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

Department of Transportation v. Public Citizen

Media for Department of Transportation v. Public Citizen

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

Audio Transcription for Oral Argument - April 21, 2004 in Department of Transportation v. Public Citizen

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.