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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
discovered that developing countries themselves have
come increasingly to recognize the interrelated
nature of environment and development and to seek to
ensure that environmental considerations are
adequately addressed in development projects.
Further, the practical experience of AID has been
that it is possible to undertake detailed
environmental analysis of U.S. supported projects
abroad and that the results obtained are useful to
us, as well as to host country planners, in making
project decisions.'

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."

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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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