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Memo for President and Vice President from Katie McGinty-NEPA [National Environmental Policy Act]-Extraterritoriality-March 2, 1993
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Memo for President and Vice President from Katie McGinty-NEPA [National Environmental Policy Act]-Extraterritoriality-March 2, 1993
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Kathleen McGinty's Files
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FOIA Number: 2012-0769-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Council on Environmental Quality
Series/Staff Member:
Kathleen (Katie) McGinty
Subseries:
OA/ID Number:
2572
FolderID:
Folder Title:
Memo for President and Vice President from Katie McGinty - NEPA [National Environmental Policy
Act] - Extraterritoriality - March 2, 1993
Stack:
Row:
Section:
Shelf:
Position:
S
61
5
4
3
THE WHITE HOUSE
WASHINGTON
March 2, 1993
MEMORANDUM FOR THE PRESIDENT AND THE VICE PRESIDENT
FROM:
KATIE MCGINTY
SUBJECT:
EXTRATERRITORIAL APPLICATION OF NEPA IN LIGHT OF
EDF V. MASSEY
Recommended Action
I recommend a two-part strategy for addressing this issue: that
DOJ seek rehearing en banc of the recent D.C. circuit court
decision regarding the extra-territorial application of NEPA; and
that the White House issue a statement committing to a revision
of the relevant Executive Order to ensure that a process similar
to that required by NEPA be applied to all actions affecting the
global commons.
Background
From the time of NEPA's enactment in 1969 until now, no court has
held that NEPA applies to federal activities outside the U.S. In
1979, President Carter issued an Executive Order detailing
procedures federal agencies must follow in evaluating activities
abroad that may have significant environmental impacts, with
exemptions for emergencies, national security and other pressing
circumstances.
On January 29, 1993, the D.C. circuit court ruled in the case of
Environmental Defense Fund V. Massey that NEPA applies to federal
activities in Antarctica. DOJ believes that this ruling is
troubling because if the reasoning used by the Court is followed
-- that applying NEPA to extraterritorial activities does not
raise extraterritorial concerns because NEPA governs only
decision making in this country -- the consequence would be that
NEPA should be applied to all U.S. actions in foreign countries
as well as in the global commons.
In other words, the holding of the court is sufficiently narrow
to apply NEPA to federal activities in Antarctica. However, the
broader language of the reasoning of the court as described above
is problematical.
There is also a potentially volatile political issue here. When
asked, as part of the League of Conservation Voters 1992
-2-
Presidential Profiles, whether your administration would "issue
new regulations to restore the full protection from harmful
agency action for species overseas,' candidate Clinton responded,
"I support legislation to apply the National Environmental Policy
Act to federal actions overseas.
Where the Agencies Stand
Most agencies (i.e., Defense, Army, Navy, DOT, DOI, NASA, USTR
and DEA) firmly support the option of seeking rehearing en banc.
Those against appealing the decision seem to be focused on the
narrow holding rather than the broader language of the decision.
EPA adopts the narrow reading of the decision and recommends
against further review. Agriculture and Commerce believe that,
if the decision cannot be read narrowly, we should seek
rehearing. Only CEQ recommends that we acquiesce in both the
ruling and the reasoning of the court, thereby agreeing to apply
the Act in extraterritorial contexts.
Reasoning Behind Recommended Actions
1.
NEPA should not apply to actions taken in foreign countries
as well as in the global commons.
O
Judges, rather than the President, would be the arbiter
of federal agencies acting abroad.
+
judicial review, injunctions and discovery in an
international context would be as common as
domestic NEPA litigation
+
NEPA likely would be invoked by opponents of
various foreign policies, such as federal loan
guarantees for Russian agriculture or Israeli
housing
Overseas initiatives would be delayed for the 12-18
months required to prepare a draft EIS, conduct a
hearing and obtain comments, and then issue a final EIS
(unlike the Executive Order, there are no exceptions in
the Act for emergencies, foreign policy crises,
national security concerns, etc.).
An obligation to apply NEPA abroad could undermine our
ability to build coalitions with other nations for
activities important to our national security.
O
To the extent that our ability to enlist other nations
in making environmental progress on a global scale
-3-
requires us to work cooperatively and in a multilateral
context, a ruling that our law will be applied to
activities in their nations strikes exactly the wrong
note.
2.
Requesting a statement of clarification from the court that
NEPA only applies to the global commons and not to other
sovereign nations, rather than of seeking rehearing en banc,
is risky.
O
While this option focuses on the most pressing concern,
DOJ believes it has significant legal risks for federal
agencies who believe NEPA compliance would create major
foreign policy and national security concerns.
3.
Seeking to appeal the ruling in apparent contradiction to a
campaign promise will likely generate some political
reaction; however, steps can be taken to mitigate the
impact.
O
A statement from the White House should be issued
affirming support for applying NEPA to federal
activities in the global commons (but not in foreign
countries) and committing the President to revising the
Executive Order regarding NEPA to implement this
policy.
By meeting the issue head-on with support for
Antarctica and other issues, the political outrage
should be kept to a minimum.
THE WHITE HOUSE
WASHINGTON
March 15, 1993
MEMORANDUM FOR THE PRESIDENT
FROM: THE VICE PRESIDENT
SUBJECT: APPEAL OF EDF V. MASSEY
I. ACTION-FORCING EVENT:
A decision on whether to file a petition for rehearing of
the case must be made today (3-15-93).
II. BACKGROUND/ANALYSIS:
The issue is whether to petition for a rehearing in EDF V.
Massey, a recent decision by the U.S. Court of Appeals for the
District of Columbia Circuit holding that the National
Environmental Policy Act (NEPA) applies to the National Science
Foundation's proposed incineration of wastes from McMurdo Sound
research facility in Antarctica. NEPA mandates the preparation
of environmental impact statements (EIS's) for proposed major
federal actions significantly affecting the quality of the human
environment.
From its passage in 1969 until the late 1970s, the agencies
interpreted NEPA to apply to their activities in Antarctica and
in the global commons (i.e. the high seas and outer space). The
legislative history of the Act strongly supports this
construction. Moreover, the plain language of the Act encompases
the quality of the human environment, generally. There is no
language indicating that the Congress was concerned only with
environmental impacts within the United States.
In 1978, however, a dispute arose over the extraterritorial
application of NEPA to actions within the sovereign territory of
another nation. Because of the potential for interference in the
conduct of foreign policy and concerns over the potential
encroachment of another nation's sovereignty, President Carter
determined that the Act did not apply. Instead, he issued
Executive Order 12114 delineating the responsibilities of the
federal agencies in assessing the environmental impact of their
actions outside the territory of the United States. Although the
dispute leading to the issuance of the executive order did not
involve NEPA's application to the global commons and Antarctica,
the order as written also expressly covers our actions in those
geographical regions as well. The Court's holding in Massey was
a rejection of this policy, at least with respect to its
application in Antarctica.
A. VIEWS OF THE AGENCIES
1. NSF -- Argues that compliance with NEPA will interfere
with scientific research; recommends petition for re-hearing.
2. NOAA -- Complies with NEPA in activities on the high seas
and in Antarctica without interference in research; recommends
against petition for re-hearing.
3. EPA -- recommends against petition.
4. INTERIOR/AGRICULTURE -- given that the holding of the
case is applicable only to Antarctica, recommends against
petition for rehearing.
5. DEFENSE/NASA/NRC/USTR/DEA -- concerned that broader dicta
in the case will be read to extend the holding of the case beyond
Antarctica to our actions on the high seas (which could, for
example, interfere with Navy maneuvers and operations) and to our
actions within the sovereign territory of another nation. In the
latter case, interference in the conduct of foreign affairs and
risks to national security are feared if suits are brought under
NEPA challenging -- and potentially enjoining -- significant
federal actions. Harrassment suits are feared.
6. STATE -- also concerned about broader application of
dicta in the case. Agrees, however, that NEPA should apply to
our actions in Antarctica but recommends that we pursue that
objective through legislation. Also recognizes weakness of E.O.
12114 in ensuring that environmental impacts are adequately
assessed and therefore further recommends that a new E.O. be
issued.
7. JUSTICE -- in a personal communication on 3-14-93,
Attorney General Reno indicated to me that she is quite
comfortable in not asking for a rehearing of the case. (Prior to
General Reno's swearing on 3-12-93, lawyers handling the case at
Justice had recommended that a petition be filed. However, the
Acting Solicitor General in a meeting on 3-13-93 indicated that,
if there is agreement with the holding of the case -- namely,
that NEPA applies to Antarctica -- he would counsel against
filing a petition. Nevertheless, you should be aware that in
deciding not to file a petition, the dicta in the case will
remain and will no doubt be used by plaintiffs until a case
squarely addresses and resolves the question of NEPA's
application to our actions in the sovereign territory of another
country. (Such a case is now pending and our argument has been
that NEPA does not apply.)).
B. CONSIDERATIONS:
1. National Security:
The concerns raised by those agencies seeking a rehearing
are not lightly to be dismissed. In assessing the gravity of
those concerns in this instance, however, the following factors
should also be borne in mind:
a. While there is dicta in the opinion which extends beyond
the narrow holding of the case, the court expressly stated that:
"[W]e do not decide today how NEPA might apply to actions in
a case involving an actual foreign sovereign or how other U.S.
statutes might apply to Antarctica. We only hold that the alleged
failure of NSF to comply with NEPA before resuming incineration
in Antarctica does not implicate the presumption against
extraterritoriality."
b. The courts have been very sensitive to the relationship
between NEPA and national security concerns. In no instance has
NEPA been used to enjoin a federal action abroad when national
security concerns have been raised. Indeed, even with regard to
actions in the U.S. where there is no question that NEPA applies,
the Courts have held that the Act gives way in the face of
national security concerns. (Most recently, the court held in
favor of the Air Force when planes violating noise restriction
limits had to be landed in Massachussetts during the Persian Gulf
War).
C. The availability of documents under NEPA is governed by
the Freedom of Information Act. Classified information is
therefore exempt from disclosure under the Act. Moreover, the
Supreme Court has held that NEPA compliance is beyond judicial
scrutiny when information critical to the national security would
have to be revealed in trying the case.
d. As noted, for the first decade of its existence, NEPA
was understood to apply to actions on the high seas. Thus DOD's
NEPA regulations for the Office of the Secretary of Defense, the
Military Departments, the Joint Chiefs of Staff, Unified and
Specified commands, and Defense Agencies for most of the decade
clearly specified that "Environmental statements are required for
actions
conducted anywhere in the world, except when
conducted in, or partly in, areas which are in or under the
jurisdiciton of a nation other than the United States."
2. Other:
a. Your campaign statement: During the campaign, you
provided the following statement to the league of Conservation
Voter's:
"I support legislation to apply the National Environmental
Policy Act to federal actions overseas."
b. Environmental community: Thirteen major environmental
organizations have written you urging that the decision not be
appealed. This is a major priority for them; there will be
strong negative reaction to a petition for rehearing.
C. Congress: Legislation has repeatedly been introduced to
apply NEPA to all federal actions overseas -- whether occurring
in Antarctica, the global commons, or within the sovereign
territory of another nation. Appeal of this case would likely
trigger the reintroduction of that legislation. This will likely
complicate efforts to pass the Department of Environment bill
which may well be used as a vehicle. Moreover, passage of such
legislation will take from you the discretion to decide, and to
implement through a new executive order, the nature and extent of
required federal environmental assessments for actions taken
within the sovereign territory of another nation.
III. RECOMMENDATION: That the Department of Justice is directed
not to file a petition for rehearing. Further, that the
Department is instructed to distinguish this case from any
pending or future cases involving the application of NEPA to
actions anywhere outside the territory of the United States
except Antarctica. Finally, that an interagency process is
initiated to review policy with regard to the application of NEPA
to the global commons and to the sovereign territory of another
country, and that recommendations be developed in that process
regarding possible application of NEPA, or alternatively, the
development of a new executive order, in order to delineate
environmental requirements in each of these areas.
IV. DECISION
Approve
Approve as Amended
Reject
No Action