6

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 documents.

(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
product or an emission or effluent which is prohibited
or strictly regulated by federal law in the U.S.
because its toxic effects on the environment create a
serious public health risk; or

(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.

(d) 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

7

appropriate provisions for determining when an affected nation

should be informed of the availability of environmental

11

documents. It exempts the following actions:

(a) actions not having a significant effect on the environment outside the U.S. as determined by the agency;

(b) 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;

(d)

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;

(f)

(g)

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

11 E.O. 12114, Section 2-4(d).

12 E.O. 12114 Section 2-5(a).

8

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 Philippines. 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

15 Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 647 F.2d 1345 (D.C. Cir. 1981).

9

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

international scope.

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 NRC. 16

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 three years. 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.

16 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.

17 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.

10

No agency mentioned any problems with implementing the

Executive Order. 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 on." 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. Further, 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
international activities involving the U.S. and what
actions would be needed to broaden its use?

Executive Order 12114 currently defines the federal agencies' responsibilities to implementing an environmental assessment process for international activities involving the

United States.

Should NEPA be used more extensively in U.S. sponsored
or supported international activities?

I do not believe that the NEPA process, as interpreted

by the CEQ regulations for domestic proposals, is appropriate for