As the court viewed it, “To separate the consideration of the mag-nitude of federal action from its impact on the environment … would [make it] possible to speak of a ‘minor federal acti
Trang 1When Is an EIS Required?
Indisputably, the single and most commonly cited provision of the National Environmental Policy
Act (NEPA) involves the requirement to prepare a detailed statement:
… on proposals for legislation and other major federal actions significantly affecting the quality of the
human environment … 1
Often referred to as the threshold question of significance, the importance of thoroughly
under-standing this requirement cannot be overstated as it determines whether an environmental
assess-ment (EA) or an environassess-mental impact stateassess-ment (EIS) will be required for a particular action
Schedules, budgets, and the success of entire federal projects can rest on conclusions drawn from a
review of this requirement
The threshold question is predicated on a number of key components or criteria, and each of
these must be met before the requirement is triggered as a whole Each of these criteria, therefore,
needs to be thoroughly understood before an informed decision can be made regarding the need
to prepare an EIS or otherwise comply with NEPA It should be noted that these criteria were not
specifically defined in the Act Instead, this task was left to the drafters of the NEPA
implement-ing regulations (Regulations) and to the courts A considerable amount of professional experience
is frequently required in determining precisely what circumstances will trigger each one of these
criteria
Table 6.1 breaks the threshold requirement into its discrete criteria Each criterion is
referenced according to where it is defined in the Regulations These criteria are dissected and
examined in detail in the following sections
NEPA uses the phrase “detailed statement” in referring to the document that must be prepared for
major federal actions significantly affecting the quality of the human environment The Regulations
use the term “environmental impact statement” or “statement” as a synonym for detailed statement
6.2 PROPOSALS
The requirement to prepare an EIS pertains to proposals for legislation and other major federal
actions (Table 6.1) The term proposals might at first appear straightforward, yet numerous
chal-lenges have centered on the precise meaning of this term Three factors have been established by
the Council on Environmental Quality (CEQ) for determining when a plan has matured to the stage
where it can be considered an actual proposal (§ 1508.23):
A federal agency has a goalThe agency is actively preparing to make a decision on one or more alternative means of accomplishing the goal
The effects can be meaningfully evaluated
•
•
•
Trang 2Based on these three criteria it is clear that a proposal may exist, although the agency has not
officially declared one to exist As depicted by the third criterion, lack of ripeness is not to be
mis-construed as a license to move forward, ignoring the requirements of NEPA Agencies are expected
to schedule proposals early enough in the planning process so that an EIS may be completed on time
for it to be included in any recommendation or report on the proposal (§ 1502.5, § 1508.23)
6.3 LEGISLATION
The term “legislation” includes (§ 1508.17)
… a bill or legislative proposal to Congress developed by or with the significant cooperation and support
of a federal agency, but does not include requests for appropriations.
The test for “significant cooperation” hinges on whether the proposal is in fact predominantly
that of a federal agency as opposed to another source Legislative proposals include requests for
ratification of treaties These proposals are subject to special requirements described in § 1506.8
of the Regulations Only the agency with primary responsibility for the subject matter involved is
required to prepare a legislative EIS However, drafting legislation does not, by itself, constitute
significant cooperation
6.4 THE TERM “MAJOR”
The courts have not completely agreed on the definition of the term “major.” One of the early
his-toric cases in NEPA involved plaintiffs who sued to enjoin (stop) timber sales until the Forest
Ser-vice completed an EIS for the management of the area The Forest SerSer-vice argued that the phrase
“major federal actions significantly affecting the quality of the human environment” created two
tests: (1) determining first whether there is a major federal action and (2) determining whether the
impact of that action on the environment is significant
The Forest Service argued that the timber sales were not “major” federal actions.2 The court
concluded that the requirement “major federal actions significantly affecting the quality of the
human environment” involved only a single criterion and that was sufficient to trigger an EIS since
the two criteria were interwoven As the court viewed it, “To separate the consideration of the
mag-nitude of federal action from its impact on the environment … would [make it] possible to speak of
a ‘minor federal action significantly affecting the quality of the human environment,’ and to hold
NEPA inapplicable to such an action … the activities of federal agencies cannot be isolated from
their impact on the environment.”
However, a few courts have interpreted the term major to be a separate criterion independent
of the term significantly, as used in Section 102 of the Act In such cases, the courts have generally
interpreted “major” to be an indicator of either the size or complexity of a project Factors such as
TABLE 6.1 The Threshold Requirement
Other major federal actions § 1508.18
The quality of the human environment § 1508.14
Trang 3funding levels, allocation of resources, and degree of planning have all been used as indicators for
determining if a particular project is considered a major action
Mandelker has identified examples of activities which the courts have held to be major or
minor (see Table 6.2).3 The reader is cautioned that such examples do not necessarily reflect their
significance
The CEQ, as well as most courts, has taken the position that the term “major” is interpreted to
reinforce the term “significantly” but does not have a meaning independent of it (§ 1508.18) Under
this interpretation, the actual size or complexity of a project has little bearing in determining if it is
an action that may significantly impact the environment.4
This second interpretation stems from the view that if an action results in a significant impact,
the action is essentially a major action.5 Such a position avoids potential dilemmas that may arise
when an EIS is required for a minor action that results in a significant impact It also avoids
dilem-mas where environmental impacts of a major federal action are deemed to be nonsignificant
6.5 THE TERM “FEDERAL AGENCY”
As defined by the Regulations, the term federal agency includes all agencies of the federal
govern-ment It does not include “… the Congress, the Judiciary, or the President, including the performance
of staff functions for the President in his Executive Office” (§ 1508.12)
The meaning of “federal” might at first appear to be relatively straightforward Yet, in some
instances, actions undertaken by a nonfederal agency may still be subject to the requirements of
NEPA (also referred to as the small federal handle) In recent years, an effort has been under way
to privatize many facilities and operations that traditionally have been operated and carried out by
federal agencies This effort has raised many issues with respect to NEPA compliance
In some circumstances, what would otherwise be considered a nonfederal action may be
fed-eralized with respect to NEPA For example, in one case, a federal agency entered into a contract
with a private entity to provide power for a large private project The federal agency agreed to build
a transmission line and to supply power to the private party sponsoring the project The agency
claimed that an EIS was not required since this was a private action The court ruled that the
con-tract with the private entity had essentially federalized the entire project for the purposes of NEPA
This federalization was of such an extent that the agency was ordered to prepare an EIS to evaluate
the impacts of the private plant in addition to those of the transmission line.6
Three principal factors have been used by the courts in determining if federal agency involvement
has made federalized what would otherwise be considered a nonfederal action.7
TABLE 6.2
Examples of Major and Minor Actions
Examples of Actions Held to Be Major Examples of Actions Held to Be Minor
A $14 million bridge with 60% federal funding
Conversion of a large federally subsidized housing
project with a major change in its use
federal funding was committed
•
A 66-mile water channel project costing $1.5 million
with $700,000 of federal funding
regulations
• Transferring a small group of employees and one of the agency functions from an agency field office
• Minor traffic improvements
•
Trang 4If the involvement is
supported by a federal contract, grant, loan, or other financial assistance;
enabled through a federal lease, license, permit, or other entitlement;8 andcaused federally
6.5.1.1 Federal Support by Contract, Grant, Loan, or Financial Assistance
Actions supported by federal payment for services rendered can be viewed as requiring NEPA
review.9 In cases where federal funding has subjected a state or private project to the requirements
of NEPA, the funding has been considered not only to be generally active, as opposed to a passive
deferral of payment, but also programmatic, in the sense of being provided primarily to further a
policy goal of the funding agency.10 Normally, a substantial percentage or amount of federal funding
is necessary to trigger an NEPA review
Some nonfederal actions that are funded from federal general revenue have been considered to
be federal if a federal agency governs how the funds are used As with federal payment for services
rendered, NEPA is required when massive federal financial assistance has been given to a state or
private project.11 Accordingly, the federal government becomes accountable under NEPA for its
actions.12
Conversely, nonfederal actions have not been federalized when indirect funding seemed
mar-ginal at most and where federal officials had no decision-making role.13 For example, federal
partic-ipation in a beetle eradication project in California was not sufficient to trigger NEPA compliance,
although three federal officials were part of an eight-member board that made recommendations to
the state on eradicating a Japanese beetle pest infestation The court reasoned that the eradication
project was not federally funded because the traveling expenses of the participating federal officials
were paid by the state, and the eradication project was a state project The court considered that for
the duration of the board meetings, the salaries of the participating federal officials were not
reim-bursed by the state but still supported a ruling that NEPA did not apply
6.5.1.2 Enablement by Permit, Lease, License, or Entitlement
When a federal agency has discretion in its enabling decision to consider environmental
conse-quences and when that decision forms the legal predicate for another party’s impact on the
envi-ronment, preparation of NEPA documentation is warranted because the agency has substantially
contributed to the environmental impact.14 The Regulations reinforce the concept that enablement
involves the execution of a required federal action that enables a private party to pursue an action
The definition of a major federal action includes granting of permits or other regulatory decisions
as well as federal and federally assisted activities Federal actions that amount to less than a legal
precondition are noticeably omitted from this definition.15
Enablement is demonstrated by a case involving the Department of Agriculture that was required
to prepare an EIS to approve logging operations by a private company Evidence demonstrated that
the federal agency had a responsibility greater than a ministerial act of approval Not only had it
extended logging contracts and modified other contracts, but also it had a financial interest in the
lumber acquired The actions of the federal agency enabled the logging operations in the area to be
undertaken, but most significantly, the federal agency was legally obligated by contract to give its
approval to the project before it could proceed.16
In some cases, federal approval of a private party’s project, where that approval is not required
for the project to go forward, has not constituted a federal action.17 However, a nonfederal entity may
create a federal action if it consents to federal regulation or grants to a federal agency the ability to
control the outcome of the proposed project.18 A distinguishing characteristic of federal involvement
is the ability to influence or control the outcome of a nonfederal project in some material respect
•
•
•
Trang 56.5.1.3 Federal Control
A federal action such as federal approval of a lease, license, permit, or other entitlement that enables
a private or state action to take place may be subject to NEPA In such circumstances, overt federal
agency action in furtherance of the nonfederal project is ‘federalized’ for the purposes of NEPA.19
For example, the Pueblo Indians leased restricted Indian lands to a development company, and the
Bureau of Land Management (BLM) approved this lease.20 Emphasizing Congress’ concern for
environmental protection, the court held that BLM approval constituted a major federal action,
although the federal government neither initiated the lease nor participated in it financially.21
6.5.1.4
Some courts also consider whether there is continuing agency involvement in a challenged project
such that termination or modification of the agency involvement would terminate or significantly
impact the project Since NEPA only requires federal agencies (not states or private parties) to
consider the environmental impacts of their proposed actions, nonfederal actions must sufficiently
involve a federal action before it is subject to NEPA.22
6.5.1.5 Causation
A nonfederal action may be federalized if the nonfederal action would not otherwise take place
were it not for specific actions undertaken by a federal agency That is, “but for” the federal action,
the nonfederal action would not occur These “but for” actions, by themselves, do not necessarily
trigger the requirements of NEPA Rather, the federal action must also be substantially interrelated
to the otherwise nonfederal action.23
Table 6.3 summarizes the case law criteria described above for determining when a nonfederal
project becomes federalized for the purposes of NEPA These criteria provide the basis for the
general-purpose tool presented in Figure 6.1, which can be used by decision-makers in determining
whether a nonfederal action has been federalized for the purposes of NEPA.7
A CTIONS B ECOME F EDERALIZED
Consistent with the rule of reason, the logic diagram presented in Figure 6.1 is based on the
criteria established in Table 6.3 The tool, developed by the author and an environmental
lawyer, is specifically designed to provide practitioners and decision-makers with a rigorous and
TABLE 6.3
Criteria for Determining When Nonfederal Entities May Become Federalized
Would the nonfederal action involve a substantial degree of financial support by way of a federal contract, grant, loan,
or other financial assistance?
Would the nonfederal action be enabled through a federal lease, license, permit, or other entitlement?
Would the nonfederal action involve a substantial degree of federal control?
Is there continuing federal involvement in a nonfederal action to such an extent that termination or modification of this
involvement would terminate or significantly impact the nonfederal project?
Is the federal action substantially interrelated with a nonfederal action to such an extent that “but for” the federal action,
the nonfederal action would not take place?
Trang 6systematic procedure to determine if a nonfederal action has become federalized, triggering NEPA’s
requirements
Although this tool does not totally eliminate the subjectivity inherent in making NEPA
determi-nations, it provides a valuable technique for substantially reducing subjectivity It does not promote
for the federal involvement, the nonfederal action would not occur?
terminate or significantly affect the nonfederal action?
Is there a federal action significantly interrelated
to the nonfederal action such that
Is there continuing federal involvement such that termination or
modification of the involvement would
Is there federal involvement that
entails a substantial degree
of control over how the nonfederal action would be implemented?
enables, authorizes, or permits a nonfederal action to occur?
contributes substantially to the funding of the nonfederal action?
The nonfederal action is not subject to the requirements of NEPA
The nonfederal action
is subject to NEPA
No No
No No
Trang 7any degree of decision-making beyond the level already exercised in making such determinations
in the first place; instead, it provides decision-makers with a rigorous, systematic, and defensible
approach for reaching such determinations
Because this tool is intended to be used as a general-purpose decision-making tool, it may not
cover every conceivable condition Technical aspects of the case law summarized earlier should
thus be considered in responding to each of the tests.*
6.5.3.1 Using the Tool
Begin at the top of Figure 6.1 by answering the first question: “Is there federal involvement that
contributes to the funding of the non federal action?” If the response is no, the decision-maker
continues down through the remaining tests A “no” answer to all of the tests supports a decision
that the nonfederal action is not subject to the requirements of NEPA A “yes” answer to any
single test is sufficient to support a decision that the nonfederal action is subject to the
require-ments of NEPA
6.6 ACTIONS
As described in more detail in Chapter 9, actions include “… projects and programs entirely or partly
financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency
rules, regulations, plans, policies, or procedures; and legislative proposals” (§ 1508.18[a]) They
also include activities that are regulated, assisted by, or require the approval of a federal agency
These actions include both new and continuing activities.24 A brief description of each of these
categories is presented in Table 6.4 Taken together, these categories are sometimes referred to as
the “4 Ps.”
The Regulations specifically call out only two circumstances where federal actions are not
sub-ject to the requirements of NEPA For the purposes of NEPA (§ 1508.18), these were
funding assistance solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, with no federal agency control over the
subsequent use of such funds (note: this caveat is no longer applicable);
bringing judicial or administrative, civil or criminal enforcement actions
* Case law varies among various judicial circuits and courts Specific questions should be referred to legal counsel.
•
•
TABLE 6.4
Four Categories of Federal Actions
Adoption of a Policy This category involves actions such as issuing rules, regulations, and interpretations Adoption
of a policy may also involve entering into treaties and international conventions or agreements, or issuing formal
docu-ments establishing an agency’s policies that will result in or substantially alter agency programs.
Adoption of Formal Plans Adoption of formal plans may include activities such as issuing official documents that guide
or prescribe alternative uses of federal resources and provide the basis for future agency actions.
Adoption of Programs This category includes actions such as adopting a group of concerted actions to implement a
specific policy or plan Systematic and connected agency decisions allocating agency resources to implement a specific
statutory program or executive directive also fall under the heading of agency programs.
Approval of Specific Projects Adoption of specific projects may include actions such as construction or management
activities located in a defined geographic area Projects also include actions such as approving permits and other
regula-tory decisions as well as federal and federally assisted activities.
•
•
•
•
Trang 86.6.1 I NACTION
Does NEPA apply to nonactions? This question was addressed in a case where a federal agency had
the capability to inhibit a nonfederal action but did not exercise this authority.25 When challenged,
the court concluded that NEPA does not apply where “… an agency has done nothing more than fail
to prevent the other party’s action from occurring …”
In general, an action is not subject to the requirements of NEPA when a federal agency has an
option to act and decides not to do so However, where a federal agency has a mandatory
responsi-bility to act but fails to do so, this failure to act may constitute an action subject to NEPA.26
Federal actions conducted outside the borders of the United States are referred to as extraterritorial
actions Common examples of extraterritorial actions include federal assistance in the construction
of highways or dams and licenses for the export of nuclear fuel The applicability of NEPA to
extra-territorial actions is complex and has been the subject of ongoing controversy
It involves the consideration of two separate issues Specifically, does NEPA extend to (1) the
global commons or (2) the domain of foreign nations? The global commons is generally understood
to include such portions of the earth as the oceans, Antarctica, and the upper atmosphere that are
understood to be held in common by all nations
The Act does not place either explicit or implicit limits on the applicability of NEPA to activities
conducted outside U.S borders.27 For this reason, NEPA has been interpreted by some to extend
over U.S involvement in international actions This interpretation has its basis partly in the term
human environment that is used in Section 102 of NEPA As used in this context, the term human
environment does not appear to limit the requirements of NEPA to the geographical borders of the
United States Moreover, Section 102(2)(f) places specific responsibilities on federal agencies to
recognize the worldwide and long-range character of environmental problems and, where consistent
with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and
programs designed to maximize international cooperation in anticipating and preventing a decline in
the quality of mankind’s world environment.
Professor Lynton Keith Caldwell, the principal father of NEPA, has indicated that
applicabil-ity of the Act was intended to include federal actions outside the boundaries of the United States.28
Because of potential ramifications on U.S foreign policy, some agencies, including the U.S State
Department, have raised objections to this interpretation and have been reluctant to apply NEPA to
activities beyond U.S borders.29
6.6.2.1 Executive Order
In addressing this issue, President Carter issued an executive order providing direction for applying
NEPA to extraterritorial actions.30 This order, drafted in consultation with the CEQ and the U.S
State Department, discusses the scope of NEPA’s applicability to international activities and
pro-vides direction and procedures for implementing its requirements
In the author’s opinion, this order is confusing and poorly crafted Surprisingly, it focuses on the
preparation of EAs, defining only two cases where an EIS is applicable to extraterritorial actions.31
Under this order, preparation of an EIS is required for major federal actions significantly
affect-ing the environment of the global commons However, this order exempts an EIS from havaffect-ing to
address impacts on the environment of a foreign nation
6.6.2.2 Transboundary Effects
The CEQ has developed guidance for assessing the effects of proposals within the United States
as well as its territories and possessions that may have transboundary effects and affect another
Trang 9country’s environment.32 While this guidance was developed primarily in the context of
negotia-tions undertaken with the governments of Mexico and Canada to develop an agreement on
trans-boundary environmental impact assessment in North America, the guidance pertains to all federal
agency actions that are normally subject to NEPA, whether covered by an international agreement
or not
CEQ’s guidance does not expand the range of actions to which NEPA currently applies, nor
does it apply to so-called extraterritorial actions (i.e., U.S actions that occur in another country
or otherwise outside the jurisdiction of the United States) Instead, it pertains only to those
pro-posed actions currently covered by NEPA that would take place within the United States and its
territories
This guidance is consistent with long-standing principles of international law Since the Trail
Smelter Arbitration of 1905, it has been a customary law that no nation may undertake acts on its
territory that will harm the territory of another state Moreover, this rule of customary law has
been recognized as binding in Principle 21 of the Stockholm Declaration on the Human
Envi-ronment) and Principle 2 of the 1992 Rio Declaration on Environment and Development Under
these provisions, states have the duty to give notice (including preparation of environmental impact
assessments) to others to avert potential harm from the actions they take Assessing transboundary
impacts of federal agency actions that occur in the United States is therefore an appropriate step
toward implementing those principles
NEPA case law has reinforced the need to analyze impacts regardless of geographic boundaries
within the United States and has also assumed that NEPA requires analysis of federal actions that
take place entirely outside the United States but could have environmental effects within the United
States Courts that have addressed impacts across U.S borders have assumed that the same rule of
law applies in a transboundary context
Under CEQ’s guidance, agencies are consequently expected to include analysis of reasonably
foreseeable transboundary effects in EAs or EISs prepared for federal actions undertaken within
the United States
6.6.2.3 Case Law
As the courts have been less than definitive in their rulings, the issue of extraterritorial actions
is somewhat confusing What some courts appear to be suggesting is that NEPA is applicable to
actions occurring in the global commons but not to actions taken within the borders of other
sov-ereign nations Even if this is the intent, few EISs either rigorously consider or evaluate
extrater-ritorial actions or transboundary impacts, or effects on the global commons Six different cases are
described below It is recommended that the reader consult with legal counsel in determining to
what extent transboundary issues may need to be addressed in NEPA analysis
U.S Naval Bases in Japan In 1993, a district court found that NEPA did not apply to U.S naval
operations at three bases in Japan The court ruled that an EIS was unnecessary because plausible
asser-tions were made that the preparation of an EIS would have impact on the U.S foreign policy In the
court’s view, foreign policy interests outweighed the benefits to be gained from preparing an EIS.33
Naval Activities in Exclusive Economic Zones The navy’s littoral warfare advanced
develop-ment program (LWAD) involved testing experidevelop-mental technologies, including active sonar at sea
The scientific community is generally in agreement that high-intensity underwater sounds such as
those generated by active sonar can adversely affect whales, dolphins, and other marine life
Most of these tests were conducted on the high seas or within the U.S exclusive economic zone
(EEZ) The EEZ is a zone extending seaward from the boundary of the territorial sea out to a
dis-tance of 200 miles The navy prepared an overseas environmental assessment for every sea test and
in each case concluded that the impacts were insignificant
A plaintiff sued seeking to enjoin (stop) the navy from conducting further sea tests until the
navy completed a programmatic NEPA document for the LWAD program.34 The navy argued that
Trang 10because some of the tests take place in international waters, NEPA does not apply to activities under
the program
The court found that the presumption against the extraterritorial application of U.S laws did
not apply because the planning for the LWAD program occurred entirely within the boundaries of
the United States In the eyes of the court, the federal activity regulated by NEPA is the
decision-making process of the agencies, not the underlying project Because the decision-decision-making process
surrounding the approval of sea tests occurred within the United States, the application of NEPA to
the LWAD sea tests was not an extraterritorial action
The court distinguished this suit from others with different rulings by concluding that the
rationale in other cases for finding that NEPA did not apply to particular actions was that its
applica-tion would either have important foreign policy implicaapplica-tions or would demonstrate a lack of respect
for another nation’s sovereignty
Furthermore, the court reasoned that regarding natural resource conservation and management,
“the United States does have substantial, if not exclusive, legislative control of the EEZ.” As a result,
the court held “that NEPA applies to federal actions which may affect the environment in the EEZ.”
Johnston Atoll In 1990, a court examined the extraterritorial applicability of NEPA to the
removal, transportation, and destruction of chemical weapons stored in the Federal Republic of
Germany Under an international agreement, the Department of the Army undertook a joint plan
with the West German Army to remove the weapons and to transport them to Johnston Atoll,
a U.S territory in the Pacific Ocean, for treatment and disposal
The U.S Army prepared two separate EISs, one for the disposal of the weapons stockpile stored
in Germany and the other for construction, operation, and treatment of an incinerator located on
Johnston Atoll Pursuant to Executive Order No 12114, the army also prepared a global commons
EA which analyzed the impacts of the munitions shipment from Germany to Johnston Atoll
How-ever, no NEPA analysis was prepared to evaluate the movement of the munitions within Germany
Plaintiffs filed a suit against the U.S Army to prevent the movement of the munitions to Johnston
Atoll on the grounds that the U.S Army had failed to prepare a comprehensive EIS covering all
aspects of transportation and disposal of the German stockpile.35
The district court concluded that “it is not convinced that NEPA applies extraterritorially
to the movement of munitions in Germany or their transoceanic shipment to Johnston Atoll.”
While the court recognized that “the language of NEPA indicates that Congress was concerned
with the global environment and the worldwide character of environmental problems,” it reasoned
that actions taken under NEPA “should be taken ‘consistent with the foreign policy of the United
States.’ ” In the court’s words, “Congress intended to encourage federal agencies to consider the
global impact of domestic actions and may have intended under certain circumstances for NEPA to
apply extraterritorially.”
Notwithstanding, the court concluded that NEPA did not apply to actions taken within
Germany In reaching this decision, the court wrote that it “… must take into consideration the
foreign policy implications of applying NEPA within a foreign nation’s borders to affect decisions
made by the President in a purely foreign policy matter.” Further, the court reasoned that imposing
a requirement to assess environmental impacts on actions within Germany would “… encroach on
the jurisdiction of Germany to implement a political decision which necessarily involved a delicate
balancing of risks to the environment and the public, and the ultimate goal of expeditiously ridding
West Germany of obsolete chemical munitions.”
With respect to the transoceanic phase of the action, the U.S Army had prepared an EA
pursu-ant to Executive Order No 12114 On this point, the court wrote that it could not “… conclude, as
defendants would suggest, that Executive Order 12114 preempts application of NEPA to all federal
agency actions taken outside the United States.…” However, in these particular circumstances,
the court was persuaded that NEPA did not require the U.S Army to consider the global commons
portion of the action in the same EIS that covered the Johnston Atoll facility
Trang 11McMurdo Station in Antarctica Plaintiffs challenged the National Science Foundation’s (NSF)
plan to incinerate waste at McMurdo Station in Antarctica Essentially, they argued that NEPA
applies extraterritorially and thus, the NSF should have prepared an EIS.36
In this case, the court overturned an earlier decision which had held that despite NEPA’s
broad mandates there was no clear congressional intent that NEPA should apply beyond U.S
borders and that NEPA, therefore, did not apply to NSF’s decision to build an incinerator in
Antarctica The court held instead that application of NEPA to federal actions is not limited to
actions occurring or having effects within U.S borders Rather, NEPA is designed “to control
the decision- making process … not the substance of agency decisions” that takes place almost
exclusively within the United States Thus, the court held that NEPA did apply to NSF actions in
Antarctica
Imperial-Mexicali Transmission Lines The U.S District Court for the Southern District of
California decided in favor of the Department of Energy (DOE) and the BLM in a suit brought
by the Border Power Plant Working Group On November 30, 2006, the court found that the
EIS for the Imperial-Mexicali transmission lines was adequate and that the agencies had not
violated the Clean Air Act (CAA) by failing to prepare a conformity determination (see
Chap-ter 4).37 At issue were permits for transmission lines to carry electricity into the United States
from two new power plants in Mexico The DOE issued permits for transmission lines at the
U.S.–Mexico border The BLM issued permits for the power lines to cross land it manages in
California The plaintiff alleged that DOE/BLM violated the CAA by failing to prepare a
con-formity determination
The government contended that (1) the conformity determination is not required for the
emis-sions from the power plants because these emisemis-sions occur in Mexico and not in the Imperial
County nonattainment area and (2) issuance of the presidential permits for the cross-border
trans-mission lines is a foreign affairs function exempt from the conformity requirements
In its ruling, the court found that the DOE did not have to consider emissions from outside
Imperial County in a conformity determination Regarding the second point, the court found that
the DOE did not need to consider emissions from the power plants in Mexico, sources that are
per-mitted and regulated by a foreign government However, the court disagreed with the DOE’s claim
that it was exempt from the requirements because issuance of the permits for the transmission lines
in the United States is a foreign affairs function
The plaintiff had also alleged that the EIS failed to ensure the scientific accuracy of
infor-mation in the consideration of alternative cooling technologies However, the court viewed the
challenges to the treatment of alternatives as “a battle of experts,” in which “an agency must have
discretion to rely on the reasonable opinion of its own qualified experts.” The court refused to
“flyspeck” minor technicalities in the EIS in the light of its “comprehensive discussion of the
proposed actions and their environmental impacts.”
Court Finds Transboundary Impacts in Mexico Do Not Need to Be Considered The U.S
Dis-trict Court for the DisDis-trict of Nevada recently ruled that a supplemental EIS is not needed for a
proposal where it found the potential environmental impacts to be too speculative and beyond the
U.S control.38 This ruling stems from a challenge filed in 2005 to the Bureau of Reclamation’s final
authorization of the All-American Canal Lining Project The 80-mile-long canal carries water from
the Colorado River in Arizona to southern California Seepage from the unlined canal reduced the
amount of water available to users in California but contributes to recharge of an aquifer that
under-lies the Mexicali Valley in Mexico
The Bureau completed an EIS in 1994 and decided to line the canal, thereby reducing seepage
and providing more irrigation water to users in California A decade later, however, this project
still had not commenced In January 2006, the Bureau issued a supplemental information report
concluding that no substantial change, or significant new information or circumstances, existed that
required preparation of a supplemental EIS