1. International Application of NEPA For the past 18 years, there has been a growing recognition that in enacting NEPA Congress fashioned an extraordinary and useful new sanagement technique. Like the standardization of procedures such as 'generally accepted accounting principles,' the methodology for environnental impact assessment (known internationally as 'EIA') is a scientifically prenised and administratively efficient means of assembling and evaluating the environmental data about a project or program. The discipline of regularly doing this analysis enables decision-makers to anticipate and avoid undesired adverse environnental impacts and to mitigate the unavoidable impacts. Since EIA is a new procedure, however, bost agencies have initially found it difficult to add these newly required steps to their regular decision-naking. It takes hard work to redesign decision-making procedures while they are in active use. It can and has been done, however. Agencies such as the U.S. Army Corps of Engineers, the U.s. Forest Service and the Nuclear 'Regulatory Commission are today outstanding in their compliance with NEPA, although initially they had resisted adding these duties. The foreign affairs agencies, primarily the Agency for International Development (AID) and the Department of State, have implemented NEPA, albeit not a fully as the Army Corps, Forest Service or NRC. In 1981, the Environmental Law Institute evaluated the status of compliance with NEPA by each of these five agencies and fourteen others.'• When Congress first considered NEPA, it had examples before it in 1969 of costly foreign assistance projects which failed because of unanticipated environmental consequences. In 1968, fifty case studies on unintended environmental degradation caused by development abroad had been presented at a conference at Airlie House in Warrenton, Virginia.'' Professor Lynton K. Caldwell, later an advisor to Senator Henry Jackson who was instrumental in shaping the draft of NEPA, presented a paper on 'An Ecological Approach to International Development.' Partially as a result of this Airlie House conference, NEPA was purposefully structured in Section 102(2)(C) to apply to 'all' federal agencies. Foreign affairs agencies were included. The first Council on Environmental Quality appointed a Legal Advisory Committee drawn from lawyers across the nation; in 1971, the Connittee unanimously concluded that Section 102(2)(C) applied to actions of any federal agencies anywhere, even those "carried out within the territorial jurisdiction of another nation.'11 The Committee's Report, where relevant to this question, is attached to this testimony as Appendix A. Despite a consensus of legal opinion that NEPA applied to the foreign affairs agencies, some still resisted compliance with NEPA. Scholarly opinion favored compliance.'' The U.S. side of the US Canada International Joint Commission and of the US - Mexico International Boundary and Water Commission complied with NEPA at the outset.' Ultimately, however, the courts were obliged to instruct several foreign affairs agencies to comply with NEPA. The Sierra Club and others sued the Atomic Energy Commission (AEC'), State Department and Export-Import Bank, to compel preparation of an environmental impact statement for the export of nuclear power generating systems and fuels. The AEC agreed to prepare an EIS and State Department conceded that NEPA applied to it. In 1974, the District Court concluded that Section 102(2)(C) applied to the Eximbank, but that since the AEC was lead agency the Eximbank did not need to also prepare an EIS." This suit was followed by an order of District Judge Sirica approving a stipulation by which AID agreed to establish its procedures to implement Section 102(2)(C) of NEPA and to prepare an environmental impact statenent on its pesticide management programs.". Thereafter, three decisions clarified the Federal Highway Administration's duty to prepare an environmental impact statement for the construction of a stretch of the Pan-American Highway in Panana and Columbia through the Darien Gap region.'' The Sierra Club, the Cattlemen's Association, and others sued to require evaluation of the effects of aftosa (hoof and mouth disease) which could be transported from South American to North America; the District Court found that aftosa could destroy up to 25% of the livestock in North America. The Federal Highway Administration prepared an EIS as ordered by the District Court. The Circuit Court found the EIS acceptable under NEPA, without ruling on the direct applicability of NEPA to the Administration's project in Panana.' Professor Dan Tarlock, connenting on the litigation,'' observed that NEPA Section 102(2)(F) bandated federal agencies to support 'where consistent with the foreign policy of the United States...initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of aankind's world environment. **• Professor Tarlock conservatively endorsed NEPA's application abroad. Other cases have been consistent with these decisions. In wilderness Society v. Morton, the D.C. Circuit Court allowed Canadians to intervene in the Alaska pipeline litigation in order to press for the evaluation of inpacts in Canada. "NEPA provides foreign nationals with certain rights when their environment is endangered by federal actions. "13 Suits regarding the Pacific Trust territories also deened that NEPA applied to federal agency actions outside the United States." In light of this caselaw, the Ford Administration in a Memorandum from CEQ Chairman Russell Peterson advised all federal agencies that *NEPA requires analysis and disclosure in environmental impact statements of significant impacts of federal actions on the human environment in the United States, and other countries, and in areas outside the jurisdiction of any country.". The newly elected Carter Administration chose to reconsider this interpretation.'' During the Carter Administration, the State Department prepared an EIS on the Panama Canal Treaties, a NOAA prepared one on hurricane seeding and that AID had found the NEPA process actually of great benefit. AID reported to President Carter's Office of Management and Budget as follows: "Our overall experience is a positive one. We have As a result of its review, the Carter Administration in 1977 issued Executive Order 12114, on the 'Environnental Affects Abroad of Major Federal Actions."11 This Order requires agencies to consider iapacts on the connons and on countries affected by the U.S. federal action other than the country seeking the U.s. action. The U.S. lead agency may prepare a bilateral or a multilateral environmental analysis. The Order exempts votes and other actions in international organizations.'• Since the promulgation of the Executive order, one court has considered the application of NEPA abroad. The D.C. Circuit Court of Appeals upheld an NRC decision not to examine the siting of a Westinghouse nuclear generating facility in the Philippines when approving an export license for a commercial atomic power reactor, since the State Department had prepared its EIA document (a 'concise environmental review') under its own procedures in accordance with the Executive Order." This evaluation demonstrates that the weight of opinion is that EIA can be done and frequently is done for federal actions abroad, and that NEPA mandates the evaluation. The early fear that foreign states night consider such assessment as meddling in their internal affairs has not been realized. In fact, the developing nations increasingly have come to ask that EIA be provided." Since many nations now require the use of EIA, or are establishing such procedures, there is no legal impediment or policy rationale for U.S. federal agencies or international financial institutions to resist preparation of environmental assessments. These developments |
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