The extent, if any, to which the National Environmental Policy Act (NEPA)¹ applies to major federal actions affecting the environments of other countries remains one of the most persistent and perplexing questions regarding the scope of the Act's requirements. The courts, the agencies, and even Congress have grappled with the matter for years but have failed to reach a resolution with either broad support or lasting durability. Evidently, the lack of clarity of the law in this area is due largely to the weighty implications that would flow from a firm decision on the issue. Few would feel comfortable denying any obligation on the part of federal agencies to analyze the possibly substantial environmental fallout of federal and federally licensed excursions in other countries. Yet, even fewer can be expected to assume eagerly the responsibility for saddling all such activities with NEPA's procedural baggage, including the possibility of lengthy litigation. Unfortunately, the high stakes of the controversy have pressured decisionmakers into paralysis rather than compromise and have perpetuated the lingering ambiguity in the law.

Against this uncertain backdrop, a recent decision by the District of Columbia Circuit Court of Appeals stands as a significant new attempt at resolving the issues. In Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission,² the court upheld the Nuclear Regulatory Commission's (NRC's) decision not to prepare an environmental impact statement (EIS) before issuing a license authorizing the export of a nuclear reactor to the Republic of the Philippines. The force of the decision, however, was undercut by the deep split it produced in the panel that decided it. One judge recused herself, and the other two wrote separate opinions which, though they agreed as to the outcome, employed legal rationales that were fundamentally different and at times contradictory. Moreover, Judge Wilkey's opinion expressly restricted its NEPA ruling to the context of nuclear reactor exports. Thus, while the opinions are notable as the first major judicial discussions of NEPA's international reach, the precedential deference that they can be expected to carry is debatable.