« PreviousContinue »
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
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.
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.
1981, the Environmental Law Institute evaluated the status of
compliance with NEPA by each of these five agencies and fourteen
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
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
Partially as a result of this Airlie House conference, NEPA was
purposefully structured in Section 102(2)(C) to apply to 'all'
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
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.''
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. **•
conservatively endorsed NEPA's application abroad.
Other cases have been consistent with these decisions.
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.
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
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.''
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.
reported to President Carter's Office of Management and Budget as
"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
The Order exempts votes and other actions in international
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.