EPA & NAFTA: Tensions Rise When Trade With Mexico Threatens United States’ Environmental Regulations

Comment By: Melissa Logan, JNREL Vol. 19, No. 1

Abstract By: Alex Torres, Staff Member

This comment examines the nexus between the protectionist goals of the EPA and their interaction with other departments and agencies within the federal government. Specifically addressed are the regulations promulgated by the Department of Transportation (DOT) and Federal Motor Carrier Safety Administration (FMCSA), pursuant to Presidential order. The regulations in question provided for the permitting of Mexico-domiciled trucks to operate in the United States, pursuant to the goals of the North American Free Trade Agreement (NAFTA).

The Bus Regulatory Reform Act of 1982 had the practical effect of restricting the entering of Mexico-domiciled trucks into the United States, with the consequent effect of burdening trade between the United States and Mexico, in order to comply with the goals of NAFTA. However, in 2001 then President George W. Bush indicated his intent to modify the Bus Regulatory Reform Act. The lifting of the moratorium on Mexico-domiciled trucks was to take place upon the creation of pertinent safety regulations by the DOT and FMSCA.

In the landmark case Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), the Supreme Court rejected the contention that the FMSCA was required to prepare an Environmental Impact Statement (EIS) that detailed the environmental impacts of their regulations. Specifically, the National Environmental Policy Act of 1969 requires that an EIS be prepared for "major Federal actions significantly affecting the . . . human environment." The trial court divided this consideration into two questions: causality and severity. While the trial court found both, the Supreme Court held that there was insufficient causal connection between the implementation of the regulations and the alleged environmental harm, notably the pulmonary danger resulting from increased diesel smog levels due to increased traffic.

The Court is quick to point out that a mere assertion of "but for" causality is insufficient to satisfy the causality requirement. Rather the Court looks to NEPA and applies the "rule of reason" to determine if there is a strong causal relationship between "the environmental result and the suspected cause." Ultimately, the Court sides with the arguments of the DOT, that the effect of increased traffic, and thus pollution, is the result of the Presidential order (and thus Congress in granting such power), not the creation of regulations defining the boundaries of safety.

Here the DOT and FMCSA are bound by law to create these safety regulations, and according to the Court, the regulations they do create have no causative relation to the environmental harm. Any connection between the harms and the regulations are correlative and incidental, but not causative. Thus the Court determines that there would be no "overall usefulness" in preparing an EIS as the FMSCA and DOT lacked the authority to utilize such findings in the discharge of its duties and alter the moratorium instituted by President Bush.