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PUBLIC CITIZEN v. OFFICE OF THE UNITED STATES TRAD

January 7, 1992

PUBLIC CITIZEN, et al. Plaintiffs,
v.
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVES, et al., Defendants.


GREEN


The opinion of the court was delivered by: JUNE L. GREEN

This matter comes before the Court upon Plaintiffs' Motion for Summary Judgment and Defendants' Motion to Dismiss the Complaint or in the Alternative, for Summary Judgment. A hearing on the motions was held on the 18th of November, 1991. Upon consideration of the motions and their supporting memoranda, the affidavits and exhibits, and the arguments made by counsel at the hearing, it is the judgment of this Court that plaintiffs do not have standing to bring this challenge at this time. Therefore, for the reasons stated in the following opinion, plaintiffs' motion is denied, and defendants' motion to dismiss is granted.

 FINDINGS OF FACT

 Plaintiffs filed a Complaint for Declaratory and Injunctive Relief seeking a declaration that the Office of the U.S. Trade Representative ("OTR") is required, pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331 et seq. (1982), to prepare environmental impact statements ("EISs") for certain international trade agreements being negotiated currently. The complaint also requested initially an injunction prohibiting both named defendants, the OTR and President Bush, from entering into the trade agreements until NEPA was satisfied. Plaintiffs' later withdrew their request for an injunction against concluding the agreements, acknowledging that such relief might intrude into the Executive's function. They ask only that an injunction issue ordering OTR to comply expeditiously with the requirements of NEPA by preparing EISs for the trade agreements.

 Defendant OTR is a federal entity with statutory authority to represent the United States in the negotiation of trade agreements. See 19 U.S.C. § 2171; Plaintiffs' Statement of Material Facts Not in Dispute ("Plaintiffs' Facts") No. 1; Defendants' Opposition to Plaintiffs' Statement of Material Facts Not In Dispute (Defendants' Facts") No. 1. When the OTR has negotiated trade agreements, such as the U.S.-Canada Free Trade Agreement, it has not prepared EISs on the agreements. Plaintiffs' Facts No. 2; Defendants' Facts No. 2.

 Plaintiffs, Public Citizen, the Sierra Club and Friends of the Earth, are membership organizations which take an active role in public education and lobbying for laws which protect public health and the environment. Plaintiffs' Facts Nos. 28, 30; Defendants' Facts No. 30. Plaintiffs' claim that the lack of information about the proposed trade agreements impedes, if not stymies, their efforts to educate the public and Congress about the possible environmental and health consequences of the trade agreements. Under NEPA, the purpose of an EIS is to inform decision-makers about the environmental consequences of their acts, in the hope that their decisions will seek to avert and minimize environmental harms before they reach the crisis stage. See Los Angeles v. National Highway Traffic Safety Admin., 286 App. D.C. 78, 912 F.2d 478, 491 (D.C. Cir. 1990).

 The trade agreements are likely to be subject to fast-track treatment in Congress. Plaintiffs' Facts No. 10; Defendants' Facts No. 10; 19 U.S.C. § 2903(b) (1988) (as amended). The fast-track legislation establishes a set of procedures for Congress and the President to follow to ensure expedient consideration of trade agreements. Plaintiffs point to several aspects of the fast-track procedures which they say make the Court's intervention at this time imperative. The President must give Congress 90 calendar days notice that he intends to enter into a trade agreement. After the President submits the agreement to Congress, Congress has only 60 legislative days in which to debate the proposal. No amendments to the proposed treaty are permitted, and debate in each chamber is limited to twenty hours. See 19 U.S.C. §§ 2191, 2192, 2902, 2903. Plaintiffs argue that the process of preparing an EIS must be initiated during the negotiations stage, because there is not enough time or opportunity to amend the agreements once they are signed by the President and submitted to Congress. To be effective, plaintiffs claim their, advocacy must be directed to modifying these agreements as they are negotiated.

 ANALYSIS

 Defendants argue that the harms plaintiffs allege are based on speculation about the possible effects of trade agreements which are not yet in existence. They say this injury does not meet Article III standing or ripeness requirements. At a minimum, Article III of the Constitution requires that: (1) plaintiffs demonstrate an injury in fact; (2) that the injury be traceable fairly to the challenged action; and (3) that it be likely to be redressed by a favorable decision. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700 , 102 S. Ct. 752 (1982) (quoted in Foundation on Economic Trends v. Lyng, 291 App. D.C. 365, 943 F.2d 79, 82 (D.C. Cir. 1991)).

 Judicial review of an agency's actions under NEPA is available only under the general review provision of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702-704 (1988). In addition to the constitutional requirements noted in Valley Forge, section 702 of the APA contains two separate requirements: (1) plaintiff must identify some "agency action" that affects him in the specified fashion, *fn1" and (2) plaintiff must be affected adversely or aggrieved within the meaning of the relevant statute. That is, the injury must be within the "zone of interests" the statute seeks to protect. See Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177, 3186, 111 L. Ed. 2d 695 (1990) ("NWF").

 The Supreme Court's decision in discusses the doctrines of standing and ripeness in the context of a NEPA case. In NWF, plaintiffs challenged what was referred to as the "land withdrawal review program" at the Bureau of land Management ("BLM"). This program referred to the thousands of decisions BLM made in determining how to classify and manage federal lands. Plaintiffs in alleged that the classification of some lands and the return of some lands to the public domain would open up the lands to mining, thereby destroying their beauty. Id. at 3183-84. In NWF, as here, plaintiffs claimed that the failure to prepare an EIS for the program violated NEPA.

 NWF discusses the two ways in which citizen organizations may establish standing to sue under NEPA. An organization may stake its claim derivatively, through its members. The usual allegation is that the members' environmental, recreational or aesthetic interests would suffer if a particular agency action were taken, and that preparation of an EIS might cause the agency to change its plans and avert the harm. See, e.g. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 37 L. Ed. 2d 254 , 93 S. Ct. 2405 (1973). The Court in NWF assumed that the asserted recreational and aesthetic interests of plaintiffs' members satisfied the requirements of aggrievement, of identifying a particular agency action, and of being within the zone of interests the statute sought to protect. The only issue involved injury in fact -- was a member of the NWF affected adversely, or threatened, by the government action? The affiants stated that they used land "in the vicinity" of the land affected by specific BUM decisions listed in the Federal Register. NWF, 110 S. Ct. at 3184. The Court found that averments which "stated only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action," did not satisfy Rule 56(e) of the Federal Rules of Civil Procedure. Id. at 3188-89.

 The affidavits made on behalf of plaintiffs here allege that political pressure and potential challenges to U.S. laws as trade barriers are among the factors which might weaken various state laws protecting public health and the environment. The supplemental affidavits assert that plaintiffs' members living in the States of California or Wisconsin, or along the U.S-Mexico border, will be affected by the weakening of U.S. laws and ...


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