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PUBLIC CITIZEN v. KANTOR

October 4, 1994

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



The opinion of the court was delivered by: JOHN H. PRATT

 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"). *fn1" 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 297 U.S. App. D.C. 287, 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. *fn2" Public Citizen v. United States Trade Representative, 822 F. Supp. 21 (D.D.C.), reversed, 303 U.S. App. D.C. 297, 5 F.3d 549 (D.C. Cir. 1993), cert. denied 126 L. Ed. 2d 652, 114 S. Ct. 685 (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. *fn3" 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 APA *fn4" 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, 128 L. Ed. 2d 497, U.S. , , 114 S. Ct. 1719, 1724-25 (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 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 ...

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