D.C. Circuit Upholds Nuclear Export to Philippines, Divides on Question of NEPA's International Reach

The author of this Comment represented one of the Petitioners in Natural Resources Defense Council, Inc. v. NRC.

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.

NEPA's International Reach

The text of NEPA suggests, though not unambiguously, that it was intended by Congress to apply to all federal actions affecting the environment, regardless of whether such actions are taken in or have impacts on other countries. This conclusion is supported in large part by the Act's numerous declarations of policy, in which Congress expressed goals of protecting the "environment and biosphere" and promoting "harmony between man and his environment."³ Moreover, § 102(2)(F) of the Act calls for the establishment of programs for international environmental cooperation, and further directs federal agencies to "recognize the worldwide and long-range character of environmental problems."⁴ On the other hand, another stated goal of the Act is to "assure for all Americans safe, healthful, productive, and esthetically pleasing surroundings."⁵

Sectionn 102(2)(C) requires the preparation of an environmental impact statement on every "major Federal action significantly affecting the quality of the human environment."⁶ It could be argued that the use of the term "human environment," like the Act's other references to "man's environment," is consistent only with a broad definition of the scope of the EIS requirement. But in the final analysis, nothing in § 102(2)(C) or the rest of the statute conclusively compels the conclusion thatt foreign impact statements are required.

The legislative history has the same general leaning. During the debates over the Act, members of Congress and private witness often spoke of the United States' responsibility for international environmental degradation and the need to ensure that the proposed legislation addressed such problems.⁷ Nothing in the legislative history indicates that anyone objected to applying NEPA to actions with international effects. At the same time, it is clear that several members of Congress foresaw that the law would be aimed largely at domestic environmental impairment.⁸

The only occasion on which a congressional committee faced the issued squarely was during oversight of agency compliance with the Act conducted several months following its enactment. After being informed by a State Department representative of that agency's view thatt impact statements were not required for actions taken overseas, the committee responded that

[s]tated most charitably, the committee disagrees with this interpretation of NEPA. The history of the Act makes it quite clear that the global effects of environmental decisions are inevitably a part of the decisionmaking process and must be considered in that context.⁹

Agency opinions on the matter of NEPA's international reach also present an inconsistent posture, though one which seems weighted towards its applicability. The Department of State, the Department of Defense, and the [11 ELR 10079] NRC have most vigorously advocated restrictive interpretations.¹⁰ Nevertheless, these and other agencies have prepared many EISs on their international activities.¹¹ Other agencies have more openly favored NEPA's international reach. Some have adopted regulations requiring EISs on foreign projects and found them helpful from a policy standpoint.¹² The Council on Environmental Quality has long held to the view thatt impact statements are required for actions with environmental effects abroad¹³ and in 1978 proposed regulations to this effect.¹⁴ These regulations, however, were greeted with intense agency opposition and were transformed into an executive order whose requirements were extremely lax in comparison.¹⁵

The case law follows the pattern set by the preceding authorities: it tends to indicate that NEPA applies without regard to national boundaries. The most significant decisions in this line of cases are the first and the last. In Wilderness Society v. Morton,¹⁶ the D.C. Circuit Court of Appeals ruled in 1972 that, to the extent the environment of Caanda was affected, Caandian environmentalists had a right to intervene in federal litigation challenging the Department of the Interior's compliance with NEPA in constructing the Trans-Alaska Pipeline. The court thereby implied that the purview of the Act encompasses environmental effects of agency actions taken outside American borders. In Sierra Club v. Adams,¹⁷ the same court reviewed the decision of a district court which had previously ordered the Department of Transportation, which was financing the construction of a highway through Panama and Colombia, to address the effects of the project upon the environment of indigenous Indian tribes.¹⁸ Instead of tackling the question of NEPA's international reach, the court chose to "assume, without deciding, that NEPA is fully applicable to construction in Panama,"¹⁹ and upheld the adequacy of the EIS prepared by the agency. In other cases, courts have similarly refused to address the issue head-on, either because the action in question had possible effects on American interests,²⁰ or because the governmental defendants agreed to prepare an EIS.²¹

The Philippines Export

In 1977 the Westinghouse Corporation applied to the NRC for a license allowing it to sell and export a commercial power reactor to the Philippines. Even at that point, the reactor had a history of thechnical controversy that would grow over the years. To begin with, no reactor of a similar design had ever been licensed as safe by the NRC. In addition, it was to be sited within five miles of Mt. Natib, a volcano considered active under United States standards. Moreover, the entire region is seismically unstable and lies within the belt of earthquake-prone areas around the Pacific known as the "ring of fire." Compounding the risks posed by the facility were the presence of 21,000 Americans stationed at two military bases within 42 miles of the site, not to mention millions of Filipinos. Manila, the capital city, is located only 45 miles to the east of the site.

The export license application was the first to be processed by the NRC pursuant to the Nuclear Non-Proliferation Act of 1978.²² That statute prescribes standards for issuing export licenses designed to prevent nuclear weapons proliferation and sets up special licensing procedures involving the executive branch, the public, and, under certain circumstances, Congress. In comments submitted to the NRC during these proceedings, environmental groups urged the NRC to prepare an EIS addressing the effects of the proposed export on the environment [11 ELR 10080] of the Philippines. At a minimum, they argued, special attention should be given to the possible effects of a reactor accident upon the Americans residing in the area.

The NRC rejected these entreaties. Two members of the Commission invoked a rule of statutory construction which provides that ambiguous statutes are not to be interpreted to apply to conduct within foreign countries²³ to limit NEPA's scope to environmental effects occurring within the United States and the "global commons."²⁴ On this basis they determined that they had no statutory authority to consider any effects upon the Philippine environment. With respect to the possible effects of the action upon American interests, they concluded that they could either ignore or evaluate such impacts without affronting NEPA, and as a matter of discretion chose not to do so. While they acknowledged that NEPA applied to the action to the extent that it would affect the environment of the global commons or the United States, they determined that this proportion of the total impact of the plant would not rise to a level of "significance" and therefore decided that an EIS was not required.²⁵

NRDC v. NRC

Following the NRC's issuance of the Philippines export license, a coalition of American and Filipino environmental groups sought review of the decision in the D.C. Circuit Court of Appeals, raising two basic issues. Under the Atomic Energy Act²⁶ and the Non-Proliferation Act they charged that the NRC, by refusing to consider the threat posed by the reactor to either the safety of the Filipino public or to the operation of the two American military bases, had violated its duty to determine that the export would not be "inimical" either to the "public health and safety" or the "common defense and security" of the United States.²⁷ Under NEPA, they argued that the license must be stayed because of the NRC's failure to prepare an EIS for the action. Anticipating an argument that the preparation of a meaningful EIS would be virtually impossible because of the great distance between the United States and the affected environment and would undermine the purpose of the Non-Proliferation Act to accelerate nuclear export licensing decisions, petitioners suggested to the court that a full-scale EIS was not required under the circumstances. Rather, they argued, NEPA requires compliance to the "fullest extent possible" and thus in this case would permit the preparation of an EIS lacking the detail and comprehensiveness required of the customary domestic version.

The opinion for the court was written by and had the full support of only a single member of the panel, Judge Wilkey. Judge Ginsberg, who had attended oral argument, recused herself without explanation prior to the disposition of the case. Judge Robinson agreed with little more than the result reached by Judge Wilkey and submitted a 50-page opinion in which he set out his separate views on the merits.

Judge Wilkey, after detailing the history of the Philippines licensing proceeding and the goals and requirements of the relevant statutes, rejected the NRC's claim that it was entitled to deference in interpreting the laws governing nuclear exports and that its determination may be overturned only if determined to be arbitrary and capricious. On the contrary, the judge pointed out, these issues are legal rather than technical in nature and must, as provided in the Administrative Procedure Act,²⁸ be resolved by the courts. Moving to the merits, Judge Wilkey expressed some doubt as to whether the presumption against applying statutes extraterritorically was fully applicable to the Non-Proliferation Act or NEPA. Nevertheless, he concluded, the full-scale environmental review sought by petitioners would surely have repercussions on foreign governments that in turn would implicate foreign American policy interests. Therefore, questions as to the international reach of the laws at issue should be resolved in this instance against applying them beyond U.S. borders.

With this foundation in place, the resolution of petitioners' NEPA claims was essentially pre-ordained. Finding both the text of the Act and its legislative history "inconclusive" as to its international scope, Judge Wilkey analyzed the case law. Noting that the international reach of NEPA remained an open question in the D.C. Circuit, and finding not a single case from other circuits that could not be distinguished from the case before him, he ruled that an EIS was not required under the facts of this case.

I find only that NEPA does not apply to NRC nuclear export licensing decisions — and not necessarily that the EIS requirement is inapplicable to some other kind of major federal action abroad.²⁹

In his view, the Non-Proliferation Act represented congressional recognition of and concern over the important foreign policy issues involved in licensing decisions of this nature, and the presence of these issues was sufficient to trigger the "extraterritoriality" principle and override NEPA's requirements.

In an irresolute and somewhat puzzling opinion, Judge Robinson agreed that the export license should not be overturned but questioned much of the reasoning employed by Judge Wilkey. For example, he differed with Judge Wilkey as to the deference due the NRC's legal interpretations. Indeed, Judge Robinson's conclusion on [11 ELR 10081] the merits was influenced strongly, if not controlled, by his contrary determination of the proper standard of review. Unlike Judge Wilkey, who had rejected the notion of deferring to the agency's statutory interpretations, Judge Robinson was clearly unwilling to reverse the decision on review even in the face of legal error by the agency.

Whatever the wisdom and even the validity of the course NRC has pursued, this court has little choice but to affirm it.³⁰

In addition, he stated at the outset that he disagreed with Judge Wilkey's reliance on the presumption against applying statutes extraterritorially, concluding that it is not correctly applied either to NEPA or to the Non-Proliferation Act.³¹ Since the action on review — the granting of a license to a domestic corporation — occurred solely within the United States, the rule supplied no basis for defeating the plain requirements of the statutes.

Beyond that, however, Judge Robinson felt it inappropriate even to consider the question of NEPA's international reach and disposed of the NEPA issues on separate grounds. His view was that the issues were controlled by the "statutory" conflict exemption to NEPA espoused by the Supreme Court in Flint Ridge Development Co. v. Scenic Rivers Association of Oklahoma.³² In that case, the Court held that Congress had implicitly waived the mandate of § 102(2)(C) of NEPA when it required the Secretary of Housing and Urban Development to process certain permit applications within 30 days. Because the Non-Proliferation Act's timetable is much more relaxed,³³ the judge was forced to admit that "the statutory clash is not so evident here as it was in Flint Ridge."³⁴ He nevertheless felt that the time needed by the NRC to prepare an adequate EIS "might not be sufficient."³⁵ Moreover, the EIS process, which necessarily involves the possibility of delaying litigation, could retard the process of issuing nuclear export licenses and thus disserve Congress' goal of expedition.

Discussion

The most striking aspect of the way in which the Philippines court resolved the NEPA issues is its frailty. Only one judge felt that NEPA's international reach was in controversy. Though Judge Wilkey ruled in favor of the NRC, he refused to express any opinion on the matter outside the context of nuclear exports and clearly based his decision on the foreign policy concerns articulated by Congress in the Non-Proliferation Act. Moreover, the presumption against extraterritorial application of statutes, which figured prominently in Judge wilkey's opinion that an EIS was not required, was declared by Judge Robinson to be inapposite. Thus, the precedential impact of the Wilkey opinion was restricted by its own terms, and its logical foundations were called into question by Judge Robinson.

A thorough analysis of all the factors bearing on the question of NEPA's international reach — the text of the Act, its legislative history, and the case law — does not compel a conclusion one way or another. Most of the commentators have concluded that EISs are required for actions with foreign environmental effects,³⁶ and this appears consistent with the thrust of the case law. To an extent, Judge Wilkey's opinion shifts the weight of the case law in the other direction, but the magnitude of that shift will probably prove to be slight. Most likely, the next court to consider the matter will again start from square one.

Two aspects of Judge Robinson's treatment of the NEPA issues merit brief comment. The extremely deferential standard of review thatt he adopted is quite plainly at odds with mainstream NEPA case law. To be sure, in making judgments as to the scope and content of EISs, agency determinations are entitled to deference within the bounds of the "rule of reason."³⁷ Similarly, decisions as to whether particular actions constitute "major federal actions significantly affecting the quality of the human environment" are generally to be overturned only if arbitrary and capricious.³⁸ But basic questions as to the applicability of the statute are questions of law that courts generally choose to decide for themselves.³⁹ Judge Robinson's refusal to overturn the NRC's restrictive interpretation of NEPA — even if "invalid" — violates this rule, as noted by Judge Wilkey.

Secondly, Judge Robinson's invocation of the Flint Ridge doctrine seems to expand upon the traditional bounds of the "statutory conflict" exemption to NEPA. Courts have historically been reluctant to waive NEPA's EIS requirement except where the conflict with another law is "clear and unavoidable."⁴⁰ In the Philippines case [11 ELR 10082] the conflict was not so clearly unavoidable. The Non-Proliferation Act envisions at least a 120-day period between the application for and the issuance of an export license. Although this is longer than any-period previously determined to be too brief a time in which to prepare an EIS,⁴¹ 120 days is arguably not long enouh to compile an impact statement meeting the prevailing standards of adequacy. However, under the Non-Proliferation Act the 120-day period can be extended by either the NRC, the Department of State, the President, or even Congress.⁴² In the case of the Philippine reactor, the license did not issue until three and one half years after the application was filed. Thus, the impossibility of preparing an EIS was doubtful. Judge Robinson's opinion seems to mark a new extension for this exemption from NEPA.

Had either the court or the agency been so inclined, one way in which the demands of the two statutes could have been harmonized would have been to preapre a less than comprehensive impact statement. The case law provides some support for the argument that the scope of EISs can be modified in the face of potential conflict with other statutory requirements.⁴³ Moreover, it appears that Executive Order No. 12114 required the NRC to prepare at least a "concise environmental review" of the license, but it declined to do so.⁴⁴ A "short-form" EIS should be considered by agencies when tight deadlines or congressionally-expressed national policies would otherwise preclude the usual full-scale review. If one had been prepared in the Philippines case, the NEPA argument might never have arisen.

Conclusion

The Philippines case is perhaps most notable for carrying on a tradition in international NEPA cases: tentative, questionably reasoned opinions that resolve the immediate controversy but do little to further the development of the law. Like their predecessors, neither the Wilkey nor the Robinson opinion contains much substance on which future courts will be able to draw, and neither seems to mark a turning point in the case law. It can be hoped that the next court to consider the issue will stabilize things somewhat, at least enough to give federal agencies a more certain understanding of their statutory duties in this respect.

1. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

2. __ F.2d __, 11 ELR 20266 (D.C. Cir. Mar. 30, 1981).

3. NEPA §§ 2 & 101, 42 U.S.C. §§ 4321 & 4331, ELR STAT. & REG. 41009.

4. 42 U.S.C. § 4332(2)(F), ELR STAT. & REG. 41010.

5. NEPA § 101(b)(2), 42 U.S.C. § 4331(b)(2), ELR STAT. & REG. 41009.

6. NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010 (emphasis added).

7. See, e.g., Environmental Quality: Hearings on H.R. 6750 et al. Before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 91st Cong., 1st Sess. at 26-27, 44, 108-109, 109-110, 118, 130, 133, 226, 327, 425 (1969); Hearings on S. 1075, S. 237, and S. 1752 Before the Senate Committee on Interior and Insular Affairs, 91st Cong., 1st Sess. at 8, 128 (1969).

8. See, e.g., House hearings cited at note 7, supra, at 1-2 (remarks of Rep. Dingell).

9. ADMINISTRATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT, H.R. REP. NO. 316, 92d Cong., 1st Sess. at 33 (1971).

10. See NRDC v. NRC, D.C. Cir. No. 80-1477, Brief for the United States (prepared by the Department of State) at 33-59; Memorandum by the Office of the General Counsel, Department of Defense, The Application of the National Environmental Policy Act to Major Federal Actions with Environmental Impacts Outside the United States (1978); In the Matter of Babcock and Wilcox, 5 NRC 1332, 7 ELR 30017 (NRC 1977).

11. See, e.g., Dep't of the Navy, FEIS for the Proposed Removal of the Argus Island Facility-Bermuda, No. 73-1898 (1973); Dep't of Commerce, Final Environmental Statement, Importation of South African Sealskins, No. 73-1380 (1973); Dep't of Transportation, Darien Gap Highway, Final EIS-Panama-Columbia, No. 76-0867 (1976); Dep't of the Interior, Final Environmental Statement, World Heritage Convention, No. 73-0621 (1973); Dep't of State, EIS on the Agency for International Development Pest Management Program, No. 77-0593 (1977); ERDA, Final Environmental Statement, U.S. Nuclear Power Export Activities, (ERDA-1542) No. 76-0523 (1976).

12. See, e.g., NOAA Directive 02-10, 45 Fed. Reg. 49312 (July 24, 1980). See also Letter from John S. Gilligan, Administrator, Agency for International Development to Charles Warren, Chairman, Council on Environmental Quality, at 2 (Dec. 9, 1977).

13. Legal Advisory Committee, Report to the President's Council on Environmental Quality 14 (1971); accord, 40 C.F.R. § 1500.8(a)(3)(i) (1974); Memorandum to Heads of Agencies on Applying the EIS Requirement to Environmental Impacts Abroad, reprinted in 42 Fed. Reg. 61068, 61069 (1977); Memorandum from Charles Warren, Chairman, to Heads of Agencies, Jan. 19, 1978. See also Yost, American Governmental Responsibility for the Environmental Effects of Actions Abroad, 43 ALB. L. REV. 528 (1979) (authored by CEQ General Counsel).

However, in correspondence with the NRC concerning the then-pending Philippine reactor export, CEQ never declared that an EIS was required.

14. See CEQ, Memorandum to Heads of Agencies on Regulations to Implement the National Environmental Policy Act (draft), (Dec. 12, 1977) (to be codified at 40 C.F.R. § 1508.13). See generally, Comment, Forthcoming CEQ Regulations to Determine Whether NEPA Applies to Environmental Impacts Limited to Foreign Countries, 8 ELR 10111 (1978).

15. Exec. Order No. 121148 44 Fed. Reg. 1957 (Jan 9, 1977), ELR STAT. & REG. 45031. See also Comment, President Orders Environmental Review of International Actions, 9 ELR 10111 (1979).

16. 463 F.2d 1261, 2 ELR 20250 (D.C. Cir. 1972).

17. 578 F.2d 389, 8 ELR 20281 (D.C. Cir. 1978).

18. See 405 F. Supp. 53, 6 ELR 20051 (D.D.C. 1975); 421 F. Supp. 63, 6 ELR 20798 (D.D.C. 1975).

19. 578 F.2d at 392 n.14, 8 ELR at 20283 n.14.

20. National Organization for the Reform of Marijuana Laws v. Department of State, 452 F. Supp. 1226, 8 ELR 20572 (D.D.C. 1978); People of Saipan ex rel. Guerrero v. Department of the Interior, 356 F. Supp. 645, 3 ELR 20298 (D. Hawaii 1973), aff'd as modified 502 F.2d 90, 4 ELR 20723 (9th Cir. 1974), cert. denied, 420 U.S. 1003 (1975); People of Enewetak v. Laird, 353 F. Supp. 811, 3 ELR 20190 (D. Hawaii 1973).

21. Environmental Defense Fund v. AID, 6 ELR 20121 (D.D.C. 1975); Sierra Club v. AEC, 4 ELR 20685 (D.D.C. 1974).

22. 22 U.S.C. § 3201 et seq.

23. The Restatement (Second) of the Foreign Relations Law of the United States § 38 (1965) provides, in pertinent part, that:

Rules of United States statutory law … apply only to conduct occurring within, or having effect within the territory of the United States, unless the contrary is clearly indicated by the statute.

24. The term "global commons" refers to those portions of the planet such as the oceans, the upper atmosphere, and Antarctica in which all nations have a common but non-proprietary interest. See generally Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).

25. In effect, the Commissioners divided the total environmental effect of the export into three discrete segments, and assessed the "significance" of only those effects arising in the global commons.

26. 42 U.S.C. § 2011 et seq., ELR STAT. & REG. 41201.

27. The question of the NRC's compliance with these statutes constituted a major ground of dispute between the parties and consumed an even larger proportion of the opinions of Judges Wilkey and Robinson. The issue is unfortunately outside the scope of this Comment.

28. See 5 U.S.C. § 706(2)(A), ELR STAT. & REG. 41005.

29. 11 ELR at 20279.

30. 11 ELR at 20281 (emphasis added).

31. 11 ELR at 20285-86.

32. 426 U.S. 776, 6 ELR 20528 (1976).

33. See Judge Wilkey's summary of the Act, 11 ELR at 20267-69.

34. 11 ELR at 20291.

35. Id.

36. See, e.g., Frank, The Foreign Reach of NEPA, ALI-ABA Course of Study, Int'l and Trade Aspects of Envt'l Law (R. Stein ed.) (1975); Robinson, Extraterritorial Environmental Protection Obligations of Foreign Affairs Agencies: The Unfulfilled Mandate of NEPA, 7 INT'L L. AND POLITICS 257 (1974); Strausberg, The National Environmental Policy Act and the Agency for International Development, 7 INT'L L. 466 (1973); TARLOCK, The Application of the National Environmental Policy Act of 1969 to the Darien Gap Highway Project, 7 N.Y.U.J. OF INT'L L. AND POL'Y 459 (1975); Yost, American Governmental Responsibility for the Environmental Effects of Actions Abroad, 43 ALB. L. REV. 528 (1979); Comment, Controlling the Environmental Hazards of International Development, 5 ENVT'L L.Q. 321 (1976); Comment, Forthcoming CEQ Regulations to Determine Whether NEPA Appliest to Environmental Impacts Limited to Foreign Countries, 8 ELR 10111 (1978); Comment, President Orders Environmental Review of International Actions, 9 ELR 10011 (1979); Comment, Renewed Controversy Over the International Reach of NEPA, 7 ELR 10205 (1977); Note, The Extraterritorial Scope of NEPA's Environmental Impact Statement Requirement, 74 MICH. L. REV. 349 (1975).

37. See generally North Slope Borough v. Andrus, __ F.2d __, 10 ELR 20832, 20836-37 (D.D.C. 1980); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 838, 2 ELR 20029, 20032 (D.C. Cir. 1972).

38. See W. RODGERS, ENVIRONMENTAL LAW § 7.6 at 751 (1977).

39. Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1048-49, 9 ELR 20367, 20375 (D.C. Cir. 1979) (citing authorities).

40. Concerned About Trident v. Rumsfeld, 555 F.2d 817, 823, 6 ELR 20787, 20789 (D.C. Cir. 1976), quoting from Flint Ridge Development Co. v. Scenic Rivers Ass'n of Oklahoma, 426 U.S. 776, 6 ELR 20528 (1976).

41. See, e.g., Flint Ridge, note 32, supra (30 days); Gulf Oil Corp. v. Simon, 502 F.2d 1154, 5 ELR 20021 (Temp. Ct. Em. App. 1974) (15 days).

42. See note 33, supra.

43. Catholic Action of Hawaii/Peace Education Project v. Brown, 623 F.2d 602, 10 ELR 20683 (9th Cir. 1980), cert. granted sub nom. Weinberger v. Catholic Action of Hawaii/Peace Education Project, 49 U.S.L.W. 3743 (April 6, 1981).

44. Under § 2-3(c)(1) & (2) of Exec. Order No. 12114, ELR STAT. & REG. 45032, the NRC is clearly required to analyze formally the environmental impacts of reactor exports. Accord, Gaines, "Environmental Effects Abroad of Major Federal Actions:" An Executive Order Ordains a National Policy, 3 HARV. ENVT'L L. REV. 136, 150, 155 (1979); Comment, President Orders Environmental Review of International Actions, 9 ELR 10011, 10012 (1979); Comment, The International Application of the National Environmental Policy Act of 1969: A New Strategy, 1979 WASH. U.L.Q. 1063, 1082 n.110, 1083 n.120. The NRC has argued, however, based on a convoluted reading of § 2-5(v) of the Order, that these actions are exempt. See NRDC v. NRC, brief for the NRC at 59. The court chose not to review this questionable reasoning.