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April 24, 2007

Public Citizen Sues Government Agencies to Stop Illegal Pilot Project That Would Give Mexico-Domiciled Trucks Full Access to U.S.Highways

Consumer, Environmental and Labor Groups Join Lawsuit to Prevent Implementation of NAFTA Truck Program That Violates Federal Law

WASHINGTON, D.C. – Public Citizen joined environmental and labor groups late Monday in suing the federal government to challenge an illegal pilot program that will authorize up to 100 trucking companies based in Mexico to perform long-haul operations within the United States. The groups contend that the project violates federal requirements that the public receive notice and time to comment, and that it would have significant environmental and public safety repercussions. 

Public Citizen, the Sierra Club, the Environmental Law Foundation, the International Brotherhood of Teamsters, the Brotherhood of Teamsters’ Auto and Truck Drivers Local 70 and the Owner-Operator Independent Drivers Association filed the lawsuit against the U.S. Department of Transportation (DOT) and the Federal Motor Carrier Safety Administration (FMCSA) in federal court in California. The groups are seeking an injunction requiring the DOT and FMCSA either to comply with the law by providing public notice of the pilot program and an opportunity for the public to comment on the program – or to set aside the pilot project as unlawful.

“This so-called pilot program was rushed through in secrecy to serve as a showpiece to permit the Bush administration to proclaim victory and declare the entire southern border open to unfettered, long-haul truck commerce before the end of 2008,” said Joan Claybrook, president of Public Citizen. “Congress and the courts should not allow it.” 

Mexico-domiciled motor carriers currently are permitted to operate in the United States only in specified commercial zones along the southern borders of California, Arizona, New Mexico and Texas. The zones vary in size from approximately three to 20 miles inland from the U.S. border. On Feb. 23, DOT Secretary Mary Peters announced a pilot program to authorize select Mexican trucking companies to perform long-haul operations within the U.S. beyond the current commercial zone and across the nation’s roadways. She also announced that safety inspectors from FMCSA would travel to Mexico as part of the pilot program.

Despite numerous requests by Congress and by environmental, public interest, labor and industry organizations to Peters and the DOT for information about the pilot program, the details of the project are still shrouded in secrecy. The groups are asking the court to find that the failure to publish a detailed description of the pilot project in the Federal Register and the failure to provide notice and an opportunity for public comment violate federal law. They are also seeking an injunction against further implementation of the pilot program unless the agencies comply with these requirements.

The administration’s program is an attempt to   implement a 2001 NAFTA order that required highways in Canada, Mexico and the United States to be fully accessible to trucking companies based in any NAFTA signatory nation. The Clinton administration refused to open the U.S. to Mexican trucking companies because of concerns that the trucks present safety and environmental hazards. Mexico filed a challenge under NAFTA, and in 2001, won a ruling from a NAFTA tribunal ordering the U.S. to open the border or face permanent trade sanctions. The Bush administration announced it would comply with the tribunal’s order.

In response, a new law initiated by Congress was enacted to ensure that FMCSA enforced U.S. safety requirements before permitting any Mexico-domiciled motor carriers to operate beyond the border zones. Also, in 2002 and 2003, Public Citizen and a coalition of consumer, labor and environmental groups successfully sued in U.S. federal court to block the Bush administration’s attempt to implement trucking rules allowing Mexico-domiciled trucks based on environmental concerns. The Supreme Court ruled against the groups in 2004.

In March 2007, Public Citizen sued FMCSA on behalf of the nonprofit group Advocates for Highway and Auto Safety to compel the agency to release information about the pilot program. The highway safety group had filed a Freedom of Information Act (FOIA) request in October 2006, but the agency has refused to release information about the methodology for evaluating the pilot project or respond to the FOIA request as mandated by law.

Also in March, Claybrook warned a Senate appropriations subcommittee about the legal problems with the Bush plan and the safety improvements needed before allowing full, cross-border trucking from Mexico. She maintained that the Bush program fails the 2001 congressionally mandated safety requirements and that officials violated public notice and comment rules. She also said that the one-year project would be of too short duration and too small in scope to create an accurate and reliable analysis of the safety performance of NAFTA trucks.

“On the U.S. side, the agency responsible for overseeing the public safety for large trucks is incompetent and the staff administering the law is largely indifferent and regularly ignores its responsibilities. On the Mexican side, the regulatory regime does not ensure a level of safety that supports entry onto our nation’s highways,” said Claybrook.

Allowing full access to Mexico-domiciled trucks will also have a negative environmental impact on Southwestern states that are struggling to meet federal air quality levels. According to Sierra Research, an environmental consulting firm, Mexico-domiciled carriers typically emit substantially more pollutants than U.S.-domiciled trucks. Stringent new U.S. emissions standards and a new requirement for ultra-low sulfur diesel fuel will create an even larger difference between  U.S. trucks and Mexico-domiciled trucks in emissions of oxides of nitrogen, volatile organic compounds and particulate matter. In the highway corridors from San Antonio, Texas, to Monterrey, Mexico, and from Tucson, Ariz., to Hermosillo, Mexico, approximately 80 percent of smog-causing oxides of nitrogen and 90 percent of other pollutants are caused by freight trucking, according to the federal government’s own research.

In March, as part of the pending supplemental appropriations bill, the Senate voted to require the Department of Transportation to comply with all existing U.S. legal requirements governing entry of Mexico-domiciled trucks into the United States, to publish details of the program and to allow time for comments.

“This situation highlights how NAFTA threatens essential public safety and environmental quality in ways totally unrelated to trade,” said Lori Wallach, director of Public Citizen’s Global Trade Watch division. “It’s no wonder that Congress is not interested in providing President Bush with more fast-track authority to further expand the NAFTA model to other countries.”

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