International Application of NEPA: Environmentalists Challenge Pesticide Aid Program

Several environmental organizations recently filed suit seeking to require an environmental analysis of the Agency for International Development's (AID) use of pesticides in foreign countries.¹ The basis for the suit is AID's financial and technical assistance in the use of pesticides, including several banned in the United States, by foreign governments. Resolution of this narrow issue hinges on the answer to an important legal question — the applicability of NEPA to activities outside the United States. The status of CEQ interpretations of NEPA's requirements is also involved because of a 1973 letter from CEQ to AID requesting the environmental analysis sought by the plaintiffs.

AID assistance for the purchase and application of pesticides is given primarily through commodity assistance programs. Items are placed on a Commodity Eligibility List which makes them eligible for AID financing. AID may thereafter provide assistance to foreign governments, agencies, or nationals, for the procurement and use of items on the list. Among the pesticides on the Commodity Eligibility List are DDT, aldrin, and dieldrin. Pesticide purchases are also funded through various capital and technical assistance programs as part of agricultural development projects.

Since 1970 AID has provided more than 50 million dollars' assistance in pesticide programs to more than twenty countries in Africa, Asia, and Latin America. In fiscal year 1974 the agency spent more than $13 million for pesticides, including over $1 million for DDT. Several of the pesticides AID has helped finance pose significant environmental risks. Domestic use of DDT, for example, has been banned since 1972 when EPA concluded that the chemical can persist in soil for decades, vaporize and travel long distances from the site of application, accumulate in the food chain and potentially threaten human health.² Similarly, use of pesticides containing either aldrin or dieldrin was suspended in October 1974 after EPA determined that those products may be carcinogens.³

If this were a domestic program there is little doubt that AID would be required to comply with NEPA. Despite the obvious environmental hazards created by its worldwide pesticide distribution program, however, AID has resisted compliance with the procedures required by the statute. The agency has not even developed guidelines for including environmental considerations in its decision-making as required by § 102(B). Its defense is the claim that NEPA does not apply to activities outside the United States, a legal proposition that has so far not been thoroughly considered in any court opinion.

Judicial resolution of the issue of NEPA's international application will rest principally on the interpretation of rather limited indications of congressional intent. There is little legislative history behind either NEPA or the foreign aid program relevant to the question. The court's ruling may therefore depend in part on [5 ELR 10087] a balancing of general policy considerations. AID is likely to argue that it is inappropriate for a United States agency to interfere with the internal decisions of a foreign government. The United States already makes similar decisions, however, by its selection of items for the Commodity Eligibility List. Moreover, plaintiffs request only an environmental analysis of the pesticide program, not its abolition. Foreign governments without the expertise to evaluate the benefits and cost of their selections should welcome the availability of this information from the United States. Finally, the concept of "human environment" recognized in NEPA as well as by United States' participation in numerous international environmental agreements would be ill-served by an interpretation that environmental concern ends at national boundaries. The use of pesticides, which travel far from the site of their original application, is an excellent example of the need for an international approach to environmental problems.

Short of claiming a total exemption from NEPA, AID may argue that impact statements are only required for the domestic effects of its programs in foreign countries. This argument was made by the Atomic Energy Commission in response to a suit brought by the Sierra Club challenging the export of nuclear reactors without preparation of environmental impact statements.⁴ The defendant AEC agreed to do an environmental analysis of the program, but a recently issued draft impact statement was limited to domestic effects. The complaint filed against AID attempts to circumvent this possible pitfall by studiously avoiding references to potential environmental impacts of the program in the United States.

CEQ's opinion, as expressed in both its NEPA implementation guidelines⁵ and a letter from Russell Train (then CEQ Chairman) to the Administrator for AID⁶ also support the plaintiffs' position. The CEQ letter asked AID to prepare a "program" impact statement on AID financing of pesticides used abroad. AID's position, Chairman Train wrote, "is becoming increasingly difficult to defend both to Congress and to the public."

The legal status of such CEQ administrative interpretations of NEPA has recently been given a major boost by the Supreme Court.⁷ In the Warm Springs case, Justice Douglas, sitting as Circuit Justice for the Ninth Circuit, emphasized CEQ's role as the agency most responsible for implementation of NEPA. The agency's administrative opinion that the impact statement for a Corps of Engineers dam project did not adequately fulfill the requirements of the statute was therefore held entitled to great weight. Chairman Train's letter, although written before the Warm Springs ruling, nonetheless gives the plaintiff's arguments added and perhaps decisive support. The letter also provides an opportunity for judicial reinforcement of the expanded NEPA implementation role which the Warm Springs decision opened to CEQ.

The legal issues posed by the international application of NEPA are no less interesting, however. If the plaintiffs are successful, an important precedent will have been established for public oversight of the environmental risks of AID programs and other United States activities in foreign countries. From the perspective of citizens in recipient nations, filing of this suit may make it possible for them to benefit from some of the environmental safeguards available in the United States. On its face, financing of extensive export distribution of products considered too dangerous for domestic use raises serious questions regarding the propriety of AID's pesticide activities. A through evaluation of the costs, benefits, and possible alternatives to the current pesticide program, within the framework of the NEPA impact statement process, could be a major service to both the international community and the global environment.

1. Environmental Defense Fund v. United States Agency for International Development, Civ. Action No. 75-0500 (D.D.C., filed April 8, 1975).

2. In re Stevens Industries, Inc., I.F. & R. Docket No. 63, et al (1972), aff'd EDF v. Ruckelshaus, 3 ELR 20488 (DC Cir. 1973.)

3. In re Shell Chemical Co., 4 ELR 30017 (1974), aff'd EDF v. EPA, 5 ELR 20243 (D.C. Cir. 1975). See Comment Aldrin-Dieldrin Suspension Upheld, 4 ELR 10176 (1974).

4. Sierra Club v. U.S. Atomic Energy Commission, 4 ELR 20685 (D.D.C. 1974). See Comment, Environmentalists Challenge Nuclear Export Program, 3 ELR 10181 (1973).

5. 40 C.F.R. Part 1500, § 1500.8(a)(3)(1), 38 Fed. Reg. 20550, 20553 (Aug. 1, 1973), ELR 46003, 46006.

6. Letter from Russell E. Train to Dr. John A.Hannah, Feb. 6, 1963, Exhibit A to Complaint, EDF v. U.S. AID, supra. n. 1.

7. Warm Springs Dam Task Force v. Gribble, 4 ELR 20669 (U.S. 1974).See Comment, Supreme Court Ushers in New Era for CEQ in Warm Springs Case, 4 ELR 10130 (1974).