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February 2003

Mexican motor carriers that want to operate in the United States will have to wait a while longer. A federal appeals court has ruled that the Department of Transportation must prepare a full environmental impact statement and Clean Air Act conformity determination before it can open the U.S. border to Mexican motor carriers.

The decision in Public Citizen v. the Department of Transportation by the U.S. Court of Appeals for the 9th Circuit came after environmental, labor and trucking industry groups challenged President Bush’s November order to open the border. (The opening is mandated by the 1992 North American Free Trade Agreement.) “Although we agree with the importance of the United States’ compliance with its treaty obligations with Mexico, such compliance cannot come at the cost of violating U.S. law, ” wrote Justice Kim McLane Wardlaw for the court. In its opinion, the three judge panel found that the DOT had acted arbitrarily and capriciously in failing to prepare a full Environmental Impact Statement.”

According to the National Industrial Transportation League’s analysis of the decision, the DOT now has three options:

1) initiate the environmental impact analysis, which, even if expedited, could take several years;

2) file a petition for reconsideration with the 9th Circuit Court of Appeals; or

3) take the case to the U.S. Supreme Court.

League counsel Nick DiMichael expects the DOT to file a petition for reconsideration before trying to move the case to the high court.

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