February 13, 2008: The Department of Transportation is violating the law and endangering the public's safety in proceeding with a pilot program to allow Mexican trucks to deliver goods throughout the United States, a coalition of labor, environment, and civic groups argued Feb. 12 in oral arguments before the U.S. Court of Appeals for the Ninth Circuit (Sierra Club v. Dep't of Transp., 9th Cir., No. 07-73415, oral argument 2/12/08).

The three-judge panel of the Ninth Circuit took under advisement arguments on whether to grant an injunction to shut down the DOT Federal Motor Carrier Safety Administration's one-year program to permit 100 Mexican trucks to travel into the United States.

"The agency has said it is continuing to spend funds even though Congress said you can't spend the funds to establish a program," said Jonathan Weissglass, a partner with Altshuler Berzon, representing the groups seeking an injunction to halt the program.

The International Brotherhood of Teamsters, Sierra Club, Public Citizen, Environmental Law Foundation, and Brotherhood of Teamsters, Auto, and Truck Drivers Local 70 last August asked the Ninth Circuit to block the pilot program (168 DLR A-1, 8/30/07 ). The court denied the petitioners' emergency motion to stay two days later but granted their motion to expedite hearings (171 DLR AA-1, 9/5/07 ). DOT began operating the cross-border trucking program Sept. 6 (174 DLR A-11, 09/10/07 ).

Meaning of Omnibus Bill Provisions Disputed

Congress passed legislation--the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, Iraq Accountability Appropriations Act (Pub. L. No. 110-28)--that would require that the pilot program be in place three years before the border was fully opened and set criteria for the program.

The president Dec. 26 signed an omnibus spending bill containing provisions shutting down funding for the program (247 DLR A-8, 12/27/07 ; 243 DLR A-14, 12/19/07 ).

Mexican trucks have been allowed to travel up to 25 miles across the border since 1982 but the program permits truckers to drive into the U.S. interior. Before 1982, there were no restrictions on Mexican trucks, said Irene M. Solet, an attorney on the Department of Justice Civil Division appellate staff.

Solet argued that the bill prohibited establishing a program, not continuing the pilot that already had begun. Congress in bills with funding restrictions used the phrase "establish or implement," whereas the provision about the pilot program said "establish."

The transportation secretary, Solet said, "made a good faith interpretation of the statute" to continue the pilot.

Judge Dorothy W. Nelson, meanwhile, said that the "Congressional intent is unambiguous. The intent was to shut down the program."

Mexican Safety Regulations Questioned

The program is aimed at complying with North American Free Trade Agreement cross-border trucking provisions, which have been delayed because of safety concerns.

"The issue in this case really revolves around safety," Weissglass said.

Paul Cullen Sr., with the Cullen Law Firm in Washington, D.C. representing the Owner-Operator Independent Drivers Association, argued that truckers in the United States who have driving violations, such as for drunken or reckless driving, lose their commercial drivers license. There is no parallel regulation in Mexico, Cullen said.

Further, Cullen said, "the question here is what are the standards we are going to impose ... The agency announced it will accept compliance with Mexican law and standards" when it lacks to authority to change or alter standards under which the trucks enter the United States.

DOT is "tampering with regulations. They are allowing Mexican trucks to come in here," violating statutory law, Cullen said. The trucks, Cullen said, are "in deplorable condition."

DOJ Cites U.S. Inspections of Mexican Trucks

But Solet said the trucks are inspected by the DOT in Mexico. The United States conducts comprehensive pre-authorization safety audits on the motor carriers participating in the pilot, she said.

And once the trucks reach the U.S. border, Solet said, border agents interact with the drivers to confirm they have a valid commercial driver's license, a valid inspection within three months, and ensure they are sufficiently conversant in English. Drivers and vehicles that do not meet those standards "should be stopped at the border."

FMCSA Administrator John Hill in a statement said government attorneys "are delivering strong, sound arguments in support of the Department's initiation and continuation of a program that gives U.S. truck drivers opportunities to compete and succeed in a market they've never before been allowed to enter while ensuring the safety of our highways."

Hill said Teamsters President James Hoffa "is spending truckers' hard-earned money in an effort to deny them these opportunities for new earnings, to inflate the cost of goods and services families depend on and to perpetuate an inefficient shipping system along the border that spews needless pollution into states like Texas, Arizona and California."

Statistical Issue

While the pilot program would allow 100 cross-border trucks, the number of participants has dropped from 13 carriers and 58 trucks from Mexico to 12 carriers and 42 trucks, Weissglass said. "There's no way there's going to be a true test" with statistical validity "which is what Congress wanted."

The small number of participants "means that the pilot program is a sham," Weissglass said.

Judge Andrew Kleinfeld questioned whether the petitioners wanted more trucks on the road. Weissglass said the number of trucks is too small to be statistically valid.

Judges Kleinfeld, Nelson, and Michael Daly Hawkins took the case under advisement with no indication when the court would rule.

Jonathan Weissglass of Altshuler Berzon in San Francisco argued for the petitioners. The government was represented by Irene M. Solet of the Justice Department and Peter Plocki, senior trial attorney for the DOT.

By Joyce E. Cutler