Mayaguezanos por la Salud y el Ambiente v. United States

No. 99-1412 (198 F.3d 297, 49 ERC 1889) (1st Cir. December 20, 1999)

ELR Digest

The court holds that the failure of the United States to regulate the passage of a ship carrying nuclear waste through waters in the U.S. exclusive economic zone (EEZ) is not a major federal action. Therefore, the court dismisses an environmental group's National Environmental Policy Act claims against the government for failure to regulate the passage. Under an international treaty entered into by the United States, nuclear waste was transported between the islands of Puerto Rico and Hispaniola during its route from France to Japan. The court first holds that the transportation of nuclear waste was not subject to regulation by the United States. Although the United States was party to the international agreement, it did not grant specific authorization for the shipment of waste under the provisions of the treaty. The treaty provided that certain nuclear materials may be removed from governance of the treaty if the material is no longer usable for any nuclear activity or it has become irrecoverable. Here, the appropriate authority, which was not the United States, determined that the waste at issue was irrecoverable. The court, therefore, holds that the treaty did not assign the United States control over the shipment of nuclear waste, and thus, there was no federal action involved.

The court next holds that the power of the United States to stop the shipment of nuclear waste through its EEZ waters is questionable. Foreign ships do not require the permission of the United States to pass through its EEZ, and none of the circumstances that give rise to a federal action is present. The court additionally holds that whatever the scope of U.S. potential power over the EEZ, the United States has chosen not to regulate shipments of nuclear waste through its EEZ. Moreover, there is no requirement that it must do so, and it is not evident that the United States would have the authority if it so chose.

The full text of this opinion is available from ELR (10 pp., ELR Order No. L-129).

Counsel for Plaintiffs
Pedro J. Varela-Fernandez
Puerto Rico Legal Services Corporation
P.O. Box 2257, Cayey PR 00633
(787) 738-5189

Counsel for Defendants
Sean H. Donahue
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[30 ELR 20214]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]