NATIONAL ENVIRONMENTAL POLICY ACT TO APPLY

WHAT'S GOOD FORTHE GOOSE IS GOODFOR THE GANDER: APLEA FOR CONGRESS

TO AMEND THENATIONAL

ENVIRONMENTALPOLICY ACT TO APPLY

TO THEEXTRATERRITORIAL

ACTIONS OF THEFEDERAL GOVERNMENT

INTRODUCTION

By combining the broad language ofthe National Environmental Policy Act("NEPA")' with its own *unquestionableauthority .. . to redirect the emphasis offederal administrative agencies,"Congress has forced those agencies toincorporate environmental concerns intotheir domestic decision-making process.But the environment and agencydecisions come into conflict throughoutthe world, not just domestically.3 Whenparties have suggested that NEPA'smandate be directed toward all theseagency actions, however, contentiousdebate has arisen. There is no consensuson whether the expansive language ofNEPA can be applied to agencies whenthey act outside the borders of theUnited States, its territories, and itspossessions.

Unfortunately, there is little in NEPA'slanguage or legislative history to castlight on the issue. While courts havebeen willing to interpret congressionalintent for other issues on which NEPA issimilarly silent,4 they have beenremarkably recalcitrant in articulating acoherent body of law regarding thestatute's applicability to extraterritorialactions of the federal government. Even

in the face of statements by the Councilon Environmental Quality ("CEQ")8 thatNEPA does indeed apply to such actionsof the federal government, the courtshave shied from decisive action.

Recent events have energized thedebate. After a decade and a half ofdodging the crucial issue, last summer'sdecision in Environmental Defense Fundv Massey has provided the first definitivejudicial opinion in the debate: NEPA doesnot apply extraterritorially.8

Simultaneously, both House and Senatemembers proposed bills that wouldexpressly amend NEPA to apply to thegovernment's extraterritorial actions. 7

Two international compacts have alsoprompted discussion. Both the EuropeanCommunity and a subset of the UnitedNations have adopted agreementsrequiring assessment of theenvironmental effects of certain actions.The compacts are modelled after NEPA,and both are broadly extraterritorial Inscope.0

Despite present interest, it is doubtfulthat additional discussion of the presentevidence will resolve the debate overextraterritorial application of NEPA.Evidence within NEPA and its legislativehistory supports both sides, and manyothers have scoured the terrain andissued well-reasoned opinions. I willrefrain from adding another view.Courts, agencies, Congress and otherscontinue to debate the issue, however,and the environmental problems causedby US actions overseas only increase.

With the hope of encouraging action,I have written this paper to distill theissues and alleviate concerns aboutextraterritorial application. A briefdiscussion of NEPA's legislative history,agency interpretation, and judicialdecisions illuminates its underlyingphilosophy and hints that extraterritorialapplication would best fulfill its intent. Iwill argue along the way that the Masseycourt's analysis was misguided andinfluenced too heavily by the short-sighted concerns of the present

WHAT'S GOOD FOR THE GOOSE IS GOOD FOR THE GANDER 123

administration. Congress should passSenate Bill 1278 and House Bill 1271.Doing so would resolve the debate, causeminimal interference with foreign policy,and could provide long-run economic andecological benefis for the United Statesand other nations throughout the world.The amendments would also eliminatethe hypocrisy inherent in the presentsystem, offering a lower standard ofenvironmental protection to others thatwe do not tolerate for ourselves.

DOES NEPA APPLY TO THEVARIOUS FEDERAL AGENCIES

WHEN THEY ACT OUTSIDE THETERRITORIAL BOUNDARIES OF

THE UNITED STATES?

A. Legislative History

NEPA was initiated by a joint House-Senate colloquium convened to discussenvironmental policy. In its WhitePaper," the colloquium recognized thatpolitical boundaries do not define theglobal environment or environmentalproblems, and declared that "[t is thepolicy of the United States that:Environmental quality and productivityshall be considered in a worldwidecontext."10 While the colloquiummembers may have understood that thispolicy would be limited to decisions madewithin the borders of the United States,they did not perceive this as a barrier tothe infusion of international relations withconsiderations of ecology or the guidanceof domestic activities by the globalcharacter of ecological relationships."

Other legislative references to NEPA'sinternational implications are sparse. TheHouse Report argues that "[ilmplicit in[section 43411 is the understanding thatthe international implications of ourcurrent activities will also be considered,inseparable as they are from the purelynational consequences of ouractions."12 This language, however,refers only to the effects of projects

governed by NEPA. Nothing makes itclear that the language covers (or doesnot cover) entirely extraterritorial actions- those which occur and whose effectsare felt beyond the jurisdiction of theUnited States.1"

Legislative history indicates thatCongress had a broad definition of"environment" in mind when it adoptedNEPA. As one drafter asserted, the term"environment" embraces not only thenation's life-support system, but also thatof the world as a whole.' Admittingthat the primary concern of Congresswas the nation's own environmentalpolicy, the drafter insisted that anyrational domestic environmental policymust enable the United States to act asa leader in structuring internationalefforts to protect the earth'sbiosphere.'6

B. The National Environmental ProtectionAct

The language of NEPA is no moreilluminating than the legislative history.This is, in part, because NEPA is a policyact and relies on broad language topermit the tailored integration of itspolicies into each agency's regime.

NEPA's domestic scope isconsiderable. It guarantees publicparticipation in the decision-makingprocess of agencies by requiring them topredict "the environmental impact of theproposed action" before taking the actionand courting its full effects. 6 Whileattempting to "assure for all Americanssafe ... surroundings," it emphasizes theresponsibility each generation has "astrustee of the environment forsucceeding generations."' 7

The Act's language also includesseveral expressions of concern forworldwide environmental issues. Anenvironmental impact statement ("EIS") isrequired for 'every . . . major Federalaction[] significantly affecting the quality

124 ENVIRONMENTAL LAW & POLICY FORUM

of the [human] environment."'8 The EISmust discuss "any adverse environmentaleffects" and must identify "anyirreversible and irretrievable commitmentof resources."1 Acknowledging the"worldwide and long-range character ofenvironmental problems," NEPA alsodirects federal agencies to cooperate withforeign nations to achieve NEPA'sobjective of "anticipating and preventinga decline in the quality of [humankind's]world environment.""0 This languagearticulates a universal mandate andcreates no explicit exception for proposedactions beyond the territorial US.

Admittedly, the statute does notexplicitly require that federal agenciesconduct an EIS concerning their actionsabroad. But the language does indicatethat "NEPA intend[ed] federal agencies tobe []mindful of environmental effectsoccurring beyond the borders of theUnited States." 21 Furthermore, itapplies to "all agencies of the FederalGovernment." 22 This all-inclusivelanguage may easily be interpreted tosupport NEPA's extraterritorialapplication. Moreover, Congress realizedthat a substantial number of federalagencies are intimately involved inactivities outside the United States.Absent an express exemption, it "musthave anticipated that . . . NEPA . . .would include these agencies and theiractions beyond the United Statesborders."

23

Despite the Act's inclusive languageaddressing international impacts, all thefederal agencies and any type ofenvironmental impact, the statute lacksthe requisite explicitness. In an attemptto resolve the uncertainty, the Council onEnvironmental Quality entered thedebate.

C. The Council on Environmental Quality

Between 1976 and 1978, the CEQdetailed in a series of memoranda draft

regulations governing the extraterritorialapplication of NEPA. 4 Finding thatNEPA contained "no express or impliedgeographic limitation . . . to the US orany other area," the Council held thatactions of the federal agencies weresubject to the mandates of NEPA, nomatter where they were to take place."The draft regulations also Introduced a"foreign environmental statement" thatmodified NEPA's EIS procedures toaccount for concerns about applyingNEPA abroad. Under thesemodifications, agencies could withholdsections of the EIS or restrict publiccomment to address concerns of delayedaction, diplomatic considerations, orinterference with trade or sovereignty."

With these draft regulations, CEOsought "to ensure full consideration ofactivities that, first, would be unlawful orstrictly regulated in the United States,second, would threaten natural resourcesof global importance, and, third, mighthave unanticipated adverse effects inother foreign countries." 7 These goalsecho the customary norm of internationallaw that a country must ensure thatactivities under its control do not harmanother state's environment.28

D. Executive Order 12114

In the face of intense opposition fromseveral federal agencies, CEQ's draftregulations were withdrawn.29 Theproblem of interpreting NEPA remained,and in 1979 President Carter issuedExecutive Order 12114 in an attempt toreconcile the sides and resolve the issueonce and for all.30 Professing to be thegovernment's exclusive and completedetermination of the steps to be takenunder NEPA for foreign actions, the Orderwas initially heralded as a successful.compromise. It requires one of threeforms of environmental assessment("EA") where federal actions willsignificantly affect the global commons,globally important resources, or "innocent

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bystander" nations - those not involvedin the activity. The Order also requiresan EA if the activity would be regulatedunder toxic or radioactive substance lawsin the US. 1

While the Order may be seen as anact of "good citizenship" and "a clearexercise of responsibility . . . that isconsistent with the best principles ofinternational conduct,"32 its influencehas been minimal for two reasons 3

First, the order is rife with exceptions andmodifications that were designed, amongother considerations, to enable theagency to act promptly when necessary,avoid adversely impacting foreignrelations, and avoid infringing on thesovereignty of other nations.Unfortunately, the exceptions created foractivities with potential foreign policyconflicts are so numerous and broad thatfew actions need comply.

Second, the Order was not issuedunder the authority of NEPA and, in fact,it explicitly states that "nothing in [it]shall be construed to create a cause ofaction." 34 The failure of federalagencies to comply with the Ordercannot, therefore, be challenged. Whencombined with the reluctance of recentadministrations to enforce its provisions,the inability to enforce the Order hasbeen fatal." Between 1985 and 1988,compliance was required in only forty-fiveinstances.-3 Executive Order 12114 didnot end the NEPA controversy. Like somany other debates over theinterpretation of NEPA, it fell to thecourts to address the issue. They havedone so, but only by answering questionspresented on other, less politicallycharged grounds.

E. Litigation Regarding NEPA'sExtraterritorial Application

Scattered cases have discussed theissue of NEPA's extraterritorialapplication both directly and tangentially,but their results had been inconclusive

until the Massey decision last summer.Case after case avoided the crucialquestion, with individual holdings limitedto the facts and policy considerationsgermane to the case at hand.

In People of Enewetak v Laird,37 thecourt considered the application of NEPAto actions of the Department of Defense("DoD") on one of the Pacific Island TrustTerritories under United Statesadministration. The DoD was planning toconduct simulated nuclear explosions onthe island. The issue before the courtwas whether NEPA applied to UnitedStates Trust Territories.

The court began its analysis by notingthat federal legislation applied to theTrust Territories only where Congressevinced such an intent - and accordingto the court, NEPA's language did not,3eBut NEPA's legislative history and priorcase law prompted a closer look. TheEnewetak court found evidence inNEPA's history that Congress wasparticularly concerned about theinternational implications of federalactions.39 It further observed thatNEPA's expansive language reflects "aconcern for all persons subject to federalaction which has a major impact on theirenvironment. " 40 On the basis of thisevidence and the words of Calvert Cliffs,which declared that "Itihe sweep ofNEPA is extraordinarily broad, compellingconsideration of any and all types ofenvironmental impact of federalaction," 41 the court extended the Act tocover the territories.

After this conclusion, the courtfaltered. Arguing that the extension ofNEPA to the Trust Territories did not raiseforeign policy or "balance of worldpower" problems, the court found itunnecessary to decide the merits of theplaintiff's assertion that "NEPA followsevery federal agency and is applicableanywhere in the world that such anagency takes action which willsignificantly affect the quality of the

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human environment." 42

The next major set of cases involvingNEPA's extraterritorial applicationaddressed the proposed construction ofthe Darien Gap segment of the PanAmerican Highway through Panama andColombia. The proposal was hotlycontested, as the highway would cutthrough a unique ecosystem "almostwholly undisturbed by any encroachmentof modern civilization."'3

The district court found the EISdeficient since it (1) failed to consider thepotential domestic impact of abreakdown in the program to control thetransmission of "foot and mouth" diseaseand (2) ignored the possibly fatal impactson two indigenous tribes." While theappeals court reversed, finding the EISsufficient, both it and the district courtagreed that the EIS had to consider theimpact on indigenous populations.4 Itwas, however, only the potential fordomestic impacts that set theassessment into motion. Neither courtaddressed whether an EIS would berequired if the only impacts wereextraterritorial.

The third case, Natural ResourcesDefense Council, Inc. v NuclearRegulatory Commission ( NRDC vNRC'),' 6 involved a direct test ofNEPA's extraterritorial application. Thecase concerned the construction of anuclear power plant in the Philippinesnear an American military base that issituated between four volcanoes in anearthquake zone. The NRC decided tolicense the export of the technologywithout first evaluating the health,safety, and environmental impacts withinthe Philippines. The case presented asituation where the environmental effectswould be felt solely within a foreignjurisdiction,"4 but the court againmanaged to escape the issue ofextraterritorial NEPA application.

Basing its holding on narrow groundsrelating to concerns about the AtomicEnergy Act as amended by the NuclearNon-Proliferation Act ("NNPA"), 4 8 thecourt upheld the decision of the NRC. Inthe case of nuclear exports, the courtargued, "NEPA's putative extra-territorialreach [is] curbed," and it found "only thatNEPA does not apply to NRC nuclearexport licensing decisions - and notnecessarily that the EIS requirement Isinapplicable to some other kind of majorfederal action abroad." 4

1

The judges disagreed on theunderlying reasons for the decision.Judge Wilkey asserted that requiring anEIS would interfere with the President'sability to control export decisions0 anddelay NNPA's attempt to provide apredictable and expedited nuclear exportprocess."1 Judge Robinson agreed thatpotential interference with the NNPA wasthe deciding factor but argued thatconsiderations of foreign policy actuallyfavored requiring an EIS for potentialextraterritorial effects.6 " As he pointedout, "[ilf anything ever should go wrong... '[tihe voice of many countries wouldquickly shift to criticism of the UnitedStates for permitting a dangerous exportwith insufficient attention to the risks topublic health and safety and to theenvironment.'" 3

NRDC v NRC has not been the onlydecision to recognize the special,protected status given to nuclear issueswhen challenged with claims of safetyconcerns and environmental impact."'But because its analysis is restricted toconsiderations unique to that context, itis not a useful guidepost in determiningwhether NEPA applies extraterritorially.

Greenpeace USA v Stone'6 cameeven closer to definitively decidingwhether NEPA applies to federal actionsabroad. Greenpeace involved a jointeffort between the United States andGerman armies to transport chemical

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weapons (100,000 rounds of nerve gas)owned by the United States from astorage facility in Germany to JohnstonAtoll, an unincorporated US Territory inthe Pacific Ocean, pursuant to anagreement President Reagan made withChancellor Helmut Kohl to remove anddestroy all obsolete munitions by 1992.Pursuant to Executive Order 12114, theDoD conducted three separate EAscovering all phases of the removal exceptthe segment from the United Statesstorage site in Germany to the port ofNordenham. This procedure wasapproved under German law by theFederal Minister of Transport and upheldby the German Administrative Court.Greenpeace challenged the segmentationof the removal action into three phasesfor the EIS and urged the preparation ofa comprehensive EIS."1

As with NRDC v NRC, the foreignpolicy considerations presented ultimatelyoutweighed the importance of NEPA'srequirements. The court opined thatapplication of the statute to the transferalready approved by Germany wouldindicate a lack of respect for the Germangovernment. It therefore held that acomprehensive EIS was not required butlimited its holding to the unique facts ofthe case. 7 According to the court,NEPA does not apply to "joint actionstaken on foreign soil based on anagreement made between the Presidentand a foreign head of state."6 8 Thecourt was, however, persuaded that"Congress ... may have intended undercertain circumstances for NEPA to applyextraterritorially."69 Although this wasnot such an instance, the courtsuggested, for example, that "wherethere has clearly been a total lack ofenvironmental assessment by the federalagency or foreign country involved," anEIS may be required.'

Finally, last summer the District Courtfor the District of Columbia helddefinitively that NEPA does not apply toextraterritorial actions of the federal

government. EDF v Massey involved theNational Science Foundation's ("NSF")plans to use an incinerator located on itsMcMurdo Station in Antarctica to burnfood and selected domestic waste.61The court's opinion was, however, lessthan comprehensive. Addressing theissue in only six paragraphs, it found no"plain statement of extraterritorialstatutory effect" and refused to extendNEPA.62 The court relied almostexclusively on the recent Supreme Courtdecision in EEOC v Arabian American OilCo.,' which similarly limited Title VII ofthe Civil Rights Act. The Aramco Courtargued that "legislation of Congress,unless contrary intent appears, is meantto apply only within the territorialjurisdiction of the United States.""

The Massey court's summary analysisis incredibly flawed and shallow. First, itignores the settled proposition that NEPAapplies to actions affecting the globalcommons. The unique internationalpolitical status of Antarctica wouldappear to place it within thatcategory. 6 In addition, the AntarcticProtocol to which the United States is aparty requires that "Itlhe environmentalimpacts of proposed activities . . . beconsidered in accordance withappropriate national procedures" beforethe activities are commenced. 66

Second, the concerns aboutinterfering with foreign policy that arosein earlier cases did not exist underMassey. The NSF's station is under thesupervisory jurisdiction of the UnitedStates. Furthermore, foreign relationshave suffered by not applying NEPA inthis case: the incineration of wastes mayendanger a pristine area of the worldprotected by several multilateral treaties.The Protocol has even set 1999 as theabsolute deadline for the phase out ofwaste disposal by incineration inAntarctica and encourages the parties tomeet this goal "as soon aspracticable." 7

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Third, the Massey court's nearlycomplete reliance on Aramco isunjustified. In that case, the SupremeCourt used the presumption againstextraterritorial application expressed inFoley Bros. as the basis for finding thatwithout express statutory language, TitleVII of the Civil Rights Act of 1964 didnot apply overseas.' The policy behindFoley Bros. rebuttable presumption,however, was the desire to avoid theinternational discord that might result ifthe laws of the United States wereapplied in such a way that they clashedwith those of another nation.60 FoleyBros., like Aramco, concerned laborpractices in another country. Since thestatutes were concerned with regulatingdomestic affairs, the Court would not riskinternational conflicts by extending itsreach without specific proof of Congress'intent to do so. 70

According to Foley Bros., however, if'the application of the domestic laws ofthe United States would not significantlyinfringe on the sovereignty of a foreignstate, the presumption againstextraterritoriality would not necessarilyapply.71 Massey - and other courtsapplying the presumption to NEPA -entirely overlook this condition.

Finally, the Massey court failed tonotice the crucial distinctions betweenthe types of regulation involved in thecases. In Foley Bros. and Aramco, theactors regulated are private parties. InNEPA cases, the actors regulated arebranches of the government.Furthermore, the statutes involved inFoley Bros. and Aramco forbade specificconduct in other countries, whereasNEPA merely governs the decision-.making process. Since that processtakes place entirely within the UnitedStates, courts should be more willing toextend NEPA's application than that ofregulations that govern private conductthat takes place wholly within othernations.

The legal analysis of NEPA'sextraterritorial application has beeninconclusive at best, and at worst short-sighted and misguided. Time after time,courts and respondents alike haveplowed through NEPA's language andlegislative history and come up dry.Courts lament their inability to extend theact yet consistently limit their holdings tothe facts before them, emphasizingsensitive foreign policy implications. Theonly definitive opinion, Massey, iserroneous on the facts. NEPA's scoperemains indeterminate.

Despite the uncertainty, NEPA'srequirement of a pre-decision statementof impacts and alternatives hassuccessfully stimulated federal decision-makers to consider environmentalimpacts. 72 But the focus provided byNEPA is nowhere more important than inthe international realm. Despite thegrowing trend in the international arenato adopt NEPA-type legislation, USagencies continue to refuse to submittheir overseas actions to NEPA review.By doing so, the agencies "have damagedthe environment irreversibly" 3 and runcontrary to the "concept of the collectiveresponsibility of nations for the qualityand protection of the earth as a whole"that was expressed at the United NationsConference on the Human Environment inStockholm in 1972.7 The flexibility ofNEPA permits, ahd its underlyingphilosophy calls for, internationalapplication.

Agencies and other defendantsinvolved in the extraterritorial debate arequick to point out that if Congress wasconcerned that NEPA was not beinginterpreted properly by the courts, itcould amend the statute, as it did TitleVII in the wake of the Aramcodecision.75 Congress is presentlyconsidering two bills that will do justthat. The remainder of this paper will

tAILS AT'C ,~nAr~ CI~D ~1JE I~AAC~ I~ f~AAr~ ~t'ib TU~ 12 ANIrS~D 1 '20

discuss the varied policy reasonssupporting such an amendment, rebut thelegal arguments voiced in opposition, andconclude that Congress should adopt theamendments as soon as possible.

CONGRESSIONAL PROPOSALSTO EXTEND NEPA'S REACH

Over the last few years, Congress hasconsidered several bills designed toclarify and extend the scope of NEPA'sapplication. All of them would amendNEPA to ensure its internationalapplication.

Senate Bill 1089, introduced in 1989,clarified that "NEPA applies to all federalactions, not just those in the UnitedStates. It provides for the fullconsideration of environmental impactson areas outside US jurisdiction [and]includes cumulative impacts of proposedFederal actions on global climate change,depletion of the ozone layer, andtransboundary pollution."78 Proponentsof the bill acknowledged the controversialnature of the amendments, but assertedthat the present extraterritorial exemptionundercut NEPA's thrust.77 Thesponsors also contended that if PresidentBush was serious about his purporteddesire for the United States to become aleader in addressing internationalenvironmental challenges, theadministration's position against NEPA'sextraterritorial application would have tochange.

78

In the same year, the Houseconsidered House Bill 1113, which wouldhave added a new section to NEPA to"ensure the formal assessment, in amanner [consistent with NEPAL of thesignificant effects of [each agency's]major actions, including extraterritorialactions, on the environment outside thejurisdiction of the United States and itstrusts and possessions."7 ' Rep. Studds(D-MA), who introduced the legislation,pointed to the hypocrisy of the United

States' assumption of a leadership role inconfronting international environmentalproblems: the United States generatesthe most greenhouse gasses, uses themost CFCs, and consumes the mostfossil fuels, yet "not one Federal actionhas been systematically reviewed for itsimpact on the international environment- as required by NEPA - in thisdecade.""0

Both S 1089 and HR 1113 weretabled for discussion in 1989. Theirslightly revised successors, S 1278 andHR 1271, are presently before Congress.Either bill would ensure agencyconsideration of the impacts of federalactions on the global commons and onother nations. The first bill, HR 1271,was introduced in March of 1991 byRepresentative Studds. It wouldencourage US leadership in theinternational environmental realm. Onemeans to that end is the amendment ofSection 102(2)(F) to require agencies to.work vigorously" to forge multilateralagreements.81

Regarding agency actions on theenvironment outside the jurisdiction ofthe United States, the bill requires theCEQ to

(a) ... issue regulations under whicheach Federal agency shall -

(1) ensure the consideration,pursuant to section 102 of[NEPA], of the effects of itsactions, including extraterritorialactions, on the environment of theglobal commons outside thejurisdiction of any nation; and

(2) ensure the formal assessment,consistent with the nationalsecurity and foreign policy of theUnited States and in a mannerthat furthers the objectives of[NEPA], of the effects of itsaction, including extraterritorialactions, on the environment

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within the jurisdiction of othernations.

(b) The regulations issued by the[CEQ] ... shall include guidancefor federal agencies for assess-ing the effects (includingcumulative effects) of proposedaction, on -

(1) global climate change; (2)depletion of the ozone layer; (3)the loss of biological diversity;(4) transboundary pollution; and(5) other matters of internationalenvironmental concern.8"

True to NEPA's style, this sectionaccords the agencies broad flexibility inconsidering each action by seeking tostrike a balance with other factors ofnational importance. It offers federalagencies guidance as to the types ofimpacts that are of significant import inthe international setting. At the sametime, however, agencies have thediscretion, based on their respectiveareas of expertise, to escape fromNEPA's requirements if national securityinterests or foreign policy considerationsso demand. But the "shall" language ofthe section also puts some teeth into theextraterritorial requirements for which itoffers guidance.

The Senate's proposed NEPAamendments were introduced on June11, 1991 as S 1278. Althoughsubstantially similar to the Houseamendments, the Senate bill moreexplicitly recognizes certain conflicts thatmay preclude NEPA application. Forexample, the bill would amend Section102(2)(C) to read:

[each agency shall] include in everyrecommendation or report onproposals for legislation and othermajor federal actions, includingextraterritorial actions (other thanthose taken to protect the national

security of the United States, votes Ininternational conferences andorganizations, actions taken in thecourse of an armed conflict, strategicintelligence actions, armamenttransfers, or judicial or administrativecivil or criminal enforcement actions),significantly affecting the quality ofthe human environment, a detailedstatement .... 83

If the listed exemptions are not sufficient,the bill also permits the President to"find, on a case-by-case basis, that it isin the paramount interest of the UnitedStates to exempt a major Federal action"from the EIS requirements of a revisedSection 102(2)(C). 4 The exemption isa flexible one: the amendments set noboundaries and offer no guidance as tothe type of actions that may qualify.

By clarifying Congress' Intent toextend NEPA's application, these twobills answer criticisms voiced by all sidesof the debate. They are also consistentwith the spirit of NEPA as a policy-oriented statute, imposing no formalmechanism of choice on an agency andmerely clarifying that, if the governmentacts outside of the US, it must considerthe environmental impacts of theproposed action. As law, the bills wouldmerely further NEPA's main objective: inagency decision-making, the environmentshould weigh equally along with otherlegitimate concerns.

The bills are also responsive toconcerns about extending NEPA toextraterritorial actions, including fears ofinterference with foreign policy andinfringement upon the sovereignty ofother nations. The following discussionaddresses some of the more compellingfactors fueling the debate and illustratesthat the most commonly expressed fearsabout extending NEPA's application areill-founded.

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POLITICAL AND LEGALARGUMENTS AGAINST

EXTENDING NEPA: POINT &COUNTERPOINT

A. Foreign Policy

The design of foreign policy is perhapsthe most important activity the federalgovernment undertakes with an effect onthe global environment. ' Despite thesignificant impact or the environment,many fear that imposing NEPA onprojects outside the United States willpresent conflicts with foreign policyobjectives. Additional bureaucraticrequirements, it is argued, will damagerelations, delay implementation ofinternational development projects,violate principles of international comityand fairness, and place too much stresson foreign relations 8 But this fear ofbureaucratic stagnation glosses overseveral critical considerations. It is,ultimately, reactionary and baseless.

First, according to the Constitution,Congress has the power "to provide forthe common defense and the generalwelfare." 87 A healthy environment isnecessary for national and globalsecurity, and our welfare is utterlydependent upon it. In the interest ofsafeguarding against unknown andpotentially severe adverse effects,applying NEPA to extraterritorial actionsof the federal government is consistentwith the constitutional powers ofCongress. Pursuant to thatConstitutional grant, Congress' role inforeign affairs is "a legislative componentof powers of the United States thatinhere in its sovereignty andnationhood.""9

Second, implicit in the view that NEPAwould "interfere" with foreign affairs isthe assumption "that NEPA litigation isfrivolous or of no public benefit and thatstatutory amendments cannot containadequate exemptions to protect the

United States' interest abroad."8 Thisassumption slights NEPA's successes inthe domestic sphere as well as itsprofound international influence: its ethicand even its very language have beenadopted worldwide. Sanctioning NEPA'sphilosophy, the United Nations andvarious international bodies have written'a global environmental ethic . . . intotreaties, resolutions, and administrativepractice" worldwide. 0 "Mhe manyrecent developments in domestic andinternational environmental protectionhave provided a new background againstwhich to measure . . . foreign policyconcerns."*9 Within this newframework, NEPA can only assureconsistency. It is hypocritical for the USto insist on an EIS for multinational bankdevelopment projects whilesimultaneously refusing to require one forour own agencies' actions overseas. Toparaphrase an old adage, we mustpractice what we preach if we wantothers to listen and follow.

Third, this narrow perspective ignoresthe specific accommodations of foreignpolicy and national defense made in theexisting statute and proposed legislation.Section 102 of NEPA requires thatagencies comply only "to the fullestextent possible."9 " This flexibility isdesigned to avoid conflicts betweenNEPA's implementation and actionsdeemed essential to national or foreignpolicy. The proposed amendments addeven more flexibility by providing certainexplicit exemptions from EISrequirements and establishing (in S 1278)a Presidential waiver that may be used ona case-by-case basis. These provisionsrecognize the practical difficultiesexperienced while working within thejurisdiction of a foreign sovereign. Wherelack of cooperation of a foreign nation orother considerations of foreign policymake exact compliance impossible, NEPArelieves agencies of that burden and"only mandates gathering and evaluatingdata that can reasonably becollected." 3 In this way, NEPA and its


amendments allow the agencies toprotect essential relationships with othernations without compromising ournational policy on the environment.

Fourth, the purported fear of foreignpolicy conflict merely illustrates thereality of the double role that is played byall nation states. Each country strugglesto apply international legal principleswhile giving effect to the nationalinterests expressed in its laws andregulations. 9' The United States hassuccessfully managed this dual role inother legal areas, finding it necessary andproper to legislate extraterritorially toaddress antitrust, smuggling, andtrademark issues. These laws, designedto protect discrete classes of individualsand the legal values they uphold, canhardly be considered more significant tothe national interest than thoseprotecting the environment, whichdirectly affect the entire globalpopulation, present and future. To theextent that extraterritorial application ofNEPA does conflict with the execution offoreign policy, it merely indicates thepresence of the inherent conflict facingnational actors in an international realm.Just as for other areas of interest, linkinginternational and domestic law throughthe successful execution of this doublerole is crucial for environmentalprotection.

Finally, the foreign policy of theUnited States would be enhanced, nothampered, by the extraterritorialapplication of NEPA. Thus, at therequest of nations with equal stakes inAntarctica, the NSF is spending hundredsof thousands of dollars to clean up sitesit polluted there. "[T]he very failure offederal agencies to avoid environmentaldamage by complying with [NEPAl hasresulted in ill will abroad."9 The samefailure also leads to lawsuits: the CEQrecently observed that the most frequentcause of action for cases filed underNEPA is for failure to prepare an EIS.99

By ensuring that agencies engage inimpact assessment, the NEPAamendments would avoid significantconflicts and litigation, thereby reducingthe potential for delay. Requiringenvironmental review of all agencyactions will present the sort of leadershipimage expected of the world's mostaffluent and powerful nation: the UnitedStates is as concerned about theenvironment and welfare of the world'smany communities as it is about Its own.

B. Jurisdiction

But can this leadership image beexported through the use of NEPA?Since "extraterritoriality is essentially ajurisdictional concept concerning theauthority of a nation" to adjudicaterights, dstablish norms, and exercisepower,9 7 opponents of extension arguethat doing so would not be a legitimateexercise of the United States' jurisdiction.

But three recognized bases forasserting jurisdiction would permitNEPA's extraterritorial application."6

The first is the "objective territorial"principle. Under this doctrine, a nationhas jurisdiction over actions it conductsextraterritorially if those actions havedomestic effects. Since the Earth'senvironment is intimately interconnected,any action taken by the United Statesgovernment, either at home, within itsterritories, or abroad, is certain to havesome sort of domestic repercussion, suchas global warming's effects on cropproduction, or depleting an importantresource found only in another country.Since it is virtually impossible tosafeguard the environment of the USwithout protecting that of other nations,this argument is a legitimate basis for thejurisdiction to apply NEPA to foreignactions of the federal government.90

The second possible basis forasserting NEPA's extraterritorialapplication is the "nationality" principle.

IAIUAr'0 f~AAfl ~Ab ~ ~AAC~ 10 f~nnr~ TL1~ I '2'~ VYS Sn I %1 .3tJLJUJ S ',.JS1 55 SS~ ~flJ~JJ~ 5J JSSJSJ rsjn S IlL IJflIWIJLfl I .J.J

Under this principle, a country may assertprescriptive jurisdiction when a proposedaction involves the activities of itsnationals, either within or outside itsterritory.100 An agency of the UnitedStates, therefore, is subject to US law inthe performance of official duties, nomatter where the performance takesplace.1° ' Accordingly, Congress maylegitimately require that agency officialscomply with NEPA when acting abroad intheir official capacity.

Finally, the "universality" principleprovides that a state may punish offensesof universal concern, such as piracy andterrorism.102 As we have come torealize, environmental degradation isperhaps more of a threat to the globalcommons than acts of terrorism, if onlybecause of the harm to futuregenerations. On the basis of the concernexpressed in recent flurries ofinternational agreements designed toprotect the environment, it is certainlywithin the jurisdiction of the US Congressto do its part to ensure that our ownactors are not contributing to the piracyof the planet's health.

C. Sovereignty

The most fundamental substantiveobjection to NEPA's extraterritorialapplication is the impact it would have onthe sovereignty of other nations. Wouldan environmental "double-checking" bythe United States thrust us into theinternal development decisions of foreignstates, intruding into their internal affairsand improperly substituting our standardsfor their own? As one scholar noted, a"fundamental stumbling block ininternational law . . . has been thejealously-held sovereignties of 159independent nation states, states thatoften were created - and behave -without regard to the common setting inwhich they exist."' 1 -

Each nation has the right to governitself without interference from other

nations, and as part of that right, todevelop its natural resources as it seesfit.'' At the same time, however,"[sitates have . . . the responsibility toensure that activities within theirjurisdiction or control do not causedamage to the environment of otherStates or of areas beyond the limits ofnational jurisdiction."' 0' Sovereignty,therefore, is the basis not only for astate's freedom of action, but also thestate's responsibility for its actions thatinjure others.106

With the growing attention toenvironmental problems, more and morenations are agreeing to compromise theirsovereignty somewhat in order to protectvarious resources "that might otherwisebe lost to all."' 07 As more nationsadopt their own environmentalassessment laws, the apprehension aboutinterfering with another's sovereigntyloses force. If a country requires thepreparation of some sort ofenvironmental assessment anyway, itshould not consider the NEPA provisionsto be an infringement on itssovereignty.1oo

Many fear that requiring an agency ofthe United States to prepare an EIS inanother country would demand theintimate cooperation of that country andwould ultimately subject its developmentprogram "to the critical and inherentlypolitical scrutiny of Americancomment." 1' This concern isoverblown. Preparing an EIS involves nomore intrusion and scrutiny than thewidely accepted, practice of preparing afeasibility study for foreign projects." 0

Consider as well the level of USintervention in other areas of internationalconcern, such as human and civil rights,world financial markets, and the oilsupply. Ultimately, the decision whetherto intervene is one of policy, notpracticality. Past administrations andCongress simply has not yet putenvironmental issues on parity with other

r% L1= henV n I VZ11% Can 1004 eJ

134 ENVIRONMENTAL LAW& POLICY FORUM

issues of international scope andimportance.

Finally, NEPA primarily governs theprocedural conduct of federal agencies,not the substance of individual actions.While agency choices lead to actions andimpacts outside the United States, thedecisions to assist projects, issuepermits, grant loans, and insureinvestments are made at home. "TheUnited States is not debarred fromgoverning the conduct of its own citizens.. in foreign countries when the rights

of other nations or their nationals are notinfringed."" 1 Since NEPA's scopeextends only to US actors, and primarilyto US decisions, its extraterritorialapplication would not hinder the actionsof foreign nations or their citizens inviolation of international law. If anothernation chooses to proceed with a projectrejected for unacceptable risks by a USagency, it may do so, looking elsewherefor the desired assistance. Such a policymay lead to difficult decisions, but it doesno more than require agencies to affordthe people of other nations the samelevel of respect that they do our owncitizens.

112

Extending NEPA would have littleadverse effect upon our own foreignpolicy or the sovereignty of other nations.On the contrary, extraterritorialapplication would bring the US into linewith accepted principles of internationallaw, emphasize our role as leaders in theenvironmental arena, and guaranteeconsistency in our policies towardconcerns overseas. These are, however,only a few of the host of issues thatfavor amending NEPA.

POLICY ARGUMENTS INSUPPORT OF NEPA'SEXTRATERRITORIAL

APPLICATION

A. Ecological Considerations

We operate in a political contextcomprised of scores of nations, eachacting out of self-interest. Under themost extreme view of sovereignty,nations may develop their own naturalresources with impunity as they see fit,whether their action is to squander,hoard, trade or ration. While mostnations exhibit a more mild form ofsovereignty, they retain a fierce sense ofindependence and isolation. In thismilieu, laws regarding the environmentexhibit vast differences, and multilateralagreements are difficult, if notimpossible, to arrange.

But ecological effects do notrecognize the isolation of human-imposedboundaries. The results of an individualgovernment's regulations and decisionstranscend its political boundaries toaffect the global environment.

With this interconnectedness comesglobal responsibility. As one of theEarth's most prosperous and powerfulcountries, it is imperative that the UnitedStates take the lead and demonstrate itscommitment to changing the course ofcurrent trends toward ozone depletion,global warming, species extinction, andother phenomena that are largely theresult of our patterns of industrializationand consumption. NEPA's "look beforeyou leap" philosophy and its integrationof scientific information and methodologyinto policy development have made itsimplementation an important step towardthis leadership. While ecologicalinformation is necessarily uncertain,NEPA provides a vehicle by which thatuncertainty can be converted into action.



Unfortunately, the present USadministration has fallen prey toenvironmental isolationism and hasresponded to uncertainty with delay,vowing to make research a priority butforestalling decisive action.11 Othernations, however, have recognized the

-necessity of working together to preventinternational environmental damage andhave chosen to respond whilestudying.' 14 The United States mustas well.

By applying NEPA to internationalactions, the United States cansimultaneously affirm the unity ofenvironmental problems and developsolutions to solve those problems.Environmental Impact Assessment("EIA") review of extraterritorial actionsmay either prompt beneficial actions orminimize the adverse effect of projectsplanned for other reasons. In any event,NEPA's extension would make USactivities overseas a model forecologically sensitive planning, and woulddo so while acting, rather than waiting,to preserve the environment.

B. Economic Considerations

Although a greater understanding ofthe relationship between economicdevelopment and environmental concernsis needed, experience has shown that"good economic policies and goodenvironmental policies are mutuallyreinforcing.""I6 It is usually far cheaperand more effective in the long run toprevent environmental damage than toclean it up or otherwise address itsconsequences." 6 This is true on bothnational and individual levels. Even theglobal economy, ultimately dependent onthe consumption of resources, relies onthose smaller-scale activities that are sointimately affected by the quality of theirenvironment.

Unfortunately, on a national level,shorter-term needs often outweighlonger-term perspectives. Foreign

exchange necessary for developmentdepends on resource exploitation. To theextent that the sale or lease of resourcesand land to industrialized nations will beaffected by the EIS process, developingnations reject it, believing that it willimpede their economic progress." 7

But the short-term view leads too quicklyto the over-exploitation of fragileecosystems that contain the naturalresource base many developing countriesneed for future growth. Poorlyconsidered development can therebyimperil the biological foundations ofnational, and ultimately global,economies." 6 Requiring an EIS beforea project may be implemented, therefore,merely generates the information andanalysis necessary to make the mostwell-informed decision. An EIS can takeinto consideration ecological and socialfactors and help design projects to suitlocal environments."" The EIS analysismay avert potentially devastating effectsassociated with a project, therebyprotecting development, the environment,and the economy of the country.Feasibility studies (regularly conducted inthe context of international trade) engagein essentially the same analysis from aneconomic point of view, yet rarely evokethe objections and accusations thatplague proposed EIS analysis underNEPA.

On a smaller scale, Americanbusinesses and government officialsmake arguments against the extension ofNEPA that are surprisingly similar tothose made by developing countries. Thevociferous American business communityfears that its ability to compete in foreignmarkets "will be dramatically curtailed byrendering governmentally sponsored orapproved exports subject to NEPA,"120

that the imposition of domesticenvironmental regulations burdensinternational trade, and that lawsuits willcause serious delays and frighten awaypotential partners.'2' Such argumentsare potent in a time of economicuncertainty,122 and as a result the


broad principles embodied in NEPA oftensuccumb to the pressures of short-termeconomic interests and politicalmomentum.

But some companies that fearedsimilar horrors with the domesticimposition of NEPA have founddifferently. They testify that the use ofmore efficient technologies and pollutioncontrol devices has actually boosted theirprofits and created new markets whilerelieving 'some of the threats of futurelitigation. 2 ' Even if the fears are valid,similar complaints arguing against NEPAapplication in the domestic context havebeen rejected in the courts, 12 ' whichrecognize that NEPA represents areprioritization of national goals andrequires some sacrifice for the greatergood of environmental protection.Extraterritorial extension would simplyfurther this goal.

In a perfect world, competitiveadvantage based on differingenvironmental laws could be eliminatedby orchestrating them on an internationalscale.12 1 Under such a regime, no onecountry would benefit from exploiting itsown, or another's, environment. Bystrengthening our own environmentalassessment rules, the US can encouragethe trend toward such regulation. In themeantime, businesses may well find thatecological responsibility costs money.That tradeoff, however, is little differentthan the costs of workers' compensation,or unemployment insurance. Again, it isa question of priorities. Considering thepotential harms stemming frominattention or active ignorance, someincreased cost to business is a small priceto pay for the added protection of theglobal environment.

C. Equitable Considerations

Developing countries have traditionallybeen suspicious of attempts by theindustrialized nations to encourage

environmental protection regimes. Theyare often worried that the movement"conceal[s] a neo-imperialist scheme toretard their economic growth" and tokeep them in a perpetual state ofdependency, casting them as both thesubservient suppliers of underpriced rawmaterials and the consumers of theindustrialized nations' output. 120

Opponents of this so-calledenvironmental imperialism are quick topoint out statistics that expose ar)element of hypocrisy in the alarmistreports of the industrialized world.Countless reports show that "theprincipal causes for the deterioration ofthe environment on a world-wide scaleare the patterns of industrialization andconsumption as well as waste in thedeveloped countries. "1

27 When "each

individual in the industrialized nationsdraws, on the average, thirty times moreheavily on the limited resources of theearth than [a] fellow [being] in thedeveloping countries[, ... simple factsinevitably raise the question of equality,of more equal distribution betweencountries and within countries."120

Several Latin American countries havespoken out against these inequalities ofconsumption and responsibility. They"urge the industrialized countries toassume full responsibility commensuratewith their financial and technologicalresources to reverse the process ofdefacement of the environment."1 20

The industrialized nations, being richer aswell as greater consumers, have theresources and the room for change.130

In contrast to the United States, manyEuropean countries have already takenmeasures to substantially reduce theiremissions.' The US, the highest percapita consumer of food and energy Inthe world, should follow their lead anddemonstrate its willingness to pay theprice for the toll it takes on theinternational environment.

At the same time, compliance with


NEPA when acting abroad would lendmuch integrity to US actions anddecisions and would strengthen its"political and moral force by eliminatingthe double standard that honesty iswarranted at home, but not abroad." 3 'Where the absence of an EIS permits theexport of environmentally unsoundpractices which have been prohibited ormade subject to strict controldomestically, the hypocrisy of the UnitedStates stands as a significant barrier inencouraging international environmentalprotection. Applying NEPA to thoseactions is an important step in the rightdirection.

D. Poverty and EnvironmentalDegradation: Mutually Reinforcing

Even if the industrialized nations tookon their share of responsibility forprotecting the international environment,the problem would not be solved. Theforemost environmental problem in theworld is the poverty of the Third World,and many developing countries seeindustrial growth as the only route bywhich to escape it." As a result,many of these countries are all too eagerto accept the polluting industries andunwanted toxic and hazardous wastes ofthe industrialized world in exchange fordebt relief, agricultural assistance, and afew jobs. Yet the exorbitant debt manyof them acquired in the aftermath of "de-colonialization" continues to motivatetheir transformation into net exporters ofcapital to the creditor countries at thecost of intolerable social, economic, andenvironmental sacrifices.' The LatinAmerican and Caribbean SummitDeclaration asserted that theunderdevelopment and environmentaldeterioration experienced in the ThirdWorld are "factors in a vicious circle thatcondemns millions of people to a qualityof life beneath the norms of humandignity." 3 It is only by disrupting thiscycle that the steady motion towardenvironmental ruin can be averted. TheUnited States can play a significant role

in that disruption.

Because of its reliance on overseasresources, the magnitude of itsinternational trade, and the numerousactivities of its agencies abroad, theUnited States plays the principal role indetermining how the world's resourcesare allocated and, ultimately, exhausted.With this preeminent position and therepercussions of its activities comes aconcomitant moral and politicalresponsibility "to ask questions . . .before it asks the world to blindly leap offenvironmental cliffs.""'6 Although noone country can maintain the health ofthe biosphere unilaterally, the influence ofthe United States is so pervasive andpowerful "that we cannot ignore ourpivotal role in protecting and improvingworld environmental health."13 '

Our position of power and affluence isnot inevitable. Along with the "newworld order" will likely come a reorderingof resource allocations and priorities. Ifwe are to protect our national interests,it is imperative that we "move toward anentirely new, ecologically oriented foreignpolicy that places its greatest emphasison the global balances among population,resources and environmentalquality." 138 One important step will befor the US to uphold Principle 21 of theStockholm Convention, which states, inpart, that

states have . . . the responsibility toensure that activities within theirjurisdiction or control do not causedamage to the environment of otherstates or of areas beyond the limits ofa national jurisdiction. 39

The House and Senate bills would takeon that responsibility. Investigating theimpacts of a proposed activity abroad willidentify possible adverse effects, just asthe EIS process does at home. Inconjunction with Principle 21, extendingNEPA to extraterritorial actions willguarantee that the United States does

WHAT'$ GOOD FOR THE GOOSE IS GOOD FOR THE GANDER 137137


not impose deleterious effects on other,bystander nations.

CONCLUSION

NEPA's success is indisputable.Landmark legislation at the time of itsintroduction, it is no longer unique in itsapproach to protecting the environment.It is by many estimates the most widelyheralded and followed US law in theworld: approximately eighty-sevennations and most of the international andmultinational development banks havefollowed the United States' lead andadopted EIA-type laws of their own. Allof these laws were modelled afterNEPA.'" In addition, there have beena number of international organizationscreated to protect and preserve theenvironment. 14 ' Their agreements andconventions exhibit a remarkable unity ofmind and common philosophy towardenvironmental protection. Unfortunately,many of these laws and organizations arelargely ineffective. To assist them intheir development, the US must continueto grow in its environmental commitmentto the international realm.

All the arguments commonly raisedagainst extending NEPA's application tocover extraterritorial actions actuallyfavor the broader scope. Moreover,environmental protection is integral to ahost of other economic and ethical issuesthat concern us daily. Just as weattempt to lead in those areas, ourresponsibilities as one of the mostpowerful and prosperous nations in theworld militate a new stewardship on thepart of our government. Congress shouldact this session to amend NEPA andshow the rest of the world that they, too,have a right to a healthy and safeenvironment.

- Michelle B. Nowlin

1. Pub L No 91-190, 83 Stat 852 (1970),codified at 42 USC §§ 4321-4361 (1988).

2. Lynton K. Caldwell, Science and theNational Environmental PollicyA ct: RedirectingPolicy Through Procedural Reform 53 (U ofAlabama, 1982).

3. See, for example:

"[T]he Air Force has polluted soil andgroundwater at virtually every one of Itsairfields in Europe. In Japan, lead endmercury have been detected ... at a Navystation . . . . In Guam, an aquifer thatsupplies drinking water to much of theisland's population has been contaminatedby a carcinogen dumped by the Navy andAir Force . . . . There also undoubtedlyhas been massive environmental damagefrom projects overseas sponsored by theBureau of Reclamation and the Army Corpsof Engineers."

Bruce S. Manheim, Jr., Pollution Law GoesAbroad, Natl LJ 15, 15 (Oct 14,1991) (citingWorldwatch Institute study).

4. For examples of cases in which courtshave been willing to interpret Congressionalintent regarding NEPA, see generally Marsh vOregon Natural Resources Council, 490 US360, 371 (1989) (holding that NEPA is purelya procedural statute that does not mandatesubstantive decisions); Vermont YankeeNuclear Power Corp. v NRDC, 435 US 519(1978) (agencies need only examine "feasible"alternatives under environmental Impactanalysis; NEPA does not require an agency toadopt any particular internal declslon-makingstructure); Sierra Club v Siegler, 695 F2d 957,978 (5th Cir 1983) (Where NEPA applies, thelead agency must prepare an environmentalimpact statement that includes "at least abroad, informal cost benefit analysis .. . ofthe economic, technical and environmentalcosts and benefits of a particular action.");Calvert Cliffs' Coordinating Comm. v USAtomic Energy Commission, 449 F2d 1109(DC Cir 1971) (environmental Issues must beconsidered at every important stage in thedecision-making process). See also Scott C.Whitney, Should the National EnvironmentalPolicy Act Be Extended to Major FederalDecisions Significantly Affecting the

WHAT'S GOOD FOR THE GOOSE IS GOOD FOR TI-I GANDER ')

Environment of Sovereign Foreign States andthe Global Commons? 1 Viii Envir L J 431,432 (*NEPA contains no provisionsspecifically authorizing enforcement, judicialreview, or citizen suits," yet courts haveconstrued its provisions as creatingenforceable nondiscretionary duties).

5. The CEQ was created by NEPA to issueIts interpretive and implementing regulations.42 USC § 1 4342-4344.

6. 772 F Supp 1296 (D DC 1991).

7. HR 1271, 102d Cong, 1st Sess (Mar 5,1991); S 1278, 102d Cong, 1st Sess (June11, 1991), in 137 Cong Rec S7631 & S7633(June 12, 1991). See text accompanyingnotes 81-84 for a detailed discussion of thesetwo bills.

8. See European Community CouncilDirective: On the Assessment of the Effectsof Certain Public and Private Projects on theEnvironment, Art 7 (June 27, 1985) (requiringenvironmental impact assessment (EIA) forextraterritorial actions within the EC) (Doc No85/337/EEC) (requiring environmental impactassessment (EIA) for extraterritorial actionswithin the EC); United Nations Conference onEnvironmental Impact Assessment in aTransboundary Context (done at Espoo,Finland, Feb 25,1991), in 30 ILM 800 (1991)(requiring signatories engaging in activitieswith transboundary. effects to notify theaffected nations and permit them toparticipate in the EIA).

9. Congressional White Paper on aNational Policy for the Environment, in 115Cong Rec 29078 (Oct 8, 1969) ("WhitePaper").

10. Id at 29081. See also the statement ofDr. Dillon Ripley summarizing "the feeling ofthe colloquium": "[T]o speak aboutenvironmental quality without at leastreferring to the fact of the Internationalcomponents and consequences of even ouractivity as Americans... appears to me to besomewhat shortsighted." Id at 29080.

11. Id at 29079-80 & 29085. Thecolloquium considered NEPA to be an evolvingstatute which would adapt with changingecological knowledge. Members reiterated

the need for continued study of ecology inorder to better understand environmentalalternatives. Id at 29081.

12. National Environmental Policy Act of1969, HR Rep No 91-378, 91st Cong, 1stSess 9 (1969), in 1969 USCCAN 2751,2759.

13. Several cases have held that domesticconduct with extraterritorial effects is coveredby the EIS requirements under the "objectiveterritorial" principle. See text accompanyingnote 99 for a review of case law In thisregard.

14. The National Environmental Policy Actof 1969, Hearings on S 1075, S 237 & S1752 before the Senate Committee on Interior& Insular Affairs, 91st Cong, 1st Sess 128(1969) (statement of Lynton K. Caldwell).

15. ld at 128-29.

16. 42 USC § 4332(2)(C)(i).

17. 42 USC § 4331(b)(1)-(2).

18. 42 USC § 4332(2)(C) (emphasisadded).

19. 42 USC § 4332(2)(C)(ii) & (v)(emphasis added).

20. 42 USC § 4332(2)(F).

21. Forthcoming CEQ Regulations toDetermine Whether NEPA Applies toEnvironmental Impacts Limited to ForeignCountries, 8 ELR 10111,10112(1978) ('CEQRegulations").

22. 42 USC § 4332(2) (emphasis added).

23. Joan R. Goldfarb, ExtraterritorialCompliance With NEPA Amid the CurrentWave of Environmental Alarm, 18 BC EnvirAffairs L Rev 543, 593 (1991) ("It appearsthat approximately 29 out of the 102agencies on the CEQ's list of agency liaisons(over 25%) are designed to participate inextraterritorial activities.*) (citing UpdatedUst, Federal Agencies: National EnvironmentalPolicy Act Liaisons, 55 Fed Reg 36683,33683-86 (1990).

WHAT'$ GOOD FOR THE GOOSE IS GOOD FOR THE GANDER

1 4O~__ENVIRONMENTAL LAW & POLICY FORUM

24. See CEQ Regulations (cited in note 21).

25. Id at 10112-13 (citing CEO,Memorandum to Heads of Agencies onApplying the EIS Requirement toEnvironmental Impacts Abroad (Sept 24,1976); CEO, Memorandum to Heads ofAgencies on Draft Regulations (40 CFR §1508.13) to Implement the NationalEnvironmental Policy Act (Dec 12, 1977)).

26. CEQ Regulations at 10112-13 (citingCEO, Memorandum to Heads of Agencies onDraft Regulations (40 CFR § 1509._) toImplement the National Environmental PolicyAct (NEPA) for Agency Activities Affectingthe Environment in Foreign Nations and theGlobal Commons (Jan 11, 1978)).

27. CEO Regulations at 10112.

28. Restatement (Third) of the ForeignRelations Law of the United States§ 601(1)(b) (1987) ("Restatement of ForeignRelations"). See also Declaration of theUnited Nations Conference on the HumanEnvironment, Principle 21 (June 16, 1972), in11 ILM 1416, 1420 (1972) (UN DocAICONF48/14 & Corr 1 (1972)) ("StockholmDeclaration").

29. President Orders Environmental Reviewof International Actions, 9 ELR 10011, 10016(1979).

30. Exec Order 12114 (Jan 4, 1979), 3CFR 365 (1980), in 42 USC § 4321 (1988)(covering environmental effects abroad ofmajor federal actions) ("EO 12114" or"Order").

31. Id at § 2-3.

32. Caldwell, Science and the NEPA at 25(cited in note 2).

33. See generally Environmental LawHandbook 274 (Govt Institutes, 11th ed1991).

34. ED 12114 at § 3-1 (cited in note 30).

35. See Environmental Law Handbook at274 (cited in note 33).

36. 135 Cong Rec S5990 (June 1, 1989)(statement of Sen. Lautenberg (D-NJ)).

37. 353 F Supp 811 (D Hawaii 1973).

38. Id at 814-15.

39. Id at 816-17.

40. Id at 816. See also 115 Cong Rec40416-17 (Dec 20, 1969) (comments of Sen.Jackson (D-WA)).

41. Enewetak, 353 F Supp at 817 (citingCalvert Cliffs, 449 F2d at 1122) (emphasisadded).

42. Enewetak, 353 F Supp at 817 nl0.

43. Sierra Club v Coleman, 421 F Supp 63,65 (D DC 1976), vacated as Sierra Club vAdams, 578 F2d 389 (DC Cir 1978).

44. Coleman, 421 F Supp at 65-67.

45. Adams, 578 F2d at 396; Coleman, 421F Supp at 65-66.

46. 647 F2d 1345 (DC Cir 1981).

47. Id at 1366. If impacts on the globalcommons had been implicated, the NRC couldhave considered those impacts In the EIS as apolicy choice. In such a case, sovereigntyissues are not as delicate, and since theUnited States is a major user of the globalcommons, it "has a responsibility to see thatits own activities do not unnecessarilydegrade the environmental quality of suchareas." Matter of Westinghouse ElectricCorp., 11 NRC 631, 651-52 (1980).

48. Atomic Energy Act of 1954, 42 USC§§ 2011-2296 (1988); Nuclear Non-Proliferation Act of 1978, 22 USC §§ 3201-3282 (1988) ("NNPA").

49. NRDC v NRC, 647 F2d at 1348 &1366.

50. Id at 1358.

51. The NNPA "superimposels] a specialperspective on the singular goal NEPA serves


WHAT'S GOOD FOR THP GOOSE IS GOOD FOR TH GANDE R

in the wholly domestic context. Forinternational nuclear transactions, it appearsto be the will of Congress that bilateral ormultilateral cooperation respecting theenvironment take precedence over unilateralAmerican efforts." Id at 1348 (emphasisadded).

52. Id at 1372. Judge Robinson alsoargued that conducting an EIS would not be"exporting" NEPA: Because the decision andlicensing procedure under the NNPA "takesplace entirely within the United States....domestic law completely expends its forcethen and there." Id at 1384n138. He also,however, noted that "Congress has not issuedany plain mandate to NRC to safeguard theenvironment or even the citizens of recipientcountries." Id at 1380 (citations omitted).

53. Id at 1378 (quoting Letter from Sen.Pell (D-RI) to the NRC (Nov 9, 1979)).

54. See, for example, Pacific Gas & ElectricCo. v State Energy Resources Conservation &Development Comm'n, 461 US 190, 205(1983) (federal government has occupied theentire field of nuclear safety concerns).

55. 748 F Supp 749 (D Hawaii 1990),appeal dismissed 924 F2d 175 (9th Cir 1991).

56. Id at 752-54.

57. Idat 759.

336 US 281, 285 (1949)).

65. See the Antarctic Treaty, Art IV, [1961112 UST 794, TIAS No 4780 (done atWashington, DC, Dec 1, 1959) (no nationalacts give rise to a claim of sovereignty on thecontinent); Antarctic Treaty ConsultativeParties: Final Act of the Eleventh AntarcticTreaty Special Consultative Meeting and theProtocol on Environmental Protection to theAntarctic Treaty, Preamble, in 30 ILM 1455,1460 (1991) (done at Madrid, Oct 4, 1991)(recognizing Antarctica as a "specialconservation region") ("The Protocol"). Seealso Douglas M. Zang, Frozen in Time: TheAntarctic Mineral Resource Convention, 76Cornell L Rev 722, 760-68 (1991) (studentnote); John J. Barcel6, III, The InternationalLegal Regime for Antarctica, 19 Cornell Intl LJ 155, 160 (1986).

66. The Protocol, Annex I, Art 1, 1, in 30ILM at 1473 (emphasis added) (cited in note65).

67. The Protocol, Annex III, Art 3, 2, in

30 ILM at 1480 (cited in note 65).

68. Aramco, 111 SCtatl230-36.

69. See id at 1230.

70. See id at 1230-34; Foley Bros., 336 USat 285-86.

71. Foley Bros., 336 US at 284 (citing58. Id at 757. Blackmer v US, 284 US 421,437 (1932)).

59. Id at 759 (emphasis in original). Thissort of case-by-case application wasanticipated by NEPA, which empowers federalagencies "to use all practicable means,consistent with other essential considerationsof national policy," to comply with and followNEPA's directives. 42 USC § 4331(b)(emphasis added).

60. Greenpeace, 748 F Supp at 761.

61. Massey, 772 F Supp at 1296-97.

62. Id at 1297.

63. 111 SCt 1227 (1991).

64. Id at 1230 (citing Foley Bros. v Filardo,

72. To the extent that NEPA has fallenshort of its full potential, one commentatorhints that much blame can be placed on theindifference of past administrations. Caldwell,Science and the NEPA at 78 (cited In note 2).

73. Manheim, Pollution Law GoesAbroadat15 (cited in note 3).

74. Lynton K. Caldwell, InternationalEnvironmental Policy: Emergence andDimensions 55 (Duke, 2d ed 1990).

75. Civil Rights Act of 1991 at § 109, PubL No 102-166, 105 Stat 1071,1077 (1991),amending 42 USCA § 2000e (West Supp1991) (entitled "Protection of Extraterritorial

141

I A-) I 'IIbIM AA Mtd A. I , AI 0. 1llt f,,,l v 1 VI rluIVI

Employment").

76. S 1089, 101stCong, lstSess (June 1,1989), In 135 Cong Rec S5990 (June 1,1989). The relevant text would amend 42USC § 4332(2)(C) to "includ[ei extraterritorialactions (other than those taken to protect thenational security of the United States, actionstaken in the course of an armed conflict,strategic intelligence actions, armamenttransfers, or judicial or administrative civil orcriminal enforcement actions)."

77. 135 Cong Rec S5990 (June 1, 1989)(statement of Sen. Lautenberg (D-NJ)).

78. The administration has consistentlyblocked efforts to confirm NEPA's application.Administration officials have Indicated thatPresident Bush will veto the proposedlegislation presently before Congress thatwould amend NEPA to apply to theinternational environment. See Manhelm,Pollution Law Goes Abroad at 15-16 (cited innote 3).

79. HR 1113, 101st Cong, 1st Sess (Feb23, 1989), in 135 Cong Rec H6836 (Oct 10,1989).

80. 135 Cong Rec H6838 (Oct 10, 1989)(statement of Rep. Studds (D-MA)).

81. "[Each agency shall] recognize theglobal and long-range character ofenvironmental problems and work vigorouslyto develop and implement policies, plans, andactions designed, to support national andinternational efforts to enhance the quality ofthe global environment." HR 1271 (cited Innote 7). Contrast this with the section as itpresently reads: '[Each agency shall]recognize the worldwide and long-rangecharacter of environmental problems and,where consistent with the foreign policy ofthe United States, lend appropriate support toInitiatives, resolutions, and programs designedto maximize international cooperation inanticipating and preventing a decline in thequality of [hulmankind's world environment.'42 USC § 4332(2)(F).

82. HR 1271 (emphasis added) (cited innote 7).

83. S 1278 (emphasis added) (cited In note7).

84. Id.

85. Eugene V. Coan, Julia N. Hillis, &Michael McCloskey, Strategies forInternational Environmental Action: The Casefor an Environmentally Oriented ForeignPolicy, 14 Nat Res J 87, 97 (1974).

86. Goldfarb, 18 BC Envir Affairs L Rev at565 (cited in note 23).

87. US Const, Art I, § 8.

88. Restatement of Foreign Relations § 1,reporter's note 1 (citations omitted) (cited innote 28).

89. Stanley Millan, Wanted: NEPA, Dead orAlive. Reward: Our Global Environment, 22Envir Rptr (BNA) 2081, 2084 (1991).

90. Caldwell, Science and the NEPA at 50(cited in note 2).

91. Goldfarb, 18 BC Envir Affairs L Rev at569 (cited In note 23).

92. 42 USC § 4332.

93. Eric S. Hunter, The Filipino Nuke StaysAfloat While the D.C. Circuit Remains at Sea:The Need for Environmental ImpactStatements Covering Foreign Territories, 15NYU J Intl L & Pol 435, 473 (1982-83)(student note).

94. Oscar Schachter, International Law inTheory and Practice at 383 (M. Nijhoff,1991).

95. Manheim, Pollution Law GoesAbroadat16 (cited In note 3).

96. CEO, 21st Annual Report onEnvironmental Ouality 232 (1991).

97. Mary A. McDougall, Extraterritorialityand the Endangered Species Act of 1973, 80Georgetown L J 435, 445 (1991) (citationsomitted).

98. See Restatement of Foreign Relations

I IIIID/ klRRI'KI'I"AI I AIA! . ID/ tl If" V / 1 IRA


§ § 402(1)(a)-(b) & 404 (cited in note 28).

99. This principle was essentially the basisfor the court's holding in Sierra Club vColeman, which required an EIS for actions inPanama because of the potential fortransmitting disease Into the US. Seediscussion accompanying notes 43-45.

100. Restatement of Foreign Relations§ 402(2) (cited In note 28). See also Steele vBulova Watch Co., 344 US 280, 282 (1952)(US may assert jurisdiction over its owncitizens).

101. See Coan, 14 Nat Res J at 94 (cited innote 85).

102. Restatement of Foreign Relations§ 404, comment b (cited in note 28). Whileuniversal jurisdiction has traditionally beenexercised in the area of criminal law, itsapplication to non-criminal law is notprecluded. Id.

103. ZygmuntJ.B. Plater, Environmental Lawand Policy 1031 (West, 1992).

104. Restatement of Foreign Relations§ 206, comment b & reporter's note 1 at 96(each state has right to exercise "permanentsovereignty* over its wealth) (cited in note28).

105. Stockholm Declaration (cited in note28). See also US v Canada, 3 Rep IntlArbitral Awards 1905 (1949) (The TrailSmelter Case) (Sulphur dioxide emissions froma Canadian plant caused environmentaldamage in Washington state. The tribunalheld that Canada must compensate the USgovernment for the damage.); France v Spain,12 Rep Intl Arbitral Awards 281 (1957) (TheLake Lanoux Arbitration) (France planned todivert waters along the Spanish border. Thetribunal required It to consider the potentialadverse effects on Spain's water supply.);United Kingdom v Albania, [19491 ICJ 4, 22(The Corfu Channel Case) (Every state has an.obligation not to allow knowingly itsterritoryto be used for acts contrary to the rights ofother states.").

106. Frank P. Grad, 3 Treatise onEnvironmental Law § 13.02121[b] at 13-36

(1990).

107. Caldwell, International EnvironmentalPolicy at 22 (cited in note 74). For examplesof some of these agreements, see TreatyBanning Nuclear Weapons Tests In theAtmosphere, in Outer Space and Under Water,(19631 14 UST 1313, TIAS No 5433 (1963)(done at Moscow, Aug 5, 1963); Conventionon International Trade in Endangered Speciesof Wild Fauna and Flora with Appendices,1973, [19761 27 UST 1087, TIAS No 8249(1973) (done at Washington, DC, Mar 3,1973); Convention on Long-RangeTransboundary Air Pollution, 11981-821 34UST 3043, TIAS No 10541 (1979) (done atGeneva, Nov 13, 1979), Vienna Conventionfor the Protection of the Ozone Layer, TIASNo 11097 (1985) (done at Vienna, Mar 22,1985); Canada-United States: Agreement onAir Quality, in 30 ILM 676 (1991) (signed atOttawa, Mar 13, 1991). See also the HagueDeclaration on the Environment, In 28 ILM1308, 1309 (1989) (done at The Hague, Mar11, 1989) (recognizing the need to relinquishsome claim to sovereignty and embracecooperation to protect the world's resourcesand long term health); Paris EconomicSummit: Economic Declaration, 33, in 28ILM 1293, 1296 (1989) (done at Paris, July15-16, 1989) ('We will work together toachieve the common goals of preserving ahealthy and balanced global environment Inorder to meet shared economic and socialobjectives and to carry out obligations tofuture generations.").

108. See Nicholas C. Yost, NEPA:A SystemThat Works - Everywhere, 8 Envir Forum 28,30 (Nov-Dec 1991); Goldfarb, 18 BC EnvirAffairs L Rev at 596 (cited in note 23).

109. John T. Burhams, Exporting NEPA: TheExport-Import Bank and the NationalEnvironmental Policy Act, 7 Brooklyn J Intl L1, 15 (1981).

110. 2 Grad Treatise § 9.06121 at 9-268 to9-269 (cited In note 106).

111. Steele, 344 US at 285-286 (citationsomitted) (emphasis added).

112. See Yost, 8 Envir Forum at 30 (cited Innote 108); Caldwell, Science and the NEPA at24 (cited in note 2) ("There is no apparent


reason why the United States should actabroad, in violation of principles andprocedures established for its own conduct, toassist projects that might either have adeleterious effect upon the neighbors ofcountries in which the project was undertakenor upon substantial numbers of people of thehost country either now or in the future.").

113. See Jessica Tuchman Matthews, TheGreenhouse Effect: Apparently It's For Othersto Worry About, Wash Post A19 (July 4,1990). Despite the rhetoric, the amountspent on the research and development ofpollution control technology amounted to lessthan .01% of GNP in 1989. CEO, 21stAnnual Report at 270-71 (cited in note 96).

114. Many European nations have concluded"that present scientific understanding, whileriddled with uncertainties, Is nonethelessadequate to merit launching a major policyresponse." Matthews, The Greenhouse Effectat A14 (cited in note 113).

115. Paris Economic Summit: EconomicDeclaration, 37, in 28 ILM at 1297 (cited Innote 107).

116. Edith Brown Weiss, Introductory Noteto a Special Section of Documents on theEnvironment, in 28 ILM 1300, 1302 (1989).

117. Goldfarb, 18 BC Envir Affairs L Rev at587 (cited in note 23).

118. For example, "ItIhe erosion and soildeterioration that accompany deforestationexacerbate drought conditions, possiblycontributing to famines like that In Ethiopia."134 Cong Rec S11950 (Sept 8, 1988)(statement of Sen. Symms (D-ID)). A letterfrom the Sierra Club to the Senate reportsthat multinational development banks havelent $25 billion to third world countries tofinance a variety of development projects."Ironically, many of the projects intended toenhance the well-being of these countrieshave done just the opposite, wreakingtremendous damage on the environment andInflicting hardship on indigenous peoples."135 Cong Rec S1 6666 (Nov 21, 1989). Seegenerally Chris Wold & Durwood Zaelke,Establishing an Independent Review Board atthe European Bank for Reconstruction and

Development: A Model for Improving MDBDecisionmaking, 2 Duke Envir L & PolicyForum 59 (1992).

119. 135 Cong Rec $16667 (memorandumby Edward E. Yates, CEQ Staff Attorney, onEnvironmental Impact Assessment: What It Isand Why International DevelopmentOrganizations Need It).

120. 2 Grad Treatise § 9.06 at 9-266 (citedin note 106).

121. Because NEPA applies to any federalaction, any agency decision to finance, assist,conduct, regulate or approve a private entity'sventure is subject to NEPA's guidelines. Thebreadth of this reach is significant; In fact,NEPA continues to be a primary basis forchallenges to public and private developmentdecisions in the United States. SeeEnvironmental Law Handbook at 250 (cited innote 33).

122. The 90-day moratorium on newregulation announced by President Bush In his1992 State of the Union address epitomizesthe belief that governmental Interference Iscostly to Industry and impedes economicprogress. For the text of the announcement,see State of the Union: Transcript ofPresident Bush's Address on the State of theUnion, NY Times A16 (Jan 29, 1992).

123. See David Kirkpatrick,Environmentalism: The New Crusade, Fortune44 (Feb 12, 1990); Robert A. Frosch &Nicholas E. Gallopoulos, Strategies forManufacturing, Scientific American 144 (Sept1989).

124. See, for example, Calvert Cliffs, 449F2d at 1109.

125. 3 Grad Treatise 1 13.0113] at 13-18(cited in note 106).

126. Caldwell, Intemational EnvironmentalPolicy at 48 (cited in note 74). See also 3Grad Treatise § 13.01141 (cited In note 106).The industrialized nations' philosophy Is, forsome, Illustrated by export of pollutingindustries to developing countries. See thediscussion In the text accompanying notes133-134.


127. The Amazon Declaration, 8, in 28 ILM1303, 1305 (1989) (adopted at Manaus,Brazil, May 6, 1989). See also The LatinAmerican and Caribbean Summit Declarationof Brasilia on the Environment, 12, in 28ILM 1311, 1313 (1989) (adopted at Brasilia,Mar 31, 1989).

128. Caldwell, International EnvironmentalPolicy at 57 (quoting Olaf Palme's address atStockholm) (citations omitted) (cited in note74).

129. The Latin American and CaribbeanSummit Declaration, 12, in 28 ILM at 1313(cited In note 127).

130. See Hague Declaration on theEnvironment, in 28 ILM at 1309 (cited in note107).

131. This Is particularly impressive, since"most of these countries are already twice asenergy-efficient as the United States."Matthews, The Greenhouse Effect at A14(cited In note 113).

132. Denise E. Antolini, Extending NEPA IsInOur National Interest, 8 Envir Forum 26, 27(Nov-Dec 1991).

133. Burhams, 7 Brooklyn J Intl L at 1 (citedin note 109).

134. The Amazon Declaration, 11 6-7, in 28ILM at 1305 (cited in note 127).

135. Latin American and CaribbeanDeclaration, 3, in 28 ILM at 1312 (cited innote 127).

136. Antolini, 8 Envir Forum at 26 (cited Innote 132).

137. Coan, 14 Nat Res J at 88 (cited in note85).

138. Id.

139. Stockholm Declaration (emphasisadded) (cited in note 28).

140. For a collection of environmentalassessment laws world-wide, seeEnvironmentallmpactAssessment(draft (Dec1990) (Center for International Environmental

Law (CIEL-US) Companion Paper) (availablefrom CIEL-US office, 1621 Connecticut Ave.NW, Suite 300, Washington, DC 20009-1076).

141. See Goldfarb, 18 BC Envir L Rev at578-79 (cited In note 23).