Public Citizen v. Kantor, Civ. A. No. 94-1148.

• Decision Date: 05 October 1994
• Docket Number: Civ. A. No. 94-1148.
• Citation: 864 F. Supp. 208
• Parties: PUBLIC CITIZEN, et al., Plaintiffs, v. Michael A. KANTOR, et al., Defendants.
• Court: U.S. District Court — District of Columbia

864 F. Supp. 208

PUBLIC CITIZEN, et al., Plaintiffs, v. Michael A. KANTOR, et al., Defendants.

Civ. A. No. 94-1148.

United States District Court, District of Columbia.

October 5, 1994.

COPYRIGHT MATERIAL OMITTED

Patti A. Goldman, Alan B. Morrison, Washington, DC, for plaintiffs.

Bradley M. Campbell, Ignacia S. Moreno, Environment and Natural Resources Div., Washington, DC, for defendants.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

Before the Court are cross-motions for summary judgment. Plaintiffs seek injunctive and declaratory relief requiring the United States Trade Representative ("USTR") and the Office of the United States Trade Representative ("OTR") to prepare an Environmental Impact Study ("EIS") for the Uruguay Round ("Uruguay Round") of the General Agreements on Tariffs and Trade ("GATT").¹ In addition, plaintiffs seek to require adoption by the OTR of "methods and procedures" to insure future compliance with the National Environmental Policy Act ("NEPA"). 42 U.S.C. § 4332(2)(C). After consideration of the pleadings, plaintiffs' motion for summary judgment is denied and defendants' motion for summary judgment is granted.

I. Background

This action is the third in a trilogy of cases in which plaintiffs (collectively "Public Citizen") attempt to bring under the NEPA umbrella the process of multilateral trade negotiation pursuant to the Trade Acts. Codified at 19 U.S.C. §§ 2101-2191, 2901-2909. The first case sought to compel the USTR and the OTR to prepare EISs for both the Uruguay Round and for the North American Free Trade Agreement ("NAFTA"). See Public Citizen v. United States Trade Representative, 782 F.Supp. 139 (D.D.C.) aff'd on other grounds 970 F.2d 916 (D.C.Cir.1992) ("Public Citizen I"). In the absence of a final agreement, the District Court in Public Citizen I granted summary judgment for defendants because Public Citizen could not show any cognizable harm that would support standing. 782 F.Supp. at 142-44. The Court of Appeals affirmed, but on the different ground that judicial review of NEPA claims requires "final agency action" which did not exist in the absence of a final NAFTA or Uruguay Round agreement. Public Citizen I, 970 F.2d at 923 (citing Administrative Procedure Act ("APA"), 5 U.S.C. § 704).

Public Citizen again brought suit to require the preparation of an EIS after the NAFTA was concluded.²Public Citizen v. United States Trade Representative, 822 F.Supp. 21 (D.D.C.), reversed, 5 F.3d 549 (D.C.Cir.1993), cert. denied ___ U.S. ___, 114 S.Ct. 685, 126 L.Ed.2d 652 (1994) ("Public Citizen II"). The principles therein set forth are also applicable to the present litigation. The District Court had ruled for Public Citizen and required the preparation of an EIS "forthwith". 822 F.Supp. at 31. The Court of Appeals reversed, concluding that final action on a trade agreement is committed to the President and not to an agency which is subject to APA review. 5 F.3d at 551-52.

The present action, "Public Citizen III", was originally brought in the Northern District of California, but was transferred here for further consideration. Public Citizen comes before the Court with two requests. One mirrors that made in the earlier cases: that the OTR must prepare an EIS for the Uruguay Round which was recently submitted to Congress.³ Plaintiffs' second and novel request is to require the OTR to promulgate general procedures to insure compliance with NEPA during the negotiation of future trade agreements. The relief specific to the Uruguay Round is based upon both the APA⁴ and in the Court's authority to grant mandamus relief to compel federal officials to perform their nondiscretionary statutory duties. 28 U.S.C. § 1361. The request that the OTR establish procedures for future trade agreements is grounded solely in the APA. The Court will deal with each issue separately.

II. Analysis

No citation of authority is necessary to support the proposition that Fed.R.Civ.P. 56(c) permits a court to grant summary judgment where, as is the case here, the evidence in the record indicates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

A. Applicability of NEPA to the Uruguay Round

1. Relief pursuant to the APA

In the complaint Public Citizen contends that the OTR is required to prepare an EIS for the Uruguay Round under the APA despite the holding of the Court of Appeals in Public Citizen II. Although Public Citizen appears to have conceded the matter after the case was transferred to this Court, it bears noting that the D.C.Circuit has unequivocally foreclosed judicial review under the APA of NEPA claims arising from trade agreements concluded pursuant to the Trade Acts. Public Citizen II, 5 F.3d at 553.

The APA claim is barred by the principle, twice reaffirmed by the Supreme Court, that APA review requires "final agency action." This requirement cannot be met where Congress provides that only the President may take final action. Public Citizen II, 5 F.3d at 551-52; Dalton v. Specter, ___ U.S. ___, ___ - ___, 114 S.Ct. 1719, 1724-25, 128 L.Ed.2d 497 (1994) (president is not an "agency" for APA purposes); Franklin v. Massachusetts, ___ U.S. ___, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). In Franklin, the Court, in emphasizing the necessity of final agency action, determined that the reapportionment statute, which required president to take final action, was not reviewable even though the challenged action was substantially performed by an agency. Id. at ___, 112 S.Ct. at 2776.

In the instant case, the agency's role is closely bound with that of the President in conducting international trade negotiation. See 15 C.F.R. § 2001.3(a)(1)-(17), esp. (9) (the OTR "performs the function of the President"). The Court of Appeals concluded in Public Citizen II:

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 test of the agreement, a draft of the implementing legislation, and supporting information.

5 F.3d at 551 (citing 19 U.S.C. § 2903(a)(1)(B)).

Public Citizen does not dispute that the Uruguay Round agreement is subject to all of the statutory provisions and all of the presidential discretion that applied to the earlier NAFTA agreement. It was the President who submitted the final agreement, and it was he who remained free to renegotiate the agreement or to refuse to submit it to Congress. 5 F.3d at 553. Until submitted the agreement remained a moving target subject to alteration by the President. Franklin, ___ U.S. at ___, 112 S.Ct. at 2774. Even after submission, the legislation is not the result of "final agency action." Therefore, it should be clear that the Uruguay Round falls outside the reach of the APA and the Court cannot use it as a basis for review.

2. Use of Mandamus to compel OTR to produce EIS

In the alternative, Public Citizen seeks non-APA review of OTR's failure to compile an EIS evaluating the possible impact of the Uruguay Round. Plaintiffs maintain that non-APA avenues remain available after Franklin, Dalton, and Public Citizen II. In particular, Public Citizen looks to Dalton, which states:

we may assume for the sake of argument that some claims that the President has violated a statute are judicially reviewable outside the framework of the APA.⁵ See Dames & Moore v. Regan, 453 U.S. 654, 667 101 S.Ct. 2972, 2980, 69 L.Ed.2d 918 (1981). But longstanding authority holds that such review is not available when the statute in question commits the decision to the discretion of the President.

___ U.S. at ___, 114 S.Ct. at 1727. This single statement is a slender reed upon which to rely, and one that, upon further reading, appears to support defendants' position. See also Public Citizen II, 5 F.3d at 551 (plaintiffs "must rest their claims for relief on the APA").

The Mandamus Act, codified at 28 U.S.C. § 1361, provides the Court with an extraordinary remedy to "compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Id. The purpose of this section was not to expand the traditional scope of mandamus, but to provide this remedy to federal courts outside the District of Columbia.⁶ Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983).

Assuming arguendo that mandamus relief is not precluded by the holdings of Dalton and Public Citizen II, we are required to consider and weigh several issues before granting relief. The Court must find the following: that the claim is clear and certain; that the duty of the officer involved must be ministerial, plainly defined, peremptory, and owed to plaintiff; and that plaintiff lacks an adequate remedy other than mandamus. Vishnevsky v. United States, 581 F.2d 1249, 1253 (7th Cir.1978); Nova Stylings, 695 F.2d at 1180. The duty must be a positive command and so "plainly prescribed as to be free from doubt." Senate Select Comm. on Pres. Campaign Activities v. Nixon, 366 F.Supp. 51, 57 (D.D.C.1973).

Even when the duty is clear and indisputable, issuance of the writ of mandamus is committed to the discretion of the Court. Cartier v. Sec. of State, 506 F.2d 191, 199 (D.C.Cir.1974), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975). The case for a writ must be clear and compelling on both legal and equitable grounds. 13th Regional Corp. v. U.S. Dept. of Interior, 654 F.2d 758, 760 (D.C.Cir.1980).

Among the factors to be considered in deciding whether to grant declaratory relief in a particular case is the public interest vel non in resolving the controversy.

National Wildlife Federation v. U.S., 626 F.2d 917, 924 (D.C.Cir.1980) ("NWF"). The public interest dictates restraint when the constitutional and prudential limitations on federal courts are implicated. Id. Restraint is particularly relevant as relief under NEPA will either...