On May 12, 1976, the United States requested the inclusion on the agenda of the Sixth General Assembly of the Organization of American States (OAS) of an item on the examination of cooperative activities in the field of nature conservation, as prescribed by the 1940 Convention on Nature Protection and the Preservation of Wildlife in the Western Hemisphere (TS 981; 56 Stat. 1354). The request was accompanied by a letter from Curtis Bohlen, Acting Assistant Secretary of the Interior for Fish and Wildlife and Parks, dated May 7, 1976, which states:

This Convention was for a long time regarded as hortatory, and did not receive serious and active attention. However, it anticipated much of the thinking and the language contained in later more specific international treaties like the Convention on Trade in Endangered Species, to which it closely relates. In recent years, its relevance has become more widely recognized and its implementation was eventually ordered by the Congress in Article 7 (Sec. 1537, 16 USC) of the Endangered Species Act of 1973. On April 13, 1976, the President signed Executive Order 11911, entitled "Preservation of Endangered Species", which among other things authorized the Secretary of the Interior to act on behalf of the United States in implementing the Convention.

Therefore, on behalf of the Secretary of the Interior, I would like to ask your assistance in presenting to the countries of the Western Hemisphere, through the Organization of American States, a proposal to enter into a program of cooperative activities in the field of nature conservation, as prescribed by this Convention. These activities should include, inter alia, the exchange of information and technology, joint scientific research, the identification and study of species of flora and fauna, the study and conservation of migratory birds, endangered species, and ecosystems, and the planning and management of parks, preserves, and natural monuments.

*

OAS Doc. OEA/Ser. P, AG/doc. 659/76, May 19, 1976. The OAS General Assembly. on June 16, 1976, adopted Res. 218 (VI-0/76), which contains the following operative paragraphs:

1. To urge the implementation of the Convention [on Nature Protection and the Preservation of Wildlife in the Western Hemisphere] by the member states through mutual cooperation in activities such as scientific research and technical cooperation and assistance relating to wild flora and fauna, the creation, planning, and training in the management of parks and reserves, the adoption of measures to conserve wild flora and fauna and to protect species which are in danger of extinction.

2. To adopt measures to facilitate the discharge of specific responsibilities of the member states and of the OAS Secretariat under the terms of the Convention in furnishing and processing lists of endangered and threatened species and in disseminating information relating to nature protection and the conservation of wild flora and fauna.

3. To instruct the Permanent Executive Committee of the Inter-American Council for Education, Science, and Culture to prepare a report and submit it to the next regular meeting of CIECC, examining the advisability of convoking a conference to discuss, plan, and agree upon cooperative bilateral and multilateral activities such as those called for above.

4. To accept the offer of the United States to host this conference.

5. To urge all sovereign states of the Western Hemisphere to adhere to the Convention if they have not already done so.

Environmental Impact

On September 24, 1976, Russell W. Peterson, Chairman of the Council on Environmental Quality (CEQ) of the Executive Office of the President, issued a letter and memorandum to heads of U.S. agencies on applying the environmental impact statement (EIS) requirement to environmental impacts abroad. The Council thus interpreted the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) to include impact statements for Federal actions which have a significant impact on the environment, whether in the United States, in other countries in which the activity is carried out or has an effect, or in areas, such as the high seas and the atmosphere, outside the jurisdiction of any country. Chairman Peterson's letter states that the NEPA requirement for such analysis and disclosure can be accomplished "without imposing U.S. environmental standards on other countries, and without interfering with the execution of foreign policy."

The memorandum accompanying Chairman Peterson's letter is set out below:

MEMORANDUM ON THE APPLICATION OF THE EIS REQUIREMENT TO ENVIRONMENTAL IMPACTS ABROAD OF MAJOR FEDERAL ACTIONS NEPA requires analysis of significant environmental impacts of proposed major Federal actions on the quality of the human environment. The "human environment" is not limited to the United States, but includes other countries and areas outside the jurisdiction of any country (e.g., the high seas, the atmosphere). The Act contains no express or implied geographic limitation of environmental impacts to the United States or to any other area. Indeed, such a limitation would be

inconsistent with the plain language of NEPA, its legislative purpose, the Council's Guidelines, and judicial precedents.

In a statute which in other sections refers specifically to the national environment.1 use of the term human environment in § 102(2) (C) reflects an intent to cover environmental impacts beyond U.S. borders. This interpretation is consistent with NEPA's stated purpose, declared in the preamble to the Act, to "encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." It is also consistent with Congress' recognition in section 101 of “the profound impact of man's activity on the interrelations of all components of the natural environment . . . and . . . the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man." Applying the EIS requirement to impacts abroad also implements the mandate in section 102 to all agencies to "recognize the worldwide and long range character of environmental problems.” In sum, the broad language of section 102(2) (C) as well as the explicit congressional determination that our national environmental policy must have a global perspective gives section 102(2) (C) a wide scope.

The legislative history of NEPA supports the inclusion of impacts globally and in other countries within the scope of the EIS requirement. A 1968 "Congressional White Paper on a National Policy for the Environment," summarizing the joint House-Senate colloquium on national environmental policy that led to NEPA's introduction, and inserted into the record by Senator [Henry M.] Jackson during debate, stated, “[a]lthough the influence of the U.S. policy will be limited outside its own borders, the global character of ecological relationships must be the guide for domestic activities." Both the House and the Senate reports on NEPA, reflecting the testimony of numerous witnesses at the hearings, recognized the statute's global perspective. Statements to the same effect were made during the floor debates, including an explanation by Senator Jackson of NEPA's statement of environmental policy:

What is involved [in NEPA] is a congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence or the health of mankind: That we will not intentionally initiate action which will do irreparable damage to the air, land and water which support life on Earth.4

The House Merchant Marine and Fisheries Committee during oversight hearings specifically rejected the argument that NEPA should not be applied to actions occurring within the jurisdiction of another nation:

Stated 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.5

The Council has consistently applied NEPA to U.S. international activities and has urged Federal agencies to recognize the Act's global perspective. In its first Annual Report, for example, the Council pointed out that NEPA "directed all agencies of the Federal Government to recognize the worldwide and long range character of environmental problems." In 1971 the Council's Legal Advisory Committee specifically urged Federal agencies to apply NEPA to their actions in foreign countries. The Council's 1973 Guidelines require the assessment of "both the national and international environment." The Fifth Annual Report reviewed agencies' experience in applying the EIS process to U.S. actions abroad. In 1976 the Council reported on one of the benefits of this experience-the growth of environmental impact assessment procedures in other countries.10

Accordingly, some Federal agencies have provided in their NEPA procedures for the preparation of environmental statements when agency actions cause significant environmental impacts beyond U.S. borders," and impact statements have been prepared on U.S. actions in foreign countries. 12 Moreover, the courts13 and virtually every legal commentary addressing the subject1 have supported the Council's belief that an environmental statement is required whenever U.S. actions would have significant environmental impacts on the United States, on global resources, or on foreign countries.

The policies underlying NEPA reinforce the interpretation suggested by its language and legislative history, judicial precedents and administrative practice. Analysis and disclosure in an EIS of significant environmental effects provide U.S. decisionmakers a fuller picture of the foreseeable environmental consequences of their decisions. Impact statements do not dictate actions on foreign soil or impose U.S. requirements on foreign countries; instead, they guide U.S. decisionmakers in determining U.S. policies and actions.

In addition, EISS provide information to cooperating governments which they then could use in making decisions about projects within, or which may affect, their countries. Far from being an imposition, this information can enhance the value of U.S. assistance or participation. This full disclosure by the United States contributes to the integrity of cooperating governments' policymaking, and thus lends support to international environmental cooperation as directed in § 102(2) (F),15 the Stockholm Declaration, and other international agreements.16

To the extent national security or essential foreign policy considerations make controlled circulation of environmental statements necessary, NEPA provides sufficient procedural flexibility to accomplish this. Section 102(2) (C) provides exceptions to public circulation of documents by incorporating the Freedom of Information Act and its exemptions by reference. Environmental statements or portions of them have been classified, for example, when necessary to protect national security. Presumably, if public examination of a proposed U.S. action in another country would jeopardize U.S. foreign policy in a given instance, circulation of the environmental statement could be restricted in accordance with these statutory procedures.18 In general, however, Congress has mandated that environmental statements are public documents.

In summary, the Council believes that the impact statement requirement in § 102(2) (C) of NEPA applies to all significant effects of proposed Federal actions on the quality of the human environment-in the United States, in other countries, and in areas outside the jurisdiction of any country. Accordingly, agency officials responsible for analyzing the potential environmental effects of proposed actions should fully assess the potential impacts outside the United States, as well as those within it; if any of these potential impacts are likely to be significant, an impact statement should be prepared.

See, e.g., Sections 101(b) (2), 101(b) (4), 201.

2 115 Cong. Rec. 29082 (Oct. 8, 1969).

3 See, e.g., S. Rept. No. 91-296, 91st Cong., 1st Sess., at 17, 43-45 (1969); H. Rept. No. 91-378, 91st Cong., 1st Sess., at 5, 7 (1969).

4115 Cong. Rec. 19009 (July 10, 1969); see also 115 Cong. Rec. 14347 (May 29, 1969); 115 Cong. Rec. 26575-16476 (Sept. 23, 1969); 115 Cong. Rec. 29056 (Oct. 8, 1969). 5 H. Rept. 92-316, 92nd Cong., 1st Sess., at 32-33 (1971).

6 CEQ, Environmental Quality- 1970, at 200 (1970).

7 Legal Advisory Committee Report to the President's Council on Environmental Quality, at 13-17 (December 1971).

840 C.F.R. Section 1500, 8(a) (3) (i) (1975).

9 CEQ. Environmental Quality-1974, at 399-400 (1974).

10 CEQ, Environmental Quality-1975, at 653-54 (1976).

11 See, e.g., 38 Fed. Reg. 34135-46 (1973) (Coast Guard); 37 Fed Reg. 19167-68

(1972) (Dept. of State); 41 Fed. Reg. 26913-26919 (1976) (Agency for International Development).

12 See, e.g., Dept. of Transportation, Draft EIS, Darien Gap Highway (March 1976); Dept. of the Interior, Final EIS, Alaska Natural Gas Transportation System (March 1975).

13 In Wilderness Society v. Morton, 463 G. 2d 1261 (D.C. Cir. 1972), the court granted standing to Canadian intervenors concerned with the trans-Alaska Pipeline, holding that the intervenors' interest in the significant impacts of the pipeline in Canada were within the zone protected by section 102(2)(c). In Sierra Club v. Coleman, 405 F. Supp. 53 (D.D.C. 1975), the court held, inter alia, that DOT's impact assessment on portions of the Pan-American Highway was deficient because it failed to address the environmental impacts of alternative highway corridors through Panama and Colombia. Since the significant impacts of corridor alternatives lay exclusively in Panama and Colombia, the case necessarily holds that impacts in foreign national territory are within the scope of section 102(2)(C).

Of course, significant indirect as well as direct impacts must be considered. 40 C.F.R. Section 1500.8(a) (3) (ii) (1975); City of Davis v. Coleman, 521 F.2d 661, (9th Cir., 1975); see CEQ, Environmental Quality-1974, at 410-11 (1974).

14 See, e.g., Committee on Environmental Law of the Section on International and Comparative Law of the American Bar Association, Opinion on the International Scope of NEPA (July 1971); Strausberg, the National Environmental Policy Act and the Agency for International Development, 7 Int'l. Law. 46 (1972); Robinson, Extraterritorial Environmental Protection Obligations of Foreign Affairs Agencies: The Unfulfilled Mandate of NEPA, 7 Int'l. Law. Pol. 257 (1975) Note, the Extraterritorial Scope of NEPA's Environmental Impact Statement Requirement, 74 Mich. L. Rev. 349 (1975); Appelbaum, Controlling the Hazards of International Development, 5 Ecol. L.Q. 321 (1976).

15 See H. Rept. 92-316, 92nd Cong., 1st Sess., at 33 (1971).

16 See, e.g., Convention Concerning the Protection of the World Cultural and Natural Heritage, November 23, 1972; Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, October 12, 1940.

17See, e.g., U.S. Navy, final EIS, Transit Satellite (June 1972).

18Thus, NEPA incorporates a procedure for ensuring that the execution of U.S. foreign policy and U.S. environmental policy are consistent. Of course, no agency has the authority otherwise to deviate from NEPA's requirements, on foreign policy or other grounds. Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971).

Reproduced from XV International Legal Materials 1426-1434.

In Sierra Club et al. v. Coleman et al., Civil Action No. 75-1040, the U.S. District Court for the District of Columbia, on September 23, 1976, ordered the continuance in effect of its preliminary injunction of October 17, 1975, 405 F. Supp. 53 (1975), which halted construction on the Darien Gap Highway through Panama and Colombia by the Department of Transportation and the Federal Highway Administration.

The Court in the 1975 action found that defendants had failed to comply with the procedural and substantive requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) in their preparation of an environmental impact assessment relating to the Darien Gap Highway. Defendants thereafter prepared a Final Environmental Impact Statement (FEIS) for the project and asserted their right to proceed with the project. Plaintiffs contended that the FEIS was defective in certain critical areas and argued for extension of the injunction. The Court, in a memorandum and order of September 23, 1976, concluded that "the statement is indeed so