Accordingly, some Federal agencies have provided in their NEPA procedures for the preparation of environmental statements when agency actions cause significant environmental impacts beyond U.S. borders,11 and impact statements have been prepared on U.S. actions in foreign countries.12 Moreover, the courts13 and virtually every legal commentary addressing the subject11 have supported the Council's belief that an environmental statement is required whenever U.S. actions would have significant environmental impacts on the United States, on global resources, or on foreign countries. The policies underlying NEPA reinforce the interpretation suggested by its language and legislative history, judicial precedents and administrative practice. Analysis and disclosure in an EIS of significant environmental effects provide U.S. decisionmakers a fuller picture of the foreseeable environmental consequences of their decisions. Impact statements do not dictate actions on foreign soil or impose U.S. requirements on foreign countries; instead, they guide U.S. decisionmakers in determining U.S. policies and actions. In addition, EISs provide information to cooperating governments which they then could use in making decisions about projects within, or which may affect, their countries. Far from being an imposition, this information can enhance the value of U.S. assistance or participation. This full disclosure by the United States contributes to the integrity of cooperating governments' policymaking, and thus lends support to international environmental cooperation as directed in § 102(2) (F),15 the Stockholm Declaration, and other international agreements.16 To the extent national security or essential foreign policy considerations make controlled circulation of environmental statements necessary, NEPA provides sufficient procedural flexibility to accomplish this. Section 102(2) (C) provides exceptions to public circulation of documents by incorporating the Freedom of Information Act and its exemptions by reference. Environmental statements or portions of them have been classified, for example, when necessary to protect national security.17 Presumably, if public examination of a proposed U.S. action in another country would jeopardize U.S. foreign policy in a given instance, circulation of the environmental statement could be restricted in accordance with these statutory procedures. 18 In general, however, Congress has mandated that environmental statements are public documents. In summary, the Council believes that the impact statement requirement in § 102(2) (C) of NEPA applies to all significant effects of proposed Federal actions on the quality of the human environment-in the United States, in other countries, and in areas outside the jurisdiction of any country. Accordingly, agency officials responsible for analyzing the potential environmental effects of proposed actions should fully assess the potential impacts outside the United States, as well as those within it; if any of these potential impacts are likely to be significant, an impact statement should be prepared. 1 See, e.g., Sections 101(b) (2), 101(b) (4), 201. 2 115 Cong. Rec. 29082 (Oct. 8, 1969). 3 See, e.g., S. Rept. No. 91-296, 91st Cong., 1st Sess., at 17, 43-45 (1969); H. Rept. No. 91-378, 91st Cong., 1st Sess., at 5, 7 (1969). 4115 Cong. Rec. 19009 (July 10, 1969); see also 115 Cong. Rec. 14347 (May 29, 1969); 115 Cong. Rec. 26575-16476 (Sept. 23, 1969); 115 Cong. Rec. 29056 (Oct. 8, 1969). 5 H. Rept. 92-316, 92nd Cong., 1st Sess., at 32-33 (1971). 6 CEQ, Environmental Quality- 1970, at 200 (1970). 7 Legal Advisory Committee Report to the President's Council on Environmental Quality, at 13-17 (December 1971). 8 40 C.F.R. Section 1500, 8(a) (3) (i) (1975). 9 CEQ, Environmental Quality-1974, at 399-400 (1974). 10 CEQ, Environmental Quality-1975, at 653-54 (1976). 11 See, e.g., 38 Fed. Reg. 34135-46 (1973) (Coast Guard); 37 Fed Reg. 19167-68 (1972) (Dept. of State); 41 Fed. Reg. 26913-26919 (1976) (Agency for International Development). 12 See, e.g., Dept. of Transportation, Draft EIS, Darien Gap Highway (March 1976); Dept. of the Interior, Final EIS, Alaska Natural Gas Transportation System (March 1975). 13 In Wilderness Society v. Morton, 463 G. 2d 1261 (D.C. Cir. 1972), the court granted standing to Canadian intervenors concerned with the trans-Alaska Pipeline, holding that the intervenors' interest in the significant impacts of the pipeline in Canada were within the zone protected by section 102(2) (c). In Sierra Club v. Coleman, 405 F. Supp. 53 (D.D.C. 1975), the court held, inter alia, that DOT's impact assessment on portions of the Pan-American Highway was deficient because it failed to address the environmental impacts of alternative highway corridors through Panama and Colombia. Since the significant impacts of corridor alternatives lay exclusively in Panama and Colombia, the case necessarily holds that impacts in foreign national territory are within the scope of section 102(2)(C). Of course, significant indirect as well as direct impacts must be considered. 40 C.F.R. Section 1500.8(a) (3) (ii) (1975); City of Davis v. Coleman, 521 F.2d 661, (9th Cir., 1975); see CEQ, Environmental Quality-1974, at 410-11 (1974). 14 See, e.g., Committee on Environmental Law of the Section on International and Comparative Law of the American Bar Association, Opinion on the International Scope of NEPA (July 1971); Strausberg, the National Environmental Policy Act and the Agency for International Development, 7 Int'l. Law. 46 (1972); Robinson, Extraterritorial Environmental Protection Obligations of Foreign Affairs Agencies: The Unfulfilled Mandate of NEPA, 7 Intl. Law. Pol. 257 (1975) Note, the Extraterritorial Scope of NEPA's Environmental Impact Statement Requirement, 74 Mich. L. Rev. 349 (1975); Appelbaum, Controlling the Hazards of International Development, 5 Ecol. L.Q. 321 (1976). 15 See H. Rept. 92-316, 92nd Cong., 1st Sess., at 33 (1971). 16 See, e.g., Convention Concerning the Protection of the World Cultural and Natural Heritage, November 23, 1972; Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, October 12, 1940. 17See, e.g., U.S. Navy, final EIS, Transit Satellite (June 1972). 18Thus, NEPA incorporates a procedure for ensuring that the execution of U.S. foreign policy and U.S. environmental policy are consistent. Of course, no agency has the authority otherwise to deviate from NEPA's requirements, on foreign policy or other grounds. Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971). Reproduced from XV International Legal Materials 1426-1434. In Sierra Club et al. v. Coleman et al., Civil Action No. 75-1040, the U.S. District Court for the District of Columbia, on September 23, 1976, ordered the continuance in effect of its preliminary injunction of October 17, 1975, 405 F. Supp. 53 (1975), which halted construction on the Darien Gap Highway through Panama and Colombia by the Department of Transportation and the Federal Highway Administration. The Court in the 1975 action found that defendants had failed to comply with the procedural and substantive requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) in their preparation of an environmental impact assessment relating to the Darien Gap Highway. Defendants thereafter prepared a Final Environmental Impact Statement (FEIS) for the project and asserted their right to proceed with the project. Plaintiffs contended that the FEIS was defective in certain critical areas and argued for extension of the injunction. The Court, in a memorandum and order of September 23, 1976, concluded that "the statement is indeed so deficient in certain basic respects that the injunction must be extended until those deficiencies are remedied." The Court found that the FEIS still failed to examine adequately the problems of control of aftosa, or foot-and-mouth disease, the environmental impact of possible alternative routes for the highway, and the effects of the highway on the Cuna and Choco Indians inhabiting the areas through which the highway was expected to be built. It accordingly enjoined defendants from entering into any contract, obligating any funds, expending any funds, or taking any other action in furtherance of the construction of the Darien Gap Highway, except as specified in the Court's order of December 23, 1975, pending final hearing and disposition of the action, or unless and until the defendants fully and adequately supplement their FEIS, in accordance with law, to remedy the deficiencies noted. See the 1975 Digest, pp. 706-707, concerning the 1975 preliminary injunction in Sierra Club et al. v. Coleman and Thiemann. For the text of the U.S. District Court's order of Sept. 23, 1976, see XV International Legal Materials 1417-1424. Transfrontier Pollution Richard D. Vine, Deputy Assistant Secretary of State for Canadian Affairs, in a letter of May 27, 1976, to Senator Lee Metcalf, supplied a status report on U.S. negotiations with the Canadian Government concerning the Poplar River Project, particularly with respect to air pollution problems. It also contained information about international law and bilateral agreements relating to transfrontier pollution. Mr. Vine's letter stated: Air Quality Potential transfrontier air pollution from the Saskatchewan Power Corporation's Poplar River Project [a proposed thermal generating plant] has been studied by the concerned Federal, State, and Provincial Governments (U.S., Canada, Montana, Saskatchewan) and the International Joint Commission's International Air Pollution Advisory Board. The subject of transfrontier air pollution was addressed at bilateral meetings in Regina in April 1975 and March 1976 and at two technical meetings in Helena in August 1975 and Ottawa in October of the same year. Saskatchewan's proposals for air pollution controls on the first 300 megawatt unit of the Poplar River Project have been studied in detail, and a copy of the Environmental Protection Agency's most recent summary has been given to your staff. Earlier technical studies indicate that if the unit was equipped with electrostatic precipitators with an efficiency of 96 percent, particulate emission levels would exceed Environment Canada's Maximum Acceptable Objective on an average of one day per year. In August 1975, Saskatchewan officials agreed to upgrade particulate controls on the unit to 99 percent efficiency. At this level of particulate control, Environment Canada's Maximum Acceptable Objective will not be violated in either the United States or Canada. With this improved efficiency, particulate emissions will be reduced significantly from an estimated 1800 lb/hr (227 g/s) to 450 lb/hr (57 g/s). Neither Montana nor United States ambient air quality standards will be violated by this level of particulate emission. You should be aware, however, that particulate emissions from the unit will slightly exceed those allowed under United States new source emission standards. Relevant data are as follows: U.S. new source standard .10 lbs. per 106BTU .15 lbs. per 106BTU 300 megawatt unit with 99% ESP 300 megawatt unit with 96% ESP Canadian and Saskatchewan officials have expressed the view that the small difference between the United States standard and the expected emission rate is insignificant, particularly when compared to health standards. The improvements agreed to by Saskatchewan will cost an estimated $3 million, and the unit will have the highest level of emission controls of any plant in Saskatchewan. With respect to other airborne pollutants, studies to date indicate that flouride concentrations will be well below the Montana 24hour standard . . . . Emissions from the plant will have an effect, however, on the air assimilative capacity of Montana as would the construction of any such plant. The degradation of air quality as a result of the SO2 emissions will use up a portion of the allowable increment for the affected area in Montana under the United States significant deterioration regulations. A minimal air quality degradation will be attributable to NOx emissions. A portion of the particulate increment will be used up. At the plant's potential 600 MW level both the particulate and sulphur dioxide increments could be violated for an area in Northeastern Montana. Apportionment [T]he International Joint Commission will be holding hearings on the apportionment report of the Commission's International Souris-Red Rivers Engineering Board and its Poplar River Task Force on May 26-27 in Scobey, Montana and Coronach, Saskatchewan. Both the Department of State and EPA expect to be represented at these hearings. Following the submission of the Commission's report and recommendations to Governments, a United States Federal environmental impact statement will be prepared. Following the completion of the statement, we would expect to resume discussions with Canada on a formal apportionment agreement or treaty if it is clear that a treaty or agreement continues to be in our interest. Water Quality With respect to water quality issues, bearing in mind the provisions of article IV of the Boundary Waters Treaty [TS 548; 36 Stat. 2448; 12 Bevans 319], the Governments agreed to the need for a formal bilateral mechanism to address water quality issues during the March 5 meeting in Regina. We strongly believe that the International Joint Commission is the appropriate instrument for that purpose and are now in the process of exchanging views with the Government of Canada with respect to both the forum and terms of reference. Legal Aspects: Air Pollution With respect to air pollution, there are no applicable bilateral agreements with Canada. That is not to say, however, that there is an absence of applicable law. A number of sources of developing customary international environmental law exist, which assert the responsibility of states, consistent with their sovereign right to exploit their own resources pursuant to their own environmental policies, to ensure that activities within their jurisdiction do not cause damage to the environment of neighboring states (see, e.g.. Principle 21 of the 1972 Stockholm Declaration). In bilateral practice, an analogous principle can be found in the often-cited Trail Smelter Arbitration. The Arbitration considered United States claims arising from the operations of a zinc and iron smelter at Trail, B.C. Pursuant to a Convention of 1935 [TS 893; 49 Stat. 3245; 6 Bevans 60], the two governments accepted an indemnification figure recommended by the International Joint Commission, in response to a 1928 reference under article IX of the Boundary Waters Treaty, in compensation for damage in the United States resulting from the transboundary effects of sulphur dioxide fumes emitted by the smelter. The tribunal created by the Convention, in a widely-quoted dictum, observed that “. . . under principles of international law. . . no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence." By reference under article IX of the Boundary Waters Treaty, the International Joint Commission has dealt with a number of air pollution problems, notably in the Detroit-Windsor area (see, e.g., Docket 25 (Trail Smelter), 1928; and Dockets 61, 1949, 85, 1966; and 99, 1975 (Detroit-Windsor)). The involvement of its International Air Pollution Advisory Board in the case of the Poplar pursuant to a 1966 reference (Docket 85) has already been noted. That reference provides for a continuing limited notification function with respect to air pollution problems in boundary areas. The same reference focused on the request of the two governments that the Commission examine whether the air in the Detroit RiverSt. Clair River vicinity was being polluted on either side to a level detrimental to the public health, safety or general welfare of citizens or property on the other side. In its 1972 "Report on Transboundary Air Pollution," the Commission, echoing the terms of the reference, remarked that "air contaminants emitted in one country should not create conditions that are detrimental to the public health or welfare of citizens or to property in another country" and recommended a number of broad objectives: The air flowing in either direction across the International Boundary in the Detroit and St. Clair River areas should be: |