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A. ALAN HILL
HEARING BEFORE THE SUBCOMMITTEE
UNITED STATES SENATE
JUNE 16, 1988
THE NATIONAL ENVIRONMENTAL POLICY ACT AND ITS APPLICATION TO
Mr. Chairman, thank you for the opportunity to testify this
morning on the subject of applying the National Environmental
Policy Act (NEPA) to United States participation in the actions
of international financial institutions.
Your letter requesting
testimony posed several questions, addressing the relationship of
NEPA to U.S. government actions in the context of international
financial institutions, as well as questions relating to the broader issue of NEPA's applicability to u.s. activities
My responses are set forth below.
1. Please comment generally on the role of NEPA in U.S. participation in international activities. Should NEPA be used more extensively in U.S. sponsored or supported international activities? What are the current limitations in applying NEPA to international activities involving the U.S. and what actions would be needed to broaden its use?
General Comments on the Role of NEPA in
NEPA's applicability to U.S. actions overseas, whether in
the context of bilateral relationships or international institutions, has been the subject of controversy since Congress
passed the act in 1969.2 There is no record in the legislative
history of a debate directly on the point of whether NEPA applied
to federal actions occurring outside the territorial jurisdiction
of the United States.
Soon after NEPA was signed into law by
President Nixon on January 1, 1970, federal agencies with
responsibilities for projects which were implemented overseas,
such as the Department of State, the Agency for International
Development, and the Export-Import Bank, asserted the position
that the procedural requirements of Section 102(2)(C) of NEPA, the section which requires preparation of a "detailed statement" for major federal actions significantly affecting the quality of the human environment, did not apply to activities which occurred within the territorial jurisdiction of another sovereign
In 1971, the issue of NEPA's applicability to u.s. actions abroad was considered by the Legal Advisory Committee to the
Pub. L. 91-190, 42 U.S.C. 4321-4347, January 1, 1970.
Council on Environmental Quality (CEQ). The Advisory Committee
unanimously concluded that NEPA applied to u.s. actions carried out within the territorial jurisdiction of another nation.2
During the early and mid-1970s, this issue continued to be vigorously debated by the various federal agencies. Federal court decisions, so integral to the development of NEPA in a domestic setting, proved less conclusive in answering the question of NEPA's applicability to overseas activities. were settled out of court or decided on other grounds, or decided in such a manner that both sides claimed victory. CEQ's 1973
guidelines implementing the procedural provisions of NEPA
required the assessment of both the national and international
environment, but the guidelines, unlike the present regulations, were advisory only and thus not binding on the agencies.
In 1976, CEQ issued a "Memorandum on the Application of the
EIS Requirement to Environmental Impacts Abroad of Major Federal Actions"", which concluded that the procedural requirements of Section 102(2)(C) of NEPA apply to all federal actions having
Report of the Legal Advisory Committee to the President's Council on Environmental Quality, December 1971, pp. 13-17.
See, Environmental Defense Fund v. Agency for International Development, 6 ELR 20121 (D.D.C. 1975); Sierra Club v. Coleman, 405 F. Supp. 53 (D.D.C. 1975); 421 F. Supp. 63 (D.D.C. 1976); Sierra Club v. Atomic Energy Comission, ELR 20885 (D.D.C. 1974); Wilderness Society V. Morton, 463 F.2d 1261 (D.C. cir. 1972).
significant effects on the quality of the human environment,
whether in the United States, in other countries, or in areas
outside the jurisdiction of any country. The Memorandum also stated that NEPA provides sufficient procedural flexibility to
accommodate national security or foreign policy considerations.
CEQ's direction to federal agencies to fully assess the
potential environmental effects of proposed actions outside the
United States continued to be controversial and only partially implemented during the mid 1970s. In 1977, President Carter issued an Executive Order6 directing ceQ to issue binding
regulations to federal agencies for implementing the procedural
provisions of NEPA.
During the course of its work, CEQ
identified the issue of NEPA's applicability to federal actions
abroad as an issue which needed to be addressed in a regulatory
That effort, involving a long and much publicized
interagency debate”, resulted in the issuance by President Carter
of Executive Order 121148, on Environmental Effects Abroad of
Major Federal Actions.
The basic thrust behind development of
the Executive Order was to negotiate a practical approach to the issue which would enable agencies to take into account
Executive Order 11514, as amended by Executive Order 11991, May 24, 1977.
See "President Orders Environmental Review of International Actions", 9 ELR 10011 (January, 1979); "Forthcoming CEQ Regulations to Determine whether NEPA Applies to Environmental Impacts Limited to Foreign countries", 8 ELR_10111 (June, 1978).
See Appendix A.
environmental effects of federal actions abroad, consistent with
U.S. economic, foreign policy, and national security interests,
while avoiding a direct resolution of the legal issue.
Executive Order 12114 was issued on January 4, 1979.
Section 1 of the order states that it ".
United States government's exclusive and complete determination
of the procedural and other actions to be taken by Federal
agencies to further the purposes of the National Environmental Policy Act, with respect to the environment outside the United States, its territories and possessions." It does not create a
cause of action in the courts.
The term "environment" is
defined as the natural and physical environment and excludes
social, economic and other environments. 10
Under Executive Order 12114, federal agencies were directed
to publish implementing procedures, in consultation with CEQ and
the Department of State.
The agency procedures must address the
following categories of actions:
major federal actions significantly affecting the
environment of the global commons outside the jurisdiction of any
nation (e.g., the oceans or Antarctica).
For these actions, an
environmental impact statement (EIS) must be prepared.
(b) major federal actions significantly affecting the
environment of a foreign nation not participating with the United