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

• Author: Shirey, Katharine G.

1. 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.

2. BACKGROUND

   1. 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)

   2. 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...