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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1041

## Text

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?

il
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

iV
.. This Case Warrants Review Because
the Court of Appeals Misapplied
a ae ee La 25

eee er ee re eee ee 28

Vv

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

vl

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

1X

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

x

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

ee

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.

Ce

3

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

4

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

SS

5

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

6

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

T

7

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.

8

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

OO

9

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.

10

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 )

1]

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

12

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

13

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

14

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

15

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).

16

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.

_———————————

17

“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.

18

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

19

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

20

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

21

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

22

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

23

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

24

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).

25

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”).

26

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

Se

27

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.

28

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

la

Notice: This opinion is subject to formal revision before publication in
the Federal Reporter or U.S.App.D.C. Reports. Users are requested to
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.

2a

2

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.

3a

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).

4a
4

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

Sa
5

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.

6a
6

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-

Ta

7

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

8a
&

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.

9a

]

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

2

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

3

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.
3.

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

ee

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.

ee

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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0535%3A1. Public record. Not legal advice.