An International Dispute Reveals Weaknesses in Domestic Environmental Law: NAFTA, NEPA, and the Case of Mexican Trucks (Department of Transportation v. Public Citizen)

MacMillan, Jeannette
August 2005
Ecology Law Quarterly;2005, Vol. 32 Issue 3, p491
Academic Journal
This Note explores the significance of the Supreme Court's 2004 decision in Department of Transportation v. Public Citizen, commonly referred to as "The Mexican Trucking Case." The case drew attention as an example of the tension between trade liberalization and environmental protection. The Supreme Court's decision interprets the National Environmental Policy Act of 1969 (NEPA) and the Clean Air Act as not requiring environmental review of the consequences of opening American borders to the Mexican fleet of trucks and buses, which is older and more polluting than the American fleet. This Note explores the consequences of the judiciary's continuing hostility toward NEPA and the growing irrelevance of NEPA in an era of increased international trade. NEPA's substantive provisions are aspirational rather than prescriptive, which makes the statute highly vulnerable to judicial narrowing. This Note argues that there was room in this case for a different interpretation, but admits that the Court's narrow interpretation was predictable given prior judicial reluctance to give force to NEPA's grand vision. Furthermore, NEPA turns out to be particularly weak in the trade context. This Note argues that we cannot ignore this statutory failure. The Note concludes with some proposed judicial and legislative solutions to both the specific problem of the truck pollution and the larger problems of statutory inadequacy.


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