MILBERG WEISS BERSHAD
HYNES & LERACH LLP
PATRICK J. COUGHLIN (111070)
STANLEY S. MALLISON (184191)
100 Pine Street, Suite 2600
San Francisco, CA 94111
Telephone: 415/288-4545
415/288-4534 (fax)
- and -
WILLIAM S. LERACH (68581)
PATRICK W. DANIELS (190715)
401 B Street, Suite 1700
San Diego, CA 92101
Telephone: 619/231-1058
619/231-7423 (fax)
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- and - Attorneys for Plaintiffs Public Citizen, |
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ALTSHULER, BERZON, NUSSBAUM, Attorneys for Plaintiffs International |
[Additional counsel appear on signature page.]
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PUBLIC CITIZEN, INTERNATIONAL Plaintiffs, vs. DEPARTMENT OF TRANSPORTATION, Defendants. |
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No. COMPLAINT FOR TEMPORARY |
0. This is an action on behalf of a coalition of environmental, public health and labor organizations seeking relief against certain federal officials and their agencies to require full compliance with environmental standards established under the National Environmental Policy Act ("NEPA") and Clean Air Act ("CAA"). They seek appropriate injunctive relief before certain recently-enacted regulations unlawfully authorize Mexico-domiciled trucks to operate in the United States. As discussed below, absent such relief, the operation of such Mexico-domiciled trucks will result in substantial increases in air pollution and a diminution in air quality in California, Arizona, New Mexico and Texas, with attendant increased risks to human health, especially among young children and the elderly. These increased pollutants include nitrogen oxides ("NOx"), volatile organic compounds ("VOCs"), particulate matter ("PM") and other substances from diesel emissions that are linked both to short and long-term adverse health effects, including cancer, birth defects, asthma and premature death.
0. Plaintiffs Public Citizen, Environmental Law Foundation ("ELF"), California Labor Federation ("Cal Labor Fed"), International Brotherhood of Teamsters ("Teamsters"), Brotherhood of Teamsters, Auto and Truck Drivers Local 70 ("Local 70"), and the California Trucking Association ("CTA"), challenge two Interim Final Rules that were issued on March 19, 2002 by defendant Federal Motor Carrier Safety Administration ("FMCSA"), an arm of the defendant Department of Transportation ("DOT"). These Interim Final Rules are expected to become effective on May 3, 2002, and are intended to regulate the manner and method of the entry of Mexico-domiciled heavy-duty diesel trucks into this country for operation throughout the United States. Pursuant to the DOT and Related Agencies Appropriations Act, Pub. L. No. 107-87, 115 Stat. 833 (2001) ("Murray-Shelby legislation"), the proper implementation of these regulations is a prerequisite to the processing of applications by Mexico-domiciled truck companies to operate in the United States. These Interim Final Rules are formally entitled Application by Certain Mexico-Domiciled Motor Carriers to Operate Beyond United States Municipalities and Commercial Zones on the United States-Mexico Border, 67 Fed. Reg. 12,702 (Mar. 19, 2002), and Safety Monitoring System and Compliance Initiative for Mexico-Domiciled Motor Carriers Operating in the United States, 67 Fed. Reg. 12,758 (Mar. 19, 2002), and are expected to be codified at 49 C.F.R. Pts. 365 and 385 (hereinafter "Final Rules").
0. Because they are not equipped with comparable emissions control technologies and do not use comparable fuels, the heavy-duty diesel engines of the Mexico-domiciled truck fleet emit significantly greater quantities of harmful air pollutants than do U.S. or Canadian trucks. This gulf will widen considerably over time as the U.S. fleet is required to adhere to more rigorous domestic standards. Mexico-domiciled trucks are also much older than their U.S. counterparts, further aggravating the degradation of air quality.
0. These additional, harmful emissions from Mexico-domiciled trucks will increase the frequency and severity of air quality violations and delay attainment of federal and state air quality standards for many years into the future, not only in California, Arizona, New Mexico and Texas, but also more acutely in the nonattainment areas along the southern U.S. border. As early as 2007, for example, Mexico-domiciled trucks will add more than 600 tons per year (tpy) of PM to the San Diego and Houston regions alone and will cause a 17% increase in NOx emissions in the Houston area. By 2010, Mexico-domiciled trucks will generate twice the emissions of NOx and PM per mile as U.S. trucks.
0. Not only will air quality seriously deteriorate, but these additional emissions from Mexico-domiciled trucks will significantly increase the incidence of adverse human health effects. Over time, dozens of premature deaths are expected each year in the San Diego and Houston areas alone. This is due to human inhalation of the PM emissions, which will increase by many hundreds of tons over time through the entry of the Mexico-domiciled heavy-duty trucks. These PM emissions not only present a serious cancer risk and increase premature deaths but also cause chronic bronchitis, pneumonia, asthma attacks, chronic inflammation and histopathological changes in the lung, eye and throat, as well as bronchial irritation and neurophysical symptoms (e.g., lightheadedness, nausea). These emissions also cause mutagenic, chromosomal and deleterious immunological effects and they exacerbate allergenic responses to known allergens.
0. When defendants issued the Final Rules, they improperly failed to prepare an Environmental Impact Statement ("EIS"), as required by NEPA, and failed to undertake a written analysis under the federal CAA, commonly known as a conformity analysis, to ensure that the implementation of the regulations would not violate national air standards. The defendants' wholesale failure to abide by NEPA and the federal CAA is especially egregious, given the substantial adverse environmental and health effects that their actions will cause.
0. Plaintiffs therefore seek temporary, preliminary and permanent injunctive relief that sets aside the defendants' illegal actions in adopting and implementing the Final Rules and restrains defendants from obligating or expending federal funds under 350 of the Fiscal Year 2002 DOT Appropriations Act unless and until defendants comply with the law. Plaintiffs also seek a declaration that defendants' actions are null and void because the defendants violated 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C), by failing to prepare an EIS prior to issuing the Final Rules and because they violated 176 of the CAA, 42 U.S.C. 7506(c), and the State Implementation Plans ("SIPs") promulgated pursuant to 110 of the CAA, 42 U.S.C. 7410, and by failing to make the required written conformity determination regarding Federal National Ambient Air Quality Standards ("NAAQS") in connection with implementation of the Final Rules. Plaintiffs also seek a writ of mandate pursuant to 5 U.S.C. 701 et seq., requesting the Court to set aside the FMCSA's decision not to perform EIS per NEPA requirements.
0. This case arises under the Constitution and laws of the United States and thus presents a federal question within this Court's jurisdiction under Article III of the Constitution of the United States and 28 U.S.C. 1331. This action for declaratory and injunctive relief arises under NEPA and its implementing regulations, promulgated by the Council on Environmental Quality, 40 C.F.R. pts. 1500-1508 ("CEQ Regulations"), and under the conformity requirements of 176(c) of the CAA, 42 U.S.C. 7506(c). The Court has jurisdiction of this action pursuant to 28 U.S.C. 1331 (federal question) and 28 U.S.C. 1361 (original jurisdiction of district courts in mandamus actions). The Court has authority to review the actions over the defendant complained of herein, and to grant the relief requested, pursuant to 5 U.S.C. 701-706 (Administrative Procedure Act). The relief sought is authorized by 28 U.S.C. 2201 (declaratory judgment) and 28 U.S.C. 2202 (injunctive relief).
0. There is an actual and present controversy between the parties. Plaintiffs have exhausted all available administrative remedies, have timely filed their action, and have no other adequate remedy at law.
0. Venue is proper in this Court under 28 U.S.C. 1391(e), because this is a civil action in which the defendants are officers or employees of the United States or an agency thereof acting in their official capacity or under color of legal authority or an agency of the United States and because several plaintiffs and a defendant reside in this District. Venue is also proper within this District because a substantial part of the events or omissions giving rise to the claim occurred in this District. The California Air Resources Board has classified several regions within this District as being in nonattainment for state PM and ozone standards as well as in nonattainment for the federal ozone standard. Mexico-domiciled trucks will operate within this District under the Final Rules and their higher pollutant emissions will adversely impact air quality and exacerbate the existing air quality problems already existing within this District.
0. Assignment of this case to the San Francisco or Oakland division is proper pursuant to Local Rule 3-2 and 3-5 because FMCSA's Western Service Center and its head, defendant Nicholas Walsh, the Western Field Administrator for the Western Service Center, reside within one of the divisions.
0. Plaintiff Public Citizen is a non-profit organization founded in 1971 as the consumer's eyes and ears in Washington, D.C. and regularly fights for improvements in environmental protection. Public Citizen has 150,000 members nationwide, including members in the U.S.-Mexico border region and in air quality nonattainment areas. Public Citizen has an office located in Oakland, California.
0. Plaintiff Cal Labor Fed is the voice of working people in California representing more than 2.1 million union members in 1,300 local unions representing all industries and regions of the state in the Cal Labor Fed legislative, political and economic development programs. The Cal Labor Fed is based in Oakland, California and represents members in air quality nonattainment areas in California.
0. Plaintiff the Teamsters is a labor union as that term is defined by the National Labor Relations Act, 29 U.S.C. 151 et. seq. The Teamsters represent the interests of 1.4 million members (approximately 10% of the entire unionized workforce in the United States) and is one of the largest and most diverse labor unions in the world. These members are located in all 50 states of the union including this district, and air quality nonattainment areas at issue in this complaint.
0. Plaintiff Local 70 is a labor union as that term is defined by the National Labor Relations Act, 29 U.S.C. 151 et. seq. Local 70 is headquartered in Oakland, California and has jurisdiction in Alameda County, California. Local 70 has approximately 5000 members residing primarily in this District and its primary jurisdiction is truck drivers.
0. Plaintiff CTA is a voluntary trade association of trucking company and supplier members. CTA's motor carrier members make up the bulk of its membership of 2,500 companies. CTA members haul approximately 85% of the for-hire freight moved on California highways. CTA is located in Sacramento, California and has numerous members who are located in this District.
0. Plaintiff ELF is a California nonprofit founded on Earth Day, 1991, dedicated to the preservation and enhancement of human health and the environment. ELF is dedicated to environmental justice, through an effective enforcement program directed to bringing real enforcement to federal, state, and local environmental laws on behalf of people who are disproportionately affected by environmental harm, including children, communities without power, minority communities, women of child-bearing age and workers.
0. Defendant Nicholas R. Walsh is sued in his official capacity as the Field Administrator of the Western Service Center of the DOT. The Western Service Center administers the implementation of the regulations challenged in this lawsuit for California, Arizona and numerous other western states. The Western Service Center is located in San Francisco, California.
0. Defendant DOT is a federal agency of the United States within the meaning of 42 U.S.C. 4332 and 7506(c), and 40 C.F.R. 51.852, 93.152 and 1508.12. Leadership of the DOT is provided by the Secretary of Transportation and the Office of the Secretary, which oversee the formulation of national transportation policy and promotes intermodal transportation.
0. Defendant FMCSA was created as part of the DOT on January 1, 2000, pursuant to the Motor Carrier Safety Improvement Act of 1999, Pub. L. No. 106-159, 113 Stat. 1748 (1999). FMCSA is a federal agency of the United States within the meaning of 42 U.S.C. 4332 and 7506(c), and 40 C.F.R. 51.852, 93.152 and 1508.12.
0. Defendant Joseph M. Clapp is sued in his official capacity as the Administrator of the FMCSA within the DOT. Joseph M. Clapp formally issued the Final Rules on or about March 19, 2002.
0. On December 4, 2001, Congress passed the Omnibus Transportation Bill, otherwise known as the Murray-Shelby legislation. Pursuant to 350 of this legislation, the DOT and FMCSA were obligated to enact regulations to ensure that Mexico-domiciled trucks met certain safety and inspection standards. Absent completion of these regulations no funding would be permitted for Mexico-domiciled truck application processing. Among other things, the FMCSA was required to establish rules for several types of safety examinations, safety compliance reviews, license verification procedures, insurance coverage minimums, and hazardous materials procedures.
0. On March 19, 2002, the DOT issued a series of final rules, interim final rules and requests for public comments in response to and in supposed compliance with the Murray-Shelby legislation. Included within that rulemaking were the two Interim Final Rules that are the subject of this litigation, formally entitled Application by Certain Mexico-Domiciled Motor Carriers to Operate Beyond United States Municipalities and Commercial Zones on the United States-Mexico Border, 67 Fed. Reg. 12,702 (Mar. 19, 2002), and Safety Monitoring System and Compliance Initiative for Mexico-Domiciled Motor Carriers Operating in the United States, 67 Fed. Reg. 12,758. (Mar. 19, 2002). These rules constitute final "federal agency action" within the meaning of 5 U.S.C. 701-706, 42 U.S.C. 4371 et seq.; and 42 U.S.C. 7506(c).
0. For more than 30 years NEPA has ensured that environmental concerns are integrated into the process of federal agency decisionmaking. 42 U.S.C. 4321. NEPA requires that an EIS be prepared for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. 4332(2)(C). If a federal agency is not sure whether an action requires an EIS, it must first prepare an Environmental Assessment ("EA") to determine whether the action will have a significant effect on the environment. 40 C.F.R. 1501.4. If the EA establishes that the agency's action may have a significant effect upon the environment, then the agency must prepare an EIS before taking action. On the other hand, if it is clear after preparing an EA that the action will not have a significant environmental effect, the agency must issue a Finding of No Significant Impact ("FONSI"), 40 C.F.R. 1501.4 and 1508.9, that is accompanied by a convincing statement of reasons explaining why the action's impacts are insignificant.
0. Section 176 of the CAA provides that "[n]o department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to" an SIP promulgated pursuant to 110 of the CAA. 42 U.S.C. 7506(c)(1). An SIP is an overall plan for meeting and maintaining federal air quality standards. The statute further defines "conformity to an implementation [plan]" to mean conformity to the plan's purpose of eliminating or reducing the severity and number of violations of the NAAQS. 42 U.S.C. 7506(c)(1)(A). It is also defined to mean "that such activities will not - (i) cause or contribute to any new violation of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area." 42 U.S.C. 7506(c)(1)(B).
0. The EPA's implementing regulations require federal agencies to make a determination that an action conforms to the relevant SIPs based upon a written conformity analysis before taking the action if the action will cause direct or indirect emissions that exceed de minimis levels. 40 C.F.R. 51.850(b), 51.853(b), 51.854. This is known as "conformity" with the SIP, and all federal agencies are under an affirmative duty to assess their actions for such conformity. The de minimis level of VOC and NOx emissions vary, depending upon the extent of nonattainment. For serious areas the de minimis level is 50 tpy. For severe areas (including Houston, Northwest Los Angeles County, Ventura County, and San Diego) it is 25 tpy, and for extreme areas (Los Angeles), it is 10 tpy. 40 C.F.R. 51.853(b).
0. When issuing the Final Rules, defendants issued an programmatic environmental assessment ("PEA") accompanied by a FONSI, even though the record plainly shows that implementation of those Final Rules will indeed have significant impacts on air quality, human health and the environment.
0. The federal register notice admits that several groups made comments regarding DOT's obligations to prepare an EIS:
The friends of the Earth, Natural Resources Defense Council, Sierra Club,
and Center for International Law (Friends of the Earth, et al.) jointly commented that
FMCSA is required to perform additional analysis to meet the requirements of the
National Environmental Policy Act (NEPA) and Executive Order 13045, concerning
the protection of children from environmental and health and safety risks. The
International Brotherhood of Teamsters (Teamsters) also expressed this viewpoint.
The Friends of the Earth, et al. believe that 40 CFR 1501.3(b) requires that if DOT
is not certain that an environmental impact statement is required, then it must first
prepare an environmental assessment.
0. The federal register notice included the following excuses as to why the defendants believed that they had complied with NEPA:
The FMCSA is preparing an agency order to meet the requirements of DOT
Order 5610.1C (that establishes the Department of Transportation's policy for
compliance with NEPA by the Department's administrations). The FMCSA has
conducted a programmatic environmental assessment (PEA) of the three rulemakings
in accordance with the DOT Order and the regulations of the Council on
Environmental Quality. A discussion of the PEA and its findings and th FMCSA's
responsibilities under E.O. 13045 is presented later in the preamble under
"Regulatory Analyses and Notices." A copy of the PEA is in the docket to this
rulemaking.
0. The federal register notice also included a special section dedicated to providing reasons why defendants believed that they had complied with Executive Order 13045 for the protection of children:
The agency has determined that this rule is not a "covered regulatory action"
as defined under Executive Order 13045. First, this rule is not economically
significant under Executive Order 12866 because the FMCSA has determined that
the changes in this rulemaking would not have an impact of $100 million or more in
any one year. The costs range from $53 to $76 million over 10 years. Second, the
agency has no reason to believe that the rule would result in an environmental health
risk or safety risk that would disproportionately affect children. Mexico-domiciled
motor carriers who intend to operate commercial motor vehicles anywhere in the
United States must comply with current U.S. Environmental Protection Agency
regulations and other United States environmental laws under this rule and others
being published elsewhere in today's Federal Register. Further, the agency has
conducted a programmatic environmental assessment as discussed later in this
preamble. While the PEA did not specifically address environmental impacts on
children, it did address whether the rule would have environmental impacts in
general. Based on the PEA, the agency has determined that the proposed rule would
have no significant environmental impacts.
0. The federal register notice stated that defendants had received a comment suggesting that defendants were required to undertake an analysis under Executive Order 13045:
Regarding compliance with Executive Order 13045, the Friends of the Earth et al.
believe that this action presents increased pollution and safety concerns that pose a
disproportionate risk to children.
0. Further, although defendants were advised about their obligation to perform a conformity determination on several occasions, they did not perform such an assessment despite their clear affirmative duty to prepare one. Any conclusion of actual conformity with the SIPs would be a sham since the emissions expected from increased Mexico-domiciled trucks in the U.S. are plainly inconsistent with the current emissions inventory and emissions "budget" reflected in the border states' SIPs.
0. The federal register notice admits that the California Attorney General had submitted comments regarding the defendants' failure to conform with the requirements of the CAA:
The Attorney General for the State of California submitted a comment in
which he asserted that the FMCSA would be required to perform a "conformity
determination" pursuant to the Clean Air Act (CAA), before finalizing these
rulemakings. Under the CAA, Federal agencies are prohibited from supporting in
any way, any activity that does not conform to an approved State Implementation
Plan (SIP), (42 U.S.C. 7006). EPA regulations implementing this provision require
Federal agencies to determine whether an action would conform with the SIP ( a
"conformity determination"), before taking the action (40 CFR 93.150). The
Attorney General asserts that the FMCSA must make a conformity determination
before taking final action to implement regulations that would allow Mexican trucks
to operate beyond the border. The Attorney General provided technical information
to support his assertion that allowing Mexican trucks to operate beyond the border
would likely not be in conformity with California's SIP.
0. The federal register notice included the following excuses as to why the defendants believed that they had complied with their obligations under the CAA:
We have reviewed our obligations under the CAA, and believe that we are
in compliance with the general conformity requirements as implemented by the U.S.
Environmental Protection Agency (EPA). EPA's implementing regulations exempt
certain actions from the general conformity determination requirements. Actions
which would result in no increase in emissions or clearly a de minimus increase,
such as rulemaking (40 CFR 93.153(c)(iii)), are exempt from requiring a conformity
determination. In addition, actions which do not exceed certain threshold emissions
rates set forth in 40 CFR 93.153(b) are also exempt from the conformity
determination requirements. The FMCSA rulemakings meet both of these
exemption standards. First, as noted elsewhere in this preamble to this rule, the
actions being taken by the FMCSA are rulemaking actions to improve FMCSA's
regulatory oversight, not an action to modify the moratorium and allow Mexican
trucks to operate beyond the border. Second, the air quality impacts from each of the
FMCSA's rules neither individually nor collectively exceed the threshold emissions
rates established by EPA (see Appendix C of the Environmental Assessment
accompanying these rulemakings for a more detailed discussion of air quality
impacts). As a result, we believe that FMCSA's rulemaking actions comply with the
CAA requirements, and that no conformity determination is required.
0. Despite the defendants' excuses, the evidence persuasively demonstrates that an EIS and conformity determination are required before the defendants may lawfully implement the Final Rules.
THE MULTIPLE SHORTCOMINGS OF DEFENDANTS'
PROGRAM ENVIRONMENTAL ASSESSMENT
0. The defendants' decision to ignore the important environmental consequences of their action amounts to a wholesale refusal to abide the requirements of the NEPA and the CAA.
0. For example, the CEQ Regulations define the term "effects" to include "[d]irect effects which are caused by the action and occur at the same time and place" and "indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. 1508.8(b). In particular, "[i]ndirect effects may include growth inducing effects ... and related effects on air and water and other natural systems, including ecosystems." 40 C.F.R. 1508.8(b). As the agency's PEA apparently concedes, the adverse air quality impacts of the increase in the number of Mexico-domiciled trucks that will come into existing ozone and particulate nonattainment areas and areas that are potentially nonattainment for ozone and fine PMs are clearly indirect effects of the above-listed actions. Yet the PEA dismisses these effects, completely disregarding the technical evidence demonstrating that the increased emissions will be substantial.
0. The EA is also defective in terms of defining the areas that will be impacted. The CEQ Regulations define the term "significantly" to require considerations of both "context" and "intensity." In considering the "context" of the action, the agency must analyze "several contexts" including both "society as a whole" and the "affected region." 40 C.F.R. 1508.27(a).
0. Incredibly, the EA prepared by the FMCSA examined only the overall percentage increases in emissions nationwide and entirely failed to assess the air quality impact of increased emissions and increased ambient pollutant levels in those areas where the impacts of the no action and proposed action scenarios are likely to be greatest. This approach directly conflicts with the agency's obligation to consider the "affected region." Many specific regions and geographic areas will be hard hit as a result of the Final Rules.
0. In considering the "context" of the action, the CEQ Regulations provide that "[b]oth short- and long-term effects are relevant." 40 C.F.R. 1508.27(a). Yet the EA prepared by FMCSA considered only the exceedingly short-term impacts of the actions on air quality in the year 2002, at least half of which will be over by the time that the trucks begin to move across the country. The use of such a short time frame is preposterous in the context of regulatory decisions that will have such a long life span.
0. In considering the "intensity" or "severity" of the impact, the agency must examine "the degree to which the proposed action affects public health or safety," "[u]nique characteristics of the geographic area," "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial," "[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks," and, importantly, "[w]hether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment." 40 C.F.R. 1508.27(b). Yet the consideration of these and other critical factors in the PEA prepared for FMCSA was grossly inadequate.
0. More specifically, the flaws in defendants' PEA can be summarized as follows:
Failing to account for emissions differences between Mexico-domiciled and U.S.-domiciled trucks that exist now and that will become even more significant in the
future;
Improperly assessing the air quality impact of the no action and proposed action
scenarios by comparing the associated increase in emissions to total nationwide
emissions from trucks;
Failing to assess the air quality impact of increased emissions and increased ambient
pollutant levels in those areas where the impacts of the no action and proposed action
scenarios are likely to be greatest, which include many areas that current do not
comply with existing federal air quality requirements and are likely to be out of
compliance with future federal requirements;
Failing to assess the localized air quality impact of increased numbers of safety
inspections;
Failing to consider increases in emissions of toxic air contaminants resulting from
the no action or proposed action alternatives, particularly within the context of the
increase in local emissions due to increased numbers of safety inspections; and
Failing to assess the air quality impact of the no action and proposed action
alternatives over more than a single year or beyond 2002.
0. These and other shortcomings in the defendants' PEA were brought to the attention of defendants in a study prepared by Sierra Research, Inc., which was commissioned by plaintiffs to analyze the impact of the Final Rules and to review potential deficiencies of defendants' analysis. Sierra Research, Inc. is a leading consulting firm in the field of air pollution control with expertise in multiple technical fields. The Sierra Research Report is attached hereto as Exhibit A and incorporated by reference.
WILL RESULT FROM IMPLEMENTATION OF THE FINAL RULES
0. Not only have the defendants given extraordinarily short shrift to the obvious environmental problems that their decision will cause, but they have also ignored abundant evidence of potentially "significant" impacts to air resources.
0. Both the "no action" and "proposed action" alternatives examined in the PEA will foreseeably result in significant and serious adverse impacts to air quality and public health impacts. Both alternatives will allow the direct substitution of higher-emitting Mexico-domiciled trucks for lower-emitting U.S.-domiciled trucks for freight carrying in the United States. Both alternatives also have the potential to significantly increase overall U.S. truck traffic. These actions present a particularly significant issue in those areas of the southwestern U.S. that currently violate and are likely to continue to violate health-based federal NAAQS applicable to ozone and fine PM.
0. According to a recent report prepared for the North American Commission on Environmental Cooperation, Mexico-domiciled trucks currently emit significantly larger quantities of harmful air pollutants other than carbon dioxide, than do U.S. and Canadian trucks. These harmful emissions include NOx, VOCs, PM, and carbon monoxide emissions.
0. The EPA has admitted that:
We believe that diesel exhaust is likely to be carcinogenic to humans by
inhalation and that this cancer hazard exists for occupational and environmental
levels of exposure.
40 C.F.R. at 67, 80, 86 (Fed. Reg. Vol. 66, No. 12, Thursday, Jan. 18, 2001).
0. Within the next ten years, U.S. trucks will get dramatically cleaner as U.S. diesel truck manufacturers are required to comply with recently promulgated regulations for diesel truck emissions and the petroleum industry complies with related regulations for sulfur content in gasoline to facilitate greater use of catalytic converters in diesel trucks. The net result of the evolving regulations will be that new U.S. trucks will have emissions that are a mere fraction of current emissions. There has been no legislation period in Mexico that would require that new Mexico-domiciled trucks achieve similar air emissions reductions.
0. There is no requirement in Mexico that diesel fuel producers lower the sulfur content of their fuels to facilitate catalytic converters. Until that happens, it would be senseless to install catalytic converters in Mexico-domiciled trucks, because the converters would quickly be neutralized by the sulfur-containing gasoline with which they will be fueled in Mexico.
0. The overall emissions from any given fleet depends to a large degree on the age of the vehicles that comprise the fleet. Mexico-domiciled trucks were not subject to emissions control regulations prior to 1993, while federal trucks (i.e., trucks and buses that were certified to federal standards issued by the U.S. Environmental Protection Agency ("EPA")) and California trucks (i.e., trucks and buses that were certified to California's emissions standards by the California Air Resources Board) were subject to such regulations as of 1987. Thus, Mexico-domiciled trucks that were manufactured before the advent of emissions regulations in Mexico pollute the air far more seriously than do federal and California trucks from that same time frame.
0. As a whole, the Mexico-domiciled truck fleet is of a far greater average age than the federal or California fleet. The greater age of the Mexico-domiciled truck fleet means that it emits higher quantities of pollutants as a whole. For example, the Mexico-domiciled truck fleet emits far more NOx than does the California fleet, and it will continue to do so into the future. The situation is even worse for emissions of PM (the pollutant that poses the greatest cancer risk) because the Mexico-domiciled truck fleet emits substantially more PM than the California fleet.
0. Heavy-duty truck engines, such as those typically used on Mexico-domiciled trucks, are often rebuilt during the life of the vehicle. Recently, the U.S. EPA and the California Air Resources Board entered into a consent decree with major manufacturers of heavy-duty diesel engines. This consent decree requires that, when heavy-duty engines are rebuilt in the U.S. (including California), they must be rebuilt using low NOx kits supplied by the settling manufacturers. These kits will reduce NOx emissions below the levels emitted when the trucks were new.
0. Mexico-domiciled trucks are not subject to the consent decree involving the re-building of heavy-duty truck engines. There is no incentive for Mexico-domiciled trucks to be rebuilt with the low NOx kits, no legal requirement in Mexico for them to be used, and no reasonable likelihood that they will be used. Accordingly, as Mexico-domiciled truck engines are rebuilt, NOx emissions will be greater than the corresponding emissions from U.S. trucks of the same model year, and that difference will continue throughout the life of the rebuild.
0. Because Mexico-domiciled trucks tend to be driven considerably longer than U.S. trucks, this failure to use low NOx kits will constitute a continuing and significant increase in emissions over time and will harm the environment in which the trucks are driven. In the South Coast Basin, for example, the increase from Mexico-domiciled trucks in NOx emissions over currently projected emissions will increase the frequency and severity of existing violations and delay the timely attainment of federal and state air quality standards for many years into the future.
0. California has in place a diesel inspection and maintenance program to ensure that diesel engines in trucks and buses have their emissions control systems periodically inspected, and to ensure that they are properly maintained. This program applies only to California diesel engines, and has been shown substantially to reduce PM emissions. Because the California inspection program does not apply to Mexico-domiciled trucks, those trucks will emit, and continue over time to emit, proportionately higher levels of PM than the California trucks that are subject to the program.
0. Emissions from trucks and buses are directly related to the fuel they burn. Federal and California regulations are now moving to limitations on sulfur in diesel fuel, limiting the sulfur content to 15 parts per million. There is no guarantee that Mexico will adopt and enforce a corresponding limitation on sulfur in diesel fuel available in Mexico. Since excess sulfur can permanently damage and corrupt emissions control systems, the difference between California/federal fuel and Mexico-domiciled fuel presents a serious potential for increased emissions from Mexico-domiciled trucks over time.
0. Mexico-domiciled trucks will have higher NOx and PM emissions that U.S. trucks over the entire 20-year period examined. In 2010, both NOx and PM emissions for each mile of travel by Mexico-domiciled trucks will be equivalent to two miles of travel by U.S. trucks, or more simply, the fleet of Mexico-domiciled trucks assumed to be in operation in the U.S. will generate twice as much emissions for every mile they travel. Further, this emissions differential will grow dramatically from 2010 to 2020, at which point Mexico-domiciled truck emissions will be almost 4.5 times U.S. truck emissions for both oxides of nitrogen (an ozone precursor) and PM. The emissions will far exceed the de minimis thresholds set out in the EPA regulations. For example, if 50% of the U.S. trucks currently traveling through Houston are replaced by Mexico-domiciled trucks, the increase in NOx emissions by the critical attainment year of 2007 will be 84 tons per day, more than three times the de minimis level for annual NOx emissions in a serious nonattainment area. This equates with approximately 17% of total NOx emissions in Houston in 2007.
0. These dramatic emission levels translate directly into human health effects. Human and animal test evidence demonstrates that inhalation exposure to diesel emissions may cause acute and chronic non-cancerous respiratory effects. There is also considerable evidence demonstrating the connection between inhalation exposure to diesel emissions and lung cancer risk, mutagenic effects, and chromosomal effects. PM emissions, which Mexico-domiciled trucks emit at substantially higher concentrations, present a serious cancer risk.
0. A study conducted by California's South Coast Air Quality Management District of the carcinogenic risk attributable to exposure to average air concentrations of various toxic constituents in the South Coast Air Basin concluded that 70% of such risk is attributable to diesel PM emissions from mobile sources.
0. Chronic conditions believed to be caused by diesel emissions include chronic inflammation and histopathological changes in the lung. Acute adverse health effects include irritation (e.g., eye, throat, or bronchial irritation), neurophysical symptoms (e.g., lightheadedness, nausea), and respiratory symptoms (e.g., cough and phlegm). There is also evidence that diesel emissions have a deleterious immunological effects and exacerbate allergenic responses to known allergens.
0. Plaintiffs reallege and reassert paragraphs 1 through 60 above as though set forth in full herein.
0. NEPA provides that "to the fullest extent possible" all agencies of the federal government "shall ... include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on" the environmental impact of the proposed action, any adverse environmental effects that cannot be avoided should the proposal be implemented, alternatives to the proposed action, the relationship between local short-term uses and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources that the action would entail. The Council on Environmental Quality, which was created by NEPA, has promulgated regulations that are binding on all federal agencies, including the DOT and the FMCSA.
0. The CEQ Regulations provide that federal agencies "shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts." The regulations provide definitions for each of the important terms in the phrase "major Federal actions significantly affecting the quality of the human environment."
0. A "major Federal action" includes any action "with effects that may be major and which are potentially subject to Federal control and responsibility." Such actions include "new and continuing activities ... regulated, or approved by federal agencies" as well as "new or revised agency rules." Defendants' actions fit this definition.
0. A major federal action "affects" the environment when it "may have an effect on" the environment, and such "effects" include "[i]ndirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable."
0. The effects on air quality and human health from implementation of the Final Rules have reasonably foreseeable adverse effects on the environment.
0. Given the existence of abundant evidence that implementation of the Final Rules that the agency's action may have a significant effect upon the environment, the defendants were required to prepare an EIS before taking action.
(Violation of the CAA, 42 U.S.C. 7506(c))
0. Plaintiffs reallege and reassert paragraphs 1 through 67 as though set forth in full herein.
0. Section 176 of the CAA provides that "[n]o department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to" an SIP promulgated pursuant to 110 of the CAA.
0. The CAA further defines "conformity to an implementation [plan]" to mean conformity to the plan's purpose of eliminating or reducing the severity and number of violations of the NAAQS. "Conformity" is also defined to mean "that such activities will not - (i) cause or contribute to any new violation of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area."
0. EPA's implementing regulations require federal agencies to make a determination that an action conforms to the relevant SIPs based upon a written conformity analysis before taking the action if the action will cause direct or indirect emissions that exceed de minimis levels. The de minimis level of VOC and NOx emissions vary, depending upon the extent of nonattainment. For serious nonattainment areas, the de minimis level is 50 tpy. For severe areas (including northwest Los Angeles County, Ventura County, and San Diego) it is 25 tpy, and for extreme areas (Los Angeles, Houston), it is 10 tpy.
0. The conformity determinations must be made in accordance with detailed criteria set out in the regulations. For photochemical oxidant precursors of the sort that will be emitted by Mexico-domiciled trucks, the agency must ensure that "the total of direct and indirect emissions from the action are fully offset within the same nonattainment or maintenance area through a revision to the applicable SIP or a similarly enforceable measure that effects emission reductions so that there is no net increase in emissions of that pollutant." The agency must afford an opportunity for public participation in the drafting of a conformity analysis.
0. The defendants' actions in implementing the Final Rules will cause direct or indirect emissions in greater than the de minimis amounts, are not otherwise exempted and were not accompanied by a written conformity analysis with respect to the SIPs of the affected states. Of the four states most affected, three (Arizona, California and Texas) contain nonattainment areas for photochemical oxidants, and two (California and Texas) contain severe and extreme nonattainment areas.
0. Even very small increases in emissions of VOCs and NOx from Mexico-domiciled trucks entering severe and extreme areas will "delay timely attainment" of the NAAQS for photochemical oxidants for those areas and will no doubt delay timely attainment of the relevant milestones in those areas.
0. Given the existence of abundant evidence that implementation of the Final Rules will cause direct or indirect emissions in greater than the de minimis amounts, the defendants were required to and should have prepared a written conformity analysis before taking action.
WHEREFORE, plaintiffs respectfully request that this Court:
A. Issue a temporary restraining order, preliminary injunction and/or permanent injunction setting aside the defendants' illegal actions in adopting and implementing the Final Rules unless and until the defendants have fully complied with the NEPA and the CAA;
A. Issue a temporary restraining order, preliminary injunction and/or permanent injunction restraining defendants from obligating or expending federal funds under 350 of the Fiscal Year 2002 DOT Appropriations Act unless and until they have fully complied with the NEPA and the CAA;
A. Issue a declaratory judgment that defendants' actions are null and void because the defendants violated 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C), by failing to prepare an EIS and/or a legally sufficient environmental assessment prior to issuing the Final Rules;
A. Issue a declaratory judgment that defendants' actions are null and void because defendants have violated 176 of the CAA, 42 U.S.C. 7506(c), and the SIPs promulgated pursuant to 110 of the CAA, 42 U.S.C. 7410, by failing to make the required written conformity determination regarding NAAQS in connection with implementation of the Final Rules;
A. Retain continuing jurisdiction of this matter until defendants fully remedy the violations of law complained of herein;
A. Award plaintiffs' attorneys' fees, costs, expenses and expert witness fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(d);
A. Grant plaintiffs a writ of mandate pursuant to 5 U.S.C. 701 et seq. to set aside the FMCSA's decision not to perform an EIS;
A. Grant plaintiffs a writ of mandate pursuant to 5 U.S.C. 701 et seq. to set aside the FMCSA's decision that employed a legally defective EA; and
A. Grant plaintiffs such further relief as this Court may deem equitable, just and appropriate.
| DATED: April 30, 2002 | MILBERG WEISS BERSHAD HYNES & LERACH LLP PATRICK J. COUGHLIN STANLEY S. MALLISON STANLEY S. MALLISON
100 Pine Street, Suite 2600 MILBERG WEISS BERSHAD MILBERG WEISS BERSHAD LAW OFFICES OF CHARLES STEVENS CRANDALL Attorneys for Plaintiffs Public Citizen, International
Brotherhood of Teamsters, California Labor
Federation, Brotherhood of Teamsters, Auto and
Truck Drivers, Local 70, California Trucking
Association and Environmental Law Foundation
ALTSHULER, BERZON, NUSSBAUM, Attorneys for Plaintiffs International Brotherhood
of Teamsters, California Labor Federation, and
Environmental Law Foundation
VAN BOURG, WEINBERG, ROGER Attorneys for Plaintiff Brotherhood of Teamsters,
Auto and Truck Drivers, Local 70
PUBLIC CITIZEN Attorneys for Plaintiff Public Citizen
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