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actions, the lead agency may prepare either a bilateral or
multilateral environment study or a concise review of the
environmental issues involved, including environmental
assessments, summary environmental analyses or other appropriate
(c) major federal actions significantly affecting the environment of a foreign nation which provide to that nation:
(1) a product or physical project producing a principal
(2) a physical project which in the United States is prohibited or strictly regulated by federal law to protect the environment against radioactive substances.
For these categories, the agency may also comply by preparing
either a bilateral or multilateral environmental study or a
concise environmental review.
major federal actions outside the U.S., its territories
and possessions which significantly affect natural or ecological resources of global importance designated for protection under this subsection by the President, or in the case of such a resource protected by international agreement binding on the
United States, by the Secretary of State.
For this category, an
agency may prepare either an EIS, bilateral or multilateral
environmental study, or a concise environmental review.
The Executive Order provides that agencies coordinate with
other federal agencies possessing relevant expertise on the
environmental impacts of the proposed action, and to make
appropriate provisions for determining when an affected nation
should be informed of the availability of environmental
It exempts the following actions:
(a) actions not having a significant effect on the environment outside the u.s. as determined by the agency;
actions taken by the President;
(c) actions taken by or pursuant to the direction of the President or Cabinet officer when the national security or interest is involved or when the action occurs in the course of an armed conflict;
intelligence activities and arms transfers;
(e) export licenses or permits or export approvals, and actions relating to nuclear activities except actions providing to a foreign nation a nuclear production or utilization facility as defined in the Atomic Energy Act of 1954, as amended, or a nuclear waste management facility;
votes and other actions in international conferences and organizations;
disaster and emergency relief action. 12
Additionally, the Executive Order grants to agencies the
authority to provide for modifications in the contents, timing
and availability of documents to other affected federal agencies
and affected nations where it is necessary: (1) to enable the agency to decide and act promptly when required; (2) to avoid
adverse impacts on foreign relations or infringement in fact or
appearance of other nations' sovereign responsibilities; and (3)
to ensure appropriate reflection of diplomatic factors; international commercial, competitive and export promotion
factors; needs for governmental or commercial confidentiality; national security considerations; difficulties of obtaining information and agency ability to analyze meaningfully
environmental effects of a proposed action; and the degree to
which the agency is involved in or able to affect a decision to
be made. 13 Additionally, agencies may provide for categorical
exclusions and for such exemptions in addition to those already
mentioned, "as may be necessary to meet emergency circumstances,
situations involving exceptional foreign policy and national
security sensitivities and other such special circumstances."14
In 1981, the District of Columbia Circuit Court of Appeals
faced the issue of whether the Nuclear Regulatory Commission
(NRC) violated NEPA by not preparing an EIS before issuing a
license authorizing the export of a nuclear reactor to the
Republic of the Philippines. 15 The case involved Westinghouse
Corporation's 1977 application to the NRC for a license allowing
it to sell and export a commercial nuclear power reactor to the
Concern arose because the reactor was to be located
near an active volcano in a known earthquake zone.
The NRC took
the position that NEPA did not impose a duty to consider impacts
on the Philippine environment. The Department of State, in reaching its recommendation that the NRC issue the export
Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 647 F.2d 1345 (D.C. Cir. 1981).
license, prepared the concise environmental review required by
Executive Order 12114.
In its ruling that NEPA did not require
the NRC to prepare an EIS on the export of the nuclear reactor,
the majority opinion noted that NEPA, its legislative history,
and the related case law were inconclusive as to NEPA's
Mindful of the foreign policy implications
and lacking clear Congressional direction otherwise, the court
concluded that NEPA did not apply to the action taken by the
Last October, the CEQ General Counsel's office surveyed all
federal agencies with regard to their compliance with Executive Order 12114. Among other things, CEQ asked agencies to provide
details about their implementation of the order over the past
The results of the survey show that since 1985,
over 200 documents have been prepared under the Executive Order
by seven federal agencies. 17 The vast majority of these documents are for the Environmental Protection Agency's Prevention of Significant Deterioration Permits under the Clean Air Act. Excluding these, the number of actions falling within
the Executive Order since 1985 is approximately 45.
A concurring opinion argued that the NEPA requirement for an EIS would conflict with the timetable for decisionmaking on nuclear exports required by the Nuclear Non-Proliferation Act, thus presenting a statutory conflict.
The seven agencies are the Defense Logistics AGency, the Defense Nuclear Agency, the Joint Chiefs of Staff Pacific Command, Army, the State Department, the Environmental Protection Agency and the Coast Guard.
No agency mentioned any problems with implementing the
The response from the U.S. Army's Pacific
Command stated that, "The implementation of E.O. 12114 has caused
a small increase in cost and some delay in the design and
construction of facilities. ...,
However, the requirements in
the E.o. have resulted in fewer and less costly problems later
The Coast Guard commented that, "..
we feel it is
probably best to consider any action on foreign soil that may
have a significant environmental effect the same as if it were in the U.s. and regulated by all U.S. environmental laws. This is generally greeted favorably by foreign host countries."
Agencies which did offer suggestions for improvement asked
for CEQ guidance as to when actions abroad would require
compliance with the Executive Order and to what extent.
there was some confusion demonstrated between the use of EISS,
environmental assessments, concise environmental reviews, and
bilateral or multilateral environmental studies.
What are the current limitations in applying NEPA to
Executive Order 12114 currently defines the federal
agencies' responsibilities to implementing an environmental
assessment process for international activities involving the
Should NEPA be used more extensively in U.S. sponsored
I do not believe that the NEPA process, as interpreted
by the CEQ regulations for domestic proposals, is appropriate for