Petition for Writ of Certiorari — Public Citizen v. United States Trade Representative

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93-560

No. 93- |

' i é\eh ‘i ii Gi RK

IN THE

Supreme Court of the Munited States

OCTOBER TERM, 1992

PUBLIC CITIZEN AND SIERRA CLUB,

Petitioners,

Vv.

OFFICE OF THE UNITED STATES

TRADE REPRESENTATIVE,

Respondent.

On Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

PATTI A. GOLDMAN

(COUNSEL OF RECORD)

ALAN B. MORRISON

PAUL R.Q. WOLFSON

PUBLIC CITIZEN LITIGATION

GROUP

2000 P Street, N.W., Suite 700

Washington, D.C. 20036

(202) 833-3000

Attorneys for Petitioners

QUESTION PRESENTED

Does the role of the President in signing a trade

agreement and submitting it to Congress for approval

preclude judicial review of an agency’s failure to comply

with the National Environmental Policy Act’s mandate that

the agency include an environmental impact statement in its

final recommendation to enter into the trade agreement, even

where the lawsuit does not challenge or seek any relief with

respect to the President’s decisions or actions concerning the

trade agreement?

PARTIES

In addition to Petitioners Public Citizen and Sierra

Club, Friends of the Earth was a respondent below.

ili

TABLE OF CONTENTS

QUESTION PRESENTED ................. i

a il

TABLE OF AUTHORITIES ................. Vv

a ec ot Obs eck l

Cs 2

ee 2

STATUTORY PROVISIONS ................ 2

STATEMENT OF THE CASE ............... 3

A. The Framework for Negotiating Trade

gee ee er et 3

B. er os ay aw +

S. The Prior Litigation. ............, 6

D CO eee 8

REASONS FOR GRANTING THE WRIT....... 1]

A. The Decision Below Is Contrary To

More Than Two Decades Of NEPA

Understanding And Practice By All

Three Branches Of Government. .... 12

1. Two Decades of Judicial Review. . 12

2. Executive Branch Practice. .... . 16

3. Congressional Understanding .... 17

B. Review is Necessary to Resolve the

Lower Courts’ Conflict in Applying

Franklin to Agencies’ Compliance with

their Independent Statutory

Ce cn gy 20

.. This Case Warrants Review Because

the Court of Appeals Misapplied

a ae ee La 25

eee er ee re eee ee 28

TABLE OF AUTHORITIES

CASES PAGE:

Abbott Laboratories vy. Gardner, 387 U.S. 136

SON hak we Oh Ss eee eh ee. 27

American School of Magnetic Healing v. McAnnulty,

Fer SCOP UUs 5% bo lee Pee 27

Andrus v. Sierra Club, 442 U.S. 347 (1979) . . 14, 16, 17

Bowen v. Michigan Academy of Family Physicians,

476 U.S. 667 (1986) ................. 27

California v. Bergland, 483 F. Supp. 465 (E.D.

A ee ee ere ees . 14

California v. Block, 690 F.2d 753

ees cas es are’. La ae 13, 14

Calvert Cliffs Coordinating Committee v. Atomic

Energy Commission, 449 F.2d 1109

Ce Ge EPP ee vo ie 18, 27

Chicago & Southern Air Lines, Inc. v. Waterman

Steamship Corporation, 333 U.S. 103 (1948) . . 21

Cohen v. Rice, 992 F.2d 376 (st Cir. | 22

Colorado Environmental Coalition vy. Lujan, 803

F. Supp. 364 (D. Col. 1992) ... 14, 22, 23, 26

Committee for Nuclear Responsibility v. § eaborg, 463

F.e Mee Oe. Ce. I. oo ok ee... 15

Concerned About Trident v. Rumsfeld, 555 F.2d 817

oe ae eae 15

Defenders of Wildlife v. Lujan, {!2 S. Ct. 2130

| SP ee eee earn oar rarer 13

Environmental Defense Fund v. Hardin, 428 F.2d 1093

an Ss SOE Ok 0 5 oe ee ee eee ee 26

Environmental Defense Fund v. Massey, 986 F.2d 528

8 ae A, rer eee rare 15

Environmental Defense Fund v. Ruckelshaus, 439 F.2d

ee en a Te ce en eee ase 26

Environmental Defense Fund v. Tennessee Valley

Authority, 468 F.2d 1164 (6th Cir. 1972) . 14, 17

Foundation on Economic Trends v. Lyng, 943 F.2d 79

Sain Ss ROOD os es + ae Oe ee 27

Franklin v. Massachusetts, 112 S. Ct. 2767 (1992) passim

Greenpeace USA v. Stone, 748 F. Supp. 749 (D. Haw.

1990), appeal dismissed as moot, 924 F.2d

tS Al.) rrr ene 15

Idaho Conservation League v. Mumma, 956 F.2d 1508

PEE ED gas 6 6 a eee 13, 14

Izaak Walton League v. Marsh, 655 F.2d 346

(D.C. Cir.), cert. denied, 454 U.S. 1092

SEE crag as hale seek ee a eae a ee 13

Kleppe v. Sierra Club, 427 U.S. 390 (1976) .... passim

Vii

NORML v. Department of State, 452 F. Supp. 1226

Rs SOE 6 6.w) ow 6-05 wale bse bbe te ah 15

Natural Resources Defense Council v. Lujan,

768 F. Supp. 870 (D.D.C. 1991) ...... 13, 14

No-Gwen Alliance, Inc. v. Aldridge, 855 F.2d 1380

Se Sew ae ol eee ae ts 15

People of Enewetak v. Laird, 353 F. Supp. 811

Sn MN SE 6 ooo 0 ow ee eo ae ots 15

Public Citizen v. Department of Justice, 491 U.S. 440

GF eo 0 8 so ae eer wild one ee 23

Public Citizen v. Office of the U.S. Trade Representa-

tive, 782 F. Supp. 139 (D.D.C. 1992) ....... 7

Public Citizen v. Office of the U.S. Trade Representa-

tive, 822 F. Supp. 21 (D.D.C. 1993) .... 2,8,9

Public Citizen v. Office of the U.S. Trade Representa-

tive, 970 F.2d 916 (D.C. Cir. 1992) ........8

Realty Income Trust v. Eckerd, 564 F.2d 447 (D.C.

eer ee ee eae: acer

Robertson v. Methow Valley Citizens Council,

Se Ws Ue CE 6 Ska ee eee ee 12

Romer v. Carlucci, 847 F.2d 445 (8th Cir. 1988) ... 15

Ryan v. Department of Justice, 617 F.2d 781

Gre. Ch Te hs cee wows atelal aaearets 24

Sierra Club v. Adams; , 578 F.2d 389 (D.C.

RE oa ee oe eT cee 15, 17

Vili

Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) ... 24

Specter v. Garrett, 995 F.2d 404 (3d Cir. 1993),

cert. pending, sub nom. Dalton v. Specter,

No. 93-289 (filed August 23, 1993)... 2, 11, 19,

aa, 24, ao ae

Trustees for Alaska v. Hodel, 806 F.2d 1378

CG. SU kc ee eke nk es wee a es 13, 14

U.S. ex rel. Kansas City Southern Railway Co. v.

Interstate Commerce Commission, 252

OR Me 2 Ber ee eae eer ee 27

Virginian Railway Co. v. System Federation No. 40,

» bk Bs.) eee ea re ere ae 27

Wisconsin v. Weinberger, 745 F.2d 412 (7th Cir.

Re a ae ba ee ek eS 15, 17

Work v. U.S. ex rel. Rives, 267 U.S. 175 (1925) .... 27

Youngstown Sheet & Tube Co. v. Sawyer,

ee ns ee OE gs ee a 0k eh 24

CONSTITUTIONAL PROVISIONS

U.S. Const. i SE Se) ee een aes 10, 18

REGULATIONS

CEM. oh Remar reantren 3

Core to... 3

og oe f rrr eer aren ara 3

Council on Environmental Quality Regulations:

GPC PR. GUIS on bb a We et es es 16

bos eS Fy ee es 16

ior ee saa ee eee 7

40 C.F.R. § 1508.18(b)(1) 2... 7

STATUTES AND EXECUTIVE ORDERS

we Um. OUR ok 6 eect 2

Fes AR fe ee ee ee g, 9

ee BE ke ea ee ee 27

Administrative Procedure Act,

P WA © 6 ho oe eee 26

WRK 2 de Std per eeren ea meee ee passim

gS oe | Se eae are aren Pee oe 26

Defense Base Closing & Realignment Act of 1990,

Pub. L. No. 101-510, 104 Stat. 1815 (1990). . 19

Dep't of Defense Appropriations Act of 1983, Pub.

L. No. 97-377, 96 Stat. 1847-48 (1982) ..... 19

Executive Order 11,991, 3 C.F.R. 123 (1977 Comp.) 16

Federal Advisory Committee Act, 5 U.S.C. App. 2 ..-23

Freedom of Information Act, 5 U.S.C. § 552 ...... 23

National Environmental Policy Act, 42 U.S.C.

a 2 ss 5 cla 8 4 ee oe Sl &3 2 passim

Pub. L. No. 103-49, 107 Stat. 239 (1993) ......... 4

Trade Acts,

Pe ees DOCTOR. oe eid a wee ere se eee

gh OF i | rer a eee 4

PP ns OS OR POET 650.4 04 eee eee

he Ue | eee ee ee ree 3

St ee BE ce ass wa cera tere oe ee 3, 4

Wilderness Act, 16 U.S.C. § 1132 ............ 14

MISCELLANEOUS

56 Fed. Reg. 32,454-55 (July 16, 1991) .......... 4

57 Fed. Reg. 43,603 (Sept. 21, 1992) ............-3

J. Jackson, The General Agreement on Tariffs & Trade

in U.S. Domestic Law, 66 Mich. L. Rev.

Fee Ss 86 15 Aer ee 3

Office of the U.S. Trade Representative, Review of

U.S.-Mexico Environmental Issues (1992) ... 4,5

North American Free Trade Agreement....... passim

IN THE

Supreme Court of the nited States

OCTOBER TERM, 1992

No. 93-

PUBLIC CITIZEN AND SIERRA CLUB,

Petitioners,

Vv.

OFFICE OF THE UNITED STATES TRADE

REPRESENTATIVE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

This case raises important issues concerning the

power of the federal courts to review a federal agency’s

refusal to comply with the National Environmental Policy

Act (“NEPA”), 42 U.S.C. § 4332(2)(C), with respect to

trade agreements, legislative proposals, and other agency

actions that require presidential involvement. Although there

is no serious dispute that NEPA’s plain language requires

that respondent prepare an environmental impact statement

(“EIS”) on the North American Free Trade Agreement

(“NAFTA”), the court of appeals ruled that the courts lack

the power to declare that respondent has violated its legal

obligation to comply with this requirement. The court

reached this result by extending this Court’s decision in

e, —

Franklin v. Massachusetts, 112 S. Ct. 2767 (2992), to

preclude a challenge to an agency’s failure to comply with an

independent statutory obligation, even though this lawsuit did

not ask the court to review or set aside the President’s

decision.

The decision below is not limited to NAFTA or even

to trade agreements generally, but rather would likely render

NEPA’s entire legislative EIS requirement judicially

unenforceable. In reaching this result, the court of appeals

disregarded more than two decades of NEPA jurisprudence,

Executive Branch practice, and congressional understanding.

Moreover, the result below is in conflict with the result in

Specter v. Garrett, 995 F.2d 404 (3d Cir. 1993), which the

government has asked this Court to review. Dalton v.

Specter, No. 93-289 (petition filed August 23, 1993).

Because of the court of appeals’ departure from well-settled

NEPA precedent and the confusion ~surrounding the

applicability of Franklin to actions seeking enforcement of

agencies’ independent statutory obligations, this Court should

review the decision below.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit, which has not yet been

reported, is reproduced at App. la-lla. The opinion and

order issued by the United States District Court for the

District of Columbia, which are reported at 822 F. Supp. 21,

are reproduced at App. 12a-32a.

JURISDICTION

The court of appeals’ judgment was issued on

September 24, 1993. This Court has jurisdiction pursuant to

28 U.S.C. § 1254()).

STATUTORY PROVISIONS

Pertinent provisions of the Administrative Procedure

Act, the National Environmental Policy Act, and the Council

on Environmental Quality regulations are set forth at App.

35a-39a.

STATEMENT OF THE CASE

A. The Framework for Negotiating

Trade Agreements.

Under Congress’s constitutional power to regulate

foreign commerce, Art. I, § 8, Congress could (and initially

did) establish trade policy by setting tariffs in statutes. J.

Jackson, The General Agreement on Tariffs & Trade in U.S.

Domestic Law, 66 Mich. L. Rev. 249, 255 (1967).

Alternatively, Congress could (as it eventually did) delegate

some of its foreign commerce powers to the Executive

Branch by authorizing it to set tariffs within certain limits

and to enter into international trade agreements, subject to

congressional approval.

The current Trade Acts delegate _ principal

responsibility for negotiating trade agreements to the

respondent Office of the U.S. Trade Representative

(“USTR”), whose top four officials are appointed as

ambassadors by the President with the advice and consent of

the Senate. 19 U.S.C. § 217i(b), (c)(1)(C), (c)(2) & (4).

The Office is statutorily charged not only with conducting

international trade negotiations, but also with developing and

coordinating the implementation of U.S. international trade

policy and imposing retaliatory trade sanctions on other

countries that violate trade agreements or impose unjustifiable

burdens on U.S. commerce. /d. §§ 2171(c)(1)(A),(C)-(D):

2411-2417> In light of its Statutory duties, the Office

recognizes that it is “an agency in the Executive Office of the

President.” 15 C.F.R. § 2001.1(a); see also id. pts. 2004 &

2005 (agency subject to the Freedom of Information Act and

Privacy Acts).

Under the Trade Acts, the President may set tariffs

under certain conditions, but trade agreements addressing

matters other than tariffs must be approved by both Houses

of Congress before they may become effective. 19 U.S.C.

§ 2903. If the President complies with certain congressional

notification and consultation requirements with respect to a

nontariff trade agreement entered into (i.e., signed) prior to

June 1, 1993, then the Trade Acts and congressional rules

require Congress to follow fast-track procedures that

prescribe tight time frames for congressional consideration of

the agreement. /d. §§ 2191-2194, 2902-2903; see also Pub.

L. No. 103-49, 107 Stat. 239 (1993) (extending fast-track

procedures to Uruguay Round negotiations under the General

Agreement on Tariffs and Trade, if President notifies

Congress of intent to enter into the agreement no later than

December 15, 1993, and the President signs that Agreement

before April 16, 1994). Specifically, if the President notifies

Congress at least 90 calendar days before he enters into a

trade agreement, then he may thereafter submit legislation

approving and implementing that agreement, which Congress

must adopt or reject within 90 legislative days. 19 U.S.C.

§§ 2191(c) & (e), 2903(a) (90 legislative days if revenue

measures are inciuded; 60 legislative days for other

implementing legislation). Under fast-track procedures, no

amendments may be made either to the trade agreement or to

its implementing legislation, legislative debate is limited to

20 hours in each House, and a prompt floor vote is assured.

Id. §§ 2191(d)-(g).

B. NAFTA.

In June 1991, the U.S. entered into trilateral

negotiations with Mexico and Canada to establish a North

American free trade zone. See 56 Fed. Reg. 32,454-55 (July

16, 1991). The Office of the U.S. Trade Representative

coordinated the U.S. position and represented the United

States in the negotiations.

In response to widespread concerns that a NAFTA

would have adverse environmental effects in the U.S.-

Mexican border area, and that it would make domestic health

and environmental standards vulnerable to challenge as unfair

trade barriers, the Office prepared both a draft and a final

Review of U.S.-Mexico Environmental Issues during the first

seven months of the NAFTA negotiations. That review

acknowledged that a NAFTA could have significant

environmental effects particularly in the border area, where

air and water quality already suffer from trade-induced

development. However, the review did not assess the

environmental effects of the final NAFTA or any other

particular draft of it, but rather highlighted generic

environmental issues arising in the negotiations. For this

reason, neither the Office nor anyone else has ever contended

that the review meets NEPA’s EIS requirements. .

In August 1992, the USTR and her counterparts

announced that they had reached a final agreement on

NAFTA, and in early September, the Office released a text

of that Agreement to Congress and the public. On

September 18, 1992, the President Officially notified

Congress of his intent to sign NAFTA, thereby commencing

the 90-day waiting period under the fast-track procedures.

57 Fed. Reg. 43,603 (Sept. 21, 1992). On October 7, 1992,

the USTR and her counterparts initialed the final NAFTA

text, and President Bush signed that Agreement on December

17, 1992.

Since taking office, President Clinton has indicated

that he will seek approval of NAFTA in its current form

upon the negotiation of certain supplemental agreements,

which have now been concluded. Although one of the

supplemental agreements concerns enforcement of domestic

environmental laws and enhancement of environmental

protection and cooperation among the NAFTA countries, it

does not change NAFTA itself in any respect. Thus, the

President has not provided Congress with another 90-day

notice for the supplemental agreements, nor does he intend

to do so. Because the President has not yet submitted

NAFTA and its implementing legislation to Congress, the 90

legislative-day period for congressional consideration has not

begun. }

The final NAFTA is a comprehensive trade agreement

that establishes principles and rules that will govern North

American trade. It will have a number of significant

environmental effects. First, NAFTA will likely lead to

additional development in northern Mexico, which will have

adverse environmental effects on both sides of the border.

Second, it will increase trade-related truck and other land

transportation, which will increase air pollution in all three

countries. Third, NAFTA establishes rules for evaluating

whether domestic food safety and other health and

environmental standards impose impermissible trade barriers.

NAFTA Ch. 7, subch. B & Ch. 9. If NAFTA is approved,

then the U.S. will be obligated, as a matter of international

law, to bring its laws and regulations into conformity with

NAFTA. If it fails to do so, then another country may

challenge that failure under NAFTA’s dispute settlement

procedures, and may be authorized to impose trade sanctions

against the U.S., thereby creating enormous political pressure

to change the offending measure. Ch. 20. Depending on the

precise meaning of NAFTA’s standards provisions, NAFTA

may jeopardize a broad range of domestic measures, such as

recycling requirements, fuel economy rules, automobile

emission standards, pesticide residue bans, and restrictions on

the transportation of hazardous materials. Fourth, by

reducing tariffs and other trade barriers in some economic

sectors but not others, NAFTA creates incentives for certain

types of development, which will, in turn, have significant

environmental impacts. For example, NAFTA’s energy

chapter expressly permits incentives for oil and gas

exploration, but not for renewable energy or energy

efficiency, which will increase development of nonrenewable

energy sources in all three countries. Art. 608(1).

C. The Prior Litigation.

Because of their concerns that the Office was not

properly considering environmental issues in the NAFTA

negotiations, as well as in the still-ongoing Uruguay Round

of negotiations under the General Agreement on Tariffs and

Trade (“GATT”), petitioners made a written demand to the

Office in July 1991 for preparation of EISs on the two

agreements. The National Environmental Policy Act requires

all federal agencies to include EISs in “every

recommendation or report on proposals for legislation or

other major federal actions significantly affecting the quality

of the human environment.” 42 U.S.C. § 4332(2)(C). The

binding regulations issued by the Council on Environmental

| Quality (“CEQ”) define “federal actions” to include “treaties

| and international conventions or agreements” and “proposals

| for legislation” to include “requests for ratification of

treaties.” 40 C.F.R. §§ 1508.17, 1508.18(b)(1). Despite

the fact that federal agencies had prepared EISs on treaties

and international agreements under every President since

NEPA became effective in 1970, ranging from the Panama

Canal Treaty to the Montreal Protocol on Substances that

Deplete the Ozone Layer to the Micronesian Compact of

Free Association, the Office had not begun preparation of

EISs on NAFTA or the Uruguay Round. !

In August, 1991, after the Office made it clear that it

had no intention of preparing such EISs, petitioners filed a

lawsuit so that the Office would have sufficient time to

prepare the EISs in response to a court order. In the district

court, the Office admitted that it had never prepared an EIS

on a trade agreement and that it would not prepare EISs on

either NAFTA or the Uruguay Round, based on its belief

that NEPA is inapplicable to trade agreements, no matter

how significant their environmental effects. The district

court dismissed the case on the grounds that, because neither

NAFTA nor the Uruguay Round had yet been finally

concluded, petitioners had not linked the effects of specific

trade agreements to their members, and the controversy was

not ripe. 782 F. Supp. 139, 142-43 (D.D.C. 1992).

‘Petitioners filed 19 such EISs as exhibits, and cited to

several others.

On August 7, 1992, the court of appeals affirmed the

dismissal of the complaint without reaching the standing issue

or the merits. The court held that petitioners had failed to

identify a final action that could be challenged under the

Administrative Procedure Act (“APA”), since neither trade

agreement had yet been concluded. 970 F.2d 916 (1992).

The thrust of the court’s opinion was that petitioners were

too early in making their challenge, not that they would

never be able to obtain judicial review of the Office’s

noncompliance with NEPA with respect to a final trade

agreement.

D. This Litigation.

After the Office announced that it had reached a final

NAFTA agreement and provided the NAFTA text to

Congress, petitioners brought this lawsuit, under 28 U.S.C.

§ 1331, seeking a declaration that the Office had violated

NEPA by failing to prepare an EIS on NAFTA and an order

directing the Office to prepare such an EIS. _ In this

litigation, petitioners did not, in any way, challenge the

validity of NAFTA itself, or the President’s decision to sign

NAFTA. Nor did they seek to prevent the submission of

NAFTA to Congress or Congress’s consideration or approval

of the Agreement.

On June 30, 1993, the District Court for the District

of Columbia ruled in petitioners’ favor, holding that “the

plain language of the NEPA makes it a foregone conclusion

that the [Office] must prepare an EIS on the NAFTA.” App.

28a. Unlike the prior litigation, the court found the case

appropriate for review because NAFTA had been finalized.

App. 16a-17a. Addressing the government’s argument that,

under this Court’s decision in Franklin v. Massachusetts, 112

S. Ct. 2767 (1992), this case challenged actions of the

President, not the Office, the court examined NEPA, the

CEQ regulations, and the case law. App. 18a-2la. Under

these authorities, the district court concluded that the Office’s

failure to prepare an EIS on the NAFTA is reviewable under

maaan

the APA because the Office “is charged by statute with the

responsibility for conducting international trade

negotiations,” and, “in substantial part, negotiated and

drafted the NAFTA,” even though the President signed it and

will submit it to Congress for approval. App. 18a.’

Based on this opinion, the court issued a declaratory

judgment that the Office must prepare an EIS on NAFTA

and ordered the Office to prepare one forthwith. App. 33a-

34a. It did not require that the EIS be prepared prior to the

submission of NAFTA to Congress for approval, nor did it

issue any injunctive relief forbidding the President from

submitting NAFTA, or Congress from considering and

approving it, without an EIS.

On September 24, 1993, without addressing the

merits, standing, or the Office’s separation of powers

arguments, the court of appeals, relying exciusively on

Franklin, reversed the district court’s decision on the ground

that “NAFTA is not ‘final agency action’ under the APA...

and therefore is not reviewable by this court.” App. 3a.

According to the court, because only the President has the

power to enter into NAFTA and to submit it to Congress for

approval, NAFTA’s effects are derived from the President’s

actions, and thus, under Franklin, no agency actions relating

to the NAFTA may be challenged under the APA. App. 6a.

In responding to petiticners’ contention that extending

Franklin to this case would spell the death knell for judicial

review of legislative EIS cases, the majority claimed that

’The district court also rejected the Office’s other

arguments that the fast-track procedures relieve the Office of

its NEPA obligations, App. 30a n.15, that NEPA’s

legislative EIS requirement violates the doctrine of separation

of powers, App. 21a-22a, and, despite the extensive

demonstration of harm in petitioners’ lengthy affidavits and

supporting exhibits, that petitioners lacked Standing. App.

23a-28a.

review would be unavailable only where “the President has

final constitutional or statutory responsibility for the final

step necessary for the agency action directly to affect the

parties.” App. 7a. However, because the President has the

constitutional power to submit legislation to Congress on

behalf of the Executive Branch, see U.S. Const. art. II, § 3,

cl. 1, it appears likely that no legislative EISs would ever be

judicially reviewable under the decision below.

Judge Randolph filed a concurring opinion, suggesting

that, if language in Franklin is taken literally, there would

still be no final agency action subject to review even where

an agency (as opposed to the President) submits a legislative

proposal directly to Congress. App. 9a-10a. In Judge

Randolph's view, such a legislative proposal would not affect

the parties until Congress enacted a bill embodying the

proposal, and the President signed it. App. 10a. However,

he noted the conflict between that result and Kleppe v. Sierra

Club, 427 U.S. 390, 406 n.15 (1976), in which this Court

identified “‘the time at which a court enters the process’ to

be ‘when the report or recommendation on the proposal is

made, and someone protests either the absence or the

adequacy of the final impact statement.’” App. lla.

Elaborating on this tension, Judge Randolph observed:

The nub of the problem is that judicial review

under the APA demands “final agency action”

Whereas the duty to prepare an impact

Statement arises earlier. The main objective

Of an impact statement is to ensure that the

decisionmaker considers environmental effects

prior to taking action.

Id. He concluded by noting that the courts would ultimately

need to reconcile “Franklin's direct-effects-on-the-parties

test, aS applied to NEPA suits . . . with the portion of

Kleppe v. Sierra Club” identifying the appropriate time for

judicial review in NEPA cases. /d. This petition seeks such

a reconciliation.

I )

Although the President has not yet submitted NAFTA

to Congress, it is possible that he will do so and that

Congress will act before this case is finally resolved.

However, such congressional action would not render this

case moot because it raises the threshold question of whether

NEPA’s EIS requirement applies at all to trade agreements.

The court of appeals’ decision effectively closes the gate to

judicial resolution of that issue until this Court decides the

effect of Franklin on reviewability of this type of EIS case.

Moreover, because there is a limited time within which

challenges can be brought to NEPA compliance on trade

agreements, it is unlikely that this issue will ever be

completely resolved by the courts with respect to a completed

trade agreement before Congress acts on the agreement. For

these reasons, even if this controversy becomes moot with

respect to NAFTA, it would be capable of repetition yet

evading review for the Uruguay Round (on which petitioners

have already sued and still seek an EIS) and other future

trade agreements.

REASONS FOR GRANTING THE WRIT

This Court should review the court of appeals’

decision for three related reasons. First, the court of

appeals’ extension of Franklin to preclude judicial review of

an agency’s NEPA compliance runs counter to more than two

decades of federal court precedent, Executive Branch

practice, and congressional understanding of judicial review

under NEPA. Second, this Court’s review is needed to

clarify the lower courts’ confusion in applying Franklin to

agencies’ violations of their independent procedural

obligations. More specifically, this decision conflicts with

the Third Circuit’s decision in Specter v. Garrett, 995 F.2d

404 (1993), allowing judicial review of agencies’ procedural

violations in connection with the President’s base closing

decisions, which the government has asked this Court to

review. Dalton v. Specter, No. 93-289 (filed August 23,

1993). Third, the court of appeals misapplied Franklin to

preclude challenges to an agency's failure to comply with its

independent statutory obligations, where that failure is not

being used to challenge any presidential action.

A. The Decision Below Is Contrary To

More Than Two Decades Of NEPA

Understanding And Practice By All

Three Branches Of Government.

This case warrants Supreme Court review because the

court of appeals’ decision runs directly counter to the three

branches’ longstanding understanding of judicial review of

NEPA compliance with respect to legislative EISs and

unsettles federal agencies’ and the courts’ obligations under

NEPA.

1. Two Decades of Judicial Review. The decision

below conflicts with two decades of judicial review under

NEPA. For more than two decades, the federal courts have

consistently construed NEPA to allow judicial review of EISs

in connection with both major federal actions and legislative

proposals, regardless of whether the underlying action

involves presidential authority. They have done so under the

logic of one of this Court’s early NEPA decisions -- Kleppe

v. Sierra Club, 427 U.S. 390, 406 n.15 (1976), which

established that the time for judicial intervention is “when the

report or recommendation on the proposal is made, and

someone protests either the absence or the adequacy of the

final impact statement.” This Court focused on the agency’s

actions in issuing its report or recommendation, and

acknowledged that both the obligation and judicial review

arise at the proposal stage, rather than when the proposal

becomes effective or adversely affects the parties. Since

Kleppe. an agency’s failure to issue an EIS with its report or

recommendation has consistently been considered sufficiently

final to be reviewable under the APA, even where some

other step must be taken before the action will directly injure

the plaintiffs. See, e.g., Robertson v. Methow Valley

Citizens Council, 490 U.S. 332 (1989) (Court reviewed

NEPA compliance with respect to agency permit for

development even though agency had to approve a

subsequent development plan before construction could

begin); see also Defenders of Wildlife v. Lujan, 112 S. Ct.

2130, 2142-43 n.7 (1992) (dicta) (person living adjacent to

proposed dam site has standing to challenge licensing

agency’s failure to prepare EIS, “even though he cannot

establish with any certainty that the Statement will cause the

license to be withheld or altered, and even though the dam

will not be completed for many years”).

Until now, the courts have not carved out an

exception for legislative EISs. Instead, they have recognized

that “NEPA establishes the environmental impact statement

requirement for proposals for legislation in part to ensure that

the public has an opportunity to participate meaningfully in

decisionmaking at the administrative and legislative levels,”

and not simply to serve as a legislative aid. Izaak Walton

League v. Marsh, 655 F.2d 346, 365 (D.C. Cir.), cert.

denied, 454 U.S. 1092 (1981). Accordingly, federal courts

have reviewed challenges to agencies’ compliance with

NEPA’s legislative EIS requirement once the agencies have

made their recommendations on the legislative proposal, even

though Congress may change the proposal or choose not to

enact it. See, e.g., id.; Realty Income Trust v. Eckerd, 564

F.2d 447 (D.C. Cir. 1977); Natural Resources Defense

Council v. Lujan, 768 F. Supp. 870 (D.D.C. 1991). Indeed,

in one case, tiz Ninth Circuit reviewed a challenge to the

adequacy of the agency’s announced procedure for issuing a

legislative EIS before the agency issued its legislative

proposal. Trustees for Alaska v. Hodel, 806 F.2d 1378 (9th

Cir. 1986) (judicial review of agency’s plan to release

legislative EIS without first obtaining public comment

granted before agency issued legislative proposal or EIS).

Similarly, the courts have entertained NEPA cases

concerning federal agencies’ recommendations for legislative

designations of areas to be accorded wilderness protection,

even though Congress must pass a law affording that

protection. Idaho Conservation League «» Mumma, 956 F.2d

1508 (9th Cir. 1992); California v. Bergland, 483 F. Supp.

465 (E.D. Calif. 1980), modified, California v. Block, 690

F.2d 753 (9th Cir. 1982); Colorado Environmental Coalition

v. Lujan, 803 F. Supp. 364 (D. Col. 1992). In some of

these cases, including one decided after Franklin, the

pertinent statute required the agency to give its

recommendation to the President who had the sole authority

to submit proposed wilderness designations to Congress.

Wilderness Act, 16 U.S.C. § 1132(b)-(e); California v.

Block, supra; Colorado Environmental Coalition, supra.

Even where the President actually modified the agency’s

proposal before submitting it to Congress, the President’s

intervening role did not render the NEPA claim

unreviewable. California v. Bergland, 483 F. Supp. at 472;

California v. Block, 690 F.2d at 758. Moreover, the courts

have reviewed agencies’ compliance with procedures

prescribed in the CEQ regulations for EISs on statutorily

mandated agency reports to Congress, even though Congress

must take some action before the recommendations contained

in the reports are implemented. Trustees for Alaska, supra;

NRDC v. Lujan, supra.

Irn a subset of legislative EIS cases concerning

appropriation requests, several lawsuits wound their way

through the federal courts (including this Court) without any

suggestion that the courts lacked authority to decide them.

Andrus v. Sierra Club, 442 U.S. 347 (1979); Environmental

Defense Fund y. Tennessee Valley Authority, 468 F.2d 1164

(6th Cir. 1972). Those cases raised the question of whether

NEPA requires agencies to prepare legislative EISs on their

appropriation requests, which are, under the Constitution and

aS a matter of practice, submitted to Congress by the

President. Although Andrus ultimately held that NEPA does

not apply to appropriation requests, this Court never

questioned its jurisdiction to reach this conclusion because

the lawsuit challenged only the agency’s NEPA compliance,

not the President’s budget.

Courts have also considered the merits of challenges

to agencies’ NEPA compliance, even where the underlying

action concerned military decisions or matters undertaken

pursuant to international agreements.’ Although these

military and foreign affairs actions fall under the President’s

*See, e.g., Environmental Defense Fund v. Massey, 986

F.2d 528 (D.C. Cir. 1993) (failure to prepare EIS on

incinerator in Antarctica); No-Gwen Alliance, Inc. Vv.

Aldridge, 855 F.2d 1380 (9th Cir. 1988) (adequacy of EIS on

emergency network of radio towers); Romer v. Carlucci, 847

F.2d 445 (8th Cir. 1988) (en banc) (adequacy of EIS on

deployment of MX missiles pursuant to presidential basing

recommendation approved by Congress); Wisconsin vy.

Weinberger, 745 F.2d 412 (7th Cir. 1984) (agency’s failure

to prepare supplemental EIS on submarine communications

system President decided to deploy); Sierra Club v. Adams;

578 F.2d 389 (D.C. Cir. 1978) (adequacy of EIS on U.S.

participation in construction of Pan American highway

pursuant to international agreement); Concerned About

Trident v. Rumsfeld, 555 F.2d 817 (D.C. Cir. 1977)

(adequacy of EIS on atomic missile submarine system);

Greenpeace USA v. Stone, 748 F. Supp. 749 (D. Haw.

1990), appeal dismissed as moot, 924 F.2d 175 (9th Cir.

1991) (failure to prepare EIS on removal of chemical

weapons from Germany pursuant to presidential agreement,

although EIS prepared on weapons’ destruction and

environmental analysis done on their transport on high seas);

NORML vy. Department of State, 452 F. Supp. 1226 (D.D.C.

1978) (failure to do EIS on U.S. effects of U.S. participation

in Mexican herbicide spraying program); People of Enewetak

v. Laird, 353 F. Supp. 811 (D. Hawaii 1973) (failure to

prepare EIS on nuclear test program); see also Committee for

Nuclear Responsibility v. Seaborg, 463 F.2d 796 (D.C. Cir.

1971) (court had jurisdiction to decide adequacy of EIS on

underground nuclear test, but refused to do so on an

expedited basis).

commander-in-chief or foreign affairs authority, and, in

many situations, the President actually made the underlying

decision, the courts have reviewed challenges to the agency’s

compliance with NEPA in connection with its role leading up

to or implementing the President’s decision.

2. Executive Branch Practice. The court of appeals’

decision also defies two decades of Executive Branch practice

of applying NEPA to agency recommendations on matters

within the President’s decisionmaking authority. Most

significantly, while the CEQ regulations exclude the

President from NEPA, they do not exclude all actions in

which the President has a role. 40 C.F.R. § 1508.12. To

the contrary, the CEQ regulations expressly include “treaties

and international conventions or agreements” in the list of

major federal actions subject to NEPA’s EIS requirement, id.

§ 1508.18(b)(1), and specifically state that “[p]roposals for

legislation include requests for ratification of treaties.” Jd. §

1508.17. Furthermore, the CEQ regulations envision that

judicial review of agency compliance with those regulations,

which petitioners sought in their complaint, would be

available once the agency has either filed a final EIS or made

a final decision not to do so, as the Office has done with

respect to NAFTA. /d. § 1500.3.‘

The CEQ has further reinforced the applicability of

NEPA to legislative EISs in its identification of the agency

action that triggers the legislative EIS requirement:

“Executive Order 11,991, § 2(q), 3 C.F.R. 123 (1977

Comp.), expressly directs federal agencies to comply with

the CEQ regulations except where compliance would be

inconsistent with statutory requirements, and the CEQ

regulations themselves state that they are binding on all

federal agencies. 40 C.F.R. § 1500.3. This Court has

Stated that the CEQ regulations are “entitled to substantial

deference.” Andrus v. Sierra Club, 442 U.S. at 358.

_———————————

“Legislation” includes a bill or legislative

proposal to Congress developed by or with the

significant cooperation and support of a

Federal agency .... The test for significant

| cooperation is whether the proposal is in fact

| predominantly that of the agency rather than

another source. Drafting does not by itself

constitute significant cooperation.

Id. § 1508.17 (emphasis added). Thus, under the CEQ

regulations, the focus is not on the act of submitting the

legislative proposal to Congress, but on the development of

that proposal. Where an agency lends the requisite

“significant cooperation and support” to the development of

a legislative proposal, the CEQ regulations obligate it to

prepare a legislative EIS, and, under the CEQ regulations,

the agency can be sued if it fails to do so. Jd. § 1500.3.

Indeed, in many court challenges to federal agencies’

compliance with NEPA regarding legislative-type EISs, the

Executive Branch has not even questioned the federal courts’

power to hear the chailenges. See Andrus, supra; EDF v.

TVA, supra; Realty Income, supra. Similarly, in cases

concerning EISs on military and foreign affairs matters that

could be said to fall within the President’s constitutional

authority, the government generally submits to the

jurisdiction of the courts, even where the President plays a

direct role in the underlying action. See, e.g., Wisconsin v.

Weinberger, supra; Sierra Club v. Adams, supra.

3. Congressional Understanding. Although

preclusion of judicial review is a question of congressional

intent, the court of appeals held that judicial review is

precluded in NEPA cases in which the President has a role

in the underlying action, even though nothing in NEPA

provides the slightest hint that Congress intended to have the

courts accord different treatment to different categories of

EISs. To the contrary, NEPA’s language and two decades

of congressional treatment of NEPA suggests that Congress

never intended to create such an exception to judicial review.

To begin with, NEPA imposes nondiscretionary duties

on federal agencies of the sort that have traditionally been

subject to judicial review. Thus, NEPA requires all federal

agencies to include an EIS “in every recommendation or

report on proposals for legislation and other major federal

actions significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(2)(C). On its face, this

provision imposes a mandatory obligation on federal agencies

te prepare EISs on actions that come within its terms. See

Calvert Cliffs Coordinating Committee v. Atomic Energy

Commission, 449 F.2d 1109 (D.C. Cir. 1971). Since

Congress drafted NEPA with the knowledge that the APA

enables federal courts to hear challenges to an agency's

violation of such mandatory obligations, judicial review is

available in the absence of a clear congressional intent to the

contrary.

Moreover, NEPA makes no distinction among

agencies’ EIS obligations, depending on whether they relate

to actions that an agency may take without legislation or to

legislative proposals. NEPA’s plain language, which begins

with the legislative EIS requirement, reveals that Congress

plainly anticipated that agencies would prepare EISs when

they develop reports or recommendations on legislative

proposals. Congress obviously knew that the President has

the constitutional authority to recommend legislation, U.S.

Const. art. II, § 3, cl. 1, yet it imposed the legislative EIS

requirement on the agencies that develop and make reports

and recommendations on legislation. By imposing this

requirement on agencies, whose actions may be reviewed

- under the APA, NEPA’s plain language provides evidence of

congressional intent to allow judicial review of an agency’s

violations of NEPA in connection not only with major federal

actions, but also with respect to legislative proposals.

This understanding is confirmed by Congress’s

express, but limited, exemptions from NEPA of certain

actions in which the President has a role. For example,

Congress has enacted NEPA exemptions for base closing

decisions, which are, by statute, made by the President, as

well as for a statutorily mandated presidential report to

Congress recommending a particular MX missile basing

system. See, e.g., Defense Base Closing & Realignment Act

of 1990, Pub. L. No. 101-510, § 2905(c), 104 Stat. 1815

(1990) (base closing decisions); Dep’t of Defense

Appropriations Act of 1983, Pub. L. No. 97-377, 96 Stat.

1847-48 (1982) (MX missile basing systems). These

exemptions would be wholly unnecessary if the court of

appeals were correct in concluding that the President's

decisionmaking authority eviscerated the power of the courts

to enforce an agency’s NEPA’s obligations, but obviously

Congress did not see it that way. Indeed, the Solicitor

General recently conceded that Congress expressly exempted

base closing decisions from NEPA, while allowing NEPA

challenges to implementation of those decisions, because “it

was necessary for Congress to draw an explicit line between

permissible and prohibited NEPA suits.” Government’s

Petition for a Writ of Certiorari in Dalton vy. Specter, No.

93-289, at 25 n.20 (filed August 23, 1993).

= = =

For the past 23 years, the courts, consistent with

congressional intent and Executive Branch practice, have

entertained NEPA challenges to agency recommendations on

matters on which the President has the final decisionmaking

authority. In doing so, they have followed the plain language

of NEPA requiring agencies to include EISs in their

recommendations on major federal actions and on legislative

proposals and the heretofore unquestioned tenet of Kleppe,

427 U.S. at 406 -- that courts may review an agency’s failure

to include an adequate EIS in its recommendation on such a

proposal. The fact that the President may have ultimate

constitutional authority over the action, or may have some

further action to take, has never precluded such review.

In holding that judicial review is precluded even

where the agency has taken the steps laid out in Kleppe for

bringing APA challenges, the court of appeals’ decision

sharply diverges from Kleppe and the longstanding practice

under it. Not only does this decision defy more than two

decades of NEPA practice and jurisprudence, but it

effectively nullifies judicial review of NEPA’s legislative EIS

requirement and, quite possibly, of NEPA cases involving

presidential decisions in other contexts. As Judge Randolph

acknowledged in his concurrence, the inconsistency between

Kleppe and the application of Franklin below needs to be

reconciled, App. Ila, which can only be done by this Court.

B. Review is Necessary to Resolve the

Lower Courts’ Conflict in Applying

Franklin to Agencies’ Compliance

with their Independent Statutory

Obligations.

Review is also needed because the lower courts have

reached inconsistent results in applying Franklin to challenges

to agencies’ violations of their procedural obligations in

connection with matters in which the President has some

involvement.

The pertinent portion of Franklin addressed the State

of Massachusetts’s attempt to have the President’s census

calculations set aside on the grounds that the Secretary of

Commerce's report, on which those calculations were based,

was arbitrary and capricious in violation of the APA. This

Court concluded that, under the applicable census statute, the

President had the final decisionmaking authority with respect

to the decennial census calculations that he transmitted to

Congress, and that the Secretary of Commerce simply made

a recommendation to him. On that basis, and because the

Court held that the President is not an agency subject to APA

review, the Court held that Massachusetts could not obtain

APA review of the census calculations. 112 S. Ct. at 2773-

76.

The analogous challenge here would be to the

President’s statutory and constitutional role in deciding

whether to enter into trade negotiations, to sign a particular

trade agreement, or to submit such an agreement to Congress

for approval. Under Franklin, these presidential decisions

are not subject to judicial review under the APA. That

application of Franklin is neither new nor controversial.

~ Similarly, to the extent that Franklin stands for the

proposition that the APA provides no basis for obtaining

substantive review of advice given by agencies to the

President, it hardly revolutionizes the legal landscape. More

than forty years ago, this Court held in Chicago & Southern

Air Lines, Inc. v. Waterman Steamship Corporation, 333

U.S. 103 (1948), that a federal statute authorizing judicial

review of agency orders did not permit judicial review in

those situations in which the President had unreviewable

discretion to make the final determination. As such, what

amounted to no more than the agency’s recommendations to

the President could not be challenged as a means to set aside

the President's ultimate determination.

Although Franklin itself does not revolutionize APA

review, it has been applied inconsistently by the lower courts

to challenges to agencies’ violations of Statutory procedures

imposed on them (not the President) where the President has

the ultimate decisional authority. Thus, the courts of appeals

are divided on the question of whether the President’s base

closing decisions may be challenged because of procedural

irregularities in the agency proceedings leading to agency

recommendations on which the President relied in making his

decisions. The courts of appeals have uniformly held that the

courts may not embark on substantive review of the

President’s decision to approve or disapprove the base

closing recommendations made by the Defense Base Closure

and Realignment Commission, nor may they review the

merits of the base closing recommendations made by the

Commission or by the Secretary of Defense. However, they

are divided on the issue of whether Congress intended to

preclude judicial review of noncompliance by the Secretary

or the Commission with certain procedural - obligations

imposed by statute, namely that (1) the Secretary failed to

transmit to the Commission and the General Accounting

Office all the information used by him in making his

recommendation, and (2) the Commission held some private

meetings that should have been conducted as public hearings

under the Act. In Cohen v. Rice, 992 F.2d 376 (1993), the

First Circuit held that APA review was unavailable under

Franklin, while in Specter v. Garrett, 995 F.2d 404 (1993),

the Third Circuit held that review was available. The

government has asked this Court to review the Specter

decision to resolve the conflict. Dalton v. Specter, No. 93-

289 (filed August 23, 1993).

The two cases considering whether judicial review of

legislative-type EIS cases is available under Franklin have

also reached conflicting results. Thus, in direct conflict with

the decision below, Colorado Environmental Coalition v.

Lujan, 803 F. Supp. 364, 370 (D. Colo. 1992), held that an

agency’s refusal to prepare a supplemental EIS on its

wilderness designations is judicially reviewable, even though

the President is charged by statute with submitting wilderness

designations to Congress, which may differ from the

agency’s proposal, and Congress must pass a law affording

such protection. Even the court of appeals’ judges in this

case could not agree on the effect of their ruling on future

NEPA challenges. Thus, while the majority suggested that

some legislative EIS cases could still be reviewed in the

courts, App. 7a-8a, the concurrence suggested that Franklin

marked the death knell for judicial review of all legislative

EIS challenges. App.9a-10a.

Even if this Court hears Specter, it should also review

this case because there is a critical distinction between this

case and the base closing challenges. In the base closing

cases, the plaintiffs are seeking to set aside the President's

base closing decisions based on the agencies’ violations of

procedural requirements in making their recommendations to

the President. In contrast, petitioners are not asking the

courts to review, set aside, or otherwise issue any relief with

respect to the President’s decisions to negotiate the NAFTA,

sign it, or submit it to Congress for approval. Rather,

petitioners seek a declaration that a federal agency (the

Office) has an obligation to comply with a statute that

imposes independent obligations on the agency to prepare an

EIS. Indeed, in the only other NEPA case addressing the

effect of Franklin on judicial review of legislative-type EIS

cases, Colorado Environmental Coalition, 803 F. Supp. at

370, the court highlighted the fact that the plaintiffs sought

no relief against the President.

This case is analogous to a claim under the Federal

Advisory Committee Act (“FACA”), 5 U.S.C. App. 2, that

a closed meeting dealing with NAFTA should be open, or to

a lawsuit seeking access under the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552, to documents about

NAFTA. Judicial review in those cases would not be

precluded simply because the President has the authority to

decide whether to enter into NAFTA or to seek congressional

approval of it. This is because the Office’s obligations under

FACA and FOIA, like NEPA, are independent of the

President's role in entering into or submitting NAFTA to

Congress, in contrast to the challenged action of the

Secretary of Commerce in Franklin, which was part and

parcel of the President’s decision regarding the census data.

Indeed, if the decision below correctly applies Franklin, then

this Court would never have had to reach the difficult

Statutory and constitutional issues in Public Citizen v.

Department of Justice, 491 U.S. 440 (1989), where the

plaintiffs sought to compel the Department of Justice to

comply with certain procedures in obtaining advice on

judicial nominees. No one suggested that the President’s

constitutional role in nominating federal judges eliminated

judicial review of the agency’s compliance with independent

Statutory obligations in utilizing a federal advisory,

committee, yet that is the logic of the court of appeals

application of Franklin. °

Thus, if the census statute had required the Secretary

of Commerce to prepare a public census report as part of his

advice to the President, and the Secretary failed to do so,

surely the courts could, under the APA, review a challenge

to the Secretary’s violation of such a statute. Similarly, a

member of the public who wanted to attend a hearing of the

base closing commission could bring a lawsuit under the

APA challenging the announced plan to close a hearing

required to be open under the base closing statute. The

difference between these hypotheticals and the challenges in

Franklin and Specter is that the litigants would be seeking to

enforce an independent obligation imposed by statute on the

agency rather than trying to set aside a presidential action

based on the agency’s procedural irregularity. As Justice

Scalia emphasized in his concurrence in Franklin, although

the courts may rarely issue relief that runs directly against

the President, they may still review agency actions

implementing presidential decisions, Franklin, 112 S. Ct. at

2790 (Scalia, J., concurring in part, and concurring in

judgment); see Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952), and there is no reason why an agency’s

compliance with its independent statutory obligations should

stand on a different footing.

*While the FOIA contains its own judicial review

provision and hence is not subject to the APA’s “final agency

action” requirement, it is inconceivable that Congress

intended to make FOIA claims connected to presidential

actions reviewable, but not comparable NEPA or FACA

claims. Indeed, the courts have rejected the related

contention that agencies are exempt from FOIA when they

prepare records at the President’s direction, or to assist the

President in carrying out his functions. Ryan v. Department

of Justice, 617 F.2d 781 (D.C. Cir. 1980); Soucie v. David,

448 F.2d 1067 (D.C. Cir. 1971).

Nonetheless, while the result below differs from that

reached in Specter, there may be reasons (not relied on by

the Third Circuit) for finding that Congress intended to

preclude challenges to the President’s base closing decisions

that do not apply here. Thus, even if this Court hears

Specter and decides that procedural irregularities in the

agencies’ proceedings cannot be the basis for setting aside the

President’s decisions, review of agencies’ violations of their

independent statutory obligations should still be available, as

long as the relief sought is directed solely to obtaining

compliance with those obligations, and not to upsetting the

President’s decision. Since this case seeks neither to set

aside the President's decision to sign NAFTA, nor to prevent

the President from transmitting NAFTA to Congress,

Franklin does not preclude challenges to the Office’s refusal

to prepare an EIS, simply because that refusal is connected

to a matter on which the President has final decisional

authority. For that reason, this Court should grant the writ

and hear arguments in this case at the same time as Specter,

if it also decides to hear that case.

C. This Case Warrants’ Review

Because the Court of Appeals

Misapplied Franklin.

The court of appeals erroneously concluded that “the

‘final agency action’ challenged in this case is the submission

of NAFTA to Congress by the President.” App. 8a; see also

at App. 3a (“we conclude that NAFTA is not ‘final agency

action’”). This characterization of the challenged action is

wrong because petitioners are not challenging the NAFTA

itself or the President’s decision to submit it to Congress.

Rather, they are challenging the Office’s refusal to include an

EIS in its recommendation that the United States enter into

the NAFTA, which is analogous to the court’s identification

of the challenged action in the only other NEPA application

of Franklin. Colorado Environmental Coalition, 803 F.

Supp. at 370 (challenged action is “the Secretary's decision

not to prepare a [SupplementalJEIS pursuant to NEPA”).

Since the APA provides a right of action to persons

“aggrieved by agency action within the meaning of a relevant

statute,” 5 U.S.C. § 702, and since petitioners are claiming

a right under NEPA, the challenged action must be defined

by reference to the agencies’ NEPA obligations.

Because the court of appeals mischaracterized the

challenged action, it also erred in its evaluation of Franklin’s

core question: “whether the agency has completed its

decisionmaking process, and whether the result of that

process is one that will directly affect the parties.” 112 S.

Ct. at 2773. The Office has unquestionably completed its

decisionmaking process since it has made its final

recommendation on a final NAFTA without an EIS; all

subsequent actions with respect to NAFTA are in the hands

of the President and Congress. The Office’s failure to

include an EIS in that recommendation, which Kleppe

establishes is when NEPA compliance is both due and

reviewable, is final action challengeable under the APA. 5

U.S.C. § 706(1); Environmental Defense Fund v.

Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971) (agency’s

failure to initiate a proceeding is final agency action);

Environmental Defense Fund v. Hardin, 428 F.2d 1093

(D.C. Cir. 1970) (same). The Office’s recommendation, as

opposed to NAFTA itself, does not “present[] a moving

target,” nor is it “still subject to correction” by the

President. Franklin, 112 S. Ct. at 2774, 2775.

With regard to the second prong of the Franklin test,

the Office’s failure to prepare such an EIS “directly affect[s]

the parties” because it deprives them of statutorily mandated

information on an action that will cause them harm if it is

impiemented. Indeed, the majority acknowledged that “the

argument that the absence of an EIS ‘directly affects’ Public

Citizen’s ability to lobby Congress and disseminate

information seems persuasive on its face.” App. 7a.

Nonetheless, it rejected this argument based on a D.C.

Circuit decision on standing, which did not construe the

APA’s “final agency action” requirement, but simply held

that the plaintiffs lacked standing because they had not

identified a specific agency action (like NAFTA) that

triggered NEPA’s requirements. See Foundation on

Economic Trends v. Lyng, 943 F.2d 79 (D.C. Cir. 1991).

On that basis, the majority truncated its analysis of

petitioners’ theory of the availability of APA review, without

any further discussion. App. 8a.

Finally, and perhaps most significantly, the court of

appeals’ application of Franklin runs counter to the well-

established presumption of reviewability of agencies’

violations of statutory mandates, which is embodied in the

APA’s judicial review provisions. Bowen v. Michigan

Academy of Family Physicians, 476 U.S. 667, 670 (1986);

Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41

(1967); see also American School of Magnetic Healing v.

McAnnulty, 187 U.S. 94, 110 (1902). Prior to the APA,

litigants, like the petitioners, could obtain agency compliance

with nondiscretionary statutory duties by seeking a writ of

mandamus. Virginian Railway Co. v. System Federation No.

40, 300 U.S. 515, 545 (1937); Work v. U.S. ex rel. Rives,

267 U.S. 175, 177 (1925); U.S. ex rel. Kansas City Southern

Railway Co. v. Interstate Commerce Commission, 252 U.S.

178, 187 (1920). Since an agency’s obligation to prepare an

EIS is such a nondiscretionary duty, petitioners couid have

obtained judicial review of the Office’s refusal to prepare an

EIS by filing a mandamus action. Calvert Cliffs, supra; 28

U.S.C. § 1361. Although the APA sought to codify existing

practice and eliminate technical barriers to obtaining judicial

review, the court of appeals’ construction of the APA’s

“final agency action” requirement to preclude judicial review

of this case resurrects the type of technical pleading obstacles

that the APA sought to render obsolete. Accordingly, the

decision below is wholly insupportable under the APA.

CONCLUSION

For all these reasons, the petition for a writ of

certiorari should be granted, and the case should be set for

any argument held in Dalton v. Specter, No. 93-289.

Respectfully submitted,

PATTI A. GOLDMAN

(COUNSEL OF RECORD)

ALAN B. MORRISON

PAUL R.Q. WOLFSON

PUBLIC CITIZEN LITIGATION

GROUP

Suite 700, 2000 P Street, N.W.

Washington, D.C. 20036

(202) 833-3000

October 8, 1993 Attorneys for Petitioners

Notice: This opinion is subject to formal revision before publication in

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notify the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued August 24, 1993 Decided September 24, 1993

No. 93-5212

Pusuiic Citizen; FRIENDS OF THE EARTH, Inc; Sierra CLus,

APPELLEES

Vv.

Unitep States Trave REPRESENTATIVE.

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(92cv02102)

Drew S. Days, III, Solicitor General, argued the cause for

appellants. On the briefs were Jra S. Shapiro, General

Counsel, United States Trade Representative, Peter R. Steen-

land, Jr., Acting Assistant Attorney General, and Bradley M.

Campbell, Attorney, U. S. Department of Justice.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

Patti A. Goldman argued the cause for appellees. With

her on the brief were Alan B. Morrison and Paul R. Q.

Wolfson. Paul R. Q. Wolfson also entered an appearance.

Janice A. Kaye filed the brief for Bipartisan Congressional

amici curiae Senators Donald W. Riegle, Jr., et al.

Kathleen Rogers, F. Kaid Benfield, S. Jacob Scherr, Robert

F. Housman and Paul M. Orbuch filed the brief for amici

curiae Natural Resources Defense Council, et al.

Roderick E. Walston, Chief Assistant Attorney General,

Theodora P. Berger, Assistant Attorney General, and Craig

C. Thompson, Supervising Deputy Attorney General, State of

California Department of Justice, filed the brief for amici

curiae State of California, ex rel., et al.

Daniel J. Popeo and Paul D. Kamenar filed the brief

amici curiae The Washington Legal Foundation, et al.

Johanna F. Chanin filed the brief for amicus curiae The

Border Trade Alliance.

Joel D. Joseph filed the brief for amicus curiae Made in

the USA, Inc.

John J. Rademacher, General Counsel, American Farm

Bureau Federation, filed the brief for amicus curiae Ameri-

can Farm Bureau Federation.

Renea Hicks, State Solicitor of Texas, filed the brief for

amici curiae State of Texas, ex rel., et al.

William E. Mooz, Jr., Attorney, filed the brief for The

Amici States.

John J. Kim, Amy F. Robertson, Louis R. Cohen, C.

Boyden Gray and Stuart P. Green filed the brief for amici

curiae American Automobile Manufacturers Association, et

al.

Thomas E. Patton entered an appearance for amicus

curiae New York State Bar Association.

Before: Mixva, Chief Judge, Wap and Ranpotpu, Circuit

Judges.

Opinion for the Court filed by Chief Judge Mixva.

Concurring opinion filed by Circuit Judge Ranpo.pu.

Mikva, Chief Judge:

Appellees Public Citizen, Friends of the Earth, Inc., and

the Sierra Club (collectively “Public Citizen”) sued the Office

of the United States Trade Representative, claiming that an

environmental impact statement was required for the North

American Free Trade Agreement (“NAFTA”). The district

court granted Public Citizen’s motion for summary judgment

and ordered that an impact statement be prepared “forth-

with.” In its appeal of that ruling, the government contends

that the Trade Representative’s preparation of NAFTA with-

out an impact statement is not “final agency action” under the

Administrative Procedure Act (“APA”) and therefore is not

reviewable by this court. Because we conclude that NAFTA

is not “final agency action” under the APA, we reverse the

decision of the district court and express no view on the

government’s other contentions.

I. BackcrRounp

In 1990, the United States, Mexico, and Canada initiated

negotiations on the North American Free Trade Agreement.

NAFTA creates a “free trade zone” encompassing the three

countries by eliminating or reducing tariffs and “non-tariff”

barriers to trade on thousands of items of commerce. After

two years of negotiations, the leaders of the three countries

signed the agreement on December 17, 1992. NAFTA has

not yet been transmitted to Congress. If approved by Con-

gress, NAFTA is scheduled to take effect on January 1, 1994.

Negotiations on behalf of the United States were conducted

primarily by the Office of the United States Trade Represen-

tative (“OTR”). OTR, located “within the Executive Office of

the President,” 19 U.S.C. § 2171(a) (“Trade Act of 1974” or

“Trade Acts”), is the United States’ chief negotiator for trade

matters. OTR “report(s] directly to the President and the

Congress, and [is] responsible to the President and the

Congress for the administration of trade agreements ...”

Id. § (c)(1)(B).

Under the Trade Acts and congressional rules, NAFTA is

entitled to “fast-track” enactment procedures which provide

that Congress must vote on the agreement, without amend-

ment, within ninety legislative days after transmittal by the

President. The current version of NAFTA, once submitted,

will therefore be identical to the version on which Congress

will vote. President Clinton has indicated, however, that he

will not submit NAFTA to Congress until negotiations have

been completed on several side agreements regarding, among

other things, compliance with environmental laws.

Public Citizen first sought to compel OTR to prepare an

environmental impact statement (“EIS”) for NAFTA in a suit

filed on August 1, 1991. Public Citizen v. Office of the United

States Trade Representative, 782 F. Supp. 139 (D.D.C.), affd

on other grounds, Public Citizen v. Office of the United

States Trade Representative, 970 F.2d 916 (D.C. Cir. 1992)

(Public Citizen I). The district court dismissed Public Citi-

zen’s claim for lack of standing. This court affirmed but did

not reach the standing issue. Public Citizen I, 970 F.2d at

916. Instead, we ruled that because NAFTA was still in the

negotiating stages, there was no final action upon which to

base jurisdiction under the APA. Jd. Public Citizen’s cur-

rent challenge is essentially identical, except that the Presi-

dent has now signed and released a final draft of NAFTA.

The district court granted Public Citizen’s motion for sum-

mary judgment and ordered OTR to prepare an EIS “forth-

with.” Public Citizen v. United States Trade Representative,

822 F. Supp. 21 (D.D.C. 1993). The government appeals.

II. Discussion

The National Environmental Policy Act (“NEPA”) requires

federal agencies to include an EIS “in every recommendation

or report on proposals for legislation and other major Federal

actions significantly affecting the quality of the human envi-

ronment....” 42 U.S.C. § 4332(2)(C). In drafting NEPA,

however, Congress did not create a private right of action.

Accordingly, Public Citizen must rest its claim for judicial

review on the Administrative Procedure Act. Section 702 of

the APA confers an action for injunctive relief on persons

“adversely affected or aggrieved by agency action within the

meaning of a relevant statute.” 5 U.S.C. § 702; see Public

Citizen I, 970 F.2d at 918. Section 704, however, allows

review only of “final agency action.” 5 U.S.C. § 704 (empha-

sis added); see Lujan v. National Wildlife Fed’n, 497 U.S.

871, 882 (1990). The central question in this appeal then is

whether Public Citizen has identified some agency action that

is final upon which to base APA review.

In support of its argument that NAFTA does not constitute

“final agency action” within the meaning of the APA, the

government relies heavily on Franklin v. Massachusetts, 112

S. Ct. 2767 (1992). Franklin involved a challenge to the

method used by the Secretary of Commerce to calculate the

1990 census. The Secretary acted pursuant to a reapportion-

ment statute requiring that she report the “tabulation of total

population by States ... to the President.” 13 U.S.C.

§ 141(b). After receiving the Secretary’s report, the Presi-

dent must transmit to Congress the number of Representa-

tives to which each state is entitled under the method of equal

proportions. 2 U.S.C. § 2(a)(2). The Supreme Court held

that APA review was unavailable because the final action

under the reapportionment statute (transmittal of the appor-

tionment to Congress) was that of the President, and the

President is not an agency. Franklin, 112 S. Ct. at 2773; see

Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991) (the

President is not an “agency” within the meaning of the APA).

To determine whether an agency action is final, “(t]he core

question is whether the agency has completed its decision-

making process, and whether the result of that process is one

that will directly affect the parties.” Franklin, 112 S. Ct. at

2773 (emphasis added). The Frankiin Court found that

although the Secretary had completed her decisionmaking

process, the action that would directly affect the plaintiffs was

the President’s calculation and transmittal of the apportion-

ment to Congress, not the Secretary’s report to the Presi-

dent. /d.

This logic applies with equal force to NAFTA. Even

though the OTR has completed negotiations on NAFTA, the

agreement will have no effect on Public Citizen’s members

unless and until the President submits it to Congress. Like

the reapportionment statute in Franklin, the Trade Acts

involve the President at the final stage of the process by

providing for him to submit to Congress the final legal text of

the agreement, a draft of the implementing legislation, and

supporting information. 19 U.S.C. § 2903(a)(1)(B). The

President is not obligated to submit any agreement to Con-

gress, and until he does there is no final action. If and when

the agreement is submitted to Congress, it will be the result

of action by the President, action clearly not reviewable under

the APA.

The district court attempts to distinguish Franklin by

noting that unlike the census report (which the President was

authorized to amend before submitting to Congress), NAFTA

is no longer a “moving target” because the “final product .. .

will not be changed before submission to Congress.” 822

F. Supp. at 26. The district court goes on to say that

NAFTA “shall” be submitted to Congress. Jd. This distinc-

tion is unpersuasive. NAFTA is just as much a “moving

target” as the census report in Franklin because in both

cases the President has statutory discretion to exercise super-

visory power over the agency’s action. It is completely

within the President’s discretion, for example, to renegotiate

portions of NAFTA before submitting it to Congress or to

refuse to submit the agreement at all. In fact, President

Clinton has conditioned the submission of NAFTA on the

successful negotiation of side agreements on the environment,

labor, and import surges. The President’s position that the

version of NAFTA negotiated by the OTR is the one that he

“will” submit to Congress is irrelevant under Franklin. In-

deed, in Franklin the President relied on the census report

without making any changes, yet this did not affect the

Court’s analysis of whether the “final action” under the

reapportionment statute was that of the President.

Public Citizen seeks to distinguish Franklin by arguing

that the EIS requirement is an independent statutory obli-

gation for the OTR and thus the agency’s failure to prepare

an EIS is reviewable final agency action. But the prepara-

tion of the census report in Franklin was also an “indepen-

dent statutory obligation” for the Secretary of Commerce.

The Court held nonetheless that because the report would

have no effect on the plaintiffs without the President’s subse-

quent involvement, the agency’s action would not have the

“direct effect” necessary for “final agency actions.” Further-

more, although the argument that the absence of an EIS

“directly affects” Public Citizen’s ability to lobby Congress

and disseminate information seems persuasive on its face, this

court has stated that an agency’s failure to prepare an EIS,

by itself, is not sufficient to trigger APA review in the

absence of identifiable substantive agency action putting the

parties at risk. Foundation on Economic Trends v. Lyng,

943 F.2d 79, 85 (D.C. Cir. 1991).

Finally, Public Citizen argues that applying Franklin in

this case would effectively nullify NEPA’s EIS requirement

because often “some other step must be taken before” other-

wise final agency actions will result in environmental harm.

Public Citizen Br. at 43. In support of this position, it

catalogs a number of cases in which courts have reviewed

NEPA challenges to agency actions that require the involve-

ment of some other governmental or private entity before

becoming final. Public Citizen Br. at 40-44. Although we

acknowledge the stringency of Frunklin’s “direct effect” re-

quirement, we disagree that it represents the death knell of

the legislative EIS. Franklin is limited to those cases in

which the President has final constitutional or statutory re-

sponsibility for the final step necessary for the agency action

directly to affect the parties. Moreover, Franklin notes

explicitly the importance of the President’s role in the “integ-

rity of the process” at issue. Franklin, 112 S. Ct. at 2775.

Congress involved the President and the Secretary of Com-

merce in the reapportionment process to avoid stalemates

resulting from congressional battles over the method for

calculating reapportionment. Jd. at 2771. Similarly, the

requirement that the President, and not OTR, initiate trade

negotiations and submit trade agreements and their imple-

menting legislation to Congress indicates that Congress

deemed the President’s involvement essential to the integrity

of international trade negotiations. When the President’s

role is not essential to the integrity of the process, however,

APA review of otherwise final agency actions may well be

available.

The government advances many other arguments opposing

the preparation of an EIS, including weighty constitutional

positions on the separation of powers and Public Citizen’s lack

of standing, as well as the inapplicability of NEPA to agree-

ments executed pursuant to the Trade Acts in general, and

NAFTA in particular. It also suggests that the judicial

branch should avoid any conflict with the President’s power

by exercising the “equitable discretion” given it by § 702 of

the APA. We need not and do not consider such arguments

in light of the clear applicability of the Franklin precedent.

The ultimate destiny of NAFTA has yet to be determined.

Recently negotiated side agreements may well change the

dimensions of the conflict that Public Citizen sought to have

resolved by the courts. More importantly, the political de-

bate over NAFTA in Congress has yet to play out. Whatever

the ultimate result, however, NAFTA’s fate now rests in the

hands of the political branches. The judiciary has no role to

play.

In sum, under the reasoning and language of Franklin v.

Massachusetts, the “final agency action” challenged in this

case is the submission of NAFTA to Congress by the Presi-

dent. Because the Trade Acts vest in the President the

discretion to renegotiate NAFTA before submitting it to

Congress or to refuse to submit it at all, his action, and not

that of the OTR, will directly affect Public Citizen’s members.

The President’s actions are not “agency action” and thus

cannot be reviewed under the APA. The district court’s

grant of summary judgment in favor of Public Citizen is,

therefore,

Reversed.

]

RaNnDOoLpH, Circuit Judge, concurring: I agree with my

colleagues that the injunction against the United States Trade

Representative must be set aside. The National Environ-

mental Policy Act requires “all agencies of the Federal Gov-

ernment” to include an impact statement in “every reccm-

mendation or report on proposals for legislation and other

major Federal actions significantly affecting the quality of the

human environment....” 42 U.S.C. § 43832(2)(C). Private

parties may sue to redress alleged violations of this provision

only after there has been “final agency action” within the

meaning of the Administrative Procedure Act, 5 U.S.C. § 704.

Public Citizen v. Office of the U.S. Trade Representative, 970

F.2d 916, 918 (D.C. Cir. 1992), citing Lujan v. National

Wildlife Fed’n, 497 U.S. 871, 882 (1990). The majority holds

that with respect to the North American Free Trade Agree-

ment, there has been no “final” action because the President

has not even transmitted NAFTA to Congress for its approv-

al; and that if and when the President does submit the

agreement and its implementing legislation, this would not

qualify because, as Franklin v. Massachusetts, 112 S. Ct.

2767 (1992), decided, the President is not an “agency.”

I do not quarrel with either one of these rationales. But I

get a bit concerned when the opinion announces that it is too

early to toll the bell for judicial review in a “legislative EIS”

case and then starts trying to limit Franklin (maj. op. at 7-8).

The idea behind this is that proposing legislation to Congress

can constitute “final ... action,” and that when an “agency”

rather than the President does the proposing, § 704 of the

APA will be satisfied (maj. op. at 8). I am not so sure.

Franklin held not only that the President is outside the

APA’s definition of “agency,” but also that “action” cannot be

considered “final” under the APA unless it “will directly

affect the parties.” 112 S. Ct. at 2773. When the alleged

“action” consists of a proposal for legislation, how can this

condition for judicial review be satisfied? In Franklin, the

President’s submission to Congress directly affected the par-

ties because, under the “automatic reapportionment statute,”

2.08080

10a

congressional action was not required. 1128S. Ct. at 2771. In

general, however, it is difficult to see how the act of proposing

legislation could generate direct effects on parties, or anyone

else for that matter. The head of an independent agency, a

member of the President’s Cabinet, or the President himself

may send a letter to the Speaker of the House and the

President of the Senate transmitting a draft of proposed

legislation. Such “executive communications” are common-

place. See How Our Laws Are Maps, H.R. Doc. No. 139, 101st

Cong., 2d Sess. 4 (1989). Yet only a Member of Congress

may introduce a bill embodying the proposal, and even then

no one will be affected, directly or otherwise, unless and until

Congress passes the bill and the President signs it into law.

If one takes Franklin at its word, a legislative proposal’s lack

of any direct effects would seem to mean that there can be no

final action sufficient to permit judicial review under the

APA. Of course, there is a big difference between saying

that APA review is unavailable and saying that officials do not

have to comply with NEPA when they suggest legislation. If

Congress believed an agency had not lived up to its obligation

to prepare an impact statement, it could always refuse to

consider the agency’s proposal. Or, if Congress wanted to

evaluate environmental impacts before putting the measure to

a vote, congressional committees could hold hearings on the

subject. This is how a large proportion of legislative propos-

als already must be treated. NEPA’s impact statement

requirement applies only to federal agencies. Members of

Congress, who alone introduce bills and offer amendments,

are not covered. Neither are private individuals, corpora-

tions, labor unions, citizen groups or other organizations, all

of which frequently avail themselves of their First Amend-

ment right to petition the government.

I am therefore not prepared to say whether in NEPA

cases, the act of proposing legislation constitutes final action

under § 704 of the APA, as Franklin has interpreted that

provision. This is a troublesome question, bound to arise in

future cases, and we should not stake out a position on it

here. The nub of the problem is that judicial review under

the APA demands “final agency action” whereas the duty to

prepare an impact statement arises earlier. The main objec-

tive of an impact statement is to ensure that the decisionmak-

lla

er considers environmental effects prior to taking action.

This is why in Kleppe v. Sierra Club, 427 U.S. 390, 406 n.15

(1976), the Court—without mentioning § 704 of the APA—

identified the “time at which a court enters the process” to be

“when the report or recommendation on the proposal is made,

and someone protests either the absence or the adequacy of

the final impact statement.” Franklin’s direct-effects-on-

the-parties test, as applied to NEPA suits, may have to be

reconciled with the portion of Kleppe v. Sierra Club just

quoted. But there is no need to make the attempt in this

case. It is enough to hold that regardless of whether the

President’s submission of NAFTA to Congress would be final

action, there is no “fina!” action that can be attributed to an

“agency.”

12a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, et ai.,

Plaintiffs,

Vv. Civil Action

No. 92-2102 (CRR)

OFFICE OF THE UNITED STATES

TRADE REPRESENTATIVE

Defendant.

Filed

JUN 30 1993

NANCY M. MAYER-WHITTINGTON

OPINION OF CHARLES R. RICHEY

UNITED STATES DISTRICT JUDGE

For Plaintiffs: Patti Goldman, with Alan B. Morrison and

Paul R.Q. Wolfson of the Public Citizen Litigation Group.

For Defendant: Bradley M. Campbell, with Samuel C.

Alexander of the United States Department of Justice,

Environmental and Natural Resources Division, and Roger B.

Clegg, Acting Assistant Attorney General and Benedict S.

Cohen, Acting Deputy Assistant Attorney General.

I. INTRODUCTION

Before the Court are the parties’ cross Motions for

Summary Judgment in the above-captioned case. In their

Complaint, the Plaintiffs allege that the Defendant has failed

to comply with the National Environmental Policy Act

(“NEPA”), 42 U.S.C. § 4321 ef seq., in the negotiation and

conclusion of the North American Free Trade Agreement

(“NAFTA”). More specifically, the Plaintiffs challenge the

l3a

Defendant’s failure to prepare an environmental impact

Statement (“EIS”) on the NAFTA and request that the Court

order the Defendant to produce an EIS on the NAFTA before

the President submits it to Congress. The NEPA requires

that all federal agencies prepare an EIS for “every

recommendation or report on proposals for legislation and

other major Federal actions significantly affecting the quality

of the human environment.” 42 U.S.C. § 4332(2)(C).

The Court held oral argument on the motions on May

25, 1993. After careful consideration of the papers filed by

the parties, the arguments of counsel at the hearing, the

underlying law, and the entire record in this action, the Court

shall grant the Plaintiffs’ Motion for Summary Judgment.

Il. BACKGROUND

In 1991, the United States began trilateral negotiations

with Canada and Mexico with the goal of establishing a

North American free trade zone. See 56 Fed. Reg.

32,454-55 (July 16, 1991). These negotiations resulted in

the NAFTA, a comprehensive document affecting every

aspect of trade among the three countries. The NAFTA was

signed by the trade representatives of the United States,

Mexico and Canada on October 7, 1992!

The NAFTA is subject to the provisions of the Trade

Act of 1974, as amended. See 19 U.S.C. § 2101 ef Seq.,

(“the Trade Acts”). The Trade Acts provide that the

Defendant United States Office of the Trade Representative

(“OTR”) shall serve as the President’s chief negotiator in

trade matters. Jd. § 2171(c). The NAFTA will be submitted

'The NAFTA addresses, inter alia, barriers to trade,

intellectual property rights, and trade in goods. It also

provides an exhaustive tariff schedule to govern trade

between the three countries.

l4a

to Congress under the “fast track” approval process.’ See

19 U.S.C. §§ 2191-2194, 2902-2903. Under the fast track

process, the President submits the NAFTA to Congress along

with implementing legislation and an explanation of the

changes in the current law. 19 U.S.C. § 2903(a)(1)(B).

The NAFTA must be approved by both Houses of Congress

before it can become effective, and such approval occurs

when the NAFIA’s implementing legislation has been

enacted by both the Senate and the House of Representatives.

19 U.S.C. § 2903(a)(1). Under the fast track process, once

the NAFTA has been submitted to Congress, Congress has

only 60 legislative days to approve or reject the agreement,

id. § 2191(c) and (e); legislative debate is limited to 20 hours

in each House, id. § 2191(f) and (g); and Congress may not

change the implementing legislation or the Agreement. /d.

§ 2191(d). The President has no obligation to submit the

NAFTA to Congress for ratification; however, he is expected

to do so some time this fall. See John Dillin, Kantor Says

NAFTA Will Bring More Jobs, Christian Science Monitor,

June 23, 1993, at 2 (United States Trade Representative

Mickey Kantor says that NAFTA should be ready for

Congress in September.)

As noted earlier, the NEPA requires an EIS for

“every recommendation or report on proposals for legislation

and other major Federal actions significantly affecting the

quality of the human environment.” 42 U.S.C. §

4332(2)(C). The Plaintiffs are three nonprofit groups that

have taken an active interest in the environment: Public

Citizen, the Sierra Club, and the Friends of the Earth. They

contend that the Defendant United States Trade

Representative and the NAFTA are subject to the NEPA and

’The fast track procedures are not statutory requirements

but have been adopted as an exercise of the rule making

power of the House of Represéntatives and the Senate. See

19 U.S.C. § 2191(a)(1).

1Sa

bring this action for declaratory relief to compel the

Defendant to prepare an EIS on the NAFTA before it is

submitted to Congress. The Plaintiffs allege that this Court

has jurisdiction in this suit under the Administrative

Procedures Act (“APA”), 5 U.S.C. § 701 et seq., which

provides for judicial review of a final agency action by a

party adversely affected or aggrieved by agency action within

the meaning of a relevant statute, here the NEPA.

As the Defendant admits no EIS was prepared on the

NAFTA, the question before the Court is whether the NEPA

and the APA provide relief to the Plaintiffs under these

circumstances. In other words, the issue before the Court is

whether the NEPA and the APA properly apply to the

NAFTA and the OTR’s action in negotiating, drafting and

ultimately approving the NAFTA on behalf of the United

States. As to these issues, the Defendant claims that: 1)

there is no jurisdiction over this suit under the APA; 2) the

Plaintiffs have no standing in this action; and 3) the NEPA

does not apply to the NAFTA. However, the Court

concludes that the plain language and policies of the APA

and the NEPA apply to the NAFTA and the OTR.

Furthermore, the Court finds that there is jurisdiction here

under the APA and that the Plaintiffs’ allegations of

environmental harm are sufficient for purposes of standing

under the NEPA. Finally, the Court determines that the

Defendant has ignored the clear language and the legislative

mandate of the NEPA in failing to prepare an EIS of the

NAFTA, and, therefore, the Court shall grant summary

judgment for the Plaintiffs.

Ill. THIS COURT HAS JURISDICTION OVER THIS

ACTION UNDER THE APA BECAUSE THE

DEFENDANT HAS TAKEN FINAL AGENCY ACTION

IN ITS PREPARATION AND FINALIZATION OF

THE NAFTA.

As a threshold matter, the Court concludes that it has

subject matter jurisdiction under the APA for the Plaintiffs’

l6a

claims under the NEPA.

The same Plaintiffs filed an earlier challenge to the

NAFTA in August 1991. At that time, the negotiations for

the NAFTA had not yet been concluded and no agreement

had been finalized. That action was dismissed by the district

court. Public Citizen v. Office of United States Trade

Representative, 782 F. Supp. 139 (D.D.C. 1992) (June

Green, J.). The Court of Appeals affirmed the dismissal of

that action, holding that there was no jurisdiction under the

APA because there had not been any final agency action

under section 704 of the APA. Public Citizen v. Office of

United States Trade Representative, 970 F.2d 916 (D.C. Cir.

1992). The Circuit noted that there was no event triggering

the agency's obligation to prepare an EIS because no final

NAFTA agreement had been reached, as only incomplete

drafts had been prepared. J/d. at 919. Under these

circumstances, our Court of Appeals believed that a suit

challenging the NAFTA was premature. Jd. The Plaintiffs

now properly assert that the OTR has taken final action as to

the NAFTA and there is jurisdiction under the APA in the

instant action.

The Court begins, as our Court of Appeals did in the

prior case, in analyzing the question of final agency action by

examining the “NEPA itself, for it specifically identifies the

time when an agency’s action is sufficiently concrete to

trigger the EIS requirement.” Jd. at 918. Our Court of

Appeals explicitly stated that in order to challenge the

NAFTA, the “[P]laintiffs must point to a specific proposal

for legislation or other action ‘at least arguably triggering the

agency's obligation to prepare an impact statement.’” Jd. at

918-19, quoting Foundation on Economic Trends v. Lyng,

943 F.2d 79, 85 (D.C. Cir. 1991). In rejecting the

Plaintiffs’ earlier claim, our Court of Appeals explicitly

noted that no final agreement had yet been produced in

NAFTA negotiations and that it was unclear whether the

negotiations would ever produce a final agreement. Jd.

17a

However, it is undisputed that the NAFTA agreement

has now been finalized and signed by the United States,

Canada, and Mexico. It is also undisputed that the NAFTA

signed by the three countries is the same agreement that will

be sent to Congress. Furthermore, under the fast track

procedure, the agreement itself cannot be changed after it has

been sent to the Congress for-ratification. 19 U.S.C. §

2191(d).* Therefore, the Court concludes that the NAFTA

agreement constitutes final agency action under the APA for

purposes of this lawsuit.

. A. THIS COURT HAS APA JURISDICTION

BECAUSE THE DEFENDANT OFFICE OF

TRADE REPRESENTATIVE IS AN AGENCY

UNDER THE APA AND BECAUSE THE

DEFENDANT HAS’ HAD — SIGNIFICANT

INVOLVEMENT IN THE PREPARATION,

NEGOTIATION, AND DRAFTING OF THE

NAFTA.

However, this does not end the Court’s inquiry under

the APA as the Defendant raises a related argument

regarding jurisdiction that must be addressed as a threshold

matter. The Defendant contends that there is no APA

jurisdiction in this case because the President, and not the

Defendant, is responsible for any final agency action on the

NAFTA and there is no APA jurisdiction to review actions

by the President. Defendant’s Memorandum in Support of

its Motion, at 15; see Armstrong v. Bush, 924 F.2d 282

(D.C. Cir. 1991) (no APA jurisdiction to challenge the

actions of the President). More specifically, the Defendant

claims that APA jurisdiction is improper here because: |) the

NAFTA is actually a result of the President’s efforts, and not

> Various side agreements are being negotiated by the

three countries on topics related to the NAFTA. However,

the Defendant does not claim that the NAFTA itself is not a

final agreement by virtue of the negotiation of these side

agreements.

18a

that of the OTR for purposes of the APA and the NEPA; 2)

the final agency action with regard to the NAFTA is its

submission to Congress by the President and not simply its

negotiation and the production of a final agreement; and 3)

the President has no obligation to submit the NAFTA to

Congress. However, the Court is not persuaded that such

arguments preclude APA jurisdiction in this case and believes

that the Defendant’s arguments misread the language of the

applicable statutes and the case !aw. The Court shall address

each of these arguments in turn.

First, the Court concludes that the NAFTA is, in

substantial part, a result of the work of the Defendant OTR

and therefore reviewable under the APA and the NEPA. The

Defendant Office of the United States Trade Representative

is charged by statute with the responsibility for conducting

international trade negotiations, developing and coordinating

United States trade policy and imposing any retaliatory trade

sanctions on other countries. See 19 U.S.C. §§ 2171,

2411-2417. It is undisputed that the Defendant OTR has, in

substantial part, negotiated and drafted the NAFTA.

The Court again looks to the language and case law

under the NEPA in order to understand whether the

Defendant’s actions regarding the NAFTA constitute final

agency action under the APA. Under the NEPA, a federal

agency is still requ'red to prepare an EIS even if a project or

proposal is not exclusively a federal agency endeavor. See

Colorado River Indian Tribes v. Marsh, 605 F. Supp. i425

(C.D. Cal. 1985); cf Sierra Ciub v. Marsh, 769 F.2d 868

(1st Cir. 1985) (where U.S. Corps of Engineers granted a

permit for part of a construction project, an EIS was required

on the entire project). Furthermore, the Council for

Environmental Quality (“CEQ”), which was established by

the NEPA, has issued regulations pertaining to the NEPA

and its interpretation of the NEPA is entitled to substantial

deference. Andrus v. Sierra Club, 442 U.S. 347, 358 (1979)

(citations omitted); Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 355 (1989). The CEQ’s regulations

i i a a a a

19a

specifically provide that, for purposes of the NEPA,

legislation:

includes a bill or legislative proposal to

Congress developed by or with the significant

cooperation and support of a federal agency .

. . The test for significant cooperation is

whether the proposal is in fact predominantly

that of the agency rather than another source.

. . . Proposals for legislation include requests

for ratification of treaties.

40 C.F.R. § 1508.17 (1992); see Andrus, 442 U.S. at 357.

The Court also notes that the CEQ regulations provide that

major federal actions under NEPA include projects and

programs entirely or partially conducted by federal agencies.

40 C.F.R. § 1508.18(a) (1992). Therefore, the significant

actions taken by the Defendant OTR in negotiating and

drafting the NAFTA are sufficient to trigger the EIS under

the NEPA.‘

* The Office of the United States Trade Representative

has a separate statutory basis for its authority and has many

separate responsibilities aside from assisting and advising the

President, see 19 U.S.C. § 2171, and thus, the OTR is an

agency subject to the APA. See Soucie v. David, 448 F.2d

1067 (1971) (a component with substantial independent

authority in the exercise of its functions is an agency); see

also Energy Research Foundation v. Defense Nuclear

Facilities Safety Bd., 917 F.2d 581 (D.C. Cir. 1990).

Furthermore, the Court notes that this finding is

supported by the fact that the appointment of the OTR’s top

officials are subject to the advice and consent of the Senate,

thus making them somewhat independent of the executive

branch. 19 U.S.C. § 2171(b). In addition, the OTR is an

agency under the Freedom of Information Act and the

Privacy Act. See 15 C.F.R. §§ 2004, 2005 (1993).

20a

Second, the Court concludes that the mere fact that

the President submits the NAFTA to Congress does not bar

review under the APA in this case. The Defendant

principally relies on the Supreme Court’s recent decision in

Franklin v. Massachusetts, 112 S.Ct. 2767 (1992), for its

argument that the President’s submission of the NAFTA to

Congress prevents APA jurisdiction here. In Franklin, the

Supreme Court held that there was no final agency action,

and thus no jurisdiction under the APA, for the Secretary of

Commerce’s actions regarding the census. Under the

automatic reapportionment statute at issue in that case, the

Secretary of Commerce supervises the taking of the census,

compiles the data and reports that information to the

President. After receiving the Secretary’s report, the

President then has the statutory responsibility for transmitting

a statement to Congress showing the results of the census and

the number of Representatives to which each state is entitled.

Id. at 2771. The Court in Franklin concluded that there was

no APA jurisdiction of the Secretary of Commerce’s actions

because the President took the final action in reporting the

census figures to Congress and such executive action was not

reviewable under the APA.

The Defendant analogizes the President’s submission

of the census to the Congress to his submission of the

NAFTA. However, such an analogy is misplaced. In

Franklin, the Court reasoned that “[t]he core question is

whether the agency has completed its decision making

process, and whether the result of that process is one that

will directly affect the parties.” Jd. at 2773. The Court

concluded that no decision making process was completed

where the census figure supplied by the Secretary to the

President was actually a “moving target, even after the

Secretary reports to the President.” Jd. at 2774. The Court

noted that, even after the Secretary submits his report to the

President, the census information can be amended before

being transmitted to Congress, the President could instruct

that the census be reformed, and that, in fact, the President

2la

was not required to adhere to the policy decisions reflected

in the Secretary’s report. /d. at 2774-75. Thus, the census

report in Franklin was “more like a_ tentative

recommendation than a final and binding determination.” Jd.

at 2774. On the other hand, the NAFTA is in stark contrast

to the census report in Franklin because the NAFTA is a

complete and, most importantly, a final product that will not

be changed before submission to Congress. The NAFTA that

was negotiated and signed by the Trade Representative is the

same document that shall be submitted to Congress and

which is the subject of this suit.

Third and finally, the fact that the President is under

no obligation to submit the NAFTA to the Congress is not a

bar to APA jurisdiction. Once again, a reference to the

NEPA demonstrates why the actions by the Defendant here

are final for purposes of APA jurisdiction and the preparation

of an EIS. As discussed earlier, the NEPA requires that an

EIS must be prepared for legislative proposals. See Izaak

Walton League of America v. Marsh, 655 F.2d 346 (D.C.

Cir.), cert. denied, 454 U.S. 1092 (1981). The case law is

clear that an EJS must be prepared once such a proposal is

completed and that its submission to Congress is not

required. Trustees for Alaska v. Hodel, 806 F.2d 1378 (9th

Cir. 1986) (noting that once Congress acts on a proposal, the

aggrieved party may lose its right to judicial review). As the

NEPA unambiguously requires an EIS on “proposals for

legislation,” 42 U.S.C. § 4332(2)(C), the Court concludes

that an EIS on the NAFTA is required.

IV. THE EXERCISE OF APA JURISDICTION UNDER

THE APA IN THIS CASE IS NOT A VIOLATION OF

SEPARATION OF POWERS BECAUSE THE NAFTA

HAS ALREADY BEEN DRAFTED AND APPROVED

BY THE THREE COUNTRIES AND THE

PREPARATION OF AN EIS WILL NOT INTERFERE

WITH THE PRESIDENT’S AUTHORITY.

The Defendant further argues that an exercise of APA

22a

jurisdiction in this case would violate separation of powers

by infringing on the Executive’s right and ability to conduct

foreign policy. Defendant’s Memorandum in Support of its

Motion, at 20. However, such an argument is not persuasive

in this case.

The Court concludes that the separation of powers

doctrine does not bar the Plaintiffs’ claims because an

exercise Of jurisdiction in this case under the APA and the

NEPA is not an infringement of the powers of the President.

In arguing that the EIS requirement will impede the

President’s power to conduct foreign policy, the Defendant

conveniently ignores the fact that the power to regulate

commerce with foreign nations is given to the Congress

under the Constitution. See Constitution, Art. 1, Sec. 8, cl.

Furthermore, assuming arguendo that the EIS

requirement here raises a separation of powers question, the

circumstances surrounding this lawsuit demonstrate that an

application of the NEPA to the NAFTA will not impede the

President’s power in any meaningful way. The NAFTA is

a completed document which has been signed and agreed to

by the three heads of state for the United States, Canada, and

Mexico. The only remaining step to be taken regarding the

NAFTA is a domestic one, specifically, the submission of the

NAFTA for approval by the Congress for possible

ratification. The EIS requirement is, therefore, a domestic

issue, where an agency must inform the relevant decision

makers, in this case the Congress, of the environmental

consequences of a proposal for legislation. See 42 U.S.C. §

4332(2)(C). Given the current posture of the NAFTA, the

Court does not believe that the EIS requirement would so

infringe on the President’s power as to be a violation of the

23a

doctrine of separation of powers.°

V. THE PLAINTIFFS HAVE STANDING’ TO

CHALLENGE THE DEFENDANT’S FAILURE TO

PREPARE AN EIS FOR NAFTA BECAUSE THE

PLAINTIFFS ALLEGE SUFFICIENT AND

COGNIZABLE INJURY.

The Plaintiffs claim that they have standing because

the NArTA, by its terms, will result in changes to federal

and state law and policy in a variety of health and

environmental matters and that these changes will have an

environmental impact on them. Furthermore, the Plaintiffs

argue that NAFTA will result in environmental changes to

certain geographical areas, such as the area on the border

between the United States and Mexico. Under these

circumstances, the Plaintiffs contend that “the Court can

determine whether NAFTA is likely to harm plaintiffs.”

Plaintiffs’ Reply Brief at 9. The Court finds that the

Plaintiffs’ allegations, and the affidavits submitted in support

thereof, establish standing under the NEPA.

It is clearly established law that:

(t)he procedural and informational thrust of

[the] NEPA gives rise to cognizable injury

from denial of its explanatory process, so long

as there is a_ reasonable risk _ that

environmental injury may occur.

*The Defendant’s argument concerning separation of

powers had more force in the prior suit regarding the

NAFTA because the Plaintiffs were requesting that an EIS be

completed before the conclusion of the NAFTA negotiations.

See Public Citizen v. Office of United States Trade

Representative, 782 F. Supp. 139 (D.D.C. 1992) (June

Green, J.). However, such a suit was dismissed on other

grounds and thus no infringement of Executive power

occurred.

24a

City of Los Angeles v. National Highway Traffic Safety

Admin. , 912 F.2d.478, 492 (D.C. Cir. 1990).° The Court

agrees with the Plaintiffs that the NAFTA will create binding

obligations on state and federal agencies to conform with its

terms. The NAFTA, by its very terms, sets forth criteria

that may form a basis for challenging various domestic health

and environmental laws. See e.g. Plaintiffs’ Exhibit A

(NAFTA, Chapter 7). Those laws that are found to be

contrary to the NAFTA’s free trade provisions either cannot

be applied or can become the basis of trade sanctions.’ In

addition, by virtue of the Supremacy Clause, a state law that

‘In the prior suit brought by the Plaintiffs, the district

court dismissed the action, holding that the Plaintiffs did not

establish standing under the NEPA. Public Citizen v. Office

of U.S. Trade Representative, 782 F. Supp. 139, 142

(D.D.C. 1992). More specifically, Judge June Green found

that the Plaintiffs failed to establish standing derivatively

through its members because it could not show that

members’ environmental or recreational interests would be

-harmed by a particular agency action. Jd. However, as

discussed earlier, no final NAFTA agreement had been

reached when that suit was pending and thus any allegations

of harm were premature. Public Citizen v. Office of the

United States Trade Representative, 970 F.2d 916, 919 (D.C.

Cir. 1992). In addition, our Court of Appeals did not reach

the issue of standing in affirming the district court’s

dismissal. /d.

’The Plaintiffs set forth numerous health and

environmental measures which may be set aside as contrary

to the NAFTA, thus leading to injury. These include, inter

alia, pesticide residue standards, chemical bans, bans on

seafood imports based on certain environmental criteria, and

pollution controls. See Wallach Affidavit.

25a

conflicts with the NAFTA is preempted by the NAFTA. See

id. (NAFTA, Article 105 (countries must “ensure that all

necessary measures are taken” to comply with the NAFTA,

including compliance by “state and _ provincial

governments”)). Thus, changes in federal and state law to

conform with the NAFTA may very likely result in

environmental injuries to certain members of the Plaintiff

organizations, particularly those in California and Wisconsin.

See Claybrook Affidavit {{ 6-8; McCloskey Affidavit 4 5;

Wallach Affidavit 44 53-57. For example, the NAFTA

could serve as a basis to challenge federal and state laws,

such as the Federal Food, Drug, and Cosmetic Act, 2]

U.S.C. §§ 348 (c)(3)(A) & 376(b)(2), as well as California’s

Proposition 65, Cal. Health & Safety Code §§ 2549.5 er

seq., that prohibit certain carcinogens in water and food. See

Wallach Affidavit 44 34, 55-56.

Furthermore, the Court notes that the allegations of

possible environmental harm as a result of the NAFTA to

members of the Plaintiff organizations who live on the

United States-Mexico border region are sufficiently concrete

‘History demonstrates that the conflict between the

NAFTA and other federal and local laws is far from

hypothetical: For example, a dispute panel under the General

Agreement on Tariffs and Trade, commonly referred to as

GATT, has recently ruled that the Marine Mammal

Protection Act impermissibly restricts Mexican trade in

violation of GATT. See Plaintiffs’ Exhibit C (GATT Panel

Report, United States - Restrictions on Imports of Tuna, at

40-42, 45-47 (1991)). The Marine Mammal Protection Act

is an environmental statute that prohibits tuna imports from

countries that use fishing methods that kill dolphins in greater

numbers than domestic companies are permitted by the

statute. 16 U.S.C. § 1371; see Committee for Humane

Legislation, Inc. v. Richardson, 414 F. Supp. 297 (D.D.C.),

aff'd, 540 F.2d 1141 (1976).

26a

as to establish standing. See Audley Affidavit {4 6, 13-20,

39-47; Perkins Affidavit | 12. In particular, the Court notes

that a limited free trade zone along the United

States-Mexican border, known as the Maquiladora program,

demonstrates that the Plaintiffs’ environmental concerns are

not speculative. The Maquiladora program has resulted in

grave environmental problems to those people living on

either side of the border. See Audley Affidavit 4 21-26.

These problems are so severe that the area has been called a

“virtual cesspool and breeding ground for infectious diseases

....” Plaintiffs’ Exhibit T, (Council on Scientific Affairs,

“A Permanent US - Mexico Border Environmental Health

Commission,” 263 JAMA 3319, 3320 (1990)). The Plaintiffs

also make claims as to the air quality on behalf of their

members in specific metropolitan areas, such as San Diego,

California, and El Paso, Texas, and allege that air quality in

these cities will suffer as a result of the NAFTA. See e.g.,

Claybrook Affidavit { 8.

In fact, as part of its work on the NAFTA, the

Defendant prepared a Review of U.S.-Mexico Environmental

Issues (“the Review”), which identifies numerous

environmental issues related to the NAFTA. See Plaintiffs’

Exhibit D. The Review confirms that the NAFTA will have

significant environmental effects and acknowledges that

NAFTA may worsen the environmental problems already

existing in the United States-Mexico border area. /d.,

(Executive Summary at 3-7). Such allegations of injury are

"The Environmental Review was a general study

conducted on the possible ramifications of the NAFTA but

the Defendant does not contend that it qualifies as an EIS

under the NEPA. It does not qualify as an EIS because it

does not analyze the effect of the actual NAFTA, or identify

and analyze other alternatives. 42 U.S.C. § 4332(2)(c); see

Natural Resources Defense Council v. Morton, 337 F. Supp.

165 (D.D.C.) (Richey, J.), aff'd, 458 F.2d 827 (D.C. Cir.

27a

sufficient for standing purposes. See Public Citizen v.

National Highway Traffic Safety Admin. , 848 F.2d 265 (D.C.

Cir. 1988); National Wildlife Federation v. Hodel, 839 F.2d

694 (D.C. Cir. 1988); Oregon Environmental Council v.

Kunzman, 817 F.2d 484 (9th Cir. 1987).

The Defendant complains that many of the alleged

environmental effects of the NAFTA are too widespread to

be confined to a particular geographical location.'’

However, the absence of a geographical nexus does not

defeat a claim of standing because that “would mean that the

most injurious and widespread government actions could be

questioned by nobody.” United States v. SCRAP, 412 U.S.

669, 687-88 (1973)."

1972) (Leventhal, J.).

Such claims include the allowance of pesticides on food

imports from Mexico.

In addition, the Plaintiffs allege that certain NAFTA

provisions will cause a wide variety of other pervasive and

adverse environmental effects. For example, they claim that

NAFTA’s reduction of trade barriers will cause a reduction

in prices for domestic agricultural and meat products, thus

creating pressure to intensify domestic production methods

which will have a detrimental effect on the environment. See

Plaintiffs’ Exhibit A (NAFTA, Chapter 7); Ritchie Affidavit

44 4-8. In addition, the Plaintiffs allege that NAFTA’s

energy incentives for oil and gas exploration will encourage

the use of nonrenewable energy resources. See Plaintiffs’

Exhibit A (NAFTA, Chapter 6); Wallach 465. Finally, they

claim that the NAFTA may have “pollution haven effects” in

that domestic companies will move their operations to

Mexico to avoid more stringent U.S. environmental laws.

See Plaintiffs’ Exhibit D (Review, Executive Summary at 7).

While the Court does not rely on these allegations for

28a

Thus, the Court concludes that standing is proper

where allegation of environmental harms to particular

members of the Plaintiff organizations are sufficiently

concrete. '?

Vi. REQUIRING THE PREPARATION OF AN

ENVIRONMENTAL IMPACT STATEMENT ON THE

NAFTA BEFORE ITS SUBMISSION TO CONGRESS

IS REQUIRED BY THE CLEAR LANGUAGE OF

THE NEPA AND IS CONSISTENT WITH THE

POLICIES BEHIND IT.

Having determined that the APA and the NEPA apply

to the NAFTA, the plain language of the NEPA makes it a

foregone conclusion that the OTR must prepare an EIS on

purposes of standing, it does note that an EIS would help to

clarify the extent and scope of the environmental impact of

the NAFTA. See supra Section VI.

'2 The Court also notes that the Plaintiffs also allege

Standing on the basis of an injury to their organizational

interests by claiming that they are unable to keep their

members adequately informed. The Supreme Court has

stated that such injury is within the zone of interest that the

NEPA was designed to protect. Lujan v. National Wildlife

Federation, 497 U.S. 871 (1990). Such claims of

informational standing have been rejected where a plaintiff

has been unable to identify any particular agency action as

the source of injury. Foundation on Economic Trends vy.

Lyng, 943 F.2d 79 (D.C. Cir. 1991) (no EIS required for a

federal agency’s day-to-day operations). However, the Court

is not convinced that such informational standing is wholly

improper where the Plaintiffs are challenging a specific

proposal for legislation such as the NAFTA.

29a

the NAFTA." The NEPA requires that all federal agencies

“include in every recommendation or report on proposals for

legislation and other major Federal actions significantly

affecting the quality of the human environment” an

environmental impact statement setting forth the

environmental impact of the proposed action. 42 U.S.C.

4332(2)(C).'* Furthermore, it is established law that “the

policies, regulations and public laws of the United States

shall be interpreted and administered with the policies of

NEPA ‘to the fullest extent possible.’” Trustees for Alaska

v. Hodel, 806 F.2d 1378, 1382 (9th Cir. 1986) (quoting 42

U.S.C. § 4332; citing Lathan v. Brinegar, 506 F.2d 677,

687 (9th Cir. 1974) (en banc)). There is a narrow exception

to the NEPA’s EIS requirement only where compliance with

the NEPA would result in a “clear and fundamental conflict

of statutory authority.” Flint Ridge Development Co. v.

' The purposes of the NEPA are to “declare a national

policy which will encourage productive and enjoyable

harmony between man and his environment; to promote

efforts which will prevent or eliminate damage to the

environment and biosphere and stimulate the health and

welfare of man; [and] to enrich the understanding of the

ecological systems and natural resources important to the

Nation....” 42 U.S.C. § 4321.

The Court also notes that CEQ regulations require an

EIS where federal actions “establish a precedent for future

actions with significant effects or represent(] a decision in

principle about a future consideration,” 40 C.F.R. §

1508.27(b)(6), or “threaten{] a violation of Federal, State, or

local law or requirements imposed for the protection of the

environment,” id. § 1508.27(b)(10), especially where those

effects are “likely to be highly controversial.” /d. §

~ 1508.27(b)(4).

30a

Scenic Rivers Ass’n., 426 U.S. 776, 791 (1976). However,

such an exception is narrowly construed. See Jones v.

Gordon, 792 F.2d 821 (9th Cir. 1986) (a 90-day time limit

for issuing permits under the Marine Mammal Protection Act

did not excuse compliance with the NEPA’s EIS

requirement). There is nothing in the fast track procedures

or the Trade laws that specifies that the NEPA shall not

apply to the NAFTA. The Court also notes that other

governmental entities, most notably the State Department,

prepare EISs for international treaties. 22 C.F.R. §§

161.5(d), 161.7(d)(2) (1992). Furthermore, as the timetable

for the NAFTA’s submission to Congress is not explicit, the

statutes here can be reconciled with the EIS requirement

contained in the NEPA.'®

''The Defendant argues that requiring an EIS at this

juncture will be unduly burdensome because there is

inadequate time available for its preparation. However, the

Court notes that the OTR could have very easily begun the

EIS process earlier in the NAFTA negotiation process and

thus any tight timetable for the preparation of an EIS on the

NAFTA is entirely the result of the inaction by the prior

administration.

In addition, our Court of Appeals noted that Congress

retains the power to change its rules governing the fast track

process and extend the statutory limit on its consideration of

the NAFTA if it wishes to postpone such consideration until

an EJS has been prepared. Public Citizen v. Office of the

United States Trade Representative, 970 F.2d 916, 922 (D.C.

Cir. 1992). Furthermore, it would be manifestly unjust to

deny relief in this case on the grounds that there was

inadequate time to prepare an EIS because the Plaintiffs

brought their prior lawsuit specifically to ensure that they

could obtain judicial review with ample time for the OTR to

complete an EIS. See Public Citizen v. Office of the United

States Trade Representative, 782 F. Supp. 139 (D.D.C.

——

3la

Finally, the Court notes that the House of

Representatives unanimously passed a resolution stating that

“Congress will not approve legislation to implement any

trade agreement if such agreement jeopardizes United States

health, safety, labor, or environmental laws.” H.R. Res.

246, 102nd Cong., 2nd Sess. (1992), and that certain

Senators have requested that an EIS be prepared on the

NAFTA.'® Such events confirm that Congress is interested

in the environmental effects of the NAFTA and would be

aided by the preparation of an EIS.

VII. CONCLUSION

The NEPA, and the policies under it, clearly require

that a federal agency prepare an environmental impact

statement on every proposal for legislation significantly

affecting the quality of the human environment. 42 U.S.C.

§ 4332(2)(C). The Court finds that the Plaintiffs have

demonstrated that there is a reasonable risk that the NAFTA

may cause environmental injury and the Court concludes that

the actions of the Defendant Office of the United States

Trade Representative in negotiating, drafting, and signing the

NAFTA are subject to review under the APA and NEPA.

Therefore, the Court shall enter summary judgment for the

Plaintiffs and order that the Defendant prepare an

environmental impact statement on the NAFTA with all

deliberate speed.

The Court notes that this agreement was negotiated by

President Bush and his Trade Representative Carla A. Hill,

and thus this lawsuit should not be construed as a failure of

1992) (June Green, J.); Plaintiffs’ Brief in Support of its

Motion for Summary Judgment, at 13.

16 See e.g., Plaintiffs’ Exhibit Z (Letter from Senator

Patrick Leahy to Carla A. Hills, dated March 26, 1992, at

3).

32a

the present Administration. However, such an impact

Statement is essential for providing the Congress and the

public the information needed to assess the present and future

environmental consequences of, as well as the alternatives to,

the NAFTA when it is submitted to the Congress for

approval. See Natural Resources Defense Council v. Morton,

337 F. Supp. 165 (D.D.C.) (Richey, J.), aff'd, 458 F.2d 827

(D.C. Cir. 1972) (Leventhal, J.).

The Court shall enter an Order of even date herewith

in accordance with this Opinion.

_june 30, 1993 ohinmeidtinanusedin

Date Charles R. Richey

United States District Judge

33a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, et ai.,

Plaintiffs,

Vv. Civil Action

No. 92-2102 (CRR)

OFFICE OF THE UNITED STATES

TRADE REPRESENTATIVE

Defendant.

Filed

JUN 30 1993

NANCY M. MAYER-WHITTINGTON

ORDER

Before the Court are the parties’ cross Motions for

Summary Judgment in the above-captioned case. After

careful consideration of the parties’ Motions, all the papers

filed in this case, and the applicable law, and for the reasons

articulated in the Opinion of the Court of even date herewith,

it is, by the Court, this 30th day of June, 1993,

ORDERED that the Plaintiffs’ Motion for Summary

Judgment shall be, and hereby is, GRANTED; and it is

FURTHER ORDERED that the Defendant’s Motion

for Summary Judgment shall be and hereby is DENIED; and

it 1S

FURTHER ORDERED that the Defendant Office of

34a

the United States Trade Representative has acted contrary to

law under the Administrative Procedures Act, 5 U.S.C. §

701 et seq., by failing to prepare an Environmental Impact

Statement on the North American Free Trade Agreement as

required by the National Environmental Policy Act; and it is

FURTHER ORDERED that the Plaintiffs shall have

a Declaratory Judgment that the Defendant Office of the

United States Trade Representative must prepare an

Environmental Impact Statement on the North American Free

Trade Agreement pursuant to the National Environmental

Policy Act, 42 U.S.C. § 4332; and it is

FURTHER ORDERED that the Defendant shal!

prepare such an Environmental Impact Statement forthwith,

and that the Court retains jurisdiction to determine an

appropriate schedule for the issuance of the aforementioned

Environmental Impact Statement if there is a dispute between

the parties as to a reasonable timetable for its preparation;

and it is

FURTHER ORDERED that the above-captioned case

shall be, and hereby is, DISMISSED from the dockets of

this Court.

/s/

Charles R. Richey

United States District Judge

35a

Administrative Procedure Act

5 U.S.C. § 702

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action

within the meaning of a relevant statute, 1s entitled to judicial

review thereof... .

§ U.S.C. § 704

Agency action made reviewable by statute and final

agency action for which there is no other adequate remedy in

a court are subject to judicial review. A preliminary,

procedural, or intermediate agency action or ruling not

directly reviewable is subject to review on the review of the

final agency action... .

National Environmental Policy Act

42 U.S.C. § 4332

The Congress authorizes and directs that, to.the fullest

extent possible: . . . (2) all agencies of the Federal

Government shall --

on proposals for legislation and other major

Federal actions significantly affecting the

quality of the human environment, a detailed

statement by the responsible official on --

(i) the environmental impact of

36a

the proposed action,

(11) any adverse environmental

effects which cannot be avoided

should the proposal be

implemented,

(i11) alternatives to the proposed

action,

(iv) the relationship between

local short-term uses of man’s

environment and_ the

maintenance and enhancement

of long-term productivity, and

(v) any irreversible and

irretrievable commitments of

resources which would be

involved in the proposed action

should it be implemented.

Prior to making any detailed statement, the

responsible Federal official shall consult with

and obtain the comments of any Federal

agency which has jurisdiction by law or

special expertise with respect to any

environmental impact involved. Copies of

such statement and the comments and views of

the appropriate Federal, State, and local

agencies, which are authorized to develop and

enforce environmental standards, shall be

made available to the President, the Council

on Environmental Quality and to the public as

provided by section 552 of Title 5, and shall

37a

accompany the proposal through existing

agency review processes .. ..

Council on Environmental Quality Regulations

40 C.F.R. § 1500.3

Parts 1500 through 1508 of this title provide

regulations applicable to and binding on all Federal agencies

for implementing the procedural provisions of the National

Environmental Policy Act of 1969, as amended (Pub. L. 91-

190, 42 U.S.C. 4321 et seq.) (NEPA or the Act) except

where compliance would be inconsistent with other statutory

requirements. These regulations are issued pursuant to

NEPA, the Environmental Quality Improvement Act of 1970,

as amended (42 U.S.C. 4371 et seq.) section 309 of the

Clean Air Act, as amended (42 U.S.C. 7609) and Executive

Order 11514, Protection and Enhancement of Environmental

Quality (March 5, 1970, as amended by Executive Order

11991, May 24, 1977)... . The provisions of the Act and

these regulations must be read together as a whole in order

to comply with the spirit and letter of the law. It is the

Council’s intention that judicial review of agency compliance

with these regulations not occur before an agency has filed

the final environmental impact statement, or has made a final

finding of no significant impact (when such a finding will

result in action affecting the environment), or takes action

that will result in irreparable injury. Furthermore, it is the

Council’s intention that any trivial violation of these

regulations not give rise to any independent cause of action.

40 C.F.R. § 1508.12

“Federal agency” means all agencies of the Federal

Government. It does not mean the Congress, the Judiciary,

38a

or the President, including the performance of staff functions

for the President in his Executive Office... .

40 C.F.R. § 1508.17

“Legislation” includes a bill or legislative proposal to

Congress developed by or with the significant cooperation

and support of a Federal agency, but does not include

requests for appropriations. The test for significant

cooperation is whether the proposal is in fact predominantly

that of the agency rather than another source. Drafting does

not by itself constitute significant cooperation. Proposals for

legislation include requests for ratification of treaties. Only

the agency which has primary responsibility for the subject

matter involved will prepare a legislative environmental

impact statement.

40 C.F.R. § 1508.18

“Major Federal action” includes actions with effects

that may be major and which are potentially subject to

Federal control and responsibility... .

(b) Federal actions tend to fall within one of

the following categories:

(1) Adoption of official policy, such as rules,

regulations, and _ interpretations adopted

pursuant to the Administrative Procedure Act.

5 U.S.C. 551 et seq.; treaties and

international conventions and agreements;

formal documents establishing an agency's

policies which will result in or substantially

alter agency programs.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.