Sierra Club Foundation v. Department of Transportation

563 F.3d 897, 2009 U.S. App. LEXIS 8234, 2009 WL 1039863

Opinion

ORDER

Petitioners Sierra Club, et al., and Owner-Operator Independent Drivers Association petition this court for review of the notice of intent by the Federal Motor Carrier Safety Administration (“FMCSA”) to proceed with a pilot program to authorize up to 100 Mexico-domiciled earners to operate beyond the border zone. We dismiss because this petition is now moot.

While the petition was pending, Congress passed and the President signed into law the Omnibus Appropriations Act, 2009, Pub.L. 111-8, 123 Stat. 524. 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 this case.

Pursuant to § 136, the FMCSA has terminated the existing 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. Accordingly, the petition for review is moot.

DISMISSED.