The U.S.-Mexico border may remain closed to free truck traffic for a year or more despite the North American Free Trade Agreement (NAFTA), because the Federal Motor Carrier Safety Administration (FMCSA) failed to conduct a full environmental impact statement as required by law.
The direct affect on carriers is mixed. Currently, most carriers engaging in transborder hauling rely on well-established drayage contracts to move cargo through the maze of border regulations and customs. For them, NAFTA may have little impact.
For companies wishing to gain a larger foothold in the transborder area or those hoping to begin new service, the delay could be significant. “We don't have the deals that some other carriers have worked out over the years,” says one California carrier. “We're always delayed at the border. We were hoping NAFTA could help us move our business forward. I don't know what's going to happen now.”
This action will delay NAFTA's implementation yet again after almost 20 years of fits and starts, which many had thought finally ended in May 2001 when FMCSA issued regulations for operating commercial Mexican vehicles beyond the designated 20-mile zone.
Under pressure from the international community and the Mexican government, the Bush Administration had declared the border open to free traffic pending regulations and an environmental assessment of the proposed rules. FMCSA's environmental assessment declared that opening the border would not have a significant environmental impact. But several groups, including Public Citizen, the Teamsters and the California Trucking Assn., disagreed, contending that a full environmental study — not merely an assessment — was necessary according to law.
In January, the 9th Circuit Court of Appeals in California concurred, saying that although the Administration has the constitutional right to enter into treaties such as NAFTA, it can not come at the expense of violating U.S. laws, mainly the Clean Air Act. “… we conclude that the Department of Transportation acted without regard to well established environmental laws…” the court stated. The court said that that Administration must study the impact of increased air emissions on near-border cities like Houston, San Diego and Los Angeles, which are struggling to comply with the Clean Air Act.
FMCSA has already begun to comply with the court order by awarding a $1.8-million contract to ICF Consulting in Fairfax, VA. The company is slated to prepare a full environmental impact statement, analyzing the short- and long-term implications of Mexican trucks and buses operating in the U. S. FMCSA officials say the report will take between 12 and 18 months.
ICF officials would not comment on what they will be doing to fulfill the contract except to confirm that they received one. They referred all questions to FMCSA, noting that on rare occasions they are asked by federal agencies not to issue public statements about contracts. ICF has received other DOT contracts.
The Department of Justice wants to get NAFTA rolling. After being granted several extensions to file a petition to overturn the circuit court's ruling, DOT Solicitor Theodore Olson in September argued in his petition to the Supreme Court that the lower court's ruling conflicts with the President's constitutional power to negotiate treaties. He wrote: “The Court of Appeals misapplied the nation's environmental laws and constrained the president's discretion to conduct foreign affairs.”
“We are pleased that the DOJ has asked the Supreme Court for relief,” an FMCSA official said. “In the meantime, we're obeying the 9th Circuit's ruling and have begun the impact statement.”
Whether or not the Supreme Court will hear the case is not yet known. Their intention may come as early as this month. Either way, NAFTA will once again be delayed.
