ELR Citation: ELR 21130
No(s). 92-2102 (CRR) (D.D.C. Jun 30, 1993)

The court holds that the National Environmental Policy Act (NEPA) requires the Office of the U.S. Trade Representative (OTR) to prepare an environmental impact statement (EIS) on the North American Free Trade Agreement (NAFTA). The court examines whether NEPA and the Administrative Procedure Act (APA) properly apply to NAFTA and the OTR's action in negotiating, drafting, and ultimately approving NAFTA on behalf of the United States. The court first holds that it has jurisdiction over this action under the APA, because the OTR has taken final agency action in its preparation and finalization of NAFTA. NAFTA has been finalized and signed by the United States, Canada, and Mexico, and NAFTA cannot be changed after it has been sent to Congress for ratification.

Next the court rejects the OTR's contention that there is no APA jurisdiction because the president, not the OTR, is responsible for any final agency action on NAFTA and there is no APA jurisdiction to review actions by the president. First, NAFTA is substantially the result of the OTR's work and is therefore reviewable under the APA and NEPA. Second, the mere fact that the president submits NAFTA to Congress does not bar review because NAFTA, which was negotiated and signed by the OTR, is the same document that shall be submitted to Congress. Finally, NEPA requires preparation of an EIS for legislative proposals, and NAFTA is such a proposal.

The court next holds that its exercise of APA jurisdiction does not violate the constitutionality-based separation of powers, because NAFTA has already been drafted and approved by the United States, Canada, and Mexico, and the preparation of an EIS will not interfere with the president's authority. The power to regulate commerce with foreign nations is given to Congress under the U.S. Constitution. Further, the only remaining step to be taken regarding NAFTA is a domestic step, the submission to Congress, and, therefore, the EIS requirement is a domestic issue.

The court also holds that plaintiffs have standing to challenge the OTR's failure to prepare an EIS for NAFTA, because they allege sufficiently concrete and cognizable injuries. NAFTA will result in changes to federal and state laws and policies in a variety of health and environmental matters and these changes will have an environmental impact on the plaintiffs.

Finally,the court holds that the plain language and policies of the APA and NEPA apply to NAFTA and the OTR, and they and a congressional resolution require the preparation of an EIS before NAFTA's submission to Congress. This legal action does not fall within the narrow exception to NEPA's EIS requirement, because compliance with NEPA will not result in a clear and fundamental conflict of statutory authority.

Counsel for Plaintiffs
Patti Goldman, Alan B. Morrison
Public Citizen Litigation Group
2000 P St. NW, Ste. 700, Washington DC 20036
(202) 833-3000

Counsel for Defendant
Bradley M. Campbell, Samuel C. Alexander
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000