## Facts

- The United States, Mexico, and Canada negotiated the North American Free Trade Agreement (NAFTA), with the Office of the United States Trade Representative (USTR) representing the United States in negotiations.
- Public Citizen, Friends of the Earth, and the Sierra Club alleged NAFTA would significantly affect the environment and that the National Environmental Policy Act (NEPA) required an Environmental Impact Statement (EIS).
- The USTR did not prepare an EIS during negotiations.
- After the President signed NAFTA but before submitting it to Congress for approval and implementing legislation, the organizations sued.
- Because NEPA lacks an express cause of action, plaintiffs sought relief under the Administrative Procedure Act (APA), claiming they were aggrieved by reviewable “final agency action.”

## Issues

1. Whether the USTR’s negotiation and preparation of NAFTA without an EIS constituted “final agency action” reviewable under APA § 704.
2. Whether ordering an EIS based on USTR’s conduct would effectively subject the President’s decision to submit NAFTA to Congress to indirect APA/NEPA review.

## Decision

- The D.C. Circuit reversed the district court’s summary judgment for plaintiffs and remanded with instructions to dismiss.
- The court held the USTR’s negotiation and preparation of NAFTA were not “final agency action” under APA § 704.
- Because there was no reviewable final agency action, the court did not reach the merits of the NEPA claim.
- A concurrence agreed the action was not reviewable and emphasized separation-of-powers concerns.

## Legal Principles

- APA judicial review generally requires “final agency action” for which there is no other adequate remedy in court.  
- Agency action is final only if it marks the end of the agency’s decisionmaking process and determines rights or obligations or produces legal consequences.
- Preparatory or intermediate steps taken by an agency in support of presidential decisionmaking are not final agency action when the legally consequential step is a presidential act.
- NEPA’s EIS obligations apply to federal “agencies,” not to the President, and the President is not an “agency” for APA purposes.
- Courts will not allow APA review of subordinate executive activity to operate as indirect judicial control over nonreviewable presidential functions, particularly in foreign affairs and trade.

## Conclusion

The D.C. Circuit concluded that NAFTA-related negotiations by the USTR were nonfinal, advisory steps leading to a presidential decision to submit the agreement to Congress; because that presidential decision is not reviewable under the APA, the plaintiffs’ attempt to compel an EIS failed for lack of reviewable final agency action.


Public Citizen v. U.S. Trade Representative, 5 F.3d 549 (D.C. Cir. 1993)