FMCSA's environmental assessment of cross-border program falls short

By Jami Jones, senior editor | 8/12/2011

The timing and lack of options in the Federal Motor Carrier Safety Administration’s environmental assessment of the cross-border trucking program raises serious questions about the agency’s true intention, according to OOIDA comments filed on Thursday.

On July 12, the FMCSA released a draft environmental assessment and requested comments on environmental concerns related to the assessment.

“The timing of the notice raises serious questions about FMCSA’s true intent here,” the OOIDA comments state.

About a week before the notice was issued, the U.S. Department of Transportation entered into an agreement with Mexico, in the form of a Memorandum of Understanding – known as an MOU – that became effective on July 6. The MOU set out the specific terms of the pilot program.

That was after the FMCSA had already announced its intention to proceed with the program.

“Thus, it appears that the Pilot Program plan has already been finalized and this notice seeking public input regarding environmental concerns is merely a hoop that FMCSA is jumping through because it is required to do so by law,” OOIDA comments state. “It is not a meaningful opportunity for the public to assist FMCSA in dealing with environmental issues.”

In spite of these suspicions, OOIDA filed comments that in the end highlighted simple fixes to environmental problems that will be exacerbated by a cross-border trucking program with Mexico.

Currently, Mexican emission standards for diesel-powered truck engines are only aligned with U.S. EPA emissions standards for six criteria pollutants through the 2003 model year. This means that newer engines for Mexican trucks need not comply with the more stringent U.S. emissions standards that came into play in 2004 through 2010.

The comments point out that since Mexico has not aligned its diesel engine emissions standards to U.S. EPA 2004 standards, the differences can be stark – as much as 20 times the nitrogen oxides and 10 times the particulate matter, based on using diesel with a sulfur content of 500 parts per million.

The ability to add additional fuel tanks makes it possible for trucks from Mexico to fill up with the low-sulfur diesel available in Mexico and never have to fuel up while in the states – polluting at a higher level than corresponding U.S. trucks.

In its environmental assessment, the FMCSA considered only two options: proceed with the program or don’t proceed.

“There is no discussion in the environmental assessment of any other alternatives,” OOIDA states in its comments. “FMCSA does not specifically explain its failure to consider other alternatives ....”

What FMCSA did do is lean heavily on a 2002 U.S. Supreme Court decision in the case of Public Citizen v. the U.S. DOT. The court found in favor of the DOT in Public Citizens environmental challenge of a cross-border program.

“If, in fact, FMCSA thinks that (the decision)relieved the agency of the need to consider other alternatives to the proposed action that would allow Mexican trucks to enter the country, but at the same time mitigate the harmful environmental effects, then the Agency reads too much into that decision,” OOIDA comments state.

“As expressly stated by the Court in the Public Citizen decision, before it addressed the substantive legal issues presented by the parties, ‘this case does not involve … any challenge to the (environmental assessment) due to its failure properly to consider possible alternatives to the proposed action …’ because ‘[n]one of the respondents identified in their comments any rulemaking alternatives beyond those evaluated in the (environmental assessment), and none urged FMCSA to consider alternatives,’” OOIDA comments continued.

Conversely, OOIDA’s comments propose two options to FMCSA to ensure a minimal environmental impact the cross-border program may have.

The first alternative would be to only allow trucks that meet U.S. EPA model year emissions standards for the year in which the engine was manufactured.

“That is the only way that FMCSA can ensure compliance with the oft-repeated condition that participants must comply with ‘all’ applicable Federal and State environmental laws and regulations,” OOIDA comments state.

The second option would be for trucks arriving from Mexico either to have ULSD fuel purchased in Mexico on board or to have possibly to one-fourth tank or less of fuel not meeting the U.S. ULSD standard – so they could purchase compliant fuel once crossing the border.

Either option would require only minor changes to the pilot program plan, yet “these simple changes would equalize or come closer to equalizing the treatment of U.S. and Mexico-domiciled carriers, which is all that is required by NAFTA.”

Given two solutions to documented environmental programs, OOIDA leaves the agency with one simple thought:

“The failure to consider them now, after specifically being urged to do so by commenters, would be arbitrary and capricious agency action under the Administrative Procedures Act.”

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