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Administration (FHWA). The case arose under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., with the plaintiff environmental organizations claiming that the preparation and issuance of an "environmental impact assessment," circulated in draft by the FHWA and issued well after the Darien Gap project was underway, satisfied neither the procedural nor the substantive requirements of NEPA.

The Court agreed with the plaintiffs. It found three deficiencies in FHWA's compliance with NEPA requirements: (1) failure to circulate its assessment to the Environmental Protection Agency for its comments, as required by 42 U.S.C. 4332(C); (2) failure of the assessment to discuss adequately the problems of the transmission of aftosa, or "foot and mouth" disease; and (3) failure to disclose adequately possible alternatives to the route chosen for the highway, as required by 42 U.S.C. 4332(C)(iii).

Transfrontier Pollution

On October 22, 1975, the Governments of the United States and Canada formally requested the International Joint Commission, pursuant to Article IX of the Boundary Waters Treaty of 1909 (TS 548; 36 Stat. 2448; 12 Bevans 319), to examine and report upon the transboundary implications of the proposed completion and operation of the Garrison Diversion Unit in the State of North Dakota. They requested further that the Commission make recommendations to the Governments as to measures, including modifications, alterations or adjustments to the Garrison Diversion Unit, that might be taken to assist them in ensuring that the provisions of Article IV of the Boundary Waters Treaty are honored. Article IV provides in part that "boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other." The decision to refer the matter to the Commission was approved by all concerned U.S. Government agencies and by the Canadian Cabinet.

The Garrison Diversion, a large multipurpose water development project in North Dakota, was under construction by the Bureau of Reclamation. In February 1974, the U.S. Government formally assured the Canadian Government that the United States would comply with its obligation to Canada not to pollute water crossing the boundary to the injury of health or property within Canada and that no construction potentially affecting waters flowing into Canada would be undertaken unless it was clear that this obligation would be met. The reference to the Commission was the outcome of U.S.-Canadian negotiations on the

Garrison project. The Commission was asked to complete its investigation no later than October 31, 1976.

The reference to the Commission stated, in part:

the Governments of Canada and the United States of America recognize that the proposed Garrison Diversion Unit of the Pick-Sloan Missouri Basin Program in the State of North Dakota has a potential for causing pollution of waters flowing across the international boundary into Canada.

The Government of Canada has concluded, on the basis of studies conducted by the United States and Canada, including certain studies conducted by the United States in response to questions raised by Canadian officials, that the Garrison Diversion Unit, as currently envisaged, would have adverse effects on the Canadian portions of the Souris, Assiniboine and Red Rivers, and on Lake Winnipeg, which would cause injury to health and property in Canada in contravention of Article IV of the Boundary Waters Treaty of 1909.

The Government of the United States has reached no final conclusion as to whether the Garrison Diversion Unit, as presently envisaged, would be consistent with the rights of the United States and of Canada to the equitable use of waters crossing the boundary and with Article IV of the Boundary Waters Treaty. The Government of the United States notes that, at present, waters crossing the boundary have wide natural fluctuations in quality and quantity, and that the Garrison Diversion Unit, as presently envisaged, could have both beneficial and adverse impacts on the quality and quantity of these waters. The Government of the United States has assured the Government of Canada that in any development of features of the Garrison Diversion Unit that will affect Canada, specifically works in the Red River Basin and the Souris Loop, the United States will comply with its obligation to Canada not to pollute water crossing the boundary to the injury of health or property within Canada. The Government of the United States has similarly assured the Government of Canada that no construction potentially affecting waters flowing into Canada will be undertaken unless it is clear that this obligation will be met.

In light of the views of Governments as expressed above, the Governments of Canada and the United States of America have agreed, pursuant to Article IX of the Boundary Waters Treaty of 1909, to request the International Joint Commission to examine into and to report upon the transboundary implications of the proposed completion and operation of the Garrison Diversion Unit in the State of North Dakota; and to make recommendations as to such measures, including modifications, alterations or adjustments to the Garrison Diversion Unit, as might be taken to assist Governments in ensuring that the provisions of Article IV of the Boundary Waters Treaty are honored.

The Governments requested, in particular, that the Commission

examine into and report upon the present state of water quality in the Souris and Red Rivers, their tributaries and downstream waters, with particular reference to the Canadian portions thereof, which might be affected by the Garrison Diversion Unit; the present and anticipated future uses of those waters; the effects of present water quality on the uses; the nature, extent and location of anticipated impacts on the uses; the nature and extent of the impact on commercial and recreational fisheries in Manitoba of the possible introduction of foreign species of fish, fish diseases, and fish parasites; and the approximate cost of any measures recommended by the Commission.

For the full text of the reference to the Commission, see Dept. of State Press Release No. 537, Oct. 23, 1975. On Oct. 23, 1975, the Secretaries of the U.S. Section and the Canadian Section of the International Joint Commission filed a notice of public hearings at stated times and places in the United States and Canada to receive testimony and evidence relating to the questions in the reference. See Fed. Reg., Vol. 40, No. 208, Oct. 28, 1975, p. 50155.

Bilateral Agreements

U.S.-Canada

On March 26, 1975, the United States and Canada entered into an Agreement Relating to the Exchange of Information on Weather Modification Activities (TIAS 8056; 26 UST 540; entered into force March 26, 1975). The Agreement recognizes "the desirability of the development of international law relating to weather modification activities having transboundary effects" and provides for the prompt transmittal of information on such activities between the National Oceanic and Atmospheric Administration (NOAA) of the United States and the Atmospheric Environment Service of Canada, or such other agencies as the parties may designate. It calls on each party to notify and fully inform the other concerning any such activities conducted by it prior to the commencement of such activities, and to consult promptly at the request of the other party regarding particular weather modification activities of mutual interest. In extreme emergencies, such as forest fires, the prior notice requirement gives way to notification "as soon as practicable" and consultation, if requested.

The Agreement provides further that nothing therein "relates to or should be construed to affect the question of responsibility or liability for weather modification activities, or to imply the existence of any generally applicable rule of international law." It requires each party to review the Agreement annually and inform the other of its views regarding its operation "and the desirability

of its amendment to reflect the evolution of the science and technology of weather modification and of international law.”

U.S.-Japan

The United States and Japan signed an Agreement on Cooperation in the Field of Environmental Protection on August 5, 1975 (TIAS 8172; 26 UST; entered into force on August 5, 1975), to remain in force for five years and to be renewable by mutual agreement.

The Agreement provides for sponsorship of agreed cooperative projects, meetings, and visits as well as exchange of information. It established a Joint Planning and Coordination Committee to discuss major environmental policy issues, coordinate and review activities and accomplishments under the Agreement, and make recommendations to the two Governments with regard to implementation. The Committee is to meet at the ministerial level where appropriate, usually once a year.

Major project areas selected for activities under the Agreement were air pollution control, including control of emissions from mobile and stationary sources; water pollution control, including municipal and industrial waste-water treatment; marine pollution control; agricultural runoff and pesticide control; solid waste management and resource recovery; control and disposal of toxic substances; noise abatement; and studies on health, biological, and genetic effects of environmental degradation.

The two Governments agreed to take into account the recommendations of international organizations to which both are parties in formulating their respective environmental policies, and to make available to the public scientific and technological information of a nonproprietary nature arising from their cooperative activities under the Agreement.

See Dept. of State Bulletin, Vol. LXXIII, No. 1889, Sept. 8, 1975, p. 385.

Whaling

Multilateral Agreements

On January 16, 1975, President Gerald R. Ford informed Congress that, although he had been informed by the Secretary of Commerce that the Soviet Union and Japan had exceeded the International Whaling Commission quotas for minke whale catches for the 1973-1974 season, he had decided not to impose the trade sanctions authorized under the Pelly amendment (P.L. 92219; 85 Stat. 286; 22 U.S.C. 1978), approved December 23, 1971, to

the Fishermen's Protective Act of 1967. The nonmandatory quotas for whale catches referred to by the President are approved annually by the International Whaling Commission under the authority provided by the International Whaling Convention (TIAS 1849; 62 Stat. 1716; 4 Bevans 248; entered into force for the United States November 10, 1948).

The President's decision not to prohibit the importation of fish products of the offending countries under the authority of the Pelly amendment was based upon evidence of a conciliatory attitude on the part of the Soviets and the Japanese toward conservation improvements, including their vote for the 1974-1975 season quotas at the International Whaling Commission's annual meeting. The President also referred to the serious economic and political impact of trade sanctions and the desirability of seeking reasonable alternatives for achieving conservation objectives.

The President's Message to Congress on the subject reads as follows:

The Pelly amendment to the Fishermen's Protective Act of 1967, 22 U.S.C. 1978 (1971), states that when the Secretary of Commerce determines that the citizens of a foreign country conduct fishing operations which diminish the effectiveness of a conservation program of an international fishery convention to which the United States is a party, he shall so certify to the President. The President may then direct the Secretary of the Treasury to prohibit the importation of fish products of the offending country. Within sixty days of certification, the President is required to notify the Congress of any action taken by him pursuant to such certification. If the President takes no action, or if he imposes an import prohibition which does not cover all fish products of the offending country, he must inform the Congress of his reasons.

The Secretary of Commerce has certified to me that the minke whale catches of the U.S.S.R. and Japan during the 1973-1974 season exceeded the International Whaling Commission (IWC) quotas for that season. These actions diminished the effectiveness of the conservation program of the Commission.

Quotas on the number of whales to be taken each year are set at the annual meeting of the IWC. These quotas together with certain other limitations constitute an "international fishery conservation program." Objections to adopted quotas are permitted by the terms of the Convention. An objecting country is not legally bound by the quota. Whether or not the objection is legal, however, does not alter the fact that exceeding the quotas will diminish the effectiveness of the program. It constitutes a prima facie case for application of the Pelly amendment.

Last year both Japan and Russia objected to the minke and sperm whale quotas set by the IWC. In the case of the minke whale, a quota of 5,000 whales was set for the Antarctic. This

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