Court dismisses ‘moot’ cross-border trucking case

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A federal appeals court on Monday, April 20, dismissed a case filed against the Bush administration’s cross-border trucking demonstration project. “We dismiss because this petition is now moot,” the U.S. Court of Appeals for the Ninth Circuit announced in its ruling.

The Bush administration’s original cross-border program — which began in September 2007 and was extended two more years last August — allowed the U.S. Department of Transportation to select a limited number of Mexican and U.S. fleets to do business beyond the border zone. USDOT had battled lawsuits and congressional acts to stop the program, which it said was needed to meet North American Free Trade Agreement commitments.

The appeals court heard arguments on Feb. 14, 2008, about whether the Bush administration could go ahead with the program despite congressional attempts to stop it. The Teamsters and environmentalists argued that the program eroded highway safety and would eliminate U.S. jobs; they also said there were insufficient safeguards to ensure Mexican trucks were as safe as U.S. carriers.

In Monday’s dismissal of the case, the appeals court wrote that while while the petition was pending, Congress passed and President Obama signed into law the Omnibus Appropriations Act, and that Section 136 of that legislation prohibits the use of funds appropriated under it “to establish, implement, continue, promote or in any way permit” a demonstration program like the one at issue in the case.

Pursuant to Section 136, the Federal Motor Carrier Safety Administratin terminated the demonstration program. “Even if Congress does not impose the same limitation in future fiscal years, any new pilot program the FMCSA might initiate in the future would likely present different questions of statutory and regulatory requirements than the now terminated program and would likely not fall into the ‘yet evading review’ category,” the court wrote. “Accordingly, the petition for review is moot.”

During a trip to Mexico City last week, Obama said he wants to repair a trade dispute with Mexico that has escalated since the United States ended the program. Mexico, which said the action violated NAFTA, imposed higher tariffs on about 90 U.S. exports, such as fruits and industrial goods, worth an estimated $2.4 billion. Mexico has said it would remove the tariffs as soon as the United States drops the trucking ban.

Recently, a consortium of 140 U.S. business, food and agricultural groups, including the U.S. Chamber of Commerce, urged Obama to settle the dispute. A San Antonio business organization is launching a group called the Cross Border Trucking Coalition to support cross-border trucking, trade with Mexico and NAFTA. Free Trade Alliance, which is soliciting members in the United States and Mexico, said the coalition will be comprised of companies, industry organizations, trade associations and business chambers. FTA is a public-private partnership that aims to develop and enhance the international trade-related economic development of San Antonio and the region through foreign investment, trade development and advocacy.

Transportation Secretary Ray LaHood sent recommendations on resolving the dispute to the White House ahead of Obama’s visit to Mexico. “My team is working with President Calderon’s team to resolve this issue, and I’m hopeful that we can resolve it in an effective way,” Obama said after talks with Mexican President Felipe Calderon.

The Owner-Operator Independent Drivers Association expressed disappointment in Monday’s ruling by the appeals court, but said it has faith that Congress will continue to place a high priority on the safety and well-being of the American public. OOIDA contended the trucking pilot program had extended illegal de facto exemptions to safety laws while allowing Mexico-based trucking companies and truck drivers to operate on highways throughout the United States.

“Our hope had been the court would still rule on the merits of arguments and evidence showing the pilot program was in direct violation of U.S. laws and regulations,” said OOIDA Executive Vice President Todd Spencer. “However, we are confident that Congress will continue to put the American public’s safety and well-being above the economic interests of multinational corporations. Republicans and Democrats alike have voted during the last couple of years to uphold those values, and they should continue to do so.”

USDOT’s Office of Inspector General’s final report on the original cross-border program, released Feb. 6, echoed past remarks that it had insufficient participation to provide statistically reliable results to fully evaluate it. USDOT, which received the report in December, mostly concurred with DOT-OIG’s assessments.