constitutional and prudential limitations on federal courts are implicated. Id. Restraint is particularly relevant as relief under NEPA will either impede legislation as effectively as an injunction or be reduced to a gratuitous gesture if Congress proceeds without regard to the relief granted.
In the instant matter, there are too many open questions concerning the availability of mandamus relief and the propriety of its use as requested. These concerns precluding the use of mandamus can be grouped into three categories: whether § 1361 is a source of substantive rights; whether the United States waived sovereign immunity in the case; and whether plaintiffs have standing.
We consider these concerns without judging their validity because their mere existence indicates that there is no clear and compelling justification for mandamus relief in this case.
Several courts, including our own, have concluded that § 1361 does not create any new causes of action or substantive rights. Senate Select Comm., 366 F. Supp. at 57; Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969), cert. denied, 397 U.S. 941, 90 S. Ct. 953, 25 L. Ed. 2d 121 (1970); Protect Our Eagles' Trees v. City of Lawrence, 715 F. Supp. 996, 998 (D. Kan. 1989) ("POET"). NEPA does not contain a private right of action, and APA review is precluded by the President's discretion in the trade context. Public Citizen II, 5 F.3d at 551-52 ; POET, 715 F. Supp. at 998 (Court cannot grant mandamus relief when the statute, whose provisions plaintiff seeks to enforce, does not contain private right of action). It stands to reason that mandamus relief should not be available when Congress foreclosed other forms of relief. Dalton, 114 S. Ct. at 1727 (non-APA review is not available when statute commits discretion to the president); see also Lujan v. National Wildlife Federation, 497 U.S. 871, 882-83, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990) (NEPA claims must satisfy APA requirements). Plaintiffs' attempt to create a cause of action through the Mandamus Act in circumstances where judicial review is otherwise precluded is without merit.
Additionally, it is far from clear that the United States has waived immunity from suit in this situation. The generally accepted rule is that § 1361 does not constitute a waiver of sovereign liability by the United States. Coggeshall Development Corp. v. Diamond, 884 F.2d 1, 3 (1st Cir. 1989); Watson's Estate v. Blumenthal, 586 F.2d 925, 934 (2d Cir. 1978) (§ 1361 does not alter traditional concepts associated with sovereign immunity). The waiver of sovereign immunity in NEPA applies to agencies of the federal government. 42 U.S.C. § 4332. As the D.C. Circuit has already concluded, the process of trade negotiations includes both the OTR and the President himself, who retains overall discretion. Public Citizen II, 5 F.3d at 552 (there is no "final agency action" in trade agreements because the President's involvement negates the "direct effect" of the OTR). Because of the President's overall discretion, it appears that this proposal for legislation is not the result of agency action as contemplated in NEPA.
Consequently, there has been no waiver of sovereign immunity through which a writ of mandamus could be issued. If this is true, an additional waiver of sovereign immunity might be needed before a discretionary decision of the president would be subject to mandamus review.
Plaintiffs' standing to bring this action also remains in doubt. It is unclear whether the duty here is owed to plaintiffs and whether plaintiffs would suffer an injury in fact if mandamus relief were not granted. See e.g. POET, 715 F. Supp. at 998, n. 2. In the case of trade agreements, the risk of environmental harm is speculative and extremely difficult to quantify in advance. Public Citizen I, 782 F. Supp. at 142-43. It is unclear at this time in what ways the Uruguay Round will affect domestic environmental laws.
Moreover, the resolution mechanisms contained in the trade agreement permit disputes to be settled without altering domestic law. If a domestic law is found to violate the agreement, the defending party may implement the decision, negotiate a solution, or pay compensation. 33 I.L.M. 112. There is no way to determine what impact such dispute resolution methods may have on U.S. environmental laws. As the effects of the Uruguay Round are so speculative, we are unable to conclude that plaintiffs have suffered a cognizable injury to support a claim of standing.
B. Use of the APA to Compel the OTR to develop "methods and Procedures" under NEPA for future trade agreements
Plaintiffs return to the APA as a basis for their final claim for relief: that the OTR must develop "methods and procedures" to comply with NEPA during the gestation of future trade agreements. This claim also is wholly without merit. The possibility of future harm to members of plaintiff organizations is too speculative given the "uncertainty not only about the precise terms of any final agreements, but, more fundamentally, about whether there will ever be final agreements at all."
Public Citizen I, 970 F.2d at 923; Lujan v. National Wildlife Federation, 497 U.S. 871, 890-94, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990) (requirement of final agency action precludes claims "for wholesale correction under APA" of an agency's NEPA compliance record). As a result, this request for relief must also fail.
For the reasons stated, plaintiffs are not entitled to injunctive or declaratory relief under either the APA or under the Court's limited authority to grant mandamus relief pursuant to 28 U.S.C. § 1361. The fate of the Uruguay Round "now rests in the hands of the political branches . . . the judiciary has no role to play." Public Citizen II, 5 F.3d at 553. In addition, we cannot require the OTR to promulgate "methods and procedures" to comply with NEPA when preparing future trade agreements because there has been no final agency action as required by the APA. Plaintiffs' motion for summary judgment is denied and defendants' motion for summary judgment is granted.
An order in accordance with this opinion has been issued this date.
Date: October 4th, 1994.
JOHN H. PRATT
United States District Judge
Upon consideration of plaintiffs' motion for summary judgment and defendants' cross motion for summary judgment, it is by the Court this 4th day of October, 1994, hereby
ORDERED that plaintiffs' motion for summary judgment is denied; and it is
ORDERED that defendants' motion for summary judgment is granted; and it is
ORDERED that this case is dismissed with prejudice.
JOHN H. PRATT
United States District Judge