief, as Mr. Kneedler said.

And the Ninth Circuit passed on it.

Stephen G. Breyer:

No, no.

But that’s not the issue.

The issue really is the agency for me.

Jonathan Weissglass:

Okay.

Stephen G. Breyer:

I mean, where… where before the agency was it raised?

Jonathan Weissglass:

The… the agency, as I said, agreed there’s this correlation between safety and the environment.

There… the public did not need to tell the agency what to do with that because Vermont Yankee makes it an obligation of the agency to consider every significant aspect of the environmental effects of its action.

This is not a situation like in Vermont Yankee where someone raised an issue about unchartered territory and refused to clarify.

The agency has an affirmative obligation to take this into account because it had the predicate facts in front of it.

Stephen G. Breyer:

All right.

Are you saying we didn’t raise it before the agency?

The reason we didn’t is that we didn’t have to.

All we had to do was raise it when we appealed from the agency.

Is that your answer?

Jonathan Weissglass:

You said it much better than I could.

Yes.

Stephen G. Breyer:

Okay.

But if that’s your answer, then you didn’t raise it, and then the question would be does an agency have to have figured out here that its different alternatives in front of it might have had differential environmental impacts that they didn’t take account of.

Now, how am I going to answer that question?

Jonathan Weissglass:

The answer is yes.

Stephen G. Breyer:

I know you think–

Jonathan Weissglass:

Because–

Stephen G. Breyer:

–it’s yes.

I want to know what I read–

Jonathan Weissglass:

–Yes.

Stephen G. Breyer:

–and try to… try to figure out whether it is yes.

Jonathan Weissglass:

Because–

William H. Rehnquist:

What… what… go ahead.

Jonathan Weissglass:

–Because… thank you, Mr. Chief Justice.

Because in the joint appendix at page 193, the agency admits this correlation, and it was also record evidence before the agency that the Mexican fleet is much older than the U.S. fleet, that the older trucks are more polluting.

Jonathan Weissglass:

And so it stands to reason… and… and this is what the agency has to do when it’s considering environmental effects is look at what its safety choices are going to do in terms of the environment.

William H. Rehnquist:

Well, why did… why did you wait until the petition for rehearing in the Ninth… Ninth Circuit to raise it before that court?

Jonathan Weissglass:

It wasn’t rehearing.

It was on a reply brief.

It was in response to the agency’s admission in its opposition brief that the stringency of the standards does have this effect.

Antonin Scalia:

What… here is… here’s what the Ninth Circuit said.

DOT’s assessment that its regulations will cause emissions below the amounts specified in 40 C.F.R. 93 blah, blah, thus excusing it from making a conformitory determination is based on the predicted emissions in its EA.

As we have already determined, however, DOT failed to conduct a reliable environmental analysis because of its illusory distinction between the effects of the regulations themselves, which is what we’ve been talking about, and the effects of the presidential rescission of the moratorium.

It seems to me it was essential to the Ninth Circuit’s decision that you have to take into account, before… before you win, the… the impact of the President’s decision.

The Ninth Circuit did not base it just on the effects of the regulations themselves.

Jonathan Weissglass:

The… and the Ninth Circuit also said that the… the environmental assessment was inadequate for, quote, not considering additional alternatives such as, for example, proposing more stringent controls on incoming Mexican trucks.

The Ninth Circuit clearly recognized that there was this correlation between a stringency of the rules and the environmental effects.

Now, it’s very important to understand that the way Congress set this up was it’s not that the agency is somehow overriding a presidential decision.

There are two separate and independent decisions here.

The President has authority over trade issues the way Congress gave him that authority.

But the Congress at the same time said that the agency has authority over safety issues.

These are two separate things.

Antonin Scalia:

Yes, it’s true that the Ninth Circuit said just what you said it said, but it was quoting the general requirement, I think, which exists in the way you describe it.

And here, I guess the question is, is given their environmental assessment, had they failed to fulfill that requirement and so it would require somebody to point out to them, look at this environmental assessment.

This environmental assessment is not adequate to fulfill that requirement that we all know exists.

Now, what about that?

Jonathan Weissglass:

The… I’m not quite sure I understand the question.

Stephen G. Breyer:

Remember, what we’re talking about now is the agency is considering alternative A, B, or C.

They all involve safety.

They’re likely to have differential impacts on smoke and so forth.

And now they have in front of them an environmental assessment, and the environmental assessment explains to them why they don’t have to do more than they’ve done in respect to just what we’re talking about.

Everyone agrees that the requirement is what you said.

The Ninth Circuit says it.

Who told the agency that this EA is inadequate when it tells you you don’t have to do more in respect to that to assessing one, two, and three, you know, et cetera.

Jonathan Weissglass:

The… the agency–

Stephen G. Breyer:

I think that’s–

Jonathan Weissglass:

–issued the… the environmental assessment and then asked for comment on it after it had already issued the interim final rules.

There were comments to the agency, and as I’ve said, they didn’t specifically say this.

But the agency was challenged in the Ninth Circuit and that issue was raised.

And that is enough because the… the agency had before it all the predicate facts to take into account the relationship between the stringency of the safety rules and the environment.

It knew the effects of its actions.

It specifically said that high-risk trucks are both more… more polluting and less safe.

It had to do that.

That’s what NEPA requires.

NEPA doesn’t require a citizen to come in and tell the agency what its options are.

It requires the agency to take that action.

Antonin Scalia:

–Does this agency have the authority to exclude a perfectly safe truck because in its view it’s an older truck and will pollute more?

Is that within the scope of what the agency can do?

Jonathan Weissglass:

The agency is to make safety choices.

Antonin Scalia:

Safety choices.

Jonathan Weissglass:

And in doing that it’s… under NEPA must take a hard look at the environmental effect on the safety choices.

Antonin Scalia:

No.

It… it has to describe the environmental effects perhaps, but if… if it does not have any… any power on the basis of environmental effects to alter the safety regulations… I mean, two trucks are equivalently safe.

Can this agency say, yes, you’re both just as safe, but as a safety regulator, I’m not going to let you in because you pollute more?

That has nothing to do with the agency’s job as… as a safety regulator.

Jonathan Weissglass:

The… the agency is not required to let any truck in.

The agency is… must register–

Antonin Scalia:

That’s true, but it has to exclude it on the basis of safety considerations.

Jonathan Weissglass:

–That is correct.

And in looking at the safety considerations, what it’s going… what it is going to promulgate for the broad class of trucks, not each individual truck… it is promulgating a broad class of safety regulations.

Any truck that meets that standard, yes, the agency must let in.

But in deciding what that standard should be, that general standard, the agency not only can, but has an obligation to look at the environmental effects–

David H. Souter:

Are… are you saying that because there are varying environmental effects as between old trucks and new trucks, the agency’s obligation is to find a safety hook in order to keep out the old rather than the new?

Jonathan Weissglass:

–The… no.

The agency does not… does not–

David H. Souter:

And we’ll… we’ll find that the… you know, the signal lights don’t work quite so well on the old trucks and we’ll use that as a basis to keep them out so there… so we can minimize environmental damage?

Jonathan Weissglass:

–The agency does not have that obligation because NEPA does not require substantive decisions.

But what NEPA requires is that the agency take a look at those effects.

David H. Souter:

All right.

Then… excuse me.

Let me… let me ask you this question.

Let’s assume the agency concluded that on all significant safety factors, the old trucks are just as good as the new trucks.

It also concluded that the old trucks pollute more.

There… there is an environmental difference.

The agency cannot keep out the old trucks for that reason alone.

My question is, does the agency have to prepare an impact statement saying we’re letting in the old as well as the new, but in letting in the old, we’re letting in more highly polluting trucks?

Do they have to prepare that statement even though their action is, and legally can be, the same with respect to the oldest of the new?

Jonathan Weissglass:

Yes, as long as the agency has… has a significant choice to make about what the standards should be.

Anthony M. Kennedy:

Suppose under Justice Souter’s question, the agency has no choice and it must let in the trucks.

Does it still have to prepare the EIS?

Jonathan Weissglass:

If the agency has no choice–

Anthony M. Kennedy:

Or the EA.

Jonathan Weissglass:

–then… then under a number of circuit court cases, which the Government cited, the agency would not have to do it.

And that’s an open question for this Court, but the Court doesn’t need to reach it.

Anthony M. Kennedy:

No.

But you’re… you’re saying, I think, suppose the agency is trying to choose between two headlight inspections a year or one.

All right.

Now, if you have two a year, in fact, there will be fewer trucks.

If you go to one a year, there might be more trucks coming in and then you will have more pollution.

Now, if that’s a significant difference, then I guess the agency does have to go into it.

But if they have an EA that tells them, you know, it’s not that big a deal because they’re going to be about the same number of trucks regardless, then I would think the burden would be on the environmentalists to show that that’s really wrong.

And I think that’s the kind of argument you’re making.

And you’re telling me that it’s so obviously wrong that even though you didn’t raise it in the agency, they should have figured it out.

Is… is that where we are?

Jonathan Weissglass:

That… I think that is accurate about where we are.

Jonathan Weissglass:

And… and the fact is that there were numerous comments to the agency about the safety things that it should have done and didn’t, and there are numerous… there’s numerous… there’s a lot of room between the standards that are being imposed on trucks coming over the border from Mexico and the standards that are in… on U.S. trucks.

The agency could have made choices that would affect this, that would affect the safety, and that would also affect the environment.

And the agency concedes that.

The agency concedes it had the discretion, and it concedes that this could affect the environment.

What the agency does is say that that’s all about the President because the President lifted the moratorium.

But where that is a mistake is because Congress was the… was the body that said when trucks can come over, and it gave both the President and the agency separate authority over that.

So it all goes back to Congress in making this… this foreign commerce decision.

Now, before I finish my argument, I did want to talk about the Clean Air Act because this is very important.

Justice Souter raised this point.

The way the agency reads the regulations, it… it would… it would be completely out of accord with the language of the statute which–

David H. Souter:

Did… did you challenge the regs?

Jonathan Weissglass:

–We… we did not challenge the regs, but we read the regs–

David H. Souter:

Isn’t that the end of the issue?

Jonathan Weissglass:

–No, because we read the regs very differently than the agency.

The agency… the… the way the… the particular regulation reads is that it’s not just where–

David H. Souter:

Where… where are you?

On 46?

8a, page 8a, isn’t it?

46 of your brief or where?

Jonathan Weissglass:

–Actually the… the critical… the critical regulation that the Government raised was in its reply brief.

It’s on page 17 of the… of the reply brief.

And… and there is the definition of continuing program responsibility because once the… the… you get past the cause point… and EPA is very clear that under the Clean Air Act, it’s but-for causation.

It says that.

And so we clearly have that here.

Then the question is whether the agency has a continuing program responsibility.

And there are two sentences that are separate formulations of when there is that responsibility.

The… the Government relies solely on the first sentence, which we do not rely on.

That’s when an agency requires some activities.

But the second sentence is the critical sentence, which is when an agency, quote, takes actions itself or imposes conditions that result in air pollutant emissions.

Well, in this case, the agency is… is taking action and imposing conditions that are going to result in emissions because under 350, no trucks come in at all until the agency makes these choices and because in making the choices, it’s imposing conditions that are going to be absolutely determinative as to what the… the pollutants… how much pollution there’s going to be.

Jonathan Weissglass:

If the agency ratchets up its… its controls, there’s going to be less pollution.

The agency admits that.

Anthony M. Kennedy:

I thought they were relying on the regulation on page 8a of the Government’s principal brief.

That’s certainly what they raised in their… in their argument here, which… which makes whatever this other regulation says quite irrelevant because it’s a definition of emissions.

And it says that to be an indirect emission within the act, the Federal agency must have… must be able to practicably control and maintain control over the emissions due to a continuing program responsibility.

Jonathan Weissglass:

That’s right, and the regulation I’ve just read is the definition of continuing program responsibility.

The agency clearly has a continuing program responsibility here because as it’s enforcing the regs that it… that it writes, it’s going to determine how much pollution there is.

And it clearly practicably controls the emissions because, as I said, both without some choices, there’s going to be no trucks and once the agency makes the choices, those choices are going to determine how much pollution comes in because that’s how many trucks and what type are coming in.

Antonin Scalia:

Well, I… I guess that any… any Federal licensing agency for… for automobiles or anything else would… would come within this and would have to… you know, if I don’t issue a license, I can practicably control the… the amount of emissions, even though the agency is not a… an emissions approving agency.

It’s… it’s giving driver’s licenses.

Jonathan Weissglass:

The… the… this is the tradeoff that Congress made in requiring States to meet clean air requirements.

It said, yes, we’re going to… we’re going to take a stick to the States, as this Court has said, but we’re not going to make it more difficult as a… as a Federal agency for the States to meet its… their responsibilities under the Clean Air Act.

That would be horribly unfair.

And that’s why the statute is so broad that if the–

William H. Rehnquist:

Thank you, Mr. Weissglass.

Mr. Kneedler, you have 4 minutes remaining.

Edwin S. Kneedler:

Several things, Mr. Chief Justice.

The… the critical point here is that the agency had no discretion to deny certification to Mexican trucks that were eligible under… under the President’s lifting of the moratorium if they satisfied the… the requirement that they’d be willing and able to comply with the… with the statutory standards.

So the agency was really acting under two imperatives.

One is its preexisting organic statute and then secondly, the President’s lifting of a moratorium that required the… the Government to live up to its obligations under NAFTA.

Antonin Scalia:

What… I’d like to hear your response to the argument, which I didn’t realize they were making independently, that just based on the agency’s available choices, it could have made the safety… have different safety regulations.

That was a sufficient effect on the environment that they had to do a–

Edwin S. Kneedler:

They did not… they did not… what… what they’re really arguing is that the agency should have considered some other alternative.

The agency analyzed essentially two alternatives, go forward under our existing regulations… again, these are procedural, not substantive regulations, just regulations designed to identify whether carriers satisfy substantive standards… either to go forward under… under preexisting or… or introduce new ones.

The respondents never said to the agency, there’s a third alternative.

You can make your new regulations even more stringent and here’s what you could do.

And in fact, even now, they don’t identify what further strengths–

Stephen G. Breyer:

–They’re… they’re making basically the argument you said they waived.

Edwin S. Kneedler:

–Yes.

Stephen G. Breyer:

You know, I mean, that’s been pretty much our whole discussion.

Stephen G. Breyer:

And I think on that, the Government says, well, they’re right in principle.

They’re saying… I mean, if in fact an agency has a choice, A, B, or C, and if you choose A, there’s a lot of smoke; B, a little smoke; and C, no smoke, well, they ought to go analyze it under an EIS.

I think you agree with that.

Edwin S. Kneedler:

But–

Stephen G. Breyer:

But you’re saying, well, they never made that point.

Edwin S. Kneedler:

–Right.

Stephen G. Breyer:

They said, but it’s so obvious we didn’t have to make it, and besides, when we got to the Ninth Circuit, at least in the reply brief, we did make it.

Edwin S. Kneedler:

Yes.

Well, the important thing is–

Stephen G. Breyer:

All right.

So what’s your response to that?

Edwin S. Kneedler:

–The… the… first of all, the agency… the agency did an EA in order to determine it didn’t have to produce an environmental impact statement.

If they were wrong on that, that should have been called to their attention on this precise point, specifically that the agency should have adopted an even more stringent alternative.

And it’s… and even now, they don’t identify one that the agency could do that wouldn’t be… essentially be a pretext, Justice Souter, as you were suggesting, that would be consistent with their duty to let in trucks and… and still have… have more flexibility.

What they quote for this is on page 193 of the joint appendix in the environmental assessment.

It’s important to recognize that that is a portion of the… of the environmental assessment that repeats that our own actions, including the inspections, are not going to have a substantial impact on the environment.

But even so, we can… we can mitigate that tiny impact, and it’s in that context where the agency says, we can try to screen out the dirtier trucks.

And there’s a reference to environment.

It’s unclear what it means, but I think two pages later the court identifies that there could be leaks from a truck that would be identified during an inspection they could turn over to environmental people from the State.

So it’s focused on a very narrow question, whether… whether the inspections would… would increase the emissions.

And respondents have never really challenged the notion, which is what’s being addressed here, that… that the increased inspections under these rules would have an impact on… on the environment.

I did want to address the… the Clean Air Act regulations.

We did not raise the regulation that’s quoted on page 17 of our brief.

We relied, as Justice Scalia pointed out, on the… under the indirect emissions.

As I mentioned, the… the agency has no continuing control.

It isn’t the control at the outset.

It’s control over the subsequent activities, which is the word in the regulation, and the… this agency, a safety-certifying agency, has no continuing control over where these trucks will travel in the U.S., even whether the… even whether the particular trucks come into the U.S.–

William H. Rehnquist:

Thank you, Mr. Kneedler.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o’clock.