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Environmental Defense Fund v. Massey

ELR Citation: 23 ELR 20601
Nos. No. 91-5278, 986 F.2d 528/36 ERC 1053/(D.C. Cir., 01/29/1993) Rev'd & remanded

The court holds that the presumption against extraterritorial application of statutes does not apply where the conduct regulated by the statute occurs primarily, if not exclusively, in the United States, and the alleged extraterritorial effect of the statute will be felt in Antarctica, and remands for a determination of whether the National Science Foundation (NSF) actually failed to comply with §102(2)(C) of the National Environmental Policy Act (NEPA) by not preparing a full environmental impact statement (EIS) before deciding to go forward with plans to incinerate food wastes in Antarctica. The court first concludes that this case does not present an issue of extraterritoriality. The presumption against extraterritoriality does not apply, because NEPA is designed to regulate conduct occurring within the territory of the United States and imposes no substantive requirements that could be interpreted to govern conduct abroad. The presumption will not apply when the conduct regulated by the government occurs within the United States, and NEPA is designed to control the decisionmaking process of federal agencies, not the substance of agency decisions. Moreover, in a sovereignless region like Antarctica, where the United States exercises a great measure of legislative control, the presumption against extraterritoriality has little relevance and a dubious basis for application. Further, the EIS requirements will not frustrate U.S. efforts, by upsetting foreign policy interests, to work cooperatively with other nations toward solutions to environmental problems in Antarctica. Finally, the court holds that §102(2)(C), on its face, is not limited to actions of federal agencies that have significant environmental effects within U.S. borders. NEPA's language indicates that Congress was concerned with worldwide, as well as domestic, problems facing the environment. The court remands for a determination of whether the environmental analyses performed by the NSF, before it decided to resume incineration, failed to comply with NEPA §102(2)(C), and points out that the court does not decide how NEPA might apply to actions in a case involving an actual foreign sovereign or how other U.S. statutes might apply to Antarctica.

[The district court opinion is published at 21 ELR 21512. The appellate briefs are digested at PEND. LIT. 66233.]

Counsel for Appellant
Bruce S. Manheim Jr.
Environmental Defense Fund
1875 Connecticut Ave. NW, Ste. 1016, Washington DC 20009
(202) 387-3500

Counsel for Appellees
J. Carol Williams, John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: MIKVA, Chief Judge, WALD and EDWARDS, Circuit Judges.