President Orders Environmental Review of International Actions

A long-standing and often heated debate within the Carter Administration over the application of the National Environmental Policy Act (NEPA)¹ to federal actions abroad culminated on January 4 in the issuance by the President of Executive Order No. 12114.² Though the Order appears somewhat loosely linked with NEPA, it does direct federal agencies involved in international activities to promulgate regulations requiring environmental evaluations of those activities consistent with the terms of the Order. The agencies have eight months in which to promulgate implementing regulations, after consulting with the Department of State and the Council on Environmental Quality. Appearance of final agency regulations will not end the matter, however. If the history of NEPA's implementation is any guide, promulgation will be followed by the rather difficult process of gaining experience with the rules and by the inevitable litigation interpreting their provisions.

Serious legal and policy questions concerning the form of the Order precipitated an intense and well-publicized conflict within the executive branch.³ On one hand were fears that the institution of an environmental impact statement requirement on exports and foreign activities would deal a deathblow to American exports because the delay and adverse publicity inherent in the EIS process would eliminate the competitiveness of domestic products on the world market. The related and frequently expressed concern that such a policy would impose American environmental standards on the rest of the world gave rise to such terms as "environmental imperialism" and "the world's environmental policeman." The response of the opposing camp was to point to past cases in which our foreign activities have played havoc with the environment in distant locales. Such episodes raise the issue of whether the United States should subject foreign peoples to health and environmental degradation that we would not permit at home. A more practical and relevant question is whether a full understanding of the magnitude of the adverse impacts should be required before we choose to subject foreign peoples to these harms.

Proponents of international environmental reporting rules further argue that Congress has already considered the competing policy issues and opted for environmental protection and disclosure. They emphasize that NEPA requires preparation of impact statements for "major Federal actions significantly affecting the environment,"⁴ and makes no explicit exception for actions with extraterritorial effects.Indeed, in a separate provision the statute requires that "all agencies of the Federal Government shall … recognize the worldwide and long-range character of environmental problems …."⁵ In rebuttal, oppoents of extraterritorial environmental review requirements focus on other sections of the Act which suggest that the intent of the drafters was limited to domestic actions and impacts.⁶

These passages do appear to present an irreconcilable statutory conflict. The impasse appears attributable either to poor drafting or, more likely, to the fact that none of the principal authors of the Act gave hard thought to the applicability of the impact statement requirement to extraterritorial federal actions.⁷ The question of whether such application was envisoned, however, has essentially been eclipsed by: (1) the practice of several federal agencies of preparing environmental impact statements for major federal actions abroad,⁸ (2) the result in several lawsuits which, though inconclusive as to the reach of the statute, required partial or complete EIS preparation for certain international actions,⁹ and (3) the substance of the debate leading to the Executive Order, which centered not on whether the law applies overseas, but on the degree of compliance which would be ordered.¹⁰

[9 ELR 10012]

Scope of the Executive Order

Executive Order No. 12114 is limited in its application to major federal actions the environmental effects of which fall into four specifically defined categories. Different types of environmental documentation are required for different types of effects.

The first category covers actions that have significant effects on "the environment of the global commons outside the jurisiction of any nation."¹¹ The term "global commons" refers to those portions of the planet such as oceans, the upper atmosphere, and Antarctica, in which all nations have a common but nonproprietary interest.¹² The unfortunate reference to jurisdictional boundaries complicates an understanding of this provision, however, in that international maritime jurisdiction differs greatly and fluctuates frequently.¹³ Thus, it may be that this limitation will operate to exclude from the scope of the Order many environmentally significant areas which would otherwise be thought to be part of the commons, such as the Mediterranean and North Seas, because one or more nations maintain some sort of jurisdictional claim over the area.

The second category includes actions which significantly affect "the environment of a foreign nation not participating with the United States and not otherwise involved in the action."¹⁴ This is the so-called "innocent bystander" provision.An example of an action within its purview would be the American financing of a nuclear reactor the thermal effluent of which would pollute a bay shared by several nations not sharing in the power produced by the reactor. If a project's adverse effects will cross the border of a nonparticipating nation, the provision still does not apply if the bystander nation is "otherwise involved." The addition of the latter term may limit the application of the measure to actions the transboundary effects of which are unconsented to by the affected nation.

The third category, which is divided into two subgroups, encompasses exports which involve extremely dangerous forms of pollution and would thus be strictly regulated in the United States. Subgroup (a) covers actions which provide a foreign nation with:

a product, or physical project producing a principal product or an emission or effluent, which is prohibited or strictly regulated by Federal law in the United States because its toxic effects on the environment create a serious public health risk.¹⁵

On its face this subsection appears to encompass governmental exports of pesticides which are registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)¹⁶ or toxic substances regulated by the Administrator of the Environmental Protection Agency under § 6 of the Toxic Substances Control Act (TSCA).¹⁷ The ambiguous term "physical project" seems to equate with the term "industrial facility;" the Order would thus require appropriate environmental analysis where the government is involved in the export or financing of an industrial plant which will discharge toxic water pollutants governed by § 311 of the Federal Water Pollution Control Act,¹⁸ or toxic air emissions listed under § 112 of the Clean Air Act.¹⁹

This subsection's limited application only to toxic chemicals and emissions which are regulated domestically because they pose a "serious public health risk" could prove to be a thicket of complications. Under TSCA and FIFRA, dangerous chemicals are subject to varying degrees of regulation depending on the Environmental Protection Agency (EPA) Administrator's determination of whether they present an "unreasonable risk" of environmental harm. If the term "serious public health risk" as employed in the Executive Order corresponds to "unreasonable risk," there should be no difficulty in determining those chemicals that fall within the coverage of § 2-3(C)(1) of the Executive Order. But, if "serious health risk" implies a higher degree of risk than the benchmark et out in TSCA and FIFRA or otherwise requires the exporting agency to conduct its own cost-benefit analysis in every case in which an export is proposed, the result may well be delay and litigation.²⁰

Subgroup (b) applies to actions which provide a foreign nation with:

a physical project which in the United States is prohibited or strictly regulated by Federal law to protect the environment against radioactive substances.²¹

This subsection applies to approvals, loans, or other actions related to the export of nuclear reactors, reprocessing plants, and nuclear waste storage facilities, but it does not cover trade in fresh or spent nuclear fuel. The Department of State demanded an exemption for such materials, insisting that to do otherwise would jeopardize American control over exported nuclear reactors.

The fourth and final category encompasses actions [9 ELR 10013] which significantly affect designated natural or ecological resources of global importance. This provision requires analysis of actions threatening certain endangered species or their habitat and other unusually significant or fragile ecological areas regardless of their location. If the environmental effects of a foreign action such as the construction of a water resources project wereconfined to the borders of a participating nation, the action would normally not be covered by the Order. If, however, the project threatened the existence of an endangered species or the integrity of a notably wild and pristine river, the action might be covered by this provision and subject to some level of environmental review. A key caveat in this section is that no resource is covered unless specifically designated by the President, or the Secretary of State where the resource is already subject to an international treaty to which the United States is a party.

Documentation Required

The Order calls for the preparation of three distinct types of "environmental documents," depending on the circumstances. Whether a particular type of document must be prepared depends not on the nature of the action but on the nature of its environmental effects. The intent appears to be that different types of effects of a single action may be analyzed in different documents. Thus, were a dam to be built in a foreign country which would threaten a designated endangered species, adversely affect water flows into a neighboring and noninvolved nation, and cause siltation of the marine waters into which the river emptied, the agency would be in compliance if it were to prepare three documents of different scope and thoroughness addressing the separate effects. However, the agencies will undoubtedly provide in their implementing regulations that a single document may be prepared which will analyze the various aspects of a given project with varying degrees of vigor.

"Environmental impact statements" must be prepared where an action will significantly affect the global commons and may also be used when an action threatens a globally important natural resource designated as such by the President or the Secretary of State.²² In either case, the EIS must describe only adverse impacts on the global commons or the natural resource, not the effects within a foreign country or of the project as a whole. It thus appears that it would be inaccurate to equate the term "EIS" as used in the Executive Order with the EIS required under NEPA and subject to the recently issued regulations of the Council on Environmental Quality.²³ A domestic EIS is directed at major federal actions in their entirety, including all environmental ramifications. It is a holistic, pre-decisional document which permits a reasoned evaluation of alternatives so the decision maker can identify and hopefully select the course of action with the least environmental damage, depending on the effectiveness of that alternative in achieving the objectives of the action. Much of the analysis essential to an evaluation of the alternatives will be excluded from "foreign EISs," making them quite different from the domestic variety with which we have grown familiar.²⁴ The likely intent of the order is that preparers of foreign EISs strive to identify and describe the impact of the action on the affected environment with the same degree of attention which would be appropriate in a domestic EIS, but that a hard look at alternatives not be required.

At the discretion of the project agency, "bilateral or multilateral environmental studies" may be prepared for any effect of any action covered by the Order, excluding effects on the global commons.²⁵ The shape of such environmental studies is not spelled out. They shall be prepared by the United States in conjunction with another country, or by an international organization with which the United States is associated.

Summary environmental reviews, assessments, or "other appropriate documents" may also be employed with respect to any project effect except those affecting the global commons.²⁶ Little can be said with certainty about the form of the summary review or assessment, except that it is probably less intensive than the "environmental study" described above.

The Executive Order also appears to direct that the agencies establish a library of foreign environmental documents which may be used by any agency for general reference or to serve as full satisfaction of its duties under the Order. Section 2-4(d) provides that once an environmental document has been prepared under the Order the preparing agency shall as soon as feasible make the document available to other agencies with "relevant expertise."²⁷ Further, if a document required under the Order already exists, a new one need not be prepared.²⁸ Finally, federal agencies are directed to provide for appropriate utilization of their resources by other agencies.²⁹ The objective seems to be a system in which an agency contemplating a foreign action subject to the Order can turn to a file of documents prepared in the [9 ELR 10014] past, and, if it finds one sufficiently related to the action, it may rely on that document without further obligation under the Order. Such a system rests on the premise that an environmental impact statement, study, or review prepared for a specific action can adequately describe the effects of an entirely separate action.

Exemptions and Limitation

The Executive Order contains a number of exemptions which will be of crucial importance in its implementation. Because it specifically applies only to actions not exempted,³⁰ it is the shape of the exemptions which will ultimately determine the scope of the Order. The following are expressly exempted:

Actions not having a significant effect on the environment outside the United States as determined by the agency.³¹

Actions taken by the President, or actions taken by or pursuant to the direction of a Cabinet officer "when the national security or interest is involved."³² Given the expansiveness of this language, this exemption, in the hands of a proponent, could be stretched quite broadly. Presumably the agencies' implementing regulations will give it more definition.

Any action to the extent that it adversely affects social, economic, and "other" environments as distinguised from the "natural and physical" environments.³³ The net result of this exemption is to relieve agencies from the obligation to consider the human impacts of their actions, unless health-related.

Export licenses, permits, and approvals.³⁴ Since only a small fraction of the nation's exports require federal approval in any event, this provision effectively eliminates the much pressed anxieties of the business sector. One qualification is that federal loans to finance exports, such as those made by the Export-Import Bank, do not fall within this exclusion.³⁵

Actions related to armed conflict,³⁶ intelligence activities,³⁷ and arms transfers.³⁸

Participation in international conferences and organizations.³⁹

Disaster and emergency relief action.⁴⁰

Actions involving "other special circumstances" as identified by the agency in its implementing regulations.⁴¹

The Order also goes to considerable length to ensure that agencies retain wide discretion in determining the form and content of the required documentation. The content, timing, and availability of any required document may be modified where necessary to allow expedited action⁴² or prevent adverse impacts on foreign relations, including "the infringement of foreign sovereignty in fact or appearance."⁴³ Documents may also be modified to ensure appropriate reflection of diplomatic factors,⁴⁴ the objective of promoting exports and international commerce,⁴⁵ the interests of governmental and commercial confidentiality,⁴⁶ national security considerations,⁴⁷ the difficulties in gathering needed information and the agency's inability to analyze environmental impacts,⁴⁸ and the degree of the agency's involvement in or inability to affect a decision to be made.⁴⁹

The most striking feature of these exemptions is their breadth. Note, for example, the last two exclusions. The former might be construed to permit serious environmental analysis to be avoided if an agency's existing staff lacks the requisite training, although such a result is alien to the dictates of NEPA⁵⁰ and might be disfavored by reviewing courts. The second permits truncations of the required document (which in most cases is simply an "environmental study" or "summary review") on the basis, for example, that the agency is unable to influence its joint venturers in an endeavor. These provisions are clearly designed to give affected agencies the maximum latitude possible.

In a rather puzzling finale to the Order, § 3-5 provides hat if a major federal action requiring preparation of an EIS because of significant effects on the environment of the United States or the global commons will also affect the environment of a foreign nation, an EIS need not be prepared with respect to the latter impacts.⁵¹ The difficulty with this section is that under the Order environmental impacts within the borders of foreign nations never require preparation of documents more exhaustive than "environmental studies" or "concise reviews."

[9 ELR 10015]

One possible interpretation of § 3-5 is that it was intended to provide that if an EIS were to be prepared concerning domestic or global commons impacts, no other environmental document need be prepared concerning the effects on a foreign nation. The effect would thus be to remove the obligation to produce more than oen document for any given action. More likely is that the measure was meant to emphasize than an impact statement describing domestic or global commons effects should be limited strictly to analysis of those effects and need not consider impacts on a foreign nation.

The concept of separate standards of analysis of domestic versus foreign impacts has its genesis in National Organization for the Reform of Marijuana Laws v. Department of State,⁵² in which the court approved a settlement agreement requiring the Department of State to prepare a full environmental impact statement regarding the domestic impacts of the challenged federal action (spraying of herbicides on Mexican marijuana fields), while preparing only an "environmental analysis" regarding the impacts on the country of Mexico. The court implicitly held that where an action affects both the domestic and foreign environments, NEPA requires at least a minimal discussion of both types of effects.⁵³ This ruling, which is firmly grounded on the Darien Gap decision,⁵⁴ sets up what appears to be the only clear conflict between the Executive Order and the case law under NEPA.

Effect of the Executive Order

The degree to which the Order will result in enhanced environmental analysis or improved decision making in international activities depends almost entirely on the form of the implementing regulations drawn up by the agencies. Although it states that it represents the "government's exclusive and complete determination of the procedural and other actions to be taken by Federal agencies⁵⁵ regarding the extraterritorial environmental effects of their activities, the Order also states that it does not "prevent any agency from providing in its procedures measures in addition to those provided for herein…."⁵⁶ Some agencies, such as the Agency for International Development (AID) and the National Oceanic and Atmospheric Administration (NOAA), have already adopted regulations the scope of which far exceed the terms of the Order and which can be expected to remain in force.⁵⁷ In such cases the President's action will have little impact.

Those agencies, however, that are inclined to subordinate the goal of environmental protection to other important and at times conflicting missions will be able to issue regulations consisting more of form than substance and find full support in the Order. In fact, given an expansive interpretation of the Order, it is difficult to hypothesize a federal action posing significant environmental effects outside the United States which is not arguably subject to at least one exemption.

The ultimate question is whether in future NEPA litigation over international activities the agencies may successfully rely on the Order and their implementing regulations to justify their actions or failures to act. Unless those regulations parallel the requirements of the Act more closely than does the Order, the likely answer is no. The President's Order, though it claims to share the purposes of NEPA and other laws,⁵⁸ is expressly based on independent constitutional authority.⁵⁹ It does not purport to be an interpretation of agencies' obligations under the Act, but is rather a policy declaration of the actions to be taken to further its purposes. The difference is that the obligations imposed by the Act, assuming that it applies fully overseas, clearly exceed the actions called for by the Order.

Several provisions in the Order can be viewed as a compromise between the statutory mandate of full disclosure and the competing interests of national security and foreign policy. This type of balancing, at least with respect to the granting of relief under NEPA, has been approved by the courts in the context of national defense interests,⁶⁰ and the national goal of energy production,⁶¹ and it may similarly be considered appropriate vis-a-vis interests of foreign policy. Several other provisions of the Order, however, cannot be styled as compromises between important national policies recognized within the Act, but instead stand squarely at odds with the statutory requirements. For example, the Order ignores the social and socioeconomic impacts of federal actions. Yet there can be no doubt that the statute requires analysis of these [9 ELR 10016] effects, at least where significant effects on the physical environment are involved.⁶² The independence of the Order from the requirements of NEPA is exemplified by § 2-5(d), which provides that many of the exemptions in the Order are inoperative if not permitted by law (i.e., NEPA).

It seems fairly certain then, that in the future when courts are faced with thequestion whether NEPA applies extraterritorially, the Executive Order will be viewed as a statement of executive policy rather than probative evidence that the Act applies overseas.There is indeed little justification for treating the Order with the judicial deference customarily accorded interpretive rules such as the CEQ's interpretation of NEPA.⁶³ For the same reason, however, if a court were to rule that NEPA applies overseas and were thus looking for guidance as to how to strike an appropriate balance between the environmental and other national policies set forth in the Act, the Executive Order would likely not stand as a considered legal opinion on this issue. Perhaps if the agencies adopt particular procedures which seem consistent with the Act, a court might find it expedient to certify their appropriateness. Most of the Order, however, strays too far from the terms of NEPA to qualify for such treatment.

Conclusion

The Council on Environmental Quality's first announcement that it would issue regulations governing the application of NEPA to international actions was met by a collective sigh of relief that there would finally be a coherent statement of the legal requirements in this area, and that due attention would be paid to the government's legitimate need to conduct its foreign activities without significant disruption. One perceived benefit of the expected regulatory resolution of this issue was the avoidance of hit-or-miss judicial interpretations which are subject to the vagaries of the courtroom and the circumstances. But because of the extreme sensitivity of the issues, the authority to set government policy was wrested from the Council by the agencies most likely to be affected by the draft regulations. The apparent intent of these agencies was to make a preemptive strike against a wave of judicial opinion on the verge of demanding farreching changes in existing procedures. The result was the release of a patchwork Executive Order which seems unlikely to achieve the objectives of any of the principals.

Given that the courts will likely factor the Executive Order very lightly, if at all, when next faced with the question of the international reach of NEPA, the Order has done little to clear the fog surrounding this important issue. At this juncture, we are essentially back where we started. In the event, however, that the courts were ultimately to determine that NEPA is inapplicable to extraterritorial effects, or that it requires less extensive compliance in that regard than does the Executive Order, the Order will take on significance as the determinant of the government's obligations in this area.

It would be premature to speculate at this point that because the Order will likely have little bearing on judicial interpretations of NEPA, the massive amounts of energy that have been expended in preparing the Order have been for nought. A useful product may still be salvaged if the agencies take the Executive Order in one hand, the statute in the other, and in good faith forge regulations which are consistent with the letter and above all the spirit of the Act. The goal should be to harmonize the rather evanescent congressional intent with the realities of agency missions and activities.

One way in which the agencies should utilize their authority to expand upon the procedures outlined in the Order is to provide for public access to foreign environmental documents. The Order's complete omission of procedures to involve the public is a clear and unjustifiable departure from the philosophy of the Act. Appropriate exception must be made, of course, for legitimate conflicts with foreign policy and national security considerations, but this does not preclude the striking of a fair balance. The agencies should also act to fill in the gaps created by some of the apparently arbitrary exemptions within the Executive Order. These include the provision excluding consideration of an action's impact on a foreign nation if the action will also affect the global commons, and the nonapplication of the Order to the environments of countries that are participating with the United States in a given project.

NEPA requires that to the fullest extent possible enough data be collected and analyzed to permit the decision maker to weigh the benefits of a proposal against its environmental costs, and to make an informed choice among alternatives. This reasonable demand is eminently achievable for projects with extraterritorial impacts, despite the pitfalls of applying the environmental review process to actions with effects overseas.

1. 42 U.S.C. §§ 4331-4361, ELR STAT. & REG. 41009.

2. 44 FED. REG. 1957 (JAN 9, 1979), ELR STAT. & REG. 45031.

3. See generally, Comment, Forthcoming CEQ Regulations to Determine Whether NEPA Applies to Environmental Impacts Limited To Foreign Countries, 8 ELR 10111 (1978); Comment, Renewed Controversy Over the International Reach of NEPA, 7 ELR 10205 (1977).

4. National Environmental Policy Act, § 102(2)(C), 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

5. Id. § 102(2)(F), 42 U.S.C. § 4332(2)(F), ELR. Stat. & Reg. 41010.

6. Id., § 101(a), 42 U.S.C. § 4331(a), ELR STAT. & REG. 41009 (stating that one of congressional purposes was to fulfill social and other requirements of present and future generations of Americans) (emphasis supplied); accord, § 101(b)(2), 42 U.S.C. § 4331(b)(2), ELR STAT. & REG. 41009. See also § 101(b)(4), 42 U.S.C. § 4331(b)(4), ELR STAT. & REG. 41009.

7. Comment, The Extraterritorial Scope of NEPA's Impact Statement Requirement, 74 MICH. L. REV. 349, 371 (1975).

8. See, e.g., the following final environmental impact statements: Department of State, Convention for the Conservation of Antarctic Seals, No. 50893 (1975); Department of Commerce, National Oceanic and Atmospheric Administration, Importation of South African Sealskins, Moratorium Waiver, No. 60209 (1976); Department of the Interior, Alaskan Natural Gas Transportation Systems, No. 60471 (1976); Department of Transportation, Federal Highway Administration, Darien Gap Highway, No. 60867 (1976); Department of State, Agency for International Development, Worldwide Pest Management Program, No. 70593 (1977).

9. See, e.g. Wilderness Society v. Morton, 463 F.2d 1261, 2 ELR 20250 (D.C. Cir. 1972) (Canadian citizens permitted to intervene in NEPA litigation concerning Alaskan oil pipeline in order to protect interests in Canadian environment); Sierra Club v. Coleman, 405 F. Supp. 53, 6 ELR 20051 (D.D.C. 1975) (injunction issued against continued construction of highway through Panama and Colombia for failure to comply with § 102(2)(C) of NEPA), injunction continued, 421 F. Supp. 63, 6 ELR 20798 (D.D.C. 1976) (inadequacy of environmental impact statement), reversed sub nom. Sierra Club v. Adams, 578 F.2d 389, 8 ELR 20281 (D.C. Cir. 1978) (impact statement adequate as a matter of law; "we need only assume, without deciding, that NEPA is fully applicable to construction in Panama." 578 F.2d at 392 n.14, 8 ELR at 20281 n.14). See also discussion of the result in the National Organization for the Reform of Marijuana Laws v. Department of State, infra note 53.

10. A significant body of opinion continues to hold that the scope of NEPA is limited to the domestic environment. See, e.g., In the Matter of Babcock & Wilcox, 5 NRC 1332, 7 ELR 30017 (Nuclear Regulatory Comm'n 1977). See also Memorandum from the Department of Justice to Robert J. Lipshutz, White House Counsel, reprinted in Legal Times of Washington, Oct. 9, 1978, at 20, col. 1 (NEPA does not apply to federal actions which do not have significant adverse environmental effects on the United States and the global commons).

11. Exec. Order No. 12114, § 2-3(a), 44 Fed. Reg. at 1957, ELR STAT. & REG. 45031

12. See generally Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).

13. For example, in response to growing foreign demands on the fishery resources of the northwest Atlantic, Congress recently extended United States jurisdiction over such resources from the twelve-mile limit to the 200-mile limit. Fishery Conservation and Management Act of 1976, 16 U.S.C. § 1801 et seq.

14. Exec. Order No. 12114, 2-3(b), 44 Fed. Reg. at 1957, ELR STAT. & REG. 45031.

15. Id. § 2-3(c)(1), 44 Fed. Reg. at 1957, ELR STAT. & REG. 45031.

16. 7 U.S.C. §§ 121-136y, ELR STAT. & REG. 41301.

17. 15 U.S.C. §§ 2601-2629, ELR STAT. & REG. 41335.

18. 33 U.S.C. § 1321, ELR STAT. & REG. 42132.

19. 42 U.S.C. § 7412, ELR STAT. & REG. 42219.

20. The President has instructed CEQ and the Export-Import Bank to prepare illustrative lists of chemicals subject to this provision.

21. Exec. Order No. 12114 § 2-3(c)(2), 44 Fed. Reg. at 1958, ELR Stat. & Reg. 45031.

22. Id. §§ 2-4(a)(1), 2-4(b)(1), 2-4(b)(iv), 44 Fed. Reg. at 1958, ELR STAT. & REG. 45031.

23. 40 C.F.R. §§ 1500-1508, 43 Fed. Reg. 55978 (Nov. 29, 1978), ELR STAT. & REG. 46001.

24. Consider the hypothetical in which the United States is considering participating jointly in the construction of a sewage treatment plant in a foreign country. If the plans called for disposal of the sewage sludge byproduct in landfills within the borders of the participating country, the action would not be subject to the Executive Order. If the plans, however, called for dumping the sludge at sea (i.e., in the global commons), an "EIS" would have to be prepared, assuming no other exemption were applicable. This document would apparently address only the effects on the global commons, and not the overall impacts of the plant on the host nation, nor the environmental difficulties (or lack thereof) of alternative on-land disposal. That document, therefore, would yield a glimpse of the environmental effects of only one way of going about the project, without a comparative discussion of other alternatives. The term "EIS" thus seems a misnomer for the document required under § 2-4(a)(1) of the Executive Order.

25. Exec. Order No. 12114 §§ 2-4(a)(ii), 2-4(a)(iii), 2-4(a)(iv), 44 Fed. Reg. at 1958, ELR STAT. & REG. 45031.

26. Id. §§ 2-4(a)(iii), 2-4(b)(ii), 2-4(a)(iii), 2-4(b)(iv), 44 Fed. Reg. at 1958, ELR STAT. & REG. 45031.

27. There is no indication in this provision or elsewhere in the Order that such documents are to be made available to the public.

28. Exec. Order No. 12114 § 2-4(b), 44 Fed. Reg. at 1958, ELR STAT. & REG. 45031.

29. Id. §§ 2-2, 2-4(d), 44 Fed. Reg. at 1957, 1958, ELR STAT. & REG. 45031.

30. Id. § 2-1, 44 Fed. Reg. at 1957, ELR STAT. & REG. 45031.

31. Id. § 2-5(a)(i), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

32. Id. §§ 2-5(a)(ii), 2-5(a)(iii), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

33. Id. § 3-4, 44 Fed. Reg. at 1960, ELR STAT. & REG. 45032.

34. Id. § 2-5(a)(v), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

35. Id. § 3-4, 44 Fed. Reg. at 1960, ELR STAT. & REG. 45032.

36. Id. § 2-5(a)(iii), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

37. Id. § 2-5(a)(iv), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

38. Id.

39. Id. § 2-5(a)(vi), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

40. Id. § 2-5(a)(vii), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

41. Id. § 2-5(c), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

42. Id. § 2-5(b)(i), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

43. Id. § 2-5(b)(ii), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

44. Id. § 2-5(b)(iii)(1), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

45. Id. § 2-5(b)(iii)(2), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

46. Id. § 2-5(b)(iii)(3), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

47. Id. § 2-5(b)(iii)(4), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

48. Id. § 2-5(b)(iii)(5), 44 Fed. Reg. at 1959, ELR STAT. & REG. 45032.

49. Id.

50. See, e.g., Calvert Cliffs' Coordinating Committee v. Atomic Energy Comm'n, 449 F.2d 1109, 1114, 1 ELR 20346, 20348 (D.C. Cir. 1972).

51. Exec. Order No. 12114 § 3-4, 44 Fed. Reg. at 1960, ELR STAT. & REG. 45032.

52. 452 F. Supp. 1226, 8 ELR 20572 (D.D.C. 1978).

53. In a less than illuminating application of NEPA, the court found that "in view of the defendants' willingness to prepare an 'environmental analysis' of the Mexico [sic] effects of United States support of that nation's marijuana eradication program, together with the EIS required by NEPA as to the impact of that program upon the United States, the court need not reach the issue and need only assume without deciding, that NEPA is fully applicable to the Mexican herbicide spraying program" 452 F. Supp. at 1233, 8 ELR at 20574 (emphasis supplied).

54. Sierra Club v. Adams, 405 F. Supp. 53, 6 ELR 20051 (D.D.C. 1975), injunction con't, 421 F. Sup. 63, 6 ELR 20798 (D.D.C. 1976), reversed on other grounds, 578 F.2d 389, 8 ELR 20281 (D.C.Cir. 1978).

55. Exec. Order No. 12114, § 1-1, 44 Fed. Reg. at 1957, ELR STAT. & REG. 45031.

56. Id. § 2-4(c), 44 Fed. Reg. at 1958, ELR STAT. & REG. 45031.

57. Section 2-4 also provides that the Order shall not serve to invalidate any agency regulations adopted pursuant to litigation, thereby insulating the NEPA regulations of the Agency for International Development, 22 CFR § 216.1-216.8, ELR STAT. & REG. 46221, which were promulgated under the court-approved settlement in Environmental Defense Fund v. Agency for International Development, 6 ELR 20121 (D.D.C. 1975).

NOAA has adopted internal procedures governing the preparation of environmental impact statements which apply both to domestic and foreign activities. NOAA Directive 2-10. While these procedures make appropriate exception for the exigencies inherent in international affairs, they are significantly more ambitious and on the whole far simpler than Executive Order No. 12114. NOAA plans to promulgate revised NEPA regulations before August 1979.

58. Exec. Order No. 12114, § 1-1, 44 Fed. Reg. at 1957, ELR STAT. & REG. 45031.

59. Id.

60. Concerned about Trident v. Rumsfeld, 555 F.2d 817, 830, 6 ELR 20787, 20794 (D.C. Cir. 1976); see also id., 555 F.2d at 830-831, 6 ELR at 20794-5 (Leventhal, J., concurring).

61. Alaska v. Andrus, 550 F.2d 465, 485-487, 8 ELR 20237, 20249-20250 (D.C. Cir. 1978).

62. Image of Greater San Antonio v. Brown, 570 F.2d 517, 522-523, 8 ELR 20324, 20325 (5th Cir. 1978).

63. See, e.g., Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 4 ELR 20666 (Douglas, Circuit Justice, 1974). See also Comment, Supreme Court Ushers in New Era for CEQ in Warm Springs Case, 5 ELR 10130 (1974).