Public Citizen v. U.S. Trade Representative, 93-5212

• Citation: 5 F.3d 549
• Decision Date: 24 September 1993
• Docket Number: No. 93-5212,93-5212
• Parties: , 15 ITRD 1713, 303 U.S.App.D.C. 297, 62 USLW 2192, 23 Envtl. L. Rep. 21,471 PUBLIC CITIZEN; Friends of the Earth, Inc.; Sierra Club, Appellees, v. UNITED STATES TRADE REPRESENTATIVE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 549

5 F.3d 549

37 ERC 1300, 15 ITRD 1713, 303

U.S.App.D.C. 297, 62 USLW 2192,

23 Envtl. L. Rep. 21,471

PUBLIC CITIZEN; Friends of the Earth, Inc.; Sierra Club, Appellees, v. UNITED STATES TRADE REPRESENTATIVE, Appellant.

No. 93-5212.

United States Court of Appeals District of Columbia Circuit.

Argued Aug. 24, 1993.

Decided Sept. 24, 1993.

Appeal from the United States District Court for the District of Columbia.

Drew S. Days, III, Sol. Gen., argued the cause for appellant. On the briefs were Ira S. Shapiro, Gen. Counsel, U.S. Trade Representative, Peter R. Steenland, Jr., Acting Asst. Atty. Gen., and Bradley M. Campbell and Samuel C. Alexander, Attys., U.S. Dept. of Justice.

Patti A. Goldman argued the cause for appellees. With her on the brief were Alan B. Morrison and Paul R.Q. Wolfson. Paul R.Q. Wolfson also entered an appearance.

Janice A. Kaye filed the brief for Bipartisan Congressional amici curiae Senators Donald W. Riegle, Jr., et al.

Kathleen Rogers, F. Kaid Benfield, S. Jacob Scherr, Robert F. Housman and Paul M. Orbuch filed the brief for amici curiae Natural Resources Defense Council, et al.

Roderick E. Walston, Chief Asst. Atty. Gen., Theodora P. Berger, Asst. Atty. Gen., and Craig C. Thompson, Supervising Deputy Atty. Gen., State of Cal. Dept. of Justice, filed the brief for amici curiae State of Cal., ex rel., et al.

Daniel J. Popeo and Paul D. Kamenar filed the brief amici curiae The Washington Legal Foundation, et al.

Johanna F. Chanin filed the brief for amicus curiae The Border Trade Alliance.

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

John J. Rademacher, Gen. Counsel, American Farm Bureau Federation, filed the brief for amicus curiae American Farm Bureau Federation.

Renea Hicks, State Sol. of Tex., filed the brief for amici curiae State of Tex., ex rel., et al.

William E. Mooz, Jr., filed the brief for The Amici States.

John J. Kim, Amy F. Robertson, Louis R. Cohen, C. Boyden Gray and Stuart P. Green filed the brief for amici curiae American Auto. Mfrs. Ass'n, et al.

Thomas E. Patton entered an appearance for amicus curiae New York State Bar Ass'n.

Before: MIKVA, Chief Judge, WALD and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

Concurring opinion filed by Circuit Judge RANDOLPH.

MIKVA, Chief Judge:

Appellees Public Citizen, Friends of the Earth, Inc., and the Sierra Club (collectively "Public Citizen") sued the Office of the United States Trade Representative, claiming that an environmental impact statement was required for the North American Free Trade Agreement ("NAFTA"). The district court granted Public Citizen's motion for summary judgment and ordered that an impact statement be prepared "forthwith." In its appeal of that ruling, the government contends that the Trade Representative's preparation of NAFTA without an impact statement is not "final agency action" under the Administrative Procedure Act ("APA") and therefore is not reviewable by this court. Because we conclude that NAFTA is not "final agency action" under the APA, we reverse the decision of the district court and express no view on the government's other contentions.

I. BACKGROUND

In 1990, the United States, Mexico, and Canada initiated negotiations on the North American Free Trade Agreement. NAFTA creates a "free trade zone" encompassing the three countries by eliminating or reducing tariffs and "non-tariff" barriers to trade on thousands of items of commerce. After two years of negotiations, the leaders of the three countries signed the agreement on December 17, 1992. NAFTA has not yet been transmitted to Congress. If approved by Congress, NAFTA is scheduled to take effect on January 1, 1994.

Negotiations on behalf of the United States were conducted primarily by the Office of the United States Trade Representative ("OTR"). OTR, located "within the Executive Office of the President," 19 U.S.C. Sec. 2171(a) ("Trade Act of 1974" or "Trade Acts"), is the United States' chief negotiator for trade matters. OTR "report[s] directly to the President and the Congress, and [is] responsible to the President and the Congress for the administration of trade agreements ..." Id. Sec. (c)(1)(B).

Under the Trade Acts and congressional rules, NAFTA is entitled to "fast-track" enactment procedures which provide that Congress must vote on the agreement, without amendment, within ninety legislative days after transmittal by the President. The current version of NAFTA, once submitted, will therefore be identical to the version on which Congress will vote. President Clinton has indicated, however, that he will not submit NAFTA to Congress until negotiations have been completed on several side agreements regarding, among other things, compliance with environmental laws.

Public Citizen first sought to compel OTR to prepare an environmental impact statement ("EIS") for NAFTA in a suit filed on August 1, 1991. Public Citizen v. Office of the United States Trade Representative, 782 F.Supp. 139 (D.D.C.), aff'd on other grounds, Public Citizen v. Office of the United States Trade Representative, 970 F.2d 916 (D.C.Cir.1992)(Public Citizen I ). The district court dismissed Public Citizen's claim for lack of standing. This court affirmed but did not reach the standing issue. Public Citizen I, 970 F.2d at 916. Instead, we ruled that because NAFTA was still in the negotiating stages, there was no final action upon which to base jurisdiction under the APA. Id. Public Citizen's current challenge is essentially identical, except that the President has now signed and released a final draft of NAFTA. The district court granted Public Citizen's motion for summary judgment and ordered OTR to prepare an EIS "forthwith." Public Citizen v. United States Trade Representative, 822 F.Supp. 21 (D.D.C.1993). The government appeals.

II. DISCUSSION

The National Environmental Policy Act ("NEPA") requires federal agencies to include an EIS "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment...." 42 U.S.C. Sec. 4332(2)(C). In drafting NEPA, however, Congress did not create a private right of action. Accordingly, Public Citizen must rest its claim for judicial review on the Administrative Procedure Act. Section 702 of the APA confers an action for injunctive relief on persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. Sec. 702; see Public Citizen I, 970 F.2d at 918. Section 704, however, allows review only of "final agency action." 5 U.S.C. Sec. 704 (emphasis added); see Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990). The central question in this appeal then is whether Public Citizen has identified some agency action that is final upon which to base APA review.

In support of its argument that NAFTA does not constitute "final agency action" within the meaning of the APA, the government relies heavily on Franklin v. Massachusetts, --- U.S. ----, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). Franklin involved a challenge to the method used by the Secretary of Commerce to calculate the 1990 census. The Secretary acted pursuant to a reapportionment statute requiring that she report the "tabulation of total population by States ... to the President." 13 U.S.C. Sec. 141(b). After receiving the Secretary's report, the President must transmit to Congress the number of Representatives to which each state is entitled under the method of equal proportions. 2 U.S.C. Sec. 2a(a). The Supreme Court held that APA review was unavailable because the final action under the reapportionment statute (transmittal of the apportionment to Congress) was that of the President, and the President is not an agency. Franklin, --- U.S. at ----, 112 S.Ct. at 2773; see Armstrong v. Bush, 924 F.2d 282, 289 (D.C.Cir.1991) (the President is not an "agency" within the meaning of the APA).

To determine whether an agency action is final, "[t]he core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties." Franklin, --- U.S. at ----, 112 S.Ct. at 2773 (emphasis added). The Franklin Court found that although the Secretary had completed her decisionmaking process, the action that would directly affect the plaintiffs was the President's calculation and transmittal of the apportionment to Congress, not the Secretary's report to the President. Id.

This logic applies with equal force to NAFTA. Even though the OTR has completed negotiations on NAFTA, the agreement will have no effect on Public Citizen's members unless and until the President submits it to Congress. Like the reapportionment statute in Franklin, the Trade Acts involve the President at the final stage of the process by providing for him to submit to Congress the final legal text of the agreement, a draft of the implementing legislation, and supporting information. 19 U.S.C. Sec. 2903(a)(1)(B). The 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 result of action by the President, action clearly not reviewable under the APA.

The district court attempts to distinguish Franklin by noting that unlike the census report (which the President was authorized to amend before submitting to Congress), NAFTA is no longer a "moving target" because the "final product ... will not be changed before submission to Congress." 822 F.Supp. at 26. The district court goes on to say that NAFTA "shall" be submitted to Congress. Id. This distinction is unpersuasive. NAFTA is just as much a "moving target" as the census report in Franklin because in both cases the President has statutory discretion to exercise supervisory power over the agency's action....