A three-judge panel from the U.S. District Court of Appeals in Washington, D.C., has set Dec. 6 to hear oral arguments in the frivolous and baseless lawsuit filed by the Owner-Operator Independent Driver Association (OOIDA) against the Federal Motor Carrier Safety Administration’s (FMCSA) cross-border pilot program with Mexico.
The case is a consolidated case that includes the Teamsters, Public Citizen and the Sierra Club as plaintiffs.
The lawsuits were begun by the International Brotherhood of Teamsters in September 2011 when they were joined by the Sierra Club and various bogus safety groups in filing against FMCSA alleging among other things that “the pilot program sets standards that are not stringent enough for Mexican trucks and drivers.”
The OOIDA and Teamsters lawsuits are very similar and were consolidated by the 9th Circuit Court of Appeals and moved to the DC Circuit shortly after they were filed and the 9th denied OOIDA an injunction to stop the cross border pilot program with Mexico.
The parties are claiming among other things that FMCSA is breaking the law by;
- Waiving a law that trucks must display certain proof that they meet federal safety standards.
- By not requiring the pilot program to achieve an equivalent level of safety because Mexican drivers don’t have to meet the same physical requirements as U.S. drivers.
- By not requiring Mexico to provide simultaneous and comparable access to U.S. trucks.
- Not requiring that the pilot program include enough participants to be statistically valid.
In 2002, Public Citizen sued the FMCSA claiming an environmental impact study was required before any effort could be made to open the southern border to Mexican trucks as required under our NAFTA obligations.
At that time, FMCSA prepared an Environmental Assessment (EA), but they did not prepare and Environmental Impact Statement (EIS) as PUBLIC CITIZEN claimed was required by the National Environmental Protection Act (NEPA).
The EA focused mainly on the environmental impact from doing more inspections, not on the impact from more trucks driving the roads.
Public Citizen sued to stop the possibility of cross border trucking until an EIS was prepared.Public Citizen argued that the increased number of trucks on US roads was liable to have a significant environmental impact, and therefore an EIS was required. There claim was that more than 30,000 older polluting trucks burning high sulphur diesel would have an impact on our environment.
The trial court found in favor of the defendent, FMCSA. The Trial Court found that although the FMCSA pilot program would result in more trucks, FMCSA did not have control over those trucks and therefore did not have to account for them in an EIS. Public Citizen went shopping and appealed to the liberal Ninth Circuit Court of Appeals in San Francisco.
The Ninth Circuit ruled in favor of the plaintiffs, reversing the trial court. The Appellate Court found that the EA was deficient because it failed to give adequate consideration to the overall environmental impact from the Mexican trucks. Of course, FMCSA appealed, all the way to the United States Supreme Court.
The case was argued before the Supreme Court on April 21, 2004 with a unanimous verdict being rendered on June 7, 2004.
The US Supreme Court held that the FMCSA had no control of the trucks once the regulations governing the pilot program were passed, and would therefore be unable to act on the findings of an EIS even if it did conduct one.
FMCSA has no statutory authority to impose or enforce emissions controls or to establish environmental requirements unrelated to motor carrier safety.
The Court also found that the passage of the regulations was not sufficiently responsible for the increased pollution caused by the trucks to warrant an EIS.
Justice Clarence Thomas, the Courts most conservative Judge wrote the opinion which you can read here.
FMCSA RESPONSE TO LAWSUIT – “YOU HAVE NO STANDING”
In February of this year, FMCSA responded to the frivolous and baseless lawsuits filed by these two groups.
“OOIDA’s members are not regulated by the program, or eligible to participate in it, and therefore its standing cannot be presumed.
OOIDA’s allegation of an increased risk o injury to its member is not sufficient … absent a showing that some identifiable member of the group faces a ‘substantially’ increased risk of harm and that the overall risk of such harm is ‘substantial.’”
The response said that OOIDA’s competitive standing arguments are also flawed.
“OOIDA cannot show that the program will almost surely cause its members to lose business, because the vast majority of the cross-border deliveries are likely to be made in the commercial zones by carriers already authorized to operate there and because Mexico-domiciled carriers are prohibited from making point-to-point deliveries of domestic freight.”
Of course, Teamsters, in anticipation of this response found two of their members who had been “harmed” by the additional few trucks participating in the program, claiming their health was impaired by the “pollutants” coming from these trucks.
As of today, there are six carriers who have received authority to participate in the program. They’ve made 146 crossings, been inspected 138 times using 7 vehicles and 9 drivers.
Three of those carriers have received satisfactory compliance reviews which as earned them “permanent operating authority” due to their successful participation in the previous Cross Border Demonstration Program.
There are currently 14 other applicants pending, 3 of whom have passed the required PASA. 6 applicants withdrew or had their applications dismissed.