Public Citizen v. Office of U.S. Trade Representatives, 92-5010

Decision Date07 August 1992
Docket NumberNo. 92-5010,92-5010
Parties, 14 ITRD 1475, 297 U.S.App.D.C. 287 PUBLIC CITIZEN, et al., Appellants, v. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVES, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

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

Patti A. Goldman, with whom Alan B. Morrison and Paul R.Q. Wolfson, were on the brief, for appellants.

Barry M. Hartman, Acting Asst. Atty. Gen., with whom Benedict S. Cohen, Deputy Asst. Atty. Gen., Peter R. Steenland, Jr., and Bradley M. Campbell, Attorneys, Dept. of Justice, and Daniel E. Brinza, Attorney, U.S. Trade Representative, were on the brief, for appellees.

Paul D. Kamenar and Daniel J. Popeo, were on the brief, for amicus curiae urging that this Court affirm the decision of the District Court.

Before: WALD, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHAN F. WILLIAMS, Circuit Judge:

The United States Trade Representative is currently negotiating two trade agreements on behalf of the President: the North America Free Trade Agreement with Canada and Mexico ("NAFTA") and the Uruguay Round of the General Agreement on Tariffs and Trade. Agreement has not been reached on either. Public Citizen, the Sierra Club and Friends of the Earth sued the Trade Representative and the President, claiming that in negotiating such agreements they had failed to prepare the environmental impact statements ("EISs") required by § 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C) (1988), for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment". 1 The district court dismissed the suit on the ground that the plaintiffs lacked standing, and also noted ripeness and finality problems. Public Citizen v. USTR, 782 F.Supp. 139 (D.D.C.1992). We do not reach standing, but affirm because plaintiffs have failed to identify any "final agency action" judicially reviewable within the meaning of § 10(c) of the Administrative Procedure Act, 5 U.S.C. § 704.

* * * * * *

The Trade Representative is responsible for conducting international trade negotiations, developing and coordinating U.S. international trade policy, and imposing retaliatory trade sanctions on other countries. 19 U.S.C. §§ 2171; 2411-2417 (1988). Trade agreements involving nontariff barriers, and bilateral trade agreements involving tariff and/or nontariff barriers, are to take effect only if implementing bills are enacted by both the House of Representatives and the Senate. Id. § 2903(a)(1). The approval process takes place on a "fast track": the President must notify Congress at least 90 days before he enters into an agreement, id. § 2903(a); once he submits the agreement and the proposed implementing legislation, Congress has 60 days to approve or reject the agreement, id. § 2191(c) & (e), and may not amend the implementing legislation, id. § 2191(d). Of course, Congress retains the power to modify the fast track rules at any time, as they were adopted pursuant to each house's rulemaking power and thus, by their explicit terms, "with full recognition of the constitutional right of either House to change the rules ... at any time, in the same manner and to the same extent as in the case of any other rule of that House." Id. § 2191(a)(2). The fast track procedures were limited to trade agreements entered into before June 1, 1991, but Congress provided for a possible two-year extension. Id. § 2903(b)(1). President Bush requested and received such an extension for both the Uruguay Round and NAFTA. 2

The President responded to public concern over NAFTA's potential effects on the environment and labor by announcing his intention to prepare a "Border Environmental Plan" before completing an agreement. See Response of the Administration to Issues Raised in Connection with the Negotiation of a North American Free Trade Agreement (May 1, 1991). A plan was issued in draft and, after public comment, in final form. The Trade Representative also coordinated an interagency task force's study of U.S.-Mexico environmental issues that established broad goals for NAFTA negotiators. See Draft Review of U.S.-Mexico Environmental Issues (Oct. 1991); Final Review of U.S.-Mexico Environmental Issues (Feb. 1992).

The Trade Representative maintains she is under no legal obligation to prepare EISs for trade agreements, and has rejected plaintiffs' request to do so here. Plaintiffs claim that the agreements would have various potentially adverse environmental effects, mostly growing out of the agreements' possible preemptive effect on various federal and state environmental regulations. They cited as examples a GATT dispute resolution panel's decision declaring that the Marine Mammal Protection Act impermissibly restricted tuna imports under the current GATT, see GATT Panel Report, U.S. Restrictions on Imports of Tuna (1991); food safety harmonization provisions appearing in Uruguay Round drafts; and the chance of increased pollution on the U.S.-Mexico border due to the combination of treaty-inspired faster economic development in Mexico and less strict Mexican environmental standards. The plaintiffs also point to the possibility of harmonization provisions in NAFTA, though there are evidently no published NAFTA drafts.

Defendants challenged the district court's jurisdiction, asserting lack of standing and ripeness. They also raised several merits defenses, saying that NEPA is preempted by the fast-track statute; that NEPA does not bind the Trade Representative or the President, because they are not agencies; and that NEPA's application here would violate the constitutional doctrine of separation of powers. The district court granted the defendants' motion to dismiss the complaint, holding that plaintiffs lacked Article III standing, Public Citizen v. USTR, 782 F.Supp. at 141-44, and noting that the controversy was not ripe, id. at 142 n. 2. This appeal followed.

* * * * * *

NEPA does not create a private right of action, so plaintiffs rest their claim for judicial review on the Administrative Procedure Act, which confers an action for injunctive relief on persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute". 5 U.S.C. § 702. Absent an independent provision for review, however, the APA permits review only of "final agency action". Id. § 704; see Lujan v. National Wildlife Federation, 497 U.S. 871, ----, 110 S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990). As finality is a jurisdictional requirement, see, e.g., Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975), its absence precludes us from considering the merits, and removes any need for considering the government's other jurisdictional argument, standing.

We begin with NEPA itself, for it specifically identifies the time when an agency's action is sufficiently concrete to trigger the EIS requirement. The relevant section tells us that a detailed EIS must be included "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). Since the Trade Representative's refusal to prepare an EIS is not itself a final agency action for purposes of APA review, Foundation on Economic Trends v. Lyng, 943 F.2d 79, 85 (D.C.Cir.1991), plaintiffs must point to a specific proposal for legislation or other action " at least arguably triggering the agency's obligation to prepare an impact statement", id.

They are unable to do so here. No final agreement has yet been produced in either the NAFTA or Uruguay Round negotiations, and it is unclear whether either round will ever produce a final agreement for the President to submit to Congress. That two draft proposals of the Uruguay Round have been made public does not solve the problem; these are just drafts, and apparently neither of them has resolved the impasse in the negotiations. Cf. FTC v. Standard Oil Co., 449 U.S. 232, 242, 101 S.Ct. 488, 494, 66 L.Ed.2d 416 (1980) (filing of complaint is not final action, for it serves "only to initiate the proceedings"). As the government points out, the drafts are incomplete on critical issues. In releasing the December 20, 1991 draft on the Uruguay Round, for example, the GATT Secretariat noted that final agreement "will depend on substantial and meaningful results ... in the ongoing market access negotiations" relating to a wide range of issues including agriculture and natural resources. Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, cover page (Dec. 20, 1991). Even as to areas mentioned in the draft, the language is not in final legal form. See id., Annex I n. 1. Furthermore, the areas of tentative consensus themselves are susceptible to change, as "consensus in any one area does not become final unless and until final agreement is reached in all sectors and negotiating groups with all parties". Declaration of Julius L. Katz, Deputy Trade Representative (in charge of both negotiations), 3-4 (Nov. 14, 1991).

As to NAFTA, plaintiffs seek to rely on the President's Draft Review of NAFTA environmental issues. But that merely makes broad recommendations about environmental issues that negotiators should consider; it falls far short of being even a draft of a possible agreement.

Thus, plaintiffs have not identified any final agency action. Indeed at oral argument their counsel recognized that there would be none until actual completion of a trade agreement. 3 Rather, they invite us to intervene prematurely, on the ground that the Trade Representative has already stated that she will not prepare EISs, and that EISs would most usefully inform the decisionmaking process if prepared...

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