Don’t Blame Us, the United Nations Made Us Do It

Don’t Blame Us, the United Nations Made Us Do It

That, in essence, is the surprising argument that the Coast Guard raised in a recent administrative law decision involving regulation of shipping traffic to protect an endangered species. In Defenders of Wildlife v. Gutierrez, the D.C. Circuit was presented with the question of whether Coast Guard action implementing “traffic separation schemes” constituted “final agency action” within the meaning of the Endangered Species Act. North Atlantic Right Whales are critically endangered, and ship strikes are the greatest source of known deaths. Defenders of Wildlife argued that the traffic rules failed to take sufficient account of the need to protect this species. The Coast Guard argued that it was simply following the orders of the International Maritime Organization, an agency of the United Nations, and therefore its conduct was not final agency action subject to judicial review. In short, the Coast Guard was arguing that we’re just traffic cops following the orders of an international agency, so federal courts have no jurisdiction to second guess how we implement the scheme of global governance established by the IMO. The district court agreed, but the D.C. Circuit wasn’t buying it.

Here is what the district court below held:

This argument misses one key point-it is clear from the record before the Court that, regardless of what authority the Coast Guard might have to create TSSs under the PWSA (a matter disputed by the defendants), the Coast Guard did not in fact designate any of the TSSs at issue in this case. Rather, it appears that in each instance the United States made recommendations to the IMO, which the IMO adopted, sometimes after alteration or amendment… It is apparent that at most, the Coast Guard engages in the purely ministerial task of codifying some (but not all) of the IMO-designated TSSs for publication in the Code of Federal Regulations, after their adoption by the IMO…. Plaintiffs allege that the creation of TSSs are final agency actions of the Coast Guard reviewable by the Court, but this assertion simply is not borne out by the record in this case. The Court agrees with the defendants that the plaintiffs have not shown that the Coast Guard engaged in any final agency actions that are reviewable under the APA. The Court therefore lacks jurisdiction to consider plaintiffs’ claims against the Coast Guard.

But the D.C. Circuit took a sharply different view of the matter:

Appellees [the Coast Guard] characterize the traffic separation scheme process as one controlled by an international organization with the State Department acting as an intermediary between the international body and the Coast Guard, leaving the Coast Guard with a minor and purely ministerial role.… Appellees point to no congressional authorization permitting the State Department to promulgate traffic separation schemes. Nor can they point to any provision that gives the International Maritime Organization, which was created as a “consultative and advisory” body, Convention on the Intergovernmental Maritime Consultative Organization,… authority to promulgate regulations in U.S. waters. Treaties “are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be self-executing and is ratified on these terms.” Appellees do not contend that Congress has enacted implementing statutes for the treaty at issue, International Convention for the Safety of Life at Sea (“SOLAS”), or that the treaty is self-executing. In fact, the treaty relies on member nations to enforce its routing measures: “Contracting Governments will use their influence to secure the appropriate use of adopted routes and will do everything in their power to ensure adherence to the measures adopted by the Organization in conne[ct]ion with rout[ ]ing of ships.”SOLAS, ch. 5, reg. 8(d).

By giving the Coast Guard authority to promulgate traffic separation schemes, Congress intended to make the Coast Guard accountable for them. Were we to hold that the Coast Guard had delegated its duties under the Ports and Waterways Safety Act to the International Maritime Organization, and that this delegation relieved the Coast Guard of any responsibility for the final action, we would countermine this intent.… A party harmed by the Coast Guard’s failure to take into account “the safety and security of United States ports and waterways,” or the “economic impact and effects,” of traffic separation schemes would normally have recourse under the citizen-suit provision of the Endangered Species Act, or the Administrative Procedure Act. But if the Coast Guard delegates its responsibility for traffic separation schemes to the International Maritime Organization, and if we accept this delegation as relieving the Coast Guard of any responsibility for them, no such recourse is available. The International Maritime Organization is not subject to the Administrative Procedure Act or the ESA…. “[W]hen an agency delegates power to outside parties, lines of accountability may blur, undermining an important democratic check on government decision-making.” Appellees point to no evidence showing that Congress intended to undermine the ability of injured parties to challenge unlawful agency action in the promulgation of traffic separation schemes. Just as the President cannot “unilaterally convert[ ] a non-self-executing treaty into a self-executing one,” Medellin, 128 S.Ct. at 1368, the Coast Guard cannot convert the SOLAS treaty into domestic law by simply delegating its congressionally given authority under the Ports and Waterways Safety Act to the International Maritime Organization.

Even if the Coast Guard had delegated some or all of its decisionmaking authority under the Ports and Waterways Safety Act to an outside body not subordinate to it, such as the International Maritime Organization, the delegation would be unlawful absent affirmative evidence that Congress intended the delegation. “[W]hile federal agency officials may subdelegate their decision-making authority to subordinates absent evidence of contrary congressional intent, they may not subdelegate to outside entities-private or sovereign-absent affirmative evidence of authority to do so.” Appellees do not argue that affirmative evidence of congressional intent to subdelegate the Coast Guard’s decisionmaking authority to an outside party exists.

This makes sense to me. For purposes of federal administrative law, an international body has no authority unless so granted by federal law. In the absence of such grant of authority (either by treaty or statute), a federal agency cannot argue that its actions were simply made pursuant to decisions by an international body that lacks federal authority to do so. If a federal agency could simply delegate authority to an international agency this would dramatically undermine the force of the Administrative Procedures Act, including the rights of citizens to secure judicial review of final agency action. However, the case does beg the question of what happens if a treaty or statute did delegate authority to an international agency? Would the APA or the ESA apply to final agency action of such an international body such that those decisions were subject to judicial review?

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North America, Organizations, Trade & Economic Law
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Diplomatic Gunboat
Diplomatic Gunboat

If the APA did not apply, then any deprivation of liberty or property rights would still be subject to the Constitution’s due process requirements (but see the fight over the US-Canada International Boundary Commission–can the U.S. by treaty effectively empower an international agency to violate the constitutional rights of its citizens? A: No). 
And many such international agency actions, such as shipping route management, would not directly interfere with liberty or property rights, or not with rights of those inclined to object on behalf of whales.  As predicted, some of those on the political left may eventually decide the New Sovereigntists have a point.