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IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - -X
DEPARTMENT OF TRANSPORTATION, ET AL., Petitioners :
:
:
: :
No. 03-358

PUBLIC CITIZEN, ET AL.

- - - - - - - - - - - - - - - -X
Washington, D.C.
Wednesday, April 21, 2004
The above-entitled matter came on for oral

argument before the Supreme Court of 11:03 a.m. APPEARANCES:

the United States at

EDWIN S. KNEEDLER, ESQ., Deputy Solicitor General,
Department of Justice, Washington, D.C.; on behalf of
the Petitioners.
JONATHAN WEISSGLASS, ESQ., San Francisco, California; on
behalf of the Respondents.

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ORAL ARGUMENT OF

C O N T E N T S
PAGE

EDWIN S. KNEEDLER, ESQ.
On behalf of the Petitioners JONATHAN WEISSGLASS, ESQ.
On behalf of the Respondents REBUTTAL ARGUMENT OF
EDWIN S. KNEEDLER, ESQ.
On behalf of the Petitioners 52
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P R O C E E D I N G S (11:03 a.m.) CHIEF JUSTICE next in No. 03-358, the REHNQUIST: We'll hear argument v.

Department of Transportation

Public Citizen. Mr. Kneedler. ORAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE PETITIONERS MR. KNEEDLER: please the Court: In February of 2001, an international Free Mr. Chief Justice, and may it

arbitration panel, convened under the North American Trade Agreement, of a concluded blanket that the a United

States' the

continuation

ban or

moratorium on

operation of Mexican domiciled

commercial carriers beyond

the border zone in the United States violated NAFTA. Soon excuse me -thereafter, the President made clear --

his intention to comply with the arbitration power specifically vested in him by

decision by invoking

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

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safety mandate, was

required to conduct an

elaborate and foreign

complex environmental analysis of the President's

trade and foreign policy decision before it could enter or issue procedural safety regulations that were necessary to implement the President's decision. aside the procedural regulations The Ninth Circuit set on that ground and

thereby prevented to carriers that

the agency from under the

granting certification decision were

President's

eligible to receive it. The Ninth Circuit's decision is incorrect and it has frustrated NAFTA. Congress whose joint and the President, about to the two entities of or the the the President's ability to comply with

action are not

brought subject

the lifting either NEPA

moratorium,

provisions of the to require an

Clean Air Act that

respondents rely on Accordingly, the

environmental analysis.

agency acted entirely President's traffic or President's action as trade

reasonably in choosing to a given, including occur as a

take the

any increased result of the own own

that might and

decision

to,

instead,

focus of

its its

environmental

analysis

on

the

effects

procedural regulations. FMCA's government -- governing statute it to grant registration to any carrier that requires

is willing

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and able to comply with applicable safety, safety fitness, and financial responsibility requirements. no authority to foreign foreign deny operating The agency has carrier,

permission to a

or domestic, based trade concerns.

on environmental It has no

concerns or to

authority

countermand the President's decision or to refuse to issue the regulations that were necessary to implement the

President's decision. QUESTION: fact. Mr. Kneedler, just a -- a background

Perhaps I missed it, We're

but was there any parallel in Mexican vehicles.

Canada?

talking about Mexico or

I understood that originally there was the same limitation for both. MR. thereafter, KNEEDLER: -- the There was. And -- and soon

the

moratorium

was imposed

in 1982

originally, but it conferred on the President the power to lift the moratorium, and an agreement was arrived thereafter Canadian enter. The retained -the moratorium was remained in -with Canada. So since the early at soon '80's,

carriers

have been

--

have been

permitted to

in effect

by the

President through

subsequent

actions into

the '90's.

In the North American Free Trade to a

Agreement, the United

States included a reservation

complete opening of the border for

transporter operations

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by carriers subject to a

phase-out, initially a phase-out

that would allow carriers from Mexico to operate in any of the border was States -- that was 3 years after the agreement and then by the year 2000, to allow the The

signed --

carriers to

operate anywhere in

the United States.

President decided concerns

not to go forward with the safety

that because of regime in

about whether

regulatory

Mexico was sufficient

to prepare the Mexican

carriers to

come into the United States. was held up. And -- and panel's decision was ground was not -- was and that the from Mexican

So that is the reason why it

the basis that a

of the NAFTA

arbitration that NAFTA

blanket prohibition on

-- was not permissible under had to consider

United States

applications It could

carriers on a case-by-case basis. to ensure that the come in under the

adopt special procedures would be permitted to

carriers who President's

lifting

of the moratorium

would satisfy

the substantive

safety standards. are at issue here.

And that is the set of regulations that

But it's important to not substantive safety standards that

recognize that these The substance -carriers, like

are the

standards. Mexican

-- that

-- like

other foreign and have to

domestic carriers in the

United States in place.

comply with, are --

have already been

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All

that

we

are

talking

about

here

are

essentially

procedural or administrative regulations. QUESTION: question? I'm Mr. Kneedler, can I ask you a

Because I'm really kind of confused about this. to think through the case. Assume the

trying

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 to, as a precondition, adopt it, we want you regulations.

these safety

Would your position be any different? MR. KNEEDLER: it's the Oh, yes, yes. The And it -- I think

same situation.

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 -QUESTION: you -- you -­ MR. KNEEDLER: QUESTION: QUESTION: No, no. I -­ It wouldn't be any different. I -­

I thought you were saying it's -­ Your position would be the same. The same. Yes.

MR. KNEEDLER: QUESTION:

Oh, well -­ That's what I -- I'm sorry.

MR. KNEEDLER: QUESTION:

You scared me for a minute. No, no. I -- I misspoke.

MR. KNEEDLER:

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question part of vests position similar

(Laughter.) MR. KNEEDLER: I'm sorry. I misspoke. The

would be exactly reasons, that

the same

and -- and a

for very political

that's

essentially

decision, in

the one case by Congress in your example, or

-- or by the President. And -- and that's why Congress traditionally

an authority such as this

in the President because

he is responsible for foreign relations and foreign trade. QUESTION: But -- but in either event, it would must

not have been the kind be preceded by an EIS. MR. KNEEDLER: QUESTION:

of major Federal action that

That's correct.

That's your basic position. That's -- that's correct. It's

MR. KNEEDLER:

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. QUESTION: of second Well, but -but it wouldn't it, if be a

guessing, would could reduce known action

the agency the

regulations in question impact that the -- the

somehow the -by the

President,

who's pretty And --

sure this was going to it's sort of

happen, would cause? seems to me,

and so

relevant, it

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whether these rules issued by had been an in environmental such a way Is

the agency could, if statement, have reduce the --

there been the

impact as to

adjusted

environmental these rules

impact. and the

there any relationship between impact that the

environmental

respondents are concerned about? MR. KNEEDLER: that. The first Two things that the I'd like to say about -- that respondents'

one is

claim in this case and the Ninth Circuit's holding in this case are not premised on the sort of tinkering with the be

application and monitoring rules referring to. The --

that -- that you may

the premise of the Ninth

Circuit's of the had to

decision was that moratorium evaluate was

-- that the President's lifting and therefore broader FMCSA

foreseeable the much

the

--

question

of whether

Mexican trucks should be permitted to come in at all. QUESTION: seems to me obvious No, but I mean, my point is it -it

that you don't have to evaluate in an no

environmental impact statement something that you have power -­ MR. KNEEDLER: QUESTION: Right. -- to remedy.

-- to

MR. KNEEDLER: though, that refine the

Right.

As to your second point, might have been that is able to not an

-- that the agency regulations in

some way,

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argument that respondents made to

the agency.

And

under

Vermont Yankee -- and this is critical to the operation of -- of NEPA and the corresponding is that an agency can only Clean Air Act provisions -- or identify

evaluate or

errors if they're called to its attention. QUESTION: point? When did respondents first make this

You say they didn't make it in -­ MR. KNEEDLER: The -- the first place just in a sentence -that this was in a

point -- it

was really

reply brief in the court of appeals that they -- that they -- that they -- they said that the agency -- been able to come of the regulations. But it's not the agency very realistic to think that what might have been of -­

up with some modified version

could do -- could permissibly do -- could have

a significant effect on -- on emissions because -­ QUESTION: going to that Well, Mr. Kneedler, on -- on I mean, that goes to that -­

point,

something He -­

Justice Scalia raised and I wanted to raise it too. 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. MR. KNEEDLER: Right.

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QUESTION:

And -- and I'm looking -- by the way, where

I'm on page -- what is it -- 2a of -- of your brief you set out Roman (i). is That the statute down One of the the at the bottom of agency of

the page, to

things the

has got

disclose action.

environmental

impact

the proposed

I understand.

They could

avoid that in -­ They could say, very

theoretically in

-- in the general rule.

well, we won't take the bad effect.

proposed action if it has a with what he

And that's consistent

assumed

and what I assumed. But then they've got you get to to Roman (ii) and Roman (ii)

disclose any

adverse environmental the proposal be

effects which implemented. say if

cannot be

avoided should

And that seems to be broader. proposal, which in

That seems to may be

your

itself

environmentally benign, is the trigger for action by other agencies or other people, which is not environmentally

benign, you've got about you're when

to disclose the effects that will come the triggering action is clean. Am even though I -am I

you take

triggering

action

misreading that? MR. KNEEDLER: Well, respondents have not relied my -- my understanding of

provision, but -- but

that is that that refers -- that refers to effects that -­ that are within the agency's control.

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The -- the critical point -- and this -- this is in the -in the regulations on page 4a, the

things that an agency is responsible for taking account of under or NEPA, are direct -- things that are directly caused caused. And caused is the -is the

indirectly

operative word. Edison case that

And this Court said it's -- that --

in the Metropolitan that strict but-for

causation is not enough under NEPA. QUESTION: the -- if -read in that forget the But if -- if that's the -if -- if

I'll call it (C)(ii) here -- is way, then I take

-- is being -- let's just take say,

it what it means here. If Let's

presidential action

conventional government action. six Government agencies, basis was going to do each of

you had, let's

which on a

coordinated result,

something to bring about a

and the effect of the action of each one of those agencies by itself all six really didn't amount to much, but the action of together amounted to a very be an into great deal

environmentally, impact

there never that

would

environmental effect the

statement

would

take

cumulative action. MR. KNEEDLER: QUESTION: Right.

Is -- is that fair to say? And -- and I was just going to has

MR. KNEEDLER: say there is a separate

requirement under the -- CEQ

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elaborate regulations that -- that flesh this out. and CEQ has a regulation that the Ninth have --

And -­

Circuit relied any

upon and -reliance on

and respondents

have abandoned

it, which is that It has to

an agency has -- it has

to evaluate

cumulative impacts. evaluate

to essentially

the incremental contribution that its own action

will make toward a -­ QUESTION: Then why doesn't that apply here? Because the -the -- first of

MR. KNEEDLER: all, the agency did that. its incremental impact. QUESTION: effect. I --

It evaluated its incremental -­

What -- what it did -­ cumulative what

But I'm talking about the -- maybe

I thought

I misunderstood

you've said. MR. KNEEDLER: QUESTION: I It -- it -thought under the Council of

Environmental Quality reg, at some point they had

to take

into effect -- they had to disclose the cumulative effect. MR. KNEEDLER: with the -- the -­ QUESTION: The effect of all the agencies Each You Well, if you mean -- if you mean

together in my hypothesis.

You've got six agencies. Add the six together.

of them does a little thing. get a big thing.

I thought you were saying that under the

Council on Environmental Quality regs, somewhere along the

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line somebody statement -­

has got to disclose

in an --

in an impact

MR. KNEEDLER: QUESTION:

Yes, and -- and --

-- the cumulation. Right, and -- and what -- what

MR. KNEEDLER: the -QUESTION:

So why wasn't it done here? Well, the -- the agency here was

MR. KNEEDLER: the only one

taking action, and all the cumulative impact it to do is to isolate what its

requirement requires

incremental contribution will be -­ QUESTION: under Well, that's under Roman (i), but

Roman (ii) it's

broader, and you

said, I thought, at some all

under the Council

on Environmental Quality regs,

point you've got to disclose the cumulative effect of of it. So on my hypothesis, it's -- when -- who

-- what

agency and when has to disclose the cumulative effect -­ MR. KNEEDLER: QUESTION: Well, if -- if there are -­

-- and why wasn't it done here? If there are -- if there are two -see, the -again, the

MR. KNEEDLER: agencies working

in tandem

President -­ QUESTION: So you're saying -­ -- the President -­

MR. KNEEDLER: QUESTION:

-- it -- it would have been done here

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but for the fact that the President is not an agency. MR. KNEEDLER: If two agencies -if two

agencies are taking parallel action, or coordinated action,

they are supposed -­ to coordinate

they're supposed

the -­ QUESTION: Right, and you're saying because the

President is not an agency, that doesn't apply here. MR. KNEEDLER: QUESTION: Right. Right. And -- and --

Now,

does the -- does the Council on the -- that the

Environmental Quality regulation say that

disclosure of cumulative effect depends upon the action of many agencies as opposed to the actions of many persons to which an agency contributes? MR. addressed -­ QUESTION: MR. more -­ QUESTION: But is it -It's not just limited to other Yes, but what is it? -more -it -it includes KNEEDLER: It is -it is -it's

KNEEDLER:

MR. KNEEDLER:

agencies, but there's an -­ QUESTION: assume the Then why didn't it apply here? agency. Why We'll

President is not an

didn't that

requirement apply here? MR. KNEEDLER: The agency did comply by saying

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this is

the context in which

we were acting.

What they

said is we have no control. QUESTION: Yes.

And this is the --

MR. KNEEDLER: no control over projected -- it

-- literally language. is going

We have It or

what the President

to do.

projected increases in

traffic or --

increases in trade that might -- might result or discussed that. So that's really what the cumulative impact

analysis requires is to action in context. But which is basically

-- for the agency to

put its own

where the agency's

own action is marginal, -- these are the agency, That to the

the case here, it administrative

can be expected by

undertakings

application forms, and -that where the

-- and on-site inspections. own action is

agency's to

going

contribute rule

so marginally

environmental impacts, reason under --

-- the general

rule of

under NEPA

does not require an agency to, for -- for example, conduct a -of a nationwide study of Clean Air Act possible effects in order to determine that its own

Mexican trucks

contribution is going to be minimal. And -- and what -agency's contribution what -- as I mentioned, the

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

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--

or

on

paper,

and

then

follow-up

monitoring

and

inspections. that any of

And the only

real contribution to emissions are the -- are the roadside

that would have

inspections where little bit

the engine might be -- will be idling a truck is inspected and to increased the agency emissions

while the

fully evaluated for that

its contribution that

and concluded

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 appropriations they have -they have relied 350, as on this been

provision,

section

it's

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 350 lifting our of the

moratorium. because it

But

section

reinforces

position agency's

reinforces the

proposition that the

role was limited to safety matters. QUESTION: Did 350 limit itself in its

directions to the agency to safety matters? MR. KNEEDLER: Yes. There's not -- there's no

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mention of -- of environment -- environmental issues in -­ in it. And in fact, what it did is it further constrained Whatever discretion -strict the and it -- and

FMCSA's discretion. it overrode or

made more

agency's initial in

proposed regulations

by requiring

safety evaluations

Mexico and stringent evaluations afterward. very strict requirements because

It added some make

Congress wanted to

sure that the agency was going to impose -­ QUESTION: Mr. Kneedler? -- stringent qualifications. Kneedler, can I ask I you another

MR. KNEEDLER: QUESTION: Mr.

kind of preliminary question?

was just reexamining the

statute that Justice Souter was calling your attention to. And the President, of course, is not an agency within the the introductory taken by paragraph. Does that is not a mean major

meaning of that an

action

the President

Federal action within the meaning of subparagraph (C)? MR. KNEEDLER: QUESTION: Yes, because it -- it -­

Because if I'm an agency -­ They kept it -- the duty -the

MR. KNEEDLER:

duty is imposed on the agency. understood. QUESTION: I see.

That's the way it has been

MR. KNEEDLER: it -­

And the agency shall

include in

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QUESTION:

It

should

read

any major

Federal

action undertaken by the agency -­ MR. KNEEDLER: QUESTION: Yes.

-- is implicitly -­ Because it says include in every

MR. KNEEDLER:

-- the agency in -- in the introductory part shall include in every recommendation Federal action. I or report it's on proposals or referring major own

think

to its

proposal for a major -- a major Federal action. QUESTION: certainly a And -and we've held that? It's

permissible reading of it.

I'm not sure it's

a necessary reading. MR. KNEEDLER: I don't know that this Court has it, but I think that's been

ever specifically addressed 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 agency's discretion here. that an And

350 serves to confine the the -the agency's all that impact

decision

environmental full-blown is

assessment was environmental

was necessary was

and a not

statement

required

reinforced in this case by the -- by decisions of a number of courts of appeals that have said that where an agency an

does not have discretion, it

does not have to prepare

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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 did

about whether to -- to go forward, as the agency here not, then to require a full-blown

environmental impact

statement of -- of clean air issues, which are exceedingly complex, before the would agency would go purposes of -- could go -- of NEPA forward

not further the

and would

only serve, in fact, to slow down the process of complying with NAFTA. QUESTION: produce an EIS that Well, said in what fact, we an agency to could do is

propose

disastrous and nevertheless go ahead, could it not? MR. KNEEDLER: Yes, But -yes. NEPA imposes no

substantive requirement. was really a need for

but in this

case there that's statute

expedition, and it's -- and by the fact that the to lift the

-- that's made evident here that authorized the

President

moratorium

provided for the President to give notice and allow public comment for that, but allowed him to waive that where

expeditious action was looked at the

required. in

And when November

the President of 2002, he

moratorium that

specifically

invoked

provision,

dispensed

with

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further

opportunity

for

public

comment

because

he

determined that expeditious action was required. It's Crosby several very much like in this Court's that way decision in --

terms ago a

because the

although than a ability

here it's

subordinate Federal is to

agency rather the an a

State, but of the

the result to

interfere with promptly out to

President

respond had

international

disagreement

that

arisen

of

foreign trade agreement. I did want to spend Air Act conformity on analysis think just a moment on the point which the Clean the

--

conclusion

that we

follows directly

from the

conclusion on NEPA. Under promulgated in -under EPA regulations doesn't that were

1993, respondent

challenge them Under those a

here, and the D.C. Circuit regulations an -an

has upheld them. required

agency is

to conduct

conformity analysis and its action where the

to conform its action but beyond subject to

only where --

causes emissions, emissions are

that, where the

agency's

practicable

control and

where the

agency

will maintain

that control through continuing program authority -­ QUESTION: regulations? MR. KNEEDLER: Yes. That -- that -and that That is -that is set forth in the

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regulation is set forth in our -- in our brief on of -- of the brief, the definition of the term, is described as the

page 8a indirect

emissions, which elsewhere

emissions

for which the agency is responsible. And in this the FMCSA does case, it's -- it's very clear that or continuing the

not have any

control over

responsibility for

the President's

decision to lift

moratorium, for the determination of whether carriers that get registration will actually bring trucks into the the

United States, what routes they United States, and what

will travel while in they will

emissions

have once that

they're in the United States.

Those are all things

are beyond the agency's control. QUESTION: Mr. -- Mr. Kneedler, I -- I read the The -- the interesting thing to -- I guess it's academic

regs the same way you do. me was,

although it's probably

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. even on the kind of the --

And I -- I would suppose

the low-level effect that the

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agency has disclosed here, idling the --

motors and so on,

that

that the statute would cover it, although the regs Do you read

are narrower and the regs wouldn't cover it. the statute the same way? MR. KNEEDLER: The -- the

regulations are

an

interpretation of the statute the -­ QUESTION: MR. through Yes, yes. -that the agency and the adopted -- the

KNEEDLER:

notice

and comment

rulemaking,

preamble to that regulation contains persuasive discussion by

a very extensive and necessary to

EPA about why it's

draw a line between the things that -- for which a Federal agency can be and those for reasonably held accountable which the -- after all, or responsible the States are

primarily responsible in developing -­ QUESTION: Yes. -- implementation plans.

MR. KNEEDLER:

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 render the you need a permit to do something should not subsequent thing driver's

agency responsible for every

that somebody who gets a

permit might do, get a

license, for example, doesn't --

yes, it's a precondition

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to driving, but it doesn't mean that the permitting agency should the -­ QUESTION: I mean, if -- if the narrow -- I say narrowing statute would But they would have to disclose it. without I be responsible for evaluating of all the -- all

you read the statute literally, -- I don't mean to

load the dice when

-- without

the agency interpretation, least to --

the

be broad enough at

to require

this agency to disclose its contribution. MR. KNEEDLER: Well, I suppose under the

broadest reading, a extensive

but I think even that might -- might be And let me also the

reading of the regulation. that respondents

just say again

have not challenged

validity of the regulation. QUESTION: QUESTION: question problem? just I know. May I -- may my I ask this other

in displaying

ignorance of

the whole

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? MR. KNEEDLER: I -- it -- it could voluntarily

do that, but the -- but the -- the case law -­ QUESTION: require it to make No. Assume you read the statute to necessarily

a statement.

Does it

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follow that

the --

the --

there must

be an

injunction do

against the trucks coming in that?

while they -- while they

I know normally it's -- it's done that -­ MR. KNEEDLER: No. No, it -- no, it would not

follow and -- and -­ QUESTION: even if Which the converse of that is that

you're right, conceivably -- I mean, even if your is right that duty to the trucks the should come statement in,

basic concern conceivably remain. MR.

the

prepare

might

KNEEDLER:

NEPA

has

--

has

not

been

interpreted that way over the years where an -­ QUESTION: But this -this case involves the

President, so it's a very unusual case. MR. presidential discretion, KNEEDLER: case because where But an -but even in the non­ have

agency

does

not

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. QUESTION: that had some is it -- it Yes, but assuming it was an agency

discretion in the matter, can't go ahead without

my understanding first making the

environmental impact statement. MR. KNEEDLER: No, that's true, but -- but we do

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think

that

there is

some

room for

remedial discretion

where -- where even if there's mention the -the principle

a violation, the -- not to 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. QUESTION: Very well, Mr. Kneedler.

Mr. Weissglass, we'll hear from you. ORAL ARGUMENT OF JONATHAN WEISSGLASS ON BEHALF OF THE RESPONDENTS MR. WEISSGLASS: please the Court: Congress about safety before Mexico. gave FMCSA important choices to make Mr. Chief Justice, and may it

any trucks come over

the border from

Those choices will determine which trucks come in

and how many. The reason rules for that is because as the safety

are made more stringent,

fewer trucks will be able

to meet the requirements and those that do will be newer. QUESTION: argument was, But this wasn't your argument. Your

as -- as I

understood it, that

the reason

the EIS had to be prepared was not because any substantial the environmental impact but because no

there would be nature of all can

from the

safety standards,

trucks at

come in

until -- until the agency

comes out with this -­

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with these standards.

Isn't that right? The -- the argument is that

MR. WEISSGLASS:

because Congress promulgated section 350 -­ QUESTION: Right. -- no trucks can come in until

MR. WEISSGLASS:

the agency makes these safety choices. QUESTION: consequence of the has to do an EIS. MR. WEISSGLASS: That is correct. And in Okay. agency action. Therefore, Therefore, that's a

the agency

addition, the -­ QUESTION: 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 same license, and he announces that if he is for the

denied the is

license and the license is going to unleash a flood

given to somebody else, he of trucks around

the country,

pouring out emissions and -- and the air quality throughout

greatly affecting the -­ Does the FCC,

the country.

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?

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MR. WEISSGLASS: QUESTION:

The -- the question -­ you know, what the

Concerning, the --

environmental impact of actions are going to be?

of the mad

millionaire's

MR. WEISSGLASS: whether the -- first -whether that the

The --

the only question

is

there are two questions. has control over

First, the

agency

-- over

choices that it's making, and second -­ QUESTION: Has no control over the mad the

millionaire, just as this agency President. MR. WEISSGLASS:

has no control over

If -- if the -- if the -- if it

comes down to foreseeability, when the agency takes -­ QUESTION: The mad to. millionaire It's put it in

It -- it's sworn

absolutely certain

he's going to do it. (Laughter.)

He really is crazy.

MR. WEISSGLASS: whether the agency it is

The -- the critical point is -­ a choice take. about If the -the has

has

options that control over

going to

the agency

what it's going to do, and in the reasonably

foreseeable -­ QUESTION: It does. It does. It can deny the

license to this person and give it to somebody else. MR. WEISSGLASS: Right. Then -then the

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question

just

becomes

foreseeability,

and

if

it's

foreseeable, the

agency then has

to take account

the -­

the effects of the -­ QUESTION: this situation. MR. correct. QUESTION: That's absurd. But that -­ Now, suppose -­ WEISSGLASS: In that situation, that is So the FCC would have to do an EIS in

MR. WEISSGLASS: QUESTION: QUESTION: QUESTION: Fine.

That is so absurd. -- instead of the mad millionaire,

what the -- we have the mad millionaire. statute says is every license safety purposes -- has car, and then there's

But now what the

that's issued for safety -­ put in the stamp shall it will

to be a stamp that you a rule that says, no

issue until the be red or blue. an

Post Office Department certifies All right?

And moreover, there could be from the red and blue. I

environmental impact just

mean, one reflects the -Now, the Post Office knows that what color it is, then they'll if it tells you

have it, and if they have And if they give out the

it, they give out the license. license, the throughout

mad millionaire is going to Does that mean

let loose smoke that the Post

the Nation.

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Office

Department has

to write

an environmental No.

impact is

statement about the mad millionaire? clearly no. Isn't it?

The answer

But the only problem is your theory doesn't tell me why. MR. WEISSGLASS: The -- the reason is this. In

-- in this case the agency has significant choices to make about safety. Congress -­ And so does the Now, the Post Office. It's

QUESTION: going to

be red or blue. blue choice

relationship between wrecked And

the red and through now, you

and environmental being

the smoke of want to

the mad

millionaire is zero. not true with this

say that's

safety

regulation.

So explain why. WEISSGLASS: Because it's -it's what

MR.

Congress -- it's how Congress set up the -- the situation. Congress makes said that no trucks come and in until gave the agency the agency will

these

choices

Congress

discretion

about those

choices

and those

choices

determine which

trucks come in and how many and therefore

the environmental effects. Now, just because the -- there is -- there is take

another actor that has to

make decisions and has to

action before there will be any environmental effects does not remove this from major Federal action.

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That's

the

Robertson

case

that

this

Court

decided where the agency has to a permit. Upon issuing the

decide yes or no to issue happen

permit, nothing will

until a private construction company builds a ski resort. That -- that is -- that is what -- what is going The -- the agency has this significant choice to do in its -in its regulations, and

make about what to once it

makes that choice, but only then, will the trucks

be over -­ QUESTION: Circuit decision? MR. WEISSGLASS: basis for the the agency that -­ QUESTION: QUESTION: speak in terms the But -- but in -- in -­ But the Ninth Circuit seemed to me to I -I believe The this was the Now, was this the basis for the Ninth

Ninth Circuit decision. actions to

President and it's not

have separate

take, and

of but-for causation and that just because many more trucks were going to be the

agency knew that

coming in, even though as fact that the agency -the

a result of somebody else,

that they couldn't come in

until

agency acted meant that the

agency had to do an EIS.

That -- that seems a very doubtful proposition to me. MR. WEISSGLASS: the Robertson scenario. It really is very similar to

The construction company couldn't

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take any action until they got the permit. QUESTION: forbidden the action. the -the Yes, but the permit could have --

The permit

related to whether to

agency's decision company

related a

whether this or not. upon the -- the

construction This

could build no

ski resort --

agency's

action has

bearing upon

environment.

It has no bearing

upon whether the

President can take his independent action. artificially connected just the was. MR. WEISSGLASS: difference -­ QUESTION:

It's just been

way the mad millionaire's

Justice Scalia,

the

--

the

They -- they were not part of the -­ whether the ski resort is going

of the program to decide to be built. MR. WEISSGLASS: that the agency has

The -- the difference choices to

here is

significant

make about

safety.

It can determine, in fact, how many older trucks And it's the older trucks that

are going to be coming in. are more polluting. QUESTION:

And -- and -­ No, but can't the -isn't the

agency's discretion to determine whether older trucks come in or not a discretion on the basis of which is supposed to be considerations exercised than

safety

rather

environmental considerations?

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MR. WEISSGLASS: that -- what agency

But that's the point

of NEPA,

NEPA says is just because you mean the it can divorce It

have a safety its safety have

doesn't

considerations from to -­ QUESTION:

environment.

doesn't

Those safety

considerations that are its safety said that

control that would

be affected by

regulations are minimal. this would have been a impact

I don't think anybody

major Federal action requiring an if there were nothing to

environmental

statement

involved except whether

these safety

rules are going

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. MR. WEISSGLASS: but it's also true have a huge That's part of it, but the -­ can

that what the in terms

agency does can -how many

effect

of

trucks are

actually going to come over. trucks are

Even if you assume that some

definitely going to come over, what the agency

does is -- is going to have a big effect. The agency specifically says going to target high-risk trucks environmental compliance assessment -- to, that the rules are the

-- and this is from quote, bring

them into

with United

States

safety and

environmental

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laws.

The agency

knew that

there was

this correlation talking fleet

between safety about tens of

and the

environment.

And we're

thousands of

trucks, and

a Mexican

that is skewed much older than the U.S. fleet. QUESTION: to be such Well, don't -- don't the and Mexican rules have trucks are

that American trucks

treated alike? MR. WEISSGLASS: the arbitral U.S. could panel in I -- there's -- actually the -­ said that the

NAFTA specifically trucks

treat Mexican

differently reason. But

than U.S. the Court

trucks as

long as it

has a good

doesn't even -­ QUESTION: But doesn't it -- I mean, would it be I take it you're here not being

a good reason -- I mean, against Mexicans.

You're against environment. We're for environment. in fact -yes. I mean for

MR. WEISSGLASS: QUESTION: environment. (Laughter.) QUESTION: right.

So if

You're against bad environment.

All

We're all against that. Now, if in fact it turns out that there is some does the agency have the or there's power to bad

kind of problem, is -say if there's too

much smoke

too much

effect, we want American trucks to have to tighten up too?

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We

don't want

just Mexican trucks

to have to.

We want

everybody to have to. MR. WEISSGLASS: QUESTION: the agency? MR. WEISSGLASS: that power. The -- the -­ All right. Then do they also have to The agency does have that -Was Yes. that your position in front of

QUESTION:

study the impact of the American trucks? MR. WEISSGLASS: If -- if the agency takes major

action with respect to emissions of U.S. trucks, yes. QUESTION: 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 that. inquiry

their safety regs could have in fact the overall we

an impact on this the

Well, if is to

framework of don't pollute

make

certain that

environment or that we're safe in a context where Mexicans and Americans are to be treated alike, to go into the whole thing? MR. WEISSGLASS: No, because the agency wouldn't they have

rulemakings that we challenge deal solely with the -- with -- with trucks coming over from Mexico. to do a rulemaking about an issue. Now, if they were be

U.S. trucks, then that might

But this is relating solely to Mexico.

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And -- and there are numerous -- numerous things that the agency of trucks will cause can do that -- that -- about safety of -­

coming over from -- the border from Mexico that the older trucks that are both less safe and

more polluting not to be able to come in. QUESTION: Were -- were these points pressed on

the agency during the proceedings? MR. WEISSGLASS: QUESTION: The -- the agency -­

Can you answer yes or no? Yes.

MR. WEISSGLASS: QUESTION: MR. comments to Okay.

WEISSGLASS:

The

-- there

were

numerous

the agency about safety, and the agency, as I

mentioned before -­ QUESTION: about But to say there were numerous my

safety

doesn't

certainly

answer

MR. WEISSGLASS:

The -- the agency said that it trucks to be in compliance

was going to target high-risk

with safety and environmental laws. only deal with safety, that's a

And because the rules safety

concession that

choices affect the environment. told to the agency. QUESTION: QUESTION: Well -­

Nothing else needed to be

So your -- your answer to my question

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is no point.

I guess, that you did not

press on the agency this

You say the agency already knew it. MR. WEISSGLASS: The -- right. The agency knew

it and the

public was not required to cause the agency to

connect the dots. QUESTION: Knew -- knew what? The agency knew that there was

MR. WEISSGLASS: a -QUESTION: what? That

-- that

high-risk trucks

are

More polluting? MR. WEISSGLASS: The -- the agency knew that -­ more polluting,

that older trucks are

both less safe and

that there's a correlation -­ QUESTION: MR. Between pollution and age. And -and that -and it

WEISSGLASS:

specifically -­ QUESTION: attention as And was that brought to the agency's

one of the things that they should take into

account in -- in their safety rules? MR. said it in said. WEISSGLASS: The -the agency had and what I it -­ just

its environmental assessment

And the public commented that the older trucks are And the agency admits it's a matter of

more polluting.

common sense that the older trucks are less safe. QUESTION: The agency did take it into account

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in its was

environmental assessment and concluded environmental impact

that there the

no significant

just from

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 that just

challenging is from the

that may well be the

true, that --

content of However,

rules, there's trigger

no significant presidential is the the

impact.

the rules

the

action which significant

lets in the Mexican environmental

trucks and that Wasn't

impact.

that

accurate -- an accurate description of your case? MR. WEISSGLASS: that the agency makes Yes, both which that and the choices not only

will determine

whether any trucks come in but how many. QUESTION: 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 EIS. Is

would be enough to

trigger a requirement for an

-- is that claim made in your -­ MR. WEISSGLASS: that claim in -- in -­ QUESTION: Because that -- to All right. me, that's Can you point to that? what your answer to the We absolutely did -did make

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problem, you

know, with the decal color.

It -- it really

depended on that. and on that one, at the agency,

And I do believe that they're saying -­ it seems to me, look, you this is more have choice A polluting than they wouldn't that's what

B, or C, and isn't.

that and the other have to write

I don't see why

an EIS for that.

But I think

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? QUESTION: the Ninth Circuit. QUESTION: Yes. If I could, I'd like to start And too, where it was raised before

MR. WEISSGLASS: with the Ninth Circuit.

We raised it in our reply brief,

as Mr. Kneedler said. QUESTION:

And the Ninth Circuit passed on it. No, no. But that's not the issue.

The issue really is the agency for me. MR. WEISSGLASS: QUESTION: agency was it raised? MR. WEISSGLASS: agreed there's this The -- the agency, as I said, the Okay. where -where before the

I mean,

correlation between

safety and

environment.

There -- the public did not need to tell the do with that because Vermont Yankee makes

agency what to

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it

an

obligation

of

the

agency

to

consider

every its

significant action.

aspect of

the environmental situation like in

effects of

This is not a

Vermont Yankee

where someone raised an issue about and refused to clarify. The

unchartered territory an affirmative the

agency has

obligation to take

this into account

because it had

predicate facts in front of it. QUESTION: raise All right. Are you saying we didn't

it before the agency?

The reason we didn't is that to do was raise it when we

we didn't have to.

All we had

appealed from the agency. MR. WEISSGLASS: could. Yes. QUESTION: QUESTION: didn't raise agency have Okay. But

Is that your answer? You said it much better than I

if that's your answer, question would be

then you does an

it, and then the to have figured of it

out here that might have had

its different differential of.

alternatives in front environmental impacts

that they didn't

take account

Now, how am I going to answer that question? MR. WEISSGLASS: QUESTION: The answer is yes.

I know you think -­ Because -­ I want to know what I

MR. WEISSGLASS: QUESTION: read -­ --

it's yes.

40 Alderson Reporting Company 1111 14th Street NW, Suite 400 Washington, DC 20005

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a reply until the Justice.

MR. WEISSGLASS: QUESTION: whether it is yes. MR. WEISSGLASS: QUESTION:

Yes. -- try to figure out

-- and try to

Because -­

What -- what -- go ahead. Because -- thank you, Mr. Chief

MR. WEISSGLASS:

Because in the agency admits

joint appendix at page and it

193, the record

this correlation,

was also

evidence before the agency that the Mexican older than polluting. is what

fleet is much

the U.S. fleet, that the older trucks are more And so it stands to agency has to reason -- and -- and this when it's considering

the

do

environmental effects is

look at what its

safety choices

are going to do in terms of the environment. QUESTION: Well, why did -why did you wait Ninth

petition for rehearing

in the

Ninth --

Circuit to raise it before that court? MR. WEISSGLASS: brief. It was It wasn't rehearing. in response to It was on

the agency's stringency of

admission in its

opposition brief that the

the standards does have this effect. QUESTION: Ninth Circuit said. will cause What -- here is -- here's what the

DOT's assessment that its regulations the amounts specified in 40

emissions below

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C.F.R. 93,

thus excusing

it from

making a

conformitory in its

determination is based EA.

on the predicted emissions

As we have already determined, however, DOT failed to a reliable environmental distinction between analysis because of its the effects of the

conduct illusory

regulations themselves, which about, and the the moratorium. It seems Circuit's decision before -before to me

is what we've

been talking rescission of

effects of the presidential

it was

essential to the take into the

Ninth

that you you

have to --

account, of the base it

win, the

impact

President's decision.

The

Ninth Circuit did not

just on the effects of the regulations themselves. MR. WEISSGLASS: also said inadequate alternatives that the for, such -- the quote, as, The -and the Ninth Circuit was

environmental assessment not considering

additional more

for

example,

proposing

stringent controls on incoming Mexican

trucks.

The Ninth

Circuit clearly recognized that there was this correlation between a stringency effects. Now, it's very important way Congress set this up to understand that the agency is of the rules and the environmental

was it's not that the

somehow overriding a presidential decision. separate and independent decisions here.

There are two The President

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has authority over trade issues the way that authority. But the Congress

Congress gave him time said These

at the same

that the agency has

authority over safety issues.

are two separate things. QUESTION: said just what you Yes, it's true that the Ninth Circuit said it said, but it was quoting the

general requirement, I think, which describe it. And here, I guess the

exists in the way you 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. is not adequate exists. This

environmental assessment requirement that? MR. that we

to fulfill that Now, what about

all know

WEISSGLASS:

The -- I'm

not quite

sure I

understand the question. QUESTION: now is the agency is They all involve Remember, what we're talking about C.

considering alternative A, B, or 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 have to explains to them why they don't

do more than they've done in respect to just what Everyone agrees that the requirement Circuit says it. Who told

we're talking about. is what you said.

The Ninth

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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. MR. WEISSGLASS: QUESTION: MR. The -- the agency -­

I think that's -­ -issued the -the

WEISSGLASS:

environmental assessment and then asked after it had already issued the

for comment on it final rules.

interim

There were didn't

comments to the agency, and as I've said, they say this. But the agency was

specifically

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 and the environment.

the stringency

of the safety

rules

It knew the effects of its actions. that high-risk trucks are both more

It specifically said

-- more polluting and less safe. It NEPA had to do that. That's what NEPA requires. come in and tell the agency to

doesn't require a

citizen to

agency what

its options are.

It requires the

take that action. QUESTION: Does this agency have the authority

to exclude a perfectly safe truck because in its view it's an older truck and will pollute scope of what the agency can do? more? Is that within the

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 required NEPA must choices.

MR. WEISSGLASS:

The agency

is to make

safety

QUESTION:

Safety choices. And in doing that it's -- under

MR. WEISSGLASS:

take a hard look at the environmental effect on

the safety choices. QUESTION: environmental effects have any effects -any No. It -it has to describe the does not

perhaps, but if the basis

-- if it of

power on

environmental mean, two yes, I'm That

to alter the

safety regulations

-- I

trucks are equivalently safe. you're both just as safe, not going to let you in

Can this agency say,

but as a safety regulator, because you pollute more?

has nothing to regulator. MR.

do with the agency's job as -- as a safety

WEISSGLASS: any truck

The in.

-The

the agency agency is

is

not

to let

-- must

register -­ QUESTION: That's true, but it has to exclude it

on the basis of safety considerations. MR. looking at the what it WEISSGLASS: That is correct. And in

safety considerations, what it's to promulgate for the

going -­ of a

is going

broad class

trucks, not each individual truck -- it is promulgating broad class of safety regulations. Any

truck that meets

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that

standard, what

yes, the that

agency

must let be,

in. that

But

in

deciding

standard

should

general

standard, the agency not

only can, but has

an obligation

to look at the environmental effects -­ QUESTION: there are Are -- are you saying that effects because old

varying environmental

as between

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? MR. WEISSGLASS: -- does not -­ QUESTION: you know, And we'll -- we'll find that work quite so the -­ well on The -- no. The agency does not

the signal lights don't

the old trucks

and we'll use that as a basis to keep them

out so there -- so we can minimize environmental damage? MR. WEISSGLASS: obligation decisions. because NEPA The agency does not does not require have that

substantive

But what NEPA requires is that the agency take

a look at those effects. QUESTION: All right. Then -- excuse me. Let

me -- let me ask you this question. Let's assume significant safety good as the agency concluded that on all as

factors, the

old trucks

are just

the new trucks.

It also concluded that

the old

trucks pollute more.

There -- there

is an environmental

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difference.

The agency cannot keep out the old trucks for My question is, does the agency have

that reason alone.

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 Do they have to and

letting in

more highly polluting trucks? even though

prepare that statement

their action is,

legally can be, the same with respect to the old as to the new? MR. WEISSGLASS: -has a significant Yes, as long as the agency has to make about what the

choice

standards should be. QUESTION: Suppose under Justice Souter's

question, the agency has no choice trucks.

and it must let in the

Does it still have to prepare the EIS? MR. WEISSGLASS: QUESTION: If the agency has no choice -­

Or the EA. -- then -- then under a number the open

MR. WEISSGLASS: of circuit court agency would question reach it. QUESTION: No. not

cases, which have to do

the Government cited, it. And that's an

for this

Court, but

the Court doesn't

need to

But you're -- you're

saying, I

think, suppose the agency is

trying to choose between two All right. Now, if

headlight inspections a year or one.

you have two a year, in fact, there will be

fewer trucks.

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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 guess the agency does have to go difference, then I But if they

into it.

have an EA

that tells them, you know, it's not that big a they're going to be about the same number of think the burden would be

deal because

trucks regardless, then I would

on the environmentalists to show that that's really wrong. And I And think that's the kind of argument you're making.

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. MR. Is -- is that where we are? That -I think that is

WEISSGLASS: we are.

accurate about where there were numerous

And -- and the fact is that the agency about the

comments to should have

safety things

that it

done and

didn't, and

there are numerous -- there's numerous -- there's a lot of room between coming the standards that the border are from being imposed on and the

trucks

over

Mexico

standards that are in -- on U.S. trucks. The agency affect also that. could have made choices that would

this, that would affect the safety, and that would the environment. And the agency concedes it

affect

The agency concedes

it had the discretion, and

concedes that this could affect the environment.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 talk about the

What

the

agency does

is

say that

that's all lifted the

President But

because the is

President a

moratorium.

where that

mistake is

because

Congress was the -- was the body that said when trucks can come over, and it gave separate authority both the President and the So it all agency to

over that.

goes back

Congress in making this -- this foreign commerce decision. Now, before I finish my argument, I did about the Clean Air Act because this want to is very

important.

Justice Souter raised this point.

The way the would of the

agency reads the regulations, it be completely out of accord

-- it would -- it language

with the

statute which -QUESTION: Did -- did you challenge the regs? We -- we did not challenge the

MR. WEISSGLASS:

regs, but we read the regs -­ QUESTION: Isn't that the end of the issue? No, because we read the regs

MR. WEISSGLASS: very differently the way the

than the agency.

The agency --

the -­ is that

-- the

particular regulation reads

it's not just where -­ QUESTION: QUESTION: QUESTION: Where -- where are you? 8a, page 8a, isn't it? 46 of your brief or where? Actually the -- the critical -­ On 46?

MR. WEISSGLASS:

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the critical regulation that the its reply brief. brief.

Government raised was in the -- of the reply

It's on page 17 of

And -- and there is the definition of continuing program responsibility because once the past the cause the Clean point -- and EPA is -- the -- you get

very clear that under It says that.

Air Act, it's but-for causation.

And so we clearly have that here. Then the question continuing program is whether the agency has there a

responsibility.

And

are two

sentences that are separate formulations that responsibility. on the The --

of when there is

the Government relies solely do not rely on. That's

first sentence, which we

when an agency requires some activities. But the second when an sentence is the critical actions

sentence, which is

agency, quote, takes

itself or imposes conditions that emissions.

result in air pollutant

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 -- how much pollution there's going ratchets up the -- the pollutants to be. If the agency

its -- its controls, there's going to be less

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pollution.

The agency admits that. QUESTION: 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 other

argument here, which

-- which

makes whatever this

regulation says quite irrelevant because it's a definition of emissions. within the And it says that to be an indirect emission must have -must be

act, the Federal agency

able to practicably control and

maintain control over the

emissions due to a continuing program responsibility. MR. WEISSGLASS: That's right, and the

regulation I've just read is program responsibility.

the definition of continuing The agency here clearly has a

continuing

program responsibility

because as

it's going

enforcing the regs that it to determine practicably both

-- that it writes, it's

how much pollution there is. controls the emissions

And it clearly I said,

because, as

without some choices, there's

going to be no trucks are

and once the agency makes going to determine how

the choices, those choices comes in

much pollution

because

that's how many trucks and what type are coming in. QUESTION: Federal licensing Well, I -- I agency for guess that any for -- any or

--

automobiles

anything else would have to -- you

-- would come

within this and

would

know, if I

don't issue a

license, I can

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practicably control the though agency. the agency is

-- the amount of not a --

emissions, even approving

an emissions

It's -- it's giving driver's licenses. MR. WEISSGLASS: The -the -- this is the meet --

tradeoff that Congress clean air requirements. we're

made in It

requiring States to

said, yes, we're going to

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 their a Federal agency for the States Clean to meet its Air Act. --

responsibilities

under the

That is

would be horribly unfair. so broad that if the -QUESTION:

And that's why the statute

Thank you, Mr. Weissglass.

Mr. Kneedler, you have 4 minutes remaining. REBUTTAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE PETITIONERS MR. Justice. The -the critical point here is that the KNEEDLER: Several things, Mr. Chief

agency had no discretion to trucks that were lifting of

deny certification to Mexican the President's the -the

eligible under -- under

the moratorium

if they satisfied

requirement that they'd be willing and able to comply with the -really with the statutory standards. acting under two So the agency was is its

imperatives.

One

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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. QUESTION: 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 different safety

could have made the That was

safety -- have a sufficient

regulations.

effect on the environment that they had to do a -­ MR. KNEEDLER: what -- what They did not -- they did not --

they're really

arguing is that

the agency The agency

should have considered some other alternative. analyzed essentially two alternatives, go

forward under procedural,

our existing regulations --

again, these are

not substantive regulations, just

regulations designed to

identify whether carriers satisfy substantive standards -­ either to go forward under introduce new ones. The there's a respondents never said You to the agency, your new -- under preexisting or -or

third

alternative.

can

make

regulations even more stringent and do. And in fact, even now, they

here's what you could don't identify what

further strengths -­ QUESTION: They're -- they're making basically

the argument you said they waived.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agency -to that? is -­ much our

MR. KNEEDLER: QUESTION: whole

Yes. mean, that's been pretty think on that, in the

You know, I

discussion. well,

And I

Government They're

says,

they're

right

principle. has a of

saying

-- I

mean, if

in fact

an agency

choice, A, B, or C, and if you choose A, there's a lot smoke; B, a little smoke; and C, no EIS. smoke, well, I think

they

ought to go with that.

analyze it under an

you agree

MR. KNEEDLER: QUESTION: made that point. MR. KNEEDLER: QUESTION: didn't have to Ninth Circuit, it. MR. KNEEDLER:

But -saying, well, they never

But you're

Right. but it's so obvious we

They said,

make it, and besides, at least in the

when we got

to the

reply brief, we

did make

Yes.

Well, the

important thing

QUESTION:

All

right.

So what's

your response

MR. KNEEDLER:

The --

the -- first of all,

the

the agency did an

EA in order

to determine it

didn't have to produce an If they were wrong on

environmental impact statement. called

that, that should have been

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to

their attention

on this

precise point,

specifically

that the agency should have adopted an even more stringent alternative. identify one essentially And it's -and even now, they don't

that the agency could do that wouldn't be -­ be a pretext, Justice Souter, as you were to

suggesting, that would let in trucks and

be consistent and still

with their duty have -have

--

more

flexibility. What they quote for this joint appendix in the is on page 193 of assessment. the It's

environmental

important to recognize that that is a portion of the -- of the environmental assessment that repeats that our own

actions, including the inspections, are a substantial can -- we

not going to have But even so, we

impact on the environment.

can mitigate that tiny impact, and it's in that the agency says, we trucks. And can try to a screen out to

context where the dirtier

there's

reference

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 the inspections would -would increase the

-- whether emissions.

And respondents have never really challenged the

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notion, which is what's being addressed here, that -- that the increased inspections under these impact on -- on the environment. I did want to address regulations. quoted Scalia We did not the -- the Clean Air the Act rules would have an

raise

regulation that's as Justice indirect no

on page 17 pointed As

of our brief. on the --

We relied, under the

out,

the

emissions. continuing

I mentioned, It isn't

the --

agency has

control.

the control at the outset. activities, which is the

It's control over the subsequent word in

the regulation, and the -- this agency, a safety­ has no continuing control over where

certifying agency, these trucks

will travel in the U.S., even whether the -­

even whether the particular trucks come into the U.S. -­ CHIEF Kneedler. The case is submitted. (Whereupon, at 12:03 p.m., the case in the JUSTICE REHNQUIST: Thank you, Mr.

above-entitled matter was submitted.)

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