Stupid Law, Obedient Judge

JAMES J. KILPATRICK

August 05, 1993|By JAMES J. KILPATRICK

Washington.--Over the past 23 years on the federal bench, U.S. District Judge Charles Richey has stirred up the animals a good many times. He surpassed himself on June 30.

That was when he handed down his stunning decision in the matter of the North American Free Trade Agreement. He ruled that the government must provide an environmental impact statement before the treaty can go to the Hill.

It was as if the judge had dropped a silver teaspoon down the garbage disposal. Columnist George Will denounced him for ''judicial exhibitionism.'' Proponents of the trilateral agreement howled in dismay. The general impression here is that Judge Richey has single-handedly dealt NAFTA a mortal blow. He has given the agreement's reluctant supporters a fine excuse to back away. A hearse is on its way.

So everybody is blaming Mr. Richey. But these coon dogs are barking up the wrong tree. Mr. Richey isn't to blame for the National Environmental Policy Act. Congress is to blame. Congress wrote the stupid provision on environmental impact statements. All Mr. Richey did was to enforce it.

The law requires federal agencies to prepare an environmental impact statement for ''every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment.''

As Mr. Richey observed in his opinion, that is ''plain language.'' To be sure, the language is murkily plain. It is not immediately clear what is meant by actions that would ''significantly'' affect the quality of the human environment. It is beyond dispute, however, that NAFTA is a ''major federal action'' that must be implemented by legislation.

In arguing the case before Judge Richey, the government contended feebly that only a president has constitutional power ''to make treaties,'' and the president is not an ''agency.'' That is true. George Bush is not an agency. He is a golfer.

But in this case Mr. Bush delegated his presidential power to the Office of the U.S. Trade Representative. The office is undeniably an agency. The office represented the president in negotiating the agreement; the office will prepare reports and recommendations. Eventually, in cooperation with the Justice and State departments, the office will draft the necessary legislation.

It follows as the night the day that the office has a legal obligation to prepare an environmental impact statement. That was the substance of Judge Richey's order, to get on with the job ''forthwith.'' The court wants it done ''with all deliberate speed.''

Unless Mr. Richey's opinion is reversed on appeal, an unlikely prospect, the government faces a tremendous task. As George Will noted, the agreement would establish ''the world's largest free trade zone, encompassing 360 million people, and substantially enlarging trade with America's third-largest trading partner.'' Of course the agreement will have a significant effect, but the effect is unknowable.

The plaintiffs in the case are three environmentalist organizations, Public Citizen, Sierra Club and Friends of the Earth. They submitted a score of affidavits speculating on the agreement's awful consequences. They cited questions of pesticide residues, chemical bans, seafood imports and pollution controls. Enhanced activity along the Mexican border might create a ''breeding ground for infectious diseases.'' Air quality would suffer in San Diego and El Paso.

Questions of ''environmental impact'' are wholly conjectural. No one on earth can say with specificity how much additional trash will be created in Nogales in 1996. What pesticides will be in use 10 years from now? In what volume? The Sierra Club doesn't know. Nobody knows. Preparation of a meaningless work of fiction will take months or years.

The agreement, at bottom, is a trade agreement. The bureaucrat hasn't been born who could confidently predict what changes the agreement could bring in North American trade. These windblown environmental impact statements ordinarily run on endlessly; they are filled with charts and tables of statistics. They are the educated guesswork of mortals whose gifts of prophecy are minimal.

If NAFTA is to survive Judge Richey's order, it will be up to Congress to amend the law. It would take only a sentence to exempt international agreements made at a president's direction. In the present climate, getting such an amendment would be politically difficult, probably impossible. But if NAFTA dies, let it not be said that Judge Richey killed it.

James J. Kilpatrick is a syndicated columnist.

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