# Opposition Brief — Public Citizen v. United States Trade Representative

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0535%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1041

## Text

+ Bietam court, ug

: RIT ,
No. 93-560
-—. meee SG

t
j

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
I ceeds dls li acidaeeceduaeppnaveiiecenebuusdacobisiaesonie 1
a sulinbauiibiiens 1
ui a art aeanitenemmnadnbatebibees 2
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:
Ce. © 2b ccsescuiennnnieneideanmaaibiaaeneaieibibebadediipaianie 24
Ae, TD iii ali cscs ncenseeisilideaialenmiiannienieisbiasiedddaaaiddhieasediniuaiiads 24

V

Constitution, statutes and regulation—Continued: Page

DD ciccecociseessciséoveriiscnasssiceteiniccesmiaaredenmnapaperenineeaistiins 24

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:
GB UB.C. GERAD) ccccccorccccesevcssccsscccesoseserconesesssseses 21
© 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.:
BD TEFL, BIE IG A ceccccwcsnessscsnesorecesesetionnvicesievncsssesers
BD UE INE cccrencstccevncscnicncsciecnsviareveseonisasienveasncesa
2D UDG. SITMEMA) ccccrescccsicccccesscccesssentecesserseveserersene
19 U.S.C. ZITA (EMA BE) .........cccccccccsessccsveccrrerceesesssees
OD TT FA TE cectveceneccesvcsscrsscessssevsncsnssovscesnesersottconies
1D UBC. SIGMA) cccececcccssseccsecssevsscscsscssvercavceseorssees
99 UDG. BIBI) ccccccccccvssccsccesssessnssecnsscossosscacsoosees
8D UE.C. BIGMEMA) ccocecrcoscsvccceccsovesesesscveresesenseoceeeenve
BD CG, BRED wiccvesccccovscnssvccvccescssacsccusvnvasserseveseives
BD Uh BD sencccvcnccrscetereccccseswiecinavesnioanaenoznoesenes
9D ChE BID cecececcscesensecnsorsesosesosevesssvessoresausnenense
BD TE Oe cerctcsecscencevccsvscenevecscinevqvonacetseneeesse
OD WG, BD eccetesecnccsntecscsnsnercesasensverescnssesencceseees
BD CEFR Be tesetecttmroscereecievcesescczecescsnsssonsnnccossapniees
BD TET, BREED ecccevecevcccsnccsscssnnssctacsconsvscsveccuvecees 3, 5,
19 U.S.C. 2OOB(aN ANB) ...2.200c00er-cccccovessecceesescsssorsereess 5,
BD U.F.C. BEGIN ccccrccccsescccvcencsesscasesessececosscereseees
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

_

SS ie kei i

_
> & © Ol

iia a

VI
Miscellaneous: Page
139 Cong. Rec. (1993):
Dr. FESO BGD GERI OG. P50. BV) cccecscccsecessserevecsecssuocceuns 11
PD. S1G,712 (daily ed. Nov. 20) .....cccccccccosccssssccscecteccsees 11
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0535%3A2. Public record. Not legal advice.