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WASHINGTON — The Supreme Court may decide this week whether to enter the long-running dispute over the U.S. government’s decision to grant Mexican truckers greater access to U.S. roads in the wake of NAFTA. The Bush administration claims that environmental objections raised to its plans to lift restrictions on Mexican trucks interfere with the president’s powers in conducting foreign policy. At its private conference Dec. 12, the Supreme Court will consider whether to grant review in Department of Transportation v. Public Citizen, No. 03-358, along with dozens of other cases. The court’s action could be announced as soon as Dec. 15. As part of the North American Free Trade Agreement, signed by then-President Bill Clinton in 1993, the United States agreed to end its moratorium on Mexican trucks’ access to border-state roads by 1995. But Clinton allowed most aspects of the moratorium to continue beyond then, citing concerns about the safety of the trucks. Mexico protested, and in February 2001 a NAFTA arbitration panel found the United States in violation. President George W. Bush then announced his intention to comply with the NAFTA treaty and lift the moratorium. After continued squabbling over the issue with Congress, the Bush administration issued regulations that, among other things, called for U.S. inspections of the Mexican trucks. The consumer group Public Citizen, which opposed the NAFTA provision regarding Mexican trucks, went to court challenging the regulations, asserting that the government failed to make environmental impact assessments required by the National Environmental Policy Act and the Clean Air Act. Public Citizen was joined in its challenge by labor groups concerned about the loss of American trucking jobs that could result from the policy shift. In January 2003, a three-judge panel of the Ninth Circuit U.S. Court of Appeals ruled in favor of Public Citizen. “Although we agree with the importance of the United States’ compliance with its treaty obligations with its southern neighbor Mexico, such compliance cannot come at the cost of violating United States law,” Judge Kim Wardlaw wrote for the panel. A petition filed by Solicitor General Theodore Olson asks the high court to reverse the Ninth Circuit decision. “The president of the United States must be able to act quickly and with assurance to implement the decisions that are entrusted personally to him,” Olson wrote. The delay in implementing the ruling caused by the Ninth Circuit ruling is hampering relations with Mexico, which is threatening trade sanctions in response. Public Citizen is urging the high court not to accept the government appeal. “Despite petitioner’s attempt to convert this case into a foreign policy challenge, it concerns only the routine application of domestic environmental laws to federal agency action,” wrote Public Citizen lawyer Stephen Berzon of San Francisco’s Altshuler, Berzon, Nussbaum, Rubin & Demain. Berzon also noted that the government has already taken steps to comply with the Ninth Circuit ruling by preparing the required environmental impact statements. “The issue will soon resolve itself, and there is no need for the court to intervene,” he wrote. OTHER CASES UP FOR REVIEW • American Federation of Government Employees v. United States, No. 03-359. Constitutionality of a 2000 defense appropriations law that gives preference to Native American firms in defense contract work. • Republic of Austria v. Whiteman, No. 03-500. Whether the 1976 Foreign Sovereign Immunities Act applies retroactively to disputes over the seizure of Polish lands in World War II. • Enterprise Rent-A-Car Co. v. Advantage Rent-A-Car Inc., No. 03-536. State law remedies for trademark dilution. • F. Hoffmann-LaRoche Ltd. v. Empagran S.A., No. 03-724. Whether the Sherman Act allows antitrust claims seeking recovery for injuries when the transactions at issue occurred entirely in foreign countries. “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein represents the respondent in F. Hoffmann-LaRoche Ltd. v. Empagran S.A., No. 03-724. Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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