the threshold for environmental impact assessment. It is not a requirement that all activities meet that standard. It is, that is what triggers the environmental assessment. That is point 1. Now, point 2, is that we are not trying to write everything that has to be done. If, as we have tried to do, you blend the protocol and NEPA, we have not tried to repeat all the provisions that exist under NEPA. In terms of how specific regulations under NEPA are done, that is where they should be addressed. But you should not try to include all the detail in the legislation. Senator KERRY. I would agree with that. That would be my reaction, and that is what I was saying. Dr. LANZEROTTI. Fine. I think that this is related to your previous question, and I would like to expand on that a little bit. The committee absolutely recognized that standards have to be established consistent with those of the United States; no question. And if your question was questioning me on that, I am sorry if I had some problem. Senator KERRY. Thank you for clarifying that point. Dr. LANZEROTTI. But we do want to point out that the differences between the Antarctic environment and the more temperate environment of the United States for which standards have been established, which you explored with Dr. Sullivan, may be sufficiently significant, such that clean air and clean water standards used here may not be directly applicable. It may require some research to find out exactly what those should be, in a specific instance. Senator KERRY. I have a number of other questions, but unfortunately, I have a discussion with the Attorney General that I have to attend to. Therefore, I will leave the record open until the end of this week and we will submit a few additional questions so we have your responses on the record. I want to have them on the record because we are getting some very detailed and useful an swers. Let me ask you Mr. Manheim, the administration says that the principles contained in article III are legally binding, and they provide the basis to address those situations that are not specifically addressed by the provisions of the protocol. You find that inadequate, why? Mr. MANHEIM. Because, Mr. Chairman, in our view, the principles establish separate requirements from those already contained within the annexes; and their implementation should not be based on the exercise of discretion by an agency. In other words, if there is something that is going to occur in Antarctica, it should be reviewed for compliance first with the principles; and second, with the various legal requirements that exist within the annexes. Senator KERRY. So, how would you strengthen the implementation of article III? Mr. MANHEIM. I would take the principles that have been set out in the statement of national policy in the administration proposal, and make that something other than a national policy, like a requirement. Senator KERRY. What do you get out of that? What do you think you get, a stricter standard of enforcement? Mr. MANHEIM. Well yes, you do. In fact, the principles call upon parties to modify, suspend, or cancel any operations inconsistent with those principles. They also require monitoring Senator KERRY. Why is that not adequate? Why is the statement of principles not adequate? Mr. MANHEIM. You mean, a statement of national policy? I just do not think it is enforceable. I am not sure how you would Senator KERRY. Are you suggesting that, as a statement, it is not enforceable; but, if they were incorporated elsewhere in the implementing language they would be enforceable? Mr. MANHEIM. To put it baldly, I think you require U.S. nationals to comply with the principles, prior to embarking for Antarctica. And you can do that through the environmental Senator KERRY. Why has that not happened, by virtue of signing the protocol, and ratifying it, and then passing implementing language? Mr. MANHEIM. It should happen that way; except that, in this fashion, by placing it in a statement of national policy and then asking agencies to exercise their residual authority to implement this policy when they deem it appropriate, you do not achieve the requirement that activities-before they occur in Antarctica-are consistent with those principles. Senator KERRY. I see. Mr. MANHEIM. In other words, the agency may not Senator KERRY. So, in other words, what you are really saying is that while one could bring suit on those principles, you want a specific requirement in the implementing language that they must comply with the principles? Mr. MANHEIM. Well, no. This is, I think it is- Mr. MANHEIM. This is simply implementing the protocol, in a way that makes it enforceable. It is implementing the principles, in a way that makes them legally binding. Senator KERRY. And you are suggesting that, absent that, there is a legal gap here? Mr. MANHEIM. That is correct. That is correct, absent the exercise of discretion by an agency, which will take up to 22 years or 3 years to pursue. Senator KERRY. Dr. Lanzerotti, in your study you say that a special group should be established for general oversight and review of the activities, including major logistic facilities, environmental monitoring, NSF program actions, et cetera. Can you be more specific, as to what kind of group you mean? Is this advisory or is this an independent agency? Dr. LANZEROTTI. Well, we felt that it was inappropriate for us to make recommendations on how the Federal Government should organize itself. But in our report, we give an example of what we think might be appropriate there; and I am rapidly searching for that recommendation here, so I can Senator KERRY. Well, we can look it up, do not worry. Dr. LANZEROTTI [continuing] Quote it accurately. But we did make the recommendation for a special group and its function. But we did not make a recommendation of how it should be convened. We do give that example, as I said. Senator KERRY. In other words, you want some kind of group or commission to oversee implementation and adherence to the protocol? Dr. LANZEROTTI. Yes, but I would not use the words, "looking over the shoulder." I would say that this group would act in the best interests of the United States, to look at the entire program that the United States is pursuing. Sarah just pointed out to me here, on page 64-may I read this, please? Senator KERRY. Sure. Dr. LANZEROTTI. [Reading.] The committee believes that this last responsibility is best vested in a group, not a single agency. One option would be to expand the scope of the Antarctic Policy Group of the national Security Council, perhaps via standing committee, to include this responsibility. But again, that is only a suggestion. Dr. LANZEROTTI. But it is to act in the best interests of the United States in the Antarctic, not looking over the shoulder of any particular agency or agencies. Senator KERRY. I do not know if that is a distinction without a difference or not. Dr. LANZEROTTI. Well, I would like to think that it is. Senator KERRY. Well, you keep thinking that, and we will figure it out. I do not mean that to be taken Dr. LANZEROTTI. No, I absolutely understand you. Senator KERRY. Thank you to everyone here today. I think we have some work to do. We need to pull together some of the loose ends of this. I hope we can do that in short order and I look forward to working with various interested parties and appropriate parties, to get that done. Dr. LANZEROTTI. Well, our committee is certainly willing to answer additional questions. Senator KERRY. Well, we want to try to see if we can get this legislation on a fast track, if possible. It is a dirty word around here, but we will try. We stand adjourned. The records stays open for another week. Thank you. [Whereupon, at 4:40 p.m., the hearing was adjourned.] APPENDIX LETTER FROM BRUCE S. MANHEIM, JR., SENIOR ATTORNEY, ENVIRONMENTAL OCTOBER 27, 1993. Senator JOHN F. KERRY, U.S. Senate, Washington, DC 20510 DEAR SENATOR KERRY: Thank you for the opportunity to testify at the October 20, 1993 hearing of the Senate Commerce, Science, and Transportation Committee on implementing legislation for the Protocol on Environmental Protection to the Antarctic Treaty. As I promised at that hearing, this letter sets out a more detailed explanation of the most significant flaws in the recently submitted proposal by the administration for implementing legislation. I request that this letter be included as part of the record for the October 20, 1993 hearing. Specifically, this letter describes how the administration proposal: (1) seeks to overrule a recent federal appeals court decision by carving out a gaping loophole allowing agencies to avoid compliance with the National Environmental Policy Act (pgs. 2-5); (2) would weaken the Antarctic Conservation Act and other federal statutes protecting Antarctic wildlife by allowing incidental taking (pgs. 5-7); (3) eliminates that Act's mandate to create a comprehensive program governing all sources of pollution in Antarctica (pgs. 7-9); (4) would permit incineration to proceed in Antarctica and not allow the Environmental Protection Agency to veto that decision (pgs. 9-11); (5) authorizes discharges of untreated sewage into Antarctic waters pursuant to standards weaker than those in the Clean Water Act (pgs. 11-13); (6) falls to prohibit government vessels from discharging wastes, including plastics and garbage, overboard in Antarctica in contravention of the Act to Prevent Pollution from Ships (pg. 13); (7) narrowly construes and improperly implements legally binding requirements in Artide 3 of the Protocol (pgs. 13-15); (8) indefinitely defers any significant action to control a burgeoning tourist industry in Antarctica (pgs. 15-18); and (9) fails to include a citizen suit provision (unlike 16 other environmental laws) and does not authorize other federal agencies to bring enforcement actions against other agencies that violate the Act's provisions (pgs. 18-20). AVOIDING COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT The National Environmental Policy Act ("NEPA") requires all federal agencies to prepare an environmental impact statement (“EIS”) in connection with any proposal for a major action "significantly affecting the quality of the human environment." 42 U.S.C. §4332(2)(C). Following passage of the Act in 1970, the National Science Foundation ("NSF") promulgated regulations applying this requirement to its decisions about actions in Antarctica. See 39 Fed. Reg. 3544, 3547 (Jan. 28, 1974) (EIS "requires assessment of the proposed action as it affects both the national and international environment.") (codified at 45 C.F.R. §640.3(e) (1977)). However, following issuance of Executive Order 12114 in 1979, it refused to comply with NEPA for its actions in Antarctica until it was forced to do so by a federal appeals court ruling earlier this year. Specifically, in Environmental Defense Fund v. Massey, 986 F.2d 528 (D.C. Cir. 1993), Chief Judge Mikva, writing for a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit, concluded that NEPA governs NSF's decision to build and operate two incinerators in Antarctica. As the Court noted, if such actions were not subject to NEPA, then NSF's environmental decision-making would not be subject to public scrutiny and judicial review. As a practical matter, the absence of such oversight has resulted in NSF preparing fewer assessments and causing more environmental harm to the Antarctic environment. Now, the administration proposal seeks to carve out a gaping loophole that will allow agencies such as NSF to avoid compliance with NEPA. Under Section 7(b) of its bill, the administration proposes to exempt from NEPA any "Antarctic joint ac tivity" where the Secretary of State, in cooperation with the lead U.S. agency planning such activity, determines that another Protocol party is "coordinating implementation of environmental impact assessment procedures for that activity." The administration proposal broadly defines the term "Antarctic joint activity" to mean "any federal activity in Antarctica which is proposed to be conducted, or which is conducted, jointly or in cooperation with one or more foreign governments, as defined in regulations promulgated by such agencies as the President may designate." Moreover, the proposal provides that determinations by the Secretary of State, "and agency actions and decisions in connection with assessments of impacts of Antarctic joint activities, shall not be subject to judicial review." If these provisions become law, the relevant agency (i.e., NSF) will no doubt seek to persuade another government to take the lead on "joint projects" and thereby avoid compliance with NEPA. This will be particularly problematic since arguably any number of activities undertaken in Antarctica are done so either jointly or in cooperation with other governments, and no one will have the right to go to court to question the federal agency's compliance with NEPA or even the Protocol's assessment provisions. This sweeping exception from NEPA flies in the face of NSF's implementation of NEPA through the 1970's when it undertook a number of joint research projects with other countries and it prepared EISS under NEPA for at least two such efforts. See 38 Fed. Red. 23488 (Aug. 30, 1973), 39 Fed. Reg. 5508 (Feb. 13, 1974) (Dry Valley Drilling Project); and 39 Fed. Red. 39934 (Nov. 12, 1974) (Ross Ice Shelf Project). The State Department also prepared EISS under NEPA for two international agreements governing Antarctica. See 39 Fed. Reg. 30169 (Aug. 21, 1974) (Antarctic Seals Convention); 43 Fed. Reg. 4475 (Feb. 2, 1978) (Antarctic Marine Living Resources Convention). Indeed, the administration proposal is nothing short of an attempt to overrule the Massey decision. There, NSF argued that its incineration of wastes at McMurdo Station was undertaken in cooperation with other nations and that application of NEPA to its Antarctic activities would jeopardize joint projects. Moreover, NSF asserted that the Protocol's environmental assessment procedures somehow conflicted with, and would prevent compliance with, NEPA. Yet, as set out below in language from the Massey decision, both of these arguments were flatly rejected by the Appeals Court: Although NSF concedes that NEPA only seeks to regulate the decisionmaking process of federal agencies, and that this case does not present a conflict between U.S. and foreign sovereign law, NSF still contends that the presumption against extraterritoriality controls this case. In particular, NSF argues that the EIS requirement will interfere with U.S. efforts to work cooperatively with other nations toward solutions to environmental problems in Antarctica. In NSF's view, joint research and cooperative environmental assessment would be "placed at risk of NEPA injunctions, making the U.S. a doubtful partner for future international cooperation in Antarctica." NSF also argues that the Protocol on Environmental Protection to the Antarctic Treaty, which was adopted and opened for signature on October 4, 1991, would, if adopted by all the proposed signatories, conflict with the procedural requirements adopted by Congress for the decisionmaking of federal agencies under ÑEPA. According to NSF, since NEPA requires the preparation of an EIS for actions with potentially "significant" impacts, while the Protocol requires an environmental analysis even for actions with "minor or transitory" impacts on the Antarctic environment, the two regulatory schemes are incompatible and will result in international discord. We find these arguments unpersuasive *** We are unable to comprehend the difficulty presented by the two standards of review. It is clear that NSF will have to perform fewer studies under NEPA than under the Protocol, and where an EIS is required under NEPA, it would not strain a researcher's intellect to indicate in a single document how the environmental impact of the proposed action is more than "minor" and also more than "significant." More importantly, we are not convinced that NSF's ability to cooperate with other nations in Antarctica in accordance with U.S. foreign policy will be hampered by NEPA injunctions *** Since NEPA imposes no substantive requirements, U.S. foreign policy interests in Antarctica will rarely be threatened, except perhaps where the time required to prepare an EIS would itself threaten international cooperation or where the foreign policy interests at stake are particularly unique and delicate. Thus, contrary to NSF's assertions, where U.S. foreign policy interests outweigh the benefits of the EIS requirement, NSF's efforts to cooperate with foreign governments regarding environmental practices in Antarctica will not be frustrated by forced compliance with NEPA. Applying the presumption against extraterritoriality here [thereby precluding application of NEPA] would result in a federal agency being allowed to undertake ac |