Opposition Brief — Public Citizen v. United States Trade Representative

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No. 93-560

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In the Supreme Court of the Cnited'States——

OCTOBER TERM, 1998

PUBLIC CITIZEN AND SIERRA CLUB. PETITIONERS

v.

UNITED STATES TRADE REPRESENTATIVE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUTT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DREW S. DAYS, ITI

Solicitor General

LOIS Jd. SCHIFFER

Acting Assistant Attorney

General

ANNES. ALMY

BRADLEY M. CAMPRELI

IRAS. SHAPIRO SAMUEL C. ALEXANDER

General Counsel Attorneys

DANIEL FE. BRINZA Department of Justices

Special Counsel for Washington, D.C. 20520

Natural Resources (202) 514-2217

lS. Trade Repre sentatine

Washington, 1D.C'. 20506

QUESTIONS PRESENTED

1. Whether judicial review under the Administrative

Procedure Act (APA) of claims asserting that the

United States Trade Representative (USTR) must pre-

pare an Environmental Impact Statement (EIS) on the

North American Free Trade Agreement (NAFTA) pur-

suant to the National Environmental Policy Act (NEPA)

prior to transmittal of the agreement to Congress has

been rendered moot by congressional approval of NAFTA

and its implementing legislation.

2. Whether the court of appeals correctly held that

the President’s responsibility for final action in conclud-

ing NAFTA and transmitting the agreement to Con-

gress precludes APA review of claims that an EIS on

NAFTA must be prepared prior to the President’s con-

clusion and transmittal to Congress of the agreement.

(1)

TABLE OF CONTENTS

Page

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a sulinbauiibiiens 1

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ES EE OC en eee 12

Sinn Reanibtienhiditiciehlihicienadenbeesaionsabeesentbstiaseenebasedineitlocones 26

TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) .......... 17

Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) ...... 8, 22, 24

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

ERE EE ENS ee seeeen 20

California v. Block, 690 F.2d 753 (9th Cir. 1982) ........... 20

Church of Scientology v. United States, 113 S. Ct. 477

i aise th eaeiad le ceielasiasiaiinbhieeietbdeshdeslabiiiaaeaiaieeueseebareseeveseoress 13

City of Los Angeles v. Lyons, 461 U.S. 95 (19838) ............ 14, 15

City of Romulus v. County of Wayne, 634 F.2d 347 (6th

OS Sn 12-13

Cohen v. Rice, 992 F.2d 376 (Ist Cir. 1993) .................008 16

Colorado Environmentai Coalition v. Lujan, 803 F.

I sen seemtneimneonensons 21

Dalton v. Specter, cert. granted, No. 93-289 (Oct. i8,

Ea RRC a a 12, 16

Dames & Moore v. Regan, 453 U.S. 654 (1981) .............. 25

Florida Wildife Federation v. Goldschmidt, 611 F.2d

EE SE CEN 13

Franklin v. Massachusetts, 112 S. Ct. 2767 (1992) ...... 8, 12, 21,

22, 23, 24

Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377

I a sce peenmnnennouenennee 13

Haig v. Agee, 453 U.S. 280 (1981) ................cccceeeeeseeeeeees 25

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ........... 25

(IIT)

IV

Cases—Continued: Page

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

CE CI TI ececnstecsnicisininccdenoincnniiniiaimernatminenioniainanien 20

Izaak Walton League of America v. Marsh, 655 F.2d

ED Gs Gah TIED cscntsdicistndebdecticaninccsiomeninbeinestentends 19

Izumi Seimitsu. Kogyo Kubushiki Kaisha v. U.S.

Philips Corp., No. 92-1123 (Nov. 30, 1998) 0.0.0... 15

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ... 13

Lujan v. National Wildlife Federation, 497 U.S 871

CE cicniscccctigisdaceacteiesesonshadausdseidinstnilieinadasmanebadidapaniinds 19

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

PIII ccnencinsivic-encetsensensipuciacadonisediosmeassatepbemmenaiepiouttenbees 23, 26

Public Citizen v. United States Trade Representative:

em OB Fe 7,14

SEO Fe SES Ga. Ge Fe cectpcetesitcarvcsvecseseceseseneseesvens 7

Regan v. Wald, 468 US. 222 (194) ...........cccceccccesccoceveee 25

Specter v. Garrett, 995 F.2d 404 (3d Cir. 1993) .............. 16, 17

United States. v. Curtiss-Wright Export Corp., 299 U.S.

SE Be Nccctecsbasssnsieciausabiisecstenetsiasinnateediatebimaiebiadeges 25

United States v. Munsingwear, Inc., 340 U.S. 36

EITIIIIEID cic indoscssennonicnebiissnetbcanbeneeenadsageeaenieiianiadegneamanidnasniaivs 15

Velsicol Chemical Corp. v. United States, cert. denied,

GE TEE, Bie GRD ccccnsntencccnsinsesnetsctanccteumtntedenttuteeseven 15

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 435 U.S. 519 (1978) ............ 13

Weinstein v. Bradford, 423 U.S. 147 (1975) ........::0c0000 14

Zobrest v. Catalina Foothills School Dist., 113 S. Ct.

RE SD sebeictasieecsconansecvsaniasernmnesenecnirsentsiahiepenniticnpeteniiiniians 17

Constitution, statutes and regulations:

U.S. Const.:

SR, RAI RE ENT MAE PMN ARYA AEN OO REE 26

aT, - WP ei essniateninaseabiamereiiantaedentmmmniaiaiadnna 24

§ 2:

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Ae, TD iii ali cscs ncenseeisilideaialenmiiannienieisbiasiedddaaaiddhieasediniuaiiads 24

V

Constitution, statutes and regulation—Continued: Page

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GE, Bh vcccoccieneiccccscconenhubspevunsdabscnctnieenitiedansdiictniaitntds 24, 25

Administrative Procedure Act, 5 U.S.C. 701 et seq.:

BURG. FO cncecnecocceresentonssnsnnstedsininisniatodetsbeoctabetinesae 2,7

BD UTI, FOG ccscoceccscccssssecsssinonereseinitesisveusenpeontoameeset 2, 4, 7, 22

Federal Advisory Committee Act, 5 U.S.C. App., at

1175:

§$§ 1-12, 5 U.S.C. App., at 1175-1180 .........ccsecerseereees 21

Freedom of Information Act, 5 U.S.C. 552:

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© CEE, BI sestetcsctoseventecnsnnsiteccsesecsssivienvanenavevtimnsanen 21

National Environmental Policy Act of 1969, 42 U.S.C.

ED wicilinsieccciensipbedcsiniceninasebcanesunnsceccnnieeceneimminnioaies 2,7

Omnibus Trade and Competitiveness Act of 1988, Pub. L.

No. 100-418, 108 Stat. 1207 .....ccrcccccccoscsscocosessesccssooseeneeee

Trade Act of 1974, 19 U.S.C. 2101 et seq.:

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Wilderness Act of 1964, 16 U.S.C. 1131-1136 ....................

Exec. Order No. 11,075, 3 C.F.R. 103 (1963) ...............00

15 C.P.R. 2001.B(a I-17) ..ccccccccrcccccssooveccccecccececsssssosesees

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VI

Miscellaneous: Page

139 Cong. Rec. (1993):

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ST FO, Team... SE COG D scccecccnstvescssscesincssccttintatioeniein 3

H.R. 3450, 103d Cong., Ist Sess. (1998) ..........ccccccceeceeeeeees 11

The Extension of Fast Track Procedures: Message from

the President of the United States, H.R. Doc. No. 51,

ge | ae en 3

In the Supreme Court of the Guited States

OCTOBER TERM, 1993

No. 93-560

PUBLIC CITIZEN AND SIERRA CLUB, PETITIONERS

Vv.

UNITED STATES TRADE REPRESENTATIVE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

lla) is reported at 5 F.3d 549. The opinion and order.

of the district court (Pet. App. 12a-32a) is reported at

822 F. Supp. 21.

JURISDICTION

The judgment of the court of appeals was entered on

September 24, 1993. The petition for a writ of certio-

rari was filed on October 8, 1993. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Petitioners seek review of a court of appeals deci-

sion requiring dismissal of their action for declara-

tory and injunctive relief under the Administrative

Procedure Act (APA), 5 U.S.C. 702, 704, asserting

claims under the National Environmental Policy Act

of 1969 (NEPA), 42 U.S.C. 4332(2)(C). In that action,

petitioners sought to compel the office of the United

States Trade Representative (USTR) to prepare an

environmental impact statement (EIS) for the North

American Free Trade Agreement (NAFTA) prior to

the President’s conclusion of that agreement and his

transmittal of the agreement to Congress for its

consideration. President Bush signed NAFTA, and

President Clinton concluded related agreements,

during the course of the litigation below. Congress

thereafter approved NAFTA and enacted legislation

implementing the agreement during the pendency of

the petition for a writ of certiorari.

1. NAFTA is an international agreement, sub-

ject to congressional approval and implementation

through legislation, that creates a free-trade zone

spanning the North American continent. The agree-

ment is comprised of 22 chapters, numerous annexes,

and an exhaustive tariff schedule that eliminate or

reduce tariff and nontariff barriers to trade among

the United States, Canada, and Mexico. Pet. App. 3a.

NAFTA’s terms include numerous provisions in-

tended to enhance environmental protection through-

out the three nations, including specific provisions

affirming each country’s right to maintain its own

laws, regulations, and standards for the protection of

human health and the environment.

3

The negotiation and conclusion of the agreement

were marked by substantial and sustained presiden-

tial involvement, and direct presidential control over

the agreement’s conclusion and the timing and terms

of its submission to Congress. President Bush per-

sonally initiated the process for developing NAFTA

consultations with Mexico’s President Salinas in

1990. Following later discussions with Canada’s

Prime Minister Mulroney, President Bush informed

Congress of the proposed negotiations, which then

began among the United States, Canada, and Mexico.

See The Extension of Fast Track Procedures: Mes-

sage from the President of the United States, H.R.

Doe. No. 51, 102d Cong., Ist Sess. (1991) (reviewing

origin of NAFTA). Those negotiations were marked

by President Bush’s frequent personal participation,

and resulted in substantial agreement on a text that

was published in September 1992. On September 18,

1992, President Bush notified Congress and the public

of his intention to enter NAFTA. 57 Fed. Reg. 43,603

(1992); see 19 U.S.C. 2903(a)(1). Ninety days later, on

December 17, 1992, President Bush, along with Mex-

ico’s President Salinas and Canada’s Prime Minister

Mulroney, signed the agreement. See C.A. App. 59

(declarations of NAFTA negotiator).

Upon his inauguration, President Clinton an-

nounced that he would transmit NAFTA to Congress

only if the three countries could reach satisfactory

side agreements on environment, labor, and import

surges. Pet. App. 6a. The President initiated further

negotiations on those topics and concluded additional

agreements in late August, 1993. NAFTA and its

implementing legislation were transmitted to Con-

ae ere

4

gress on November 3, 1993, and approved on November

20, 1993.

2. NAFTA was negotiated, concluded, and submit-

ted to Congress according to the terms of the Trade

Act of 1974 and subsequent amendments, including

the Omnibus Trade and Competitiveness Act of 1988,

Pub. L. No. 100-418, 102 Stat. 1107 (codified at 19

U.S.C. 2101-2191, 2901-2906) (the Trade Acts). In the

Trade Acts, Congress established the office of USTR,

located “within the Executive Office of the Presi-

dent,” 19 U.S.C. 2171, as the President’s chief nego-

tiator for trade matters. USTR is a successor to the

Office of the Special Representative for Trade Nego-

tiations that President Kennedy created by executive

order in 1963. See Exec. Order No. 11,075, 3 C.F.R.

103 (1963). In recognition of USTR’s proximity to the

President, the Trade Acts are replete with provisions

in which Congress recognized that USTR’s role is

directly tied to the President’s role in the conduct of

international trade negotiations. 19 U.S.C. 2171(c)(1);

see 19 U.S.C. 2171(c)(1)(E), 2902, 2903; see also 15

C.F.R. 2001.3(a)(1)-(17) (USTR “performs the func-

tions of the President”).

Further provisions of the Trade Acts recognize the

primacy of the President in international negotia-

tions and in the domestic processes of setting policies

for trade negotiations and seeking congressional

approval of any agreements that result. For example,

the Trade Acts provide that Congress will give “fast-

track” consideration under its rules to certain trade

agreements and implementing bills submitted by the

President. Those rules strengthen the President’s

hand in negotiations with foreign nations by provid-

ing that if the President adheres to specified notice

5

and consultation requirements, then Congress is

obligated to take a timely vote on the agreement as

transmitted by the President, without delay or

amendment.

Under fast-track rules, as elsewhere in the Trade

Acts, the President takes the operative steps in the

process. The President has the option of invoking

fast-track rules if “the President shall consult” with

Congress prior to negotiations, e.g., 19 U.S.C. 2902(c),

and if “the President * * * notifies” Congress and the

public of his intention to enter an agreement 90 days

before doing so. 19 U.S.C. 2903(a)(1). After entering

into the agreement, “the President submits a * * *

final legal text of the agreement,” and “(i) a draft of an

implementing bill, (ii) a statement of any administra-

tive action proposed to implement the trade agree-

ment, and (iii) the supporting information described in

[19 U.S.C. 2903(a)(2)].”. 19 U.S.C. 2903(a)(1)(B). The

supporting information must include, among other

materials, a statement of how the implementing bill

will change existing law, and of how the agreement

meets the objectives of the Trade Acts. 19 U.S.C.

2903(a)(2).'

If the President decides to present a trade agree-

ment in accordance with the fast-track rules, those

rules provide for expedited consideration of the

implementing legislation as a whole. The leadership

in each House is to introduce the President’s imple-

menting bill on the day that he submits it. 19 U.S.C.

| Fast track procedures are not statutory, but have been

adopted “as an exercise of the rulemaking power of the House

of Representatives and the Senate,” 19 U.S.C. 2191(a)(1), “with

full recognition of the constitutional right of either House to

at any time.” 19 U.S.C. 2191(a)(2).

-

change the rules

2191(c)(1). House and Senate committee and floor

consideration, and votes by each chamber, must occur

no more than 90 legislative days after submission. 19

U.S.C. 2191. No amendments to the implementing

legislation are permitted, 19 U.S.C. 2191(d), and de-

bate in each chamber is limited to 20 hours. Further

restrictions ensure that the process is not under-

mined by dilatory motions. 19 U.S.C. 2192(d) and (e).

NAFTA was negotiated, concluded, and considered by

Congress under the terms of the fast-track process.

3. In 1991, petitioners filed an initial challenge to

NAFTA in the United States District Court for the

District of Columbia, raising the same claims at issue

in this case. Pet. App. 4a. Petitioners named both the

President and USTR as defendants in that case, and

they initially sought an injunction directed against

both defendants. Petitioners sought that relief on the

basis of an alleged failure by the President and USTR

to comply with NEPA in negotiations toward a

NAFTA and in the Uruguay Round of multilateral

trade negotiations pursuant to the General Agree-

ment on Tariffs and Trade (GATT).

The initial case was filed during the pendency of

negotiations toward a NAFTA, but before the agree-

ment had been concluded. Petitioners claimed that

the defendants’ failure to prepare an EIS for the two

proposed agreements violated the NEPA requirement

that

to the fullest extent possible * * *, all agencies of

the Federal Government shall * * * include in

every recommendation or report on proposals for

legislation and other major Federal actions signif-

icantly affecting the quality of the human envi-

ronment, a detailed statement by the responsible

7

official on—(i) the environmental impact of the

proposed action.

42 1J.8.C. 4832(2)(C). The district court dismissed the

case on the ground that petitioners then lacked stand-

ing. Public Citizen v. United States Trade Repre-

sentative, 782 F. Supp. 139 (D.D.C. 1992) (NAFTA I).

The court of appeals affirmed without reaching the

issue Of standing. Public Citizen v. United States

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

(NAFTA II). The court of appeals held that petition-

ers could aver jurisdiction only under the APA, and

that they had failed to identify any “final agency

action” that would permit APA review under 5 U.S.C.

702, 704. 970 F.2d at 918-923. Although the court did

not reach the merits, id. at 922 n.7, the court

specifically noted that it was “impossible to decide

with any confidence whether the (hypothetical)

[trade] agreement will include measures ‘signif-

icantiy affecting the quality of the environment’ in

the way contemplated by NEPA,” and “hard—prob-

ably impossible—to say whether any of them will

affect plaintiffs (or their members) with enough

directness to establish standing.” /d. at 921 n.6.

4. The case giving rise to this petition was insti-

tuted in the district court shortly after President

Bush announced agreement on NAFTA, but before he

signed the agreement. On June 30, 1993, the district

court issued an opinion concluding that the APA

allows review of petitioners’ NEPA claims, that

petitioners have established standing to assert those

claims, and that NEPA applies to NAFTA. Pet. App.

12a-32a. The district court ordered that USTR

prepare an EIS under NEPA “forthwith.” Jd. at 34a.

8

5. The court of appeals reversed. Pet. App. la-1la.

The court observed at the outset that NEPA does not

create a private right of action and that, conse-

quently, petitioners “must rest [their] claim for

judicial review on the [APA].” Pet. App. 4a. Because

the APA provides for judicial review only of “final

agency action,” the court of appeals stated that the

threshold question in the case is “whether [peti-

tioners] ha[ve] identified some agency action that is

final upon which to base APA review.” /d. at 5a.

In addressing that question, the court of appeals

relied on Franklin v. Massachusetts, 112 S. Ct. 2767

(1992), in which this Court rejected an APA challenge

to a census report that the Secretary of Commerce

had prepared for transmittal to Congress by the

President as part of a reapportionment calculation.

The court of appeals explained that in determining

“whether an agency action is final, ‘[t]he core

question is whether the agency has completed its

decisionmaking process, and whether the result of

that process is one that will directly affect the

parties.’” Pet. App. 5a (quoting Franklin, 112 S. Ct.

at 2773). APA review was unavailable in Franklin

“because the finai action under the reapportionment

statute (transmittal of the apportionment to Con-

gress) was that of the President, and the President is

not an agency.” Pet. App. 5a (citing Franklin, 112 S.

Ct. at 2773; Armstrong v. Bush, 924 F.2d 282, 289

(D.C. Cir. 1991)). The court of appeals further ob-

served that, in Franklin, “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 appor-

9

tionment to Congress, not the Secretary’s report to

the President.” Pet. App. 5a.

The court of appeals concluded that “[t]his logic

applies with equal force to NAFTA,” because the

agreement could have “no effect on [petitioners’]

members unless and until the President submits it to

Congress.” Pet. App. 6a. The court of appeals

explained:

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 legisla-

tion, and supporting information. 19 U.S.C.

§ 2903(a)(1)(B). The President is not obligated to

submit any agreement to Congress, and until he

does there is no final agency 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.

[bid.

The court specifically rejected the proposition that

NAFTA should be deemed “final” because agreement

on a final text had been reached by the parties at the

time of the complaint, reasoning that any agency

action concerning NAFTA was “just as much a

‘moving target’ as the census report in Franklin

because in both cases the President has statutory

discretion to exercise supervisory power over the

agency’s action. It is completely within the Pres-

ident’s discretion, for example, to renegotiate

portions of NAFTA before submitting it to Congress

or to refuse to submit the agreement at all.” Pet.

App. 6a.

10

The court also rejected petitioners’ contention that

the EIS requirement under NEPA is an independent

statutory obligation giving rise to APA review of

USTR’s actions regardless of what action the Pres-

ident takes concerning the agreement. The court

reasoned that the Secretary of Commerce’s obligation

to prepare the census report at issue in Franklin,

like the asserted obligation of USTR to prepare an

EIS, was an “independent statutory obligation,” but

one that could not affect the parties without

subsequent action by the President and so could not

give rise to APA review. Pet. App. 7a.

The court of appeals also addressed and rejected

petitioners’ assertion that adherence to the reasoning

of Franklin would effectively undermine NEPA’s

EIS requirement because “often ‘some other step

must be taken before’ otherwise final agency actions

will result in environmental harm,” and the related

assertion that that reasoning would mean the “death

knell” for judicial review of claims under NEPA’s

legislative EIS requirement. Pet. App. 7a. The court

of appeals explained that “Franklin is limited to

those cases in which the President has final con-

stitutional or statutory responsibility for the final

step necessary for the agency action directly to affect

the parties,” and that the Court in Franklin ex-

plicitly relied on “the importance of the President’s

role in the ‘integrity of the process’ at issue.” /bid.

The President’s responsibility for final action under

the Trade Acts, the court said, “indicates that Con-

gress deemed the President’s involvement essential

to the integrity of international trade negotiations.”

Id. at Ta-8a. In cases where “the President’s role is

not essential to the integrity of the process,” the

1]

court suggested, “APA review of otherwise final

agency actions may well be available.” Jd. at 8a.

In a concurring opinion, Judge Randolph expressed

doubt concerning that last suggestion, because he

was “not prepared to say whether in NEPA cases, the

act of proposing legislation constitutes final action

under § 704 of the APA.” Pet. App. 10a. Judge Ran-

dolph concluded, however, that this case presents no

occasion to reach that question, because “regardless

of whether the President’s submission of NAFTA to

Congress would be final action, there is no ‘final’

action that can be attributed to an ‘agency.’” Jd. at

lla.

6. Following the court of appeals’ decision and

petitioners’ filing of this petition for certiorari, Pres-

ident Clinton submitted NAFTA and its implement-

ing legislation to Congress according to the terms

and procedures set forth in the Trade Acts. H.R.

3450, 103d Cong., Ist Sess. (1993); see 19 U.S.C. 2903.

The House of Representatives approved the agree-

ment and its implementing bill on November 17, 1993.

139 Cong. Rec. H10,048 (daily ed. Nov. 17, 1993). The

Senate approved the agreement and the bill on

November 20, 1993. 139 Cong. Rec. $16,712 (daily ed.

Nov. 20, 1993).

The President signed NAFTA’s implementing

legislation on December 8, 1993. NAFTA and its

related agreements have also been approved by

Canada and Mexico through their political processes,

and the agreement therefore will take effect, accord-

ing to its terms, on January 1, 1994.

ee ee

12

ARGUMENT

Petitioners contend that this Court should grant

review in order to resolve a circuit conflict over the

application of Franklin v. Massachusetts, 112 S. Ct.

2767 (1992). The precise question presented in this

case is now moot, however, because Congress has

approved NAFTA and has enacted legislation to

implement the agreement. Accordingly, the prepara-

tion of an EIS would not assist petitioners in their

stated purpose of informed participation in the

legislative debate, nor would it serve any useful

purpose. Further review by this Court would do

nothing more than provide advice to lower courts

about review of NEPA claims arising from hypotheti-

cal future trade agreements, agreements that may

never affect the petitioners in this case.

Furthermore, review is not warranted in this case

because the court of appeals correctly applied settled

principles of law articulated by this Court in

Franklin v. Massachusetts. The decision below does

not conflict with any other appellate decisions, and is

unlikely to be affected by this Court’s decision in

Dalton v. Specter, cert. granted, No. 93-289 (Oct. 18,

1993). Finally, the decision of the court of appeals is |

correct because it avoids serious constitutional

questions concerning the separation of powers.

1. Congressional approval of NAFTA and enact-

ment of its implementing legislation has eliminated

any controversy between the parties to this case,

thereby rendering the case moot.’ Petitioners sought

2 The federal courts have uniformly held that alleged

NEPA claims are moot when the challenged action has been

completed. See, e.g., City of Romulus v. County of Wayne, 634

) -

13

an KIS to inform the participation of their organiza-

tions and their members in the administrative and

legislative process culminating in the President’s

transmittal of the agreement and implementing legis-

lation to Congress for a vote. See Pet. 26. That vote

has taken place,* and it is therefore impossible for the

Court to grant “any effectual relief whatever.”

Church of Scientology v. United States, 113 S. Ct. 447,

449 (1992). The petition is thus no more than a

request for an advisory opinion as to “what the law

would be upon a hypothetical state of facts” presented

by future trade agreements. Lewis v. Continental

Bank Corp., 494 U.S. 472, 477 (1990).

Petitioners nonetheless claim (Pet. 11) that this

case is not moot because the controversy is “capable

of repetition, yet evading review,” in that the same

issues may arise with respect to future trade agree-

ments. There currently are no completed trade

agreements that are candidates for congressional

approval pursuant to the “fast-track” procedures,

however, and it is speculative whether such agree-

ments will emerge in the future and whether the

F.2d 347, 348-349 (6th Cir. 1980); Florida Wildlife Federation v.

Goldschmidt, 611 F.2d 547, 549 (5th Cir. 1980); Friends of the

Earth, Inc. v. Bergland, 576 F.2d 1377 (9th Cir. 1978). That

conclusion follows from the fact that NEPA’s obligations are

pre-decisional, and are intended to ensure “a fully informed

and well-considered decision” before an agency takes action.

Vermont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, 435 U.S. 519, 558 (1978).

% Of course, if Congress had considered any information

provided by the President or USTR about NAFTA to be inad-

equate, including information about environmental conse-

quences of the agreement, Congress could have rejected the

agreement on that basis.

14

timing of such agreements will preclude full litiga-

tion of the issues presented.

Moreover, the doctrine permitting assertion of

jurisdiction in the exceptional circumstance in which

an issue is “capable of repetition, yet evading review,”

requires more than a prediction that the conduct

complained of may recur; it applies only where “there

[is] a reasonable expectation that the same complain-

ing party would be subjected to the same action

again.” Weinstein v. Bradford, 423 U.S. 147, 149

(1975); see also City of Los Angeles v. Lyons, 461 U.S.

95, 109 (1983). In advance of the completion of a trade

agreement, with specific terms and conditions, it is

impossible to assess whose interests—environmental

or otherwise—would be adversely affected by the

implementation of the agreement.‘ The district court

so ruled in the first NAFTA case when it dismissed

petitioners’ claims for lack of standing. See NAFTA

I, 782 F. Supp. at 142.

Accordingly, in order for petitioners to establish

jurisdiction on the basis that the issue presented is

“capable of repetition, yet evading review,” the Court

would have to presume that petitioners’ members

4 It is possible that the Uruguay Round of multilateral trade

negotiations under GATT will yield an agreement in

principle—but not a final agreement—by December 15, 1993,

the deadline for the President to provide notice of his intention

to enter into an agreement that would be subject to the fast-

track rules. Even if that eventuality were to occur, however,

this case would still be moot, becanse petitioners cannot demon-

strate that any such agreement in principle would lead to the

conclusion of a final agreement that would injure them in the

same manner that they claim to be injured by NAFTA, nor can

petitioners show that the issues in any future chailenge to such

an agreement would be the same as those in this case.

a et teint tates eens.

SA DAY Bo YOO ew ats seem Oo

15

would be among those injured by the implementation

of a future trade agreement, and that they would be

injured in the same manner asserted here. Such a

presumption is untenable, because the evidence upon

which petitioners relied to establish standing in this

case focused on two types of harms that are specific to

NAFTA: harms to members along the United States-

Mexico border from increased development, and

harms to members from possible displacement of

United States environmental health and safety laws

that may result if specific terms of NAFTA are

construed to conflict with those laws. Pet. App. 23a-

28a. There is no certainty that such harms will

threaten petitioners’ members under another trade

agreement, nor any basis on which to conclude now

that those predicted future harms will give rise to

standing. Thus, petitioners cannot satisfy the re-

quirement that they “make a reasonable showing that

[they] will again be subjected to the alleged il-

legality.” City of Los Angeles v. Lyons, 461 U.S. at

109. Accordingly, this case is moot, and the petition

should be denied on that ground.®

2. Petitioners have failed to identify any actual

conflict between the decision of the court of appeals in

this case and that of any other court of appeals.

5 For the reasons that follow, this case is not one that would

warrant review on its merits. Accordingly, in our view, the

procedure applicable to cases that become moot while pending

on appeal or in this Court (see United States v. Munsingwear,

Inc., 340 U.S. 36 (1950)) is inapplicable, and certiorari should

simply be denied. See 77-900 U.S. Br. in Opp. at 5-8, Velsico/

Chemical Corp. v. United States, cert. denied, 435 U.S. 942

(1978); see also U.S. Br. as Amicus Curiae at 18 n.19, Jzumi

Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., No.

92-1123 (Nov. 30, 1993).

_ 16

Accordingly, review of the decision below would not

be warranted even if a live controversy were pre-

sented in this case.

a. Petitioners suggest (Pet. 20-25) that this Court

should grant review because the lower federal courts

are interpreting and applying this Court’s decision in

Franklin in an inconsistent manner. The only cir-

cuit conflict they point to, however, is that between

the First Circuit in Cohen v. Rice, 992 F.2d 376

(1993), and the Third Circuit in Specter v. Garrett, 995

F.2d 404 (1993), over the question whether the APA

authorizes judicial review of base closure recommen-

dations of the Secretary of Defense and the Defense

Base Closure and Realignment Commission. This

Court has already granted a writ of certiorari in

Dalton v. Specter, No. 93-289 (Oct. 18, 1993), to resolve

the conflict between Cohen and Specter, but that

conflict is not relevant to the decision of the court of

appeals in this case.

In Cohen, the First Circuit applied the reasoning of

Franklin to the Defense Base Closure and Realign-

ment Act of 1990 and concluded that, as in Franklin,

the President’s role in transmitting base closure

recommendations and in otherwise taking final action

under the Act places those recommendations outside

the scope of APA review. 992 F.2d at 381-382. In

Specter, on the other hand, the Third Circuit con-

* cluded that, notwithstanding Franklin, there is a

“constitutional aspect” to the claims in that case, and

that “extra-APA review” was therefore required in

order to ensure that the President met what the

court deemed to be a constitutional requirement “to

remain within the scope of his legal authority.” 995

F.2d at 409. The Third Circuit held that the reason-

17

ing of Franklin supported its result, because

Franklin permitted constitutional (as distinct from

APA) review of claims rising from the census report

there at issue. Jd. at 408-409. The United States

sought review in Specter, because the Third Circuit’s

reasoning cannot be reconciled with the holding in

Franklin or with principles of sovereign immunity,

and because the Base Closure Act demonstrates con-

gressional intent to preclude review of the particular

claims asserted in that case.

Petitioners’ reliance on Specter is thus entirely

misplaced. Petitioners never raised, and the courts

below never considered, any argument that the NEPA

claims presented in this case hada constitutional

dimension that might support review on some basis

other than that provided by the APA. This Court will

generally not consider arguments that were not

pressed or passed upon in the courts below (see, e.g.,

Zobrest v. Catalina Foothills School Dist., 113 S. Ct.

2462, 2466 (1993); Adickes v. S.H. Kress & Co., 398

U.S. 144, 147 n.2 (1970)), and that practice is particu-

larly appropriate where, as here, the underlying

controversy is moot.

The other question presented in Specter—whether

the Base Closure Act precludes judicial review for

purposes of the APA—is also of no relevance to this

case. The Court’s resolution of that issue will have

no impact on the correctness of the court of appeals’

ruling below that petitioners have failed to identify

any final agency action subject to APA review.

Accordingly, there is no reason either to grant the

petition in this case or to hold it pending disposition

of Specter, because the questions presented in that

18

case were either waived by petitioners or are of no

possible relevance here.

b. Petitioners also err in contending (Pet. 12-16)

that the application of Franklin by the court of

appeals “conflicts with two decades of judicial review

under NEPA.” Pet. 12. According to petitioners,

courts have exercised review in numerous NEPA

cases, including numerous cases involving agency

proposals for legislation, “regardless of whether the

underlying action involves presidential authority.”

Ibid.

Petitioners’ claim of conflict disregards the narrow

scope of the decision below. The court of appeals

expressly stated that “Franklin is limited to those

cases in which the President has final constitutional

or statutory responsibility for the final step neces-

sary for the agency action directly to affect the

parties,” Pet. App. 7a, and the court noted that APA

review “may well be available” in cases where “the

President’s role is not essential to the integrity of

the process.” /d. at 8a. Thus, the court’s reasoning

does not imply, and indeed disavows, petitioners’

suggestion that the decision below precludes APA

review wherever “final agency action” may implicate

presidential authority.

Petitioners’ recital (Pet. 13-16 & n.3) of numerous

cases in which courts undertook judicial review of

NEPA compliance, and in which neither the scope of

the APA nor action by the President was placed in

dispute, therefore does not demonstrate the existence

of a circuit conflict or support the assertion that the

decision below threatens the scope of judicial review

of NEPA claims on all matters in the executive

Branch on which the President may possess ultimate

Dette ant atin earn

19

authority. In the first place, nearly all of the cited

cases antedate Franklin. Thus, those cases obvi-

ously cannot serve to demonstrate the existence of a

circuit conflict over the proper application of the

principles of APA review annc inced in F'ranklin.

Moreover, many of the cases on which petitioners

rely were decided without reference to the APA, on

the erroneous assumption that NEPA created an

implied right of action independent of the APA. See,

e.g., lzaak Walton League of America v. Marsh, 655

F.2d 346, 352 (D.C. Cir. 1981). That assumption

obviated the need to address whether review of the

NEPA claims at issue rested on a final agency action

within the meaning of the APA. Petitioners do not

cluim that NEPA contains a private right of action,

however (cf. Lujan v. National Wildlife Federation,

497 U.S. 871, 882-883 (1990)), and instead seek judicial

review under the APA. Accordingly, those cases are

inapposite.

Furthermore, petitioners’ argument that the deci-

sion below conflicts with NEPA cases involving

presidential authority cannot withstand scrutiny.

None of the court of appeals cases cited in the petition

involves the issue addressed by Franklin: the re-

lationship between the judicial review provisions of

the APA and special statutory schemes under which

the final decisionmaking authority for the Executive

Branch rests with the President personally.

Of the cases cited by petitioners, only those con-

cerning decisionmaking under the Wilderness Act of

1964, 16 U.S.C. 1131-1136, involved a statutory scheme

similar to that at issue in this case. Under that Act,

the cabinet Secretary with jurisdiction over the

federal lands involved recommends to the President

~~~

20)

whether a specific area should be designated a wilder-

ness area by Congress. The President is empowered

to accept or reject such recommendations and trans-

mit such recommendations as he sees fit to Congress

for legislative action.

Cases involving judicial review of NEPA claims

under the Wilderness Act have not presented the

issue addressed in Franklin and in this case of the

propriety of APA review where only the President

may take final action. California v. Bergland, 483 F.

Supp. 465 (E£.D. Cal. 1980), modified, California v.

Block, 690 F.. 2d 753 (9th Cir. 1982), involved a decision

by the Secretary of Agriculture that not only deter-

mined which areas the President should recommend

for inclusion in the wilderness system, but that also

determined that the areas not designated could be

developed for non-wilderness use without further

evaluation. The court of appeals characterized the

latter aspect of the agency’s action as a crucial

decision for future management of those lands, and

reviewed the asserted NEPA claims on that basis.

See 690 F.2d at 762. In other words, the court was

not undertaking review of NEPA claims arising from

the agency’s recommendations to the President

concerning wilderness designation, but rather those

arising from the agency’s decision to permit

development in the other lands. [Idaho Conservation

League v. Mumma, 956 F.2d 1508 (9th Cir. 1992), was

a similar case limited to Forest Service decision-

making in a single National Forest, in which the

President’s exercise of discretion likewise was not

addressed. Thus, petitioners have failed to point to

any appellate case that actually decides the question

21

presented in this case in a manner different from the

result reached by the court below.®

c. Petitioners seek to bolster their claim of a

conflict by reference to purportedly analogous stat-

utes, including the Freedom of Information Act

(FOIA), 5 U.S.C. 552b, and the Federal Advisory

Committee Act (FACA), 5 U.S.C. App., at 1175-1180,

§§ 1-12. Unlike NEPA, however, those statutes im-

pose obligations—the former to release agency

records and the latter to follow specific procedural

requirements in the use of advisory committees—

that arise regardless of whether agency action, or a

final agency action, occurs at all. As petitioners

concede, moreover, FOIA has an independent pro-

vision for judicial review that is more expansive than

the APA. Pet. 24 n.5; see 5 U.S.C. 552(a)(4)(B).

Accordingly, neither those statutes nor the hypo-

thetical examples offered by petitioners (Pet. 24)

establish a basis for review of the decision in this

case.

3. Review is also unwarranted in this case because

the judgment below is correct. The court of appeals

properly concluded that the principles announced in

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

6 Petitioners do identify an apparent conflict between the

decision below and one district court’s ruling, in a case arising

under the Wilderness Act, that the failure to prepare an EIS,

without more, may constitute a “final agency action” sup-

porting APA review of NEPA claims. Colorado Environ-

mental Coalition v. Lujan, 803 F. Supp. 364 (D. Colo. 1992).

That ruling was made in an interlocutory decision that has not

yet been subject to appellate review, and the case has not yet

resulted in a final judgment. Accordingly, a genuine conflict on

this issue may never arise at the appellate level, and review of

the issue in this case would be premature.

22

concerning the scope of APA review preclude the

exercise of review here.

a. Petitioners do not dispute that judicial review of

the NEPA claims presented in this case is available

only under the APA’s provision for review of “final

agency action.” 5 U.S.C. 704. Indeed, petitioners

identified no other basis for review before the district

court and the court of appeals. The APA requires

both that the challenged action be final (7bid.) and

that the final action be taken by an “agency,” not the

President. Armstrong v. Bush, 924 F.2d 282, 288-289

(D.C. Cir. 1991).

In Franklin, this Court unequivocally held that

the APA’s finality requirement bars APA review

where, as with NAFTA, the President is charged

with taking final action. Franklin v. Massachusetts,

112 S. Ct. at 2773-2776. The court of appeals recog-

nized that the Trade Acts, like the statute at issue in

Franklin, “involve the President at the final stage of

the process,” Pet. App. 6a, and explicitly provide that

only the President may take action that can be

deemed “final” with respect to trade agreements such

as NAFTA.

The President must provide the statutory notifica-

tion of his intention to enter a free trade agreement,

19 U.S.C. 2903(a)(1); the President’ must sign the

agreement; and the President must submit the final

agreement, implementing legislation, and supporting

information to Congress, 19 U.S.C. 2903(a)(1)(B). As

the court of appeals pointed out, “[t]he President is

not obligated to submit any agreement to Congress,

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

the agreement is submitted to Congress, it will be the

23

result of action by the President, action clearly not

reviewable under the APA.” Pet. App. 6a.

Significantly, petitioners do not contend that the

court of appeals erred in concluding that, as in

Franklin, NAFTA presents a case 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.” Pet.

App. 7a. Nor do petitioners take issue with the

court’s conclusion that “Congress deemed the

President’s involvement essential to the integrity of

international trade negotiations.” Jd. at Ta-8a; see

Franklin, 112 S. Ct. at 2775 (President’s role is

“important to the integrity of the process” and thus

beyond APA’s scope). Accordingly, petitioners’ claim

that the court misapplied Franklin must be rejected.

b. The correctness of the judgment below is

reinforced by two principles of construction that

compel the result reached by the court of appeals.

The first is the “cardinal principle” that where a

proposed interpretation of a statute would raise

“serious doubt” about the statute’s constitutionality,

courts should “first ascertain whether a construction

of the statute is fairly possible by which the

[constitutional] question may be avoided.” Public

Citizen v. Department of Justice, 491 U.S. 440, 465-

466 (1989). Judicial “reluctance to decide constitu-

tional issues is especially great where, as here, they

concern the relative powers of coordinate branches of

government.” Jd. at 466. The second principle of

construction that supports the judgment below is the

corollary requirement that “[w]hen Congress decides

purposefully to enact legislation restricting or

regulating presidential action, it must make its

24

intent clear.” Armstrong, 924 F.2d at 289; see Frank-

lin, 112 S. Ct. at 2775.

Applying those principles, Franklin made clear

that any construction of the APA permitting review

where the final action may be taken only by the

President would directly threaten the constitutional

separation of powers. Franklin, 112 S. Ct. at 2775

(refusing APA review “[oJut of respect for the

separation of powers and the unique constitutional

position of the President”); Armstrong, 924 F.2d at

289 (emphasizing that review might “significantly

alter the balance between Congress and the Presi-

dent”). While the court of appeals here expressly

declined to address the government’s “weighty”

constitutional arguments (Pet. App. 8a), the APA

review sought by the petitioners implicates the sepa-

ration of powers because such review contemplates

judicial interference with important Article II powers

that were not at issue in Franklin or Armstrong:

exercise by the President of his express authority to

submit to Congress whatever legislation he sees fit

(see U.S. Const. Art. II, § 3, Cl. 2), and of his far-

reaching power over the Nation’s foreign affairs.’

Any judicial imposition of an EIS requirement on

the drafting and preparation.of NAFTA and similar

trade agreements would directly impinge on the

7 That power derives from the several constitutional provi-

sions that vest the President with executive and foreign affairs

powers, including the “Power, by and with the Advice and

Consent of the Senate, to make Treaties.” U.S. Const. Art. II,

§ 2, Cl. 2. See also U.S. Const. Art. II, § 1, Cl. 1 (“The execu-

tive Power shall be vested in a President.”); Art. II, § 2, Cl. 1

(“The President shall be Commander in Chief.”); Art. Il, § 3

(“he shall receive Ambassadors and other public Ministers”).

25

President’s ability to exercise control over the

content and timing of his submissions to Congress.

The Constitution expressly grants the President the

power to “from time to time * * * recommend to

[Congress’s] Consideration such Measures as he

shall judge necessary and expedient.” U.S. Const.

Art. II, § 3, Cl. 2 (emphasis added). That textual grant

of authority to the President plainly confers power to

transmit legislation to Congress as the President in

his sole discretion deems appropriate, and cannot be

constricted by judicially enforced requirements.

Moreover, NAFTA and its related agreements were

the subject of sensitive international negotiations and

significant foreign policy commitments by the Presi-

dent during the pendency of the action below. The

court of appeals’ construction of the APA in this case

thus gave proper weight to this Court’s repeated

admonition “that matters relating ‘to the conduct of

foreign relations * * * are so exclusively entrusted to

the political branches of government as to be largely

immune from judicial inquiry or interference.’” Haig

v. Agee, 453 U.S. 280, 292 (1981) (quoting Harisiades

v. Shaughnessy, 342 U.S. 580 (1952)); see also Regan

v. Wald, 468 U.S. 222, 242 (1984); Dames & Moore v.

Regan, 453 U.S. 654, 668 (1981); United States v.

Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

The court of appeals’ decision properly defined the

scope of review so as to avoid conflict between APA

review and the President’s authority to negotiate and

conclude trade and other international agreements,

which lies at the core of the President’s power over

foreign relations. See Curtiss-Wright, 299 U.S. at

319 (“the President alone has the power to speak or

listen as a representative of the nation”).

26

The court of appeals’ decision thus adheres to this

Court’s teaching that federal courts should strive to

avoid intrusion on such core Article II powers, even

where the intrusion consists of procedural require-

ments imposed in the first instance on an agency. See

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

(1989) (construing FACA narrowly to avoid constitu-

tional issue presented by applying the statute to the

Department of Justice’s practices in advising the

President on judicial nominations). Thus, the signifi-

cant constitutional issues that would be raised by

review of petitioners’ NEPA claims belie any sugges-

tion that the court of appeals erred in not adopting

petitioners’ broader reading of the APA.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. Days, III

Solicitor General

LOIS J. SCHIFFER

Acting Assistant Attorney

General

ANNE S. ALMY

BRADLEY M. CAMPBELL

IRAS. SHAPIRO SAMUEL C. ALEXANDER

General Counsel Attorneys

DANIEL E. BRINZA

Special Counsel for

Natural Resources

U.S. Trade Representative

DECEMBER 1993