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transcript
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1 Farber, Freeman and Carlson's
Cases and Materials on Environmental Law, 8th ed.
American Casebook Series
West Law School 2009
2 PRLS 670ENVIRONMENTAL LAW
Webpage:
classweb.gmu.edu/jkozlows/670.htm
3 APA Rulemaking
Procedural Requirements
5 U.S.C. 553
4 Vermont Yankee Nuclear Powerv.
Natural Resources Defense Council
U.S. Supreme Court, 1978
5 NRDC challenges granting of license hearings excluded environmental effects
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of operations
to reprocess nuclear fuel or dispose of wastes 8/71
6 11/72 Agency instituted rulemaking
to consider enviro effects of nuclear fuel cycle
7 2/73 rulemaking procedures
no discovery or cross-examination
8 Enviro Survey & extensive background documents
available to public before hearing
9 all parties given reasonable opportunity to present position
written & oral statements incorporated into record
10 Commission approved procedures, issued final rule
concluding enviro. effects of nuke fuel cycle shown to be "relatively
insignificant"
11 Administrative agencies should be free to fashion their own rules of procedure
and to pursue methods of inquiry
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capable of permitting them to discharge their multitudinous duties
12 Basic tenet of administrative law
agencies should be free to fashion
their own rules of procedure
13 NRDC: APA merely est. lower procedural bounds
court may routinely require more than minimum
when agency rule addresses complex, technical, or "issues of great
public import."
14 APA public rule making
consult with industry advisory committees
consult organizations
hold public hearings
15 Considerations of practicality, necessity, & public interest
will naturally govern agency's determination
16 To extent which public proceedings should go forth
matters of great import should naturally be accorded more elaborate
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public procedures
17 Judicial review totally unpredictable, if reviewing agency proceedings to determine
whether, in Ct's opinion, procedures perfectly tailored to reach what ct
perceives as "best" or "correct" result
18 Inherent advantages of "informal rulemaking" would be lost
would compel agency to conduct all rule-making proceedings with full
procedures associated with adjudicatory hearings
19 Informal rulemaking need not be based solely on hearing transcript
agency need not hold formal hearing
20 Unwarranted judicial examination of perceived procedural shortcomings of rulemaking proceedings
would seriously interfere with process prescribed by Congress
21 Chevron, U.S.A., Inc. v.
NRDC
U.S. Supreme Court, 1984
22 intra-source offsets, "bubble" concept
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Whether EPA's statutory interpretation of "stationary source"
reasonable
23 allow States to treat all pollution-emitting devices within same industrial grouping
as though they were encased in a single "bubble"
24 Judicial review of Agency's construction of statute
whether Congress has directly spoken to precise question at issue
25 if intent of Congress if clear, that is the end of the matter
Court as well as agency must give effect
to unambiguously expressed intent of Congress
26 If Court determines Congress has not directly addressed precise question at issue
court does not impose its own construction on statute
as would be necessary in absence of Agency interpretation
27 Judicial inquiry, if statute silent or ambiguous
whether the Agency's answer is based on a permissible construction of
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statute
28 Court is not to determine whether in its view concept is "inappropriate”
in general context of program designed to improve air quality
29 Rather, whether Agency's view that it is appropriate is reasonable
in context of this particular program
30 Sec. 173 Clean Air Act required permits
for construction & operation of new or modified stationary sources in
nonattainment areas
31 Requires state agency to determine whether sufficient emissions reductions in region to offset emissions
from new source
also to allow further progress toward attainment
32 LAER (lowest achievable emission rate)
Major Stationary Source Sec. 111(a)(3)
any building, structure, facility, or installation which emits air pollution
33 Act does not make definition applicable to permit program
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whether definition sheds light on meaning of word "source" as anything
in statute
34 No affront to common English usage to take reference to "major facility" or "major source"
to connote an entire plant as opposed to its constituent parts
35 Meaning of Word ascertained in context of achieving particular objectives
words associated with it may indicate true meaning of the series is to
convey a common idea
36 Language may reasonably be interpreted to impose requirement on any discrete, but integrated, operation which pollutes
each enumerated item treated as encased in a bubble
37 Overlapping terms intended to enlarge rather than confine scope of agency power to regulate particular sources
in order to effectuate policies of Act
38 Sec. 302j 42 U.S.C. 7602
"major stationary source" stationary facility or source of air pollutants
emits or potential to emit 100 tons per year
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39 "Bubble" interpretation gives meaning to all the terms
or, whether EPA "plantwide" definition
violates legislative history & policy of Act
40 Legislative history silent on precise issue,
but consistent with view EPA to have broad discretion
in implementing policies of Act
41 Plantwide definition of source
consistent with allowance of reasonable growth
42 EPA offered reasonable explanation for conclusion
regs serve environmental objectives as well
43 Agency changing interpretation of term "source" from time to time
does not lead to conclusion that judicial deference should not be given
to agency's interpretation of statute
44 EPA's interpretation represents a reasonable accommodation of manifestly competing interests
and is entitled to deference
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45 Regulatory scheme is technical & complex
agency considered matter in detailed & reasoned fashion
decision involves reconciling conflicting policies
46 Congress intended to accommodate both economic & environmental interests
but did not do so with specificity required to resolve this issue
47 Judges are not experts in the field
not part of either political branch of Govt (Congress & Executive)
48 must sometimes reconcile competing political interests
but not on the basis of the judge's personal policy preferences
49 Challenge to agency construction of statutory provisions must fail, ifquestions wisdom of agency's policy
rather, than whether it is a reasonable choice
within gap left open to interpretation by Congress
50 National Environmental Policy Act (NEPA)
51 Hanleyv.
Mitchell
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U.S.Court of Appeals
2d Circuit, 1972
460 F.2d 640 (cert. denied)
52 Issue: whether NEPA compliance in construction of 9 story jail in Manhattan
53 GSA concluded no EIS, no substantial environmental impact
U.S. - "Major Federal Action" in NEPA refers to amount of cost,
planning, & time
but does not refer impact of project on environment
54 Court agrees courthouse, based on "terse" GSA memo,
will have no significant impact on environment
55 357 people already work in area, wildly varying architecture
56 Jail is different, GSA memo discusses,
water, sewer, & garbage
57 Memo contains no "hard look"
re squeezing jail into narrow area between 2 apt bldgs
(not mentioned)
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58 NEPA must be construed to include protection of the quality of life of city residents
re jail memo ignored environmental considerations in urban area
noise, traffic, congestion, crime
59 May not require full EIS
GSA not required to give same weight to environmental concerns
essential point is that GSA must actually consider them
60 Metropolitan Edison Co.
v.
People Against Nuclear Energy
U.S. Supreme Court, 1983
61 Issue: Whether NRC complied with NEPA
when it considered permit to resume operation of Three Mile Island
Unit 1 nuclear power plant
62 Licensing of 2 plants included preparation of Environmental Impact Statements
63 3/28/79 accident in unit 2 occurred
when unit 1 shut down for refueling
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64 Whether to consider psychological harm or other indirect effects of accident, or of renewed operation of TMI-1
human health effects, including psychological effects, cognizable under
NEPA
65 NEPA does not require agency to assess EVERY impact or effect of its proposed action
but ONLY the impact or effect
on the ENVIRONMENT
66 To trigger NEPA, must look to relationship between "effect" and CHANGE
in the PHYSICAL ENVIRONMENT
caused by the major federal action at issue
67 NEPA 102 "environmental effect" & "environmental impact" requirement
reasonably close causal relationship
between change in PHYSICAL ENVIRONMENT and effect at issue
68 Permit for renewed operation of TMI-1 on physical environmentlow-level radiation, fog from cooling towers), accident potential
already considered in EIS & EA
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69 Risk of an accident is NOT an effect on the physical environment
70 operation of facility is event in physical environment
psychological concerns of risks too far removed to trigger NEPA
71 NEPA not intended to give citizens general opportunity to air policy objections
fears, & concerns to perceived risks of federal actions
72 Political process, NOT NEPA,
provides appropriate forum
in which to air policy disagreements.
73 Hanlyv.
Kleindienst
[Hanly II]
U.S.C.A. 2d Cir 1972
471 F.2d 823
74 6/72 GSA submitted 25 pg Assessment of Environmental Impact re Jail
75 reflects detailed consideration of many factors
sets forth possible alternatives, none satisfactory
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concludes no significant impact
76 Judicial Review: Administrative Procedure ActAPA
arbitrary & capricious standard
meaning of term "significantly" in NEPA
77 CEQ guidelines echoed in GSA regs:
prepare EIS re proposed action
when environmental impact of proposed action
likely to be highly controversial
78 "Highly controversial"substantial dispute re size, nature, or effect of proposed action
rather than existence of opposition to a use
the effect of which is relatively undisputed
79 Whether major federal action will significantly affect quality of human environment
80 absent Congressional or administrative interpretation of termagency in charge vested with broad discretion
81 Agency required to review proposed action for,
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extent causes environmental effects in EXCESS of those created by
existing uses
82 AND review absolute quantitative adverse environmental effects of action itself
including cumulative harm
that results from contribution to existing adverse conditions or uses in
affected area
83 Adverse consequences
usually less significant
if conform to existing uses
84 Existing environment,frequently below an ideal standard,
represents a norm which cannot be ignored
absolute as well as comparative effects must be considered
85 Whether GSA assessment satisfies NEPA, APA review
area zoning includes "prisons"
86 Whether GSA identifiedmethods & procedures to ensure
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presently unquantified enviro values
given appropriate consideration
along with technical & economic considerations
87 Environmental Assessment (EA)
threshold determination of "significance"
review in general fashion
same factors studied in depth if EIS required
88 Environmental Assessment
Rudimentary procedures
designed to assure fair & informed preliminary decision
89 EA: essential information & adequate record
to prevent later changes without consideration of environmental
significance
as required by NEPA
90 Preliminary thresholddecision of significance by responsible agency
must give public notice re proposed major federal action
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give opportunity to submit relevant facts which might bear upon
threshold determination
91 Necessity of hearing depends upon circumstances & methods to develop relevant
information & understanding of proposed action
Precise procedural steps to be adopted
are better left to agency
92 Environmental Assessment (EA)
40 CFR 1501.3-1501.4
7/79 CEQ regs
93 Concise public document that briefly provides sufficient evidence & analysis
for deciding whether to product Environmental Impact Statement (EIS)
94 EA considers alternatives to proposed action
if no EIS, issues Finding of No Significant Impact (FONSI)
which is available to public
95 EIS Scoping:
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obtain early participation of other agencies & public in planning EIS
agencies with special jurisdiction or expertise are required to comment
96 Major interagency disagreements are referred to CEQ
CEQ may publish recommendations
or referral to President
97 Agency final decision on project (RoD) Record of Decision –
summarizes final actions
identify all alternatives considered in reaching decision
(40 CFR 1505.2)
98 RoD: specify environmentally preferable alternatives, & perferencesincluding economic & technological factors,
state whether all practicable means for minimization of environ. harm
(40 CFR 1505.2)
99 Scope and Timingof
Environmental Impact Statement
(EIS)
CEQ regs.
Title 40 CFR
100 Proposal
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40 CFR 1508.23
(important re timing)
101 Stage of development, agency has goal & actively preparing to make decision
on one or more alternative means to accomplishing goal
and effects can be meaningfully evaluated
102 Preparation of EIS on proposal should be timed
so final statement completed in time
to be included in any recommendation or report on proposal
40 CFR 1508.23
103 40 CFR 1502.5 Commence preparation of EISas close as possible to time agency developing
or is presented with proposal (per 1508.23)
so completed in time to be included in any recommendation or report
on proposal
104 Statement to be prepared early enough to serve practicallyas important contribution to decisionmaking process
will not be used to rationalize or justify decisions already made
40 CFR 1502.5
105 40 CFR 1501.2 Agencies SHALL integrate NEPA processwith other planning at earliest possible time
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to ensure planning & decisions reflect environmental values
to avoid later delays in the process and to head off potential conflicts
106 Scope: range of actions, alternatives, & impacts to be considered in EIS
may depend on relationships to other statements
1502.20 and 1508.28
107 Agency determination of Scope of Environmental Impact Statement consider:
3 types of actions
3 types of alternatives
3 types of impacts
40 CFR 1508.25
108 Connected Actions, closely related
should be discussed in same impact statement
109 Actions connected if:
(1) automatically trigger other actions which may require environmental
impact statements
110 Actions connected if:
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(2) cannot or will not proceed unless other actions are taken previously
or simultaneously
111 Actions connected if:
(3) are interdependent parts of a larger action and depend on the larger
action for their justification
112 Cumulative Actions, when viewed with other proposed actions
have cumulatively significant impacts
should, therefore, be discussed in same impact statement
113 Similar Actions, when viewed with other reasonably foreseeable or proposed agency actions
similarities provide basis for evaluating environmental consequences
together
such as common timing or geography
114 Agency may wish to analyze these actions in same impact statement
do so, when best way to assess adequately combined impacts of
similar actions, or reasonable alternatives to such actions
is to treat them in a single impact statement
115 Alternatives, which includes:
No action alternative
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Other reasonable courses of actions.
116 Mitigation measures(not in the proposed action)
Impacts
Direct
Indirect
Cumulative
117 Courts require agencies to take "hard look" at cumulative impacts
Synergistic impact of project should be taken into account at some
stage
certainly before last dam is completed
118 Courts take CEQ regs seriously in determining need for impact statement
look to factors like extent of current commitment
and specficityof future impacts
119 Mere allegation various federal actions have same general purpose
will not suffice as basis for requiring programmatic impact statement
120 DEPARTMENT OF TRANSPORTATION
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v.
PUBLIC CITIZEN
SUPREME COURT OF THE UNITED STATES
541 U.S. 752; 124 S. Ct. 2204; 159 L. Ed. 2d 60
June 7, 2004
121 whether the National Environmental Policy Act of 1969 (NEPA) requires the Federal Motor Carrier Safety Administration (FMCSA)
to evaluate the environmental effects of cross-border operations of
Mexican-domiciled motor carriers,
122 where FMCSA's promulgation of certain regulations
would allow such cross-border operations to occur.
123 Because FMCSA lacks discretion to prevent these cross-border operations,
we conclude that these statutes impose no such requirement on
FMCSA.
124 FMCSA, an agency within the Department of Transportation (DOT)
responsible for motor carrier safety and registration
125 "ensur[ing]" safety establishing minimum levels of financial responsibility for motor carriers
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prescribing federal standards for safety inspections of commercial
motor vehicles,
126 FMCSA has only limited discretion regarding motor vehicle carrier registration:
127 must grant registration to all domestic or foreign motor carriers
that are "willing and able to comply with" the applicable safety, fitness,
and financial-responsibility requirements.
128 FMCSA has no statutory authority to impose or enforce emissions controls
or to establish environmental requirements unrelated to motor carrier safety.
129 FMSCA ha no authority to address concerns about
the adequacy of Mexico's regulation of motor carrier safety
130 February 2001international arbitration panel
determined that the United States' "blanket refusal" of Mexican motor
carrier applications breached the United States' obligations under
NAFTA.
131 President made clear his intention to lift the moratorium on Mexican
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motor carrier certification
following the preparation of new regulations governing grants of
operating authority to Mexican motor carriers.
132 May 2001, FMCSA published for comment proposed rules
concerning safety regulation of Mexican motor carriers.
133 Application Rule
addressed the establishment of a new application form for Mexican
motor carriers that seek authorization to operate within the United
States.
134 Safety Monitoring Rule
addressed the establishment of a safety-inspection regime for all
Mexican motor carriers that would receive operating authority under the
Application Rule.
135 December 2001, Congress enacted
Department of Transportation and Related Agencies
Appropriations Act, 2002
136 Section 350
no funds appropriated under the Act could be obligated or expended to
review or to process any application by a Mexican motor carrier for
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authority to operate in the interior of the United States until…
137 until FMCSA implemented specific application and safety-monitoring requirements for Mexican carriers.
138 January 2002, acting pursuant to NEPA's mandates,
FMCSA issued a programmatic EA for the proposed Application and
Safety Monitoring Rules
139 FMCSA's EA evaluated the environmental impact associated with three separate scenarios
140 (1) President did not lift the moratorium;
(2) President did but where (contrary to what was legally possible)
FMCSA did not issue any new regulations
141 (3) Proposed Action Alternative, where the President would modify the moratorium
and where FMCSA would adopt the proposed regulations
142 EA considered the environmental impact in the categories of traffic and congestion, public safety and health, air quality, noise, socioeconomic
factors, and environmental justice.
143 Vital to the EA's analysis, however, was the assumption that there would be no change in trade volume between the United States and
Mexico
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due to the issuance of the regulations.
144 FMCSA concluded that the entry of the Mexican trucks was not an "effect" of its regulations,
145 did not consider any environmental impact that might be caused
by the increased presence of Mexican trucks within the United States.
146 particular environmental effects on which the EA focused
those likely to arise from the increase in the number of roadside
inspections of Mexican trucks and buses due to the proposed
regulations.
147 EA concluded that these effects (such as a slight increase in emissions, noise from the trucks, and possible danger to passing
motorists) were minor
could be addressed and avoided in the inspections process itself.
148 EA also noted that the increase of inspection-related emissions would be at least partially offset by the fact that the safety requirements would
reduce the number of Mexican trucks operating in the United States
149 EA concluded that the issuance of the proposed regulations wouldhave no significant impact on the environment,
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FMCSA issued a FONSI.
150 March 19, 2002, FMCSA issued the two interim rules, delaying their effective date until May 3, 2002,
to allow public comment on provisions that FMCSA added to satisfy the
requirements of § 350.
151 FMCSA relied on its EA and its FONSI to demonstrate compliance with NEPA.
152 petitions for judicial review of the Application and Safety Monitoring Rules,
arguing that the rules were promulgated in violation of NEPA
153 Court of Appeals agreed
concluded EA was deficient because it failed to give adequate
consideration to the overall environmental impact of lifting the
moratorium on the cross-border operation of Mexican motor carriers.
154 Court of Appeals, FMCSA was required to consider the environmental effects of the entry
of Mexican trucks
155 President's rescission of the moratorium was 'reasonably foreseeable'
at the time the EA was prepared and the decision not to prepare an
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EIS was made.
156 agency's decision not to prepare an EIS can be set aside only upon a showing
that it was "arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law." 5 U.S.C. § 706
157 respondents criticize the EA's failure to take into account the various environmental effects
caused by the increase in cross-border operations of Mexican motor
carriers.
158 Under NEPA, an agency is required to provide an EIS
only if it will be undertaking a "major Federal action," which
"significantly affects the quality of the human environment”
159 Under applicable CEQ regulations, "[m]ajor Federal action" is defined to "includ[e]
actions with effects that may be major and which are potentially subject
to Federal control and responsibility."
40 CFR § 1508.18 (2003).
160 "Effects" is defined to "include:
(a) Direct effects, which are caused by the action and occur at the
same time and place," and …
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161 "(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably
foreseeable." § 1508.8.
162 relevant question is whether the increase in cross-border operations of Mexican motor carriers, with the correlative release of emissions by
Mexican trucks,
is an "effect" of FMCSA's issuance of the Application and Safety
Monitoring Rules
163 if not, FMCSA's failure to address these effects in its EA did not violate NEPA,
and so FMCSA's issuance of a FONSI cannot be arbitrary and
capricious.
164 promulgation of the regulations, the argument goes, would "caus[e ]" the entry of Mexican trucks (and hence also cause any emissions such
trucks would produce),
and the entry of the trucks is "reasonably foreseeable." 40 CFR §
1508.8 (2003).
165 the argument concludes, under the relevant CEQ regulations,
FMCSA must take these emissions into account in its EA when
evaluating whether to produce an EIS.
166 overlooks a critical feature of this case:
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FMCSA has no ability to countermand the President's lifting of the
moratorium
or otherwise categorically to exclude Mexican motor carriers from
operating within the United States
167 § 350 did restrict the ability of FMCSA to authorize cross-border operations of Mexican motor carriers,
but Congress did not otherwise modify FMCSA's statutory mandates.
168 FMCSA remains subject to the mandate
must certify any motor carrier that can show that it is willing and able to
comply with the various substantive requirements for safety and
financial
responsibility contained in DOT regulations
169 only the moratorium prevented it from doing so for Mexican motorcarriers before 2001
170 upon the lifting of the moratorium, if FMCSA refused to authorize a Mexican motor carrier for cross-border services, where the carrier was
willing and able to comply with the safety and financial rules, it would
violate § 13902(a)(1).
171 FMCSA must comply with all of its statutory mandates.
where an agency's action is considered a cause of an environmental
effect even when the agency has no authority to prevent the effect.
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172 insufficient to make an agency responsible for a particular effect under NEPA and the relevant regulations
173 NEPA requires "a reasonably close causal relationship" between the environmental effect and the alleged cause.
174 inherent in NEPA and its implementing regulations is a "rule of reason,"
175 ensures that agencies determine whether and to what extent to prepare an EIS
based on the usefulness of any new potential information to the
decisionmaking process.
176 Where the preparation of an EIS would serve "no purpose" in light of NEPA's regulatory scheme as a whole,
no rule of reason worthy of that title would require an agency to
prepare an EIS.
177 clear that the causal connection between FMCSA's issuance of the proposed regulations and the entry of the Mexican trucks
insufficient to make FMCSA responsible under NEPA to consider the
environmental effects of the entry.
178 NEPA EIS requirement serves two purposes.
First, "[i]t ensures that the agency, in reaching its decision, will have
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available, and will carefully consider, detailed information concerning
significant environmental impacts."
179 Second, it "guarantees that the relevant information will be made available to the larger audience
that may also play a role in both the decisionmaking process and the
implementation of that decision.
180 Requiring FMCSA to consider the environmental effects of the entry of Mexican trucks would fulfill neither of these statutory purposes.
181 FMCSA has no ability categorically to prevent the cross-border operations of Mexican motor carriers,
the environmental impact of the cross-border operations would have no
effect on FMCSA's decisionmaking
182 FMCSA simply lacks the power to act on whatever information might be contained in the EIS.
Similarly, the informational purpose is not served.
183 "informational role" of an EIS is to "giv[e] the public the assurance that the agency 'has indeed considered environmental concerns in its
decisionmaking process,
184 perhaps more significantly, provid[e] a springboard for public comment" in the agency decisionmaking process itself,
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185 purpose here is to ensure that the "larger audience," can provide input as necessary to the agency making the relevant decisions
186 But here, the "larger audience" can have no impact on FMCSA'sdecisionmaking,
since FMCSA simply could not act on whatever input this "larger
audience" could provide.
187 We hold that where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions,
the agency cannot be considered a legally relevant "cause" of the
effect.
188 Hence, under NEPA and the implementing CEQ regulations,the agency need not consider these effects in its EA
when determining whether its action is a "major Federal action."
189 Because the President, not FMCSA, could authorize (or not authorize) cross-border operations from Mexican motor carriers,
and because FMCSA has no discretion to prevent the entry of Mexican trucks,
190 EA did not need to consider the environmental effects arising from the entry.