April 27, 1978
Page 11801
AMENDMENT NO. 1821
(Ordered to be printed and referred to the Committee on Banking, Housing, and Urban Affairs.)
Mr. STEVENSON submitted an amendment intended to be proposed by him to the bill (S. 2520), supra.
Mr. STEVENSON. Mr. President, I am submitting today an amendment to S. 2520, a bill to amend and extend the Export-Import Bank Act of 1945. The amendment would prevent the application of the National Environmental Protection Act (NEPA) to actions of the Export-Import Bank which have no environmental impact upon the United States, until such time as Congress adopts legislation specifying the degree to which NEPA should apply to such actions.
The question of extraterritorial application of NEPA is currently tied up in bureaucratic wrangling within the administration. There are no signs that the controversy will soon be resolved or, that if resolved, the result will be a clear and workable solution which takes into proper account U.S. interests and objectives in foreign policy, trade and the environment. Indeed, draft regulations issued by the Council on Environmental Quality indicate that inter-bureaucratic bargaining would be perpetuated, not resolved, by the draft regulations CEQ has drawn up:
Affected agencies shall consult with the Council which shall assist the agency in fitting the Act's requirements to the practical considerations of operating in the international context.
The issue is not whether NEPA applies in a narrow legal sense to Eximbank, but whether fundamental choices between conflicting policy objectives should be made by closed door horse trading within the executive branch. Congress is the proper body to make public policy, and one fact is indisputable: Congress has never faced the issue squarely. Whatever lawyers and judges might ultimately determine about the extraterritorial application of NEPA, and the confusion on that point promises full employment for lawyers for many years, the indisputable fact is that unless Congress addresses itself explicitly to the conflicting imperatives involved in this issue, Congress will have abdicated its constitutional responsibility to speak plainly on fundamental policy questions.
My amendment does not take sides on the merits of the arguments advanced by the various contending parties. The amendment merely returns the controversy to Congress where it belongs. I ask my colleagues to join in accepting our congressional responsibility to grapple with this complex and difficult question.
Mr. President, I ask unanimous consent that my amendment and two documents, the first prepared by CEQ and entitled "Application of the National Environmental Policy Act (NEPA) to United States Activities Abroad," the second prepared by Mr. Charles N. Brower and entitled "The Legal Parameters of NEPA — Does the CEQ's Grasp Exceed Its Reach?" be printed in the RECORD.
There being no objection, the amendment and material were ordered to be printed in the RECORD, as follows:
At the end of the bill, add the following: (d) Section 2 of such Act is amended by adding at the end thereof the following: "(d) Except as otherwise provided by law enacted after the date of enactment of this subsection, no rule, regulation, or interpretation pursuant to the National Environmental Policy Act of 1969 applies to an activity of the Bank which does not have an environmental impact within the United States.".
APPLICATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) TO UNITED STATES ACTIVITIES ABROAD
PRELIMINARY DRAFT REGULATIONS FOR APPLICATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT TO FEDERAL ACTIVITIES ABROAD
Section 1508.13. Human Environment. "Human environment" shall be interpreted comprehensively to include the natural and physical environment and the interaction of people with that environment. The human environment is not confined to the geographical borders of the United States.
Section 1506.13. Application of NEPA to—
Significant Environmental Effects Not Confined to the United States.
(a) Agencies shall fully comply with these regulations insofar as their major Federal actions significantly affect the environment of:
(1) The United States and its trust territories.
(2) The global commons, which consists of areas outside the jurisdiction of any nation (e.g., the oceans).
(3) Antarctica.
(b) Agencies shall comply with the provisions of these regulations pertaining to foreign environmental statements (sec. 1508. —) insofar as their major Federal actions significantly affect the environment only of one or more foreign nations.
Section 1508.— Foreign Environmental Statement.
(a) "Foreign environmental statement" is the statement required by sec. 102(2) (C) of the Act when a major Federal action significantly affects the environment only of one or more foreign nations. Such statements need only contain the information called for in sections 1502.1315.
(b) In developing their implementing procedures for such statements under section 1507.3, affected agencies shall consult with the Council which shall assist the agency in fitting the Act's requirements to the practical considerations of operating in the international context. Among other things these procedures shall:
(1) Establish criteria by which the agency can determine that a foreign environmental statement or portions thereof will not be subject to public comment when such review would be inconsistent with the accomplishment of the agency's statutory objectives.
(2) Take into account special factors which would limit the review period or the required detail of the statement such as:
(i) Diplomatic considerations or the relative unavailability of information;
(ii) Whether the Federal agency role is one limited to passing on proposals developed elsewhere (as opposed to situations where the agency is involved in early planning or joint sponsorship); and
(iii) International commercial competition and confidentiality.
(3) Ensure consideration in foreign environmental statements of:
(i) Activities which are unlawful or strictly regulated in the United States in order to protect public health or safety;
(ii) Activities which threaten natural, ecological or environmental resources of global importance; and
(iii) Activities which may have inadvertent adverse effects on other foreign countries.
COUNCIL ON ENVIRONMENTAL QUALITY,
Washington, D.C.,
January 19, 1978.
MEMORANDUM TO HEADS OF AGENCIES
Subject Application of the National Environmental Policy Act to Federal Activities Abroad.
Since the January 6 meeting to discuss the application to federal agency international activities of the National Environmental Policy Act (NEPA), several comments and concerns have been expressed which indicate that further explanation might lead to a better understanding and resolution of the issue.
Incidentally, no date has been set for your comments on this specific issue although we would appreciate your earliest reasoned response. The date for comments on our proposed general regulations circulated December 13, 1977 is January 23, 1978 but on request may be extended to February 6, 1978.
WHY THIS ISSUE AT THIS TIME?
In order to make the process of preparing environmental impact statements more efficient, economical and relevant, on May 23, 1977 President Carter issued an Executive Order directing CEQ to reform NEPA procedures. In the course of its work, CEQ identified two concededly difficult and controversial issues of which the subject issue is one. Consequently, we determined it to be advisable to direct agency attention to the problem and obtain assistance and advice before proceeding to the task of drafting applicable regulations on the issue. In short, CEQ is responding to a present duty to consider regulatory reform of NEPA and all its related aspects.
REQUIREMENTS OF NEPA
Concerning this issue the operative language of NEPA is:
"The Congress ... directs that to the fullest extent possible ... all agencies of the Federal government shall ... include in ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) The environmental impact of the proposed action," etc. Section 102(2) (C) .
Therefore, the statutory mandate is to (1) all Federal agencies who undertake (2) major Federal actions which (3) significantly affect the quality of the human environment.
The Act does not define or limit the geographical region of the "human environment" the quality of which is to be considered, and it does require that "all agencies of the Federal Government shall ... recognize the worldwide and long range character of the environmental problems". Section 102(2) (F).
JUDICIAL CONSTRUCTION
The extent to which NEPA has international application has been addressed by the courts on several occasions.
In Wilderness Society v. Morton, 463 F.2d 1261 (D.C. Cir. (1972)), the Court of Appeals for the District of Columbia granted standing to Canadian environmentalists in the Trans Alaska oil pipeline case where alternative routes went through Canada. The court did so because the Canadians' interests in the environmental impact in Canada were within the zone of interest protected by NEPA.
In Sierra Club v. AEC, 4 ELR 20885 (D.D.C. 1974), AEC and Eximbank were sued to make them comply with NEPA. The AEC prepared an EIS on its overall nuclear export process, essentially settling the case, since AEC was the lead agency. The court assumed that governmental actions abroad were covered by the Act.
Sierra Club v. Coleman, 405 F. Supp. 53 (D.D.C. 1975) and 421 F. Supp. 63 (D.D.C. 1976). The Court ordered the Department of Transportation to consider the environmental impacts involved in the construction of a segment of the Pan-American Highway in Colombia and Panama, both as they affected the United States (migration of hoof and mouth disease) and as confined to Panama (effects on Indian culture).
EDF v. AID, ELR. 20121 (D.D.C. 1975) , involves a suit against AID to make it prepare an EIS on its pest management program. AID settled on terms which were approved by the Court. The settlement specifically contemplated covering local impacts within individual foreign countries.
PRIOR CEQ OPINIONS
CEQ, as the designated agency responsible for implementing agency compliance with NEPA, has been consistent in its interpretation of the Act since 1971. The most recent precedent is a September, 1978 CEQ memorandum opinion from Chairman Russell Peterson (Appendix A) advising all agencies that:
"[W ]e advise that NEPA requires analysis and disclosure in environmental statements of significant impacts of federal actions on the human environment — in the United States, and other countries, and in areas outside the jurisdiction of any country."
The proposed draft regulations the Council has prepared and submitted to you recognize there are unusual and exceptional circumstances which may be recognized in the application of NEPA to governmental agency actions in other countries.
AGENCY EXPERIENCE
Some agencies for some actions have administratively determined to conform with NEPA requirements for their activities abroad. Examples are:
The State Department's recent EIS on the Panama Canal Treaties;
The Department of Interior's and Federal Power Commission's EISs on natural gas pipelines and alternatives from Alaska across Canada to the lower 48 states;
NOAA's on its hurricane seeding program, and
AID's on its worldwide pesticide program.
Of those agencies with a history of implementing NEPA in their activities in foreign countries, the one with the greatest experience is AID. At the request of OMB, the Administrator of AID prepared an analysis of its experience (Appendix B) which concluded :
"[O]ur overall experience is a positive one. We have discovered that developing countries themselves have come increasingly to recognize the interrelated nature of environment and development and to seek to ensure that environmental considerations are adequately addressed in development projects. Further, the practical experience of AID had been that it is possible to undertake detailed environmental analyses of U.S. supported projects abroad and that the results obtained are useful to us, as well as to host country planners, in making project decisions."
AID's analysis rebutted each of four recited "potential negative impacts hypothetically associated with the conduct of environmental analyses."
1. AID has been able to undertake environmental analyses "without strain" on foreign relations.
2. Achievement of the Agency's mandate has not been impaired by the conduct of environmental analyses.
3. U.S. jobs have not been lost due to environmental analyses.
4. Costs have not been excessive.
WHAT IS PROPOSED?
Earlier, reference was made to the fact CEQ's present proposals recognize and make allowance for unusual and exceptional circumstances involved in federal agencies' activities in foreign countries. CEQ does so by limiting the applicability of the standard EIS procedure only to those major activities abroad whose significant environmental impact affect (1) the United States and its trust territories; (2) the global commons, such as the oceans; (3) Antarctica.
For all other major activities having a significant environmental impact outside the United States, the federal agency may, in consultation with CEQ, provide for abbreviated "Foreign Environment Statements" whose preparation can take into account such special factors as:
1. Diplomatic considerations.
2. Availability of information.
3. Commercial competition.
4. Commercial confidentiality.
5. Extent of agency role in the proposed activity.
U.S. STANDARDS ARE NOT BEING IMPOSED ON FOREIGN COUNTRIES
The preparation of a Foreign Environmental Statement would not impose U.S. environmental standards on any other county. Even if the federal activity abroad is unlawful in the United States, NEPA does not prevent its being undertaken abroad.
What a Foreign Environmental Statement would do is make clear that what the governmental agency proposes to do in another country is unlawful in the United States.
CONCLUSION
Our concern over the environmental effects of U.S. government actions abroad are expressed in the last section of our proposed draft. Summarized they are :
1. We want to insure that if a product is banned or strictly regulated in the United States on health grounds the U.S. agency and other officials are at least aware of this before providing the product to a foreign country.
2. We want at minimum full disclosure before an American decision maker takes an action which threatens natural resources of global importance.
3. We want to be sure that the American decision maker is aware of what he is doing if his actions, however beneficial to one country, cause a significant adverse effect in another country.
If you have any questions, please bring them to our attention. We look forward to receiving your comments.
CHARLES WARREN,
Chairman.
A LOOK BEFORE WE LEAP — APPLYING NEPA TO U.S. ACTIONS ABROAD
(Remarks by Charles Warren, Chairman, Council on Environmental Quality)
When your President, Charles Zirzow, invited me some time ago to speak to you, I thought this would be an excellent forum for me to discuss CEQ's new regulations on the National Environmental Policy Act. In large part, those regulations — and the key word there is "regulations," not "guidelines" — involve the preparation of environmental impact statements.
However, two considerations have intervened to change my mind. The first was my review of your program for this meeting. The speakers listed and the topics to be covered indicate to me that the National Association of Environmental Professionals has matured rapidly in the three years since its founding. My impression, whether accurate or not, was that at its founding, the NAEP was an organization for and of EIS writers. Though the daily work of many of you continues to involve the preparation of environmental impact statements, your program makes it clear that you are increasingly involved in broader issues of environmental policy and scientific inquiry. As examples I can mention papers to be presented to you on "Risk Assessment in Basic Research," and "Synergistic Effects of Pollutants as Carcinogens," and "World Carbon Dioxide Problems."
None of this is to minimize the importance of environmental impact statements and their careful preparation. Whatever the wider ecological concerns of citizens, scientists and politicians today, the EIS remains our basic tool for translating those concerns into practical actions. But your program does suggest that both CEQ and the NAEP have undergone a parallel evolution to arrive at the same perspective; that is, the purpose of NEPA and its EIS requirement is not to produce better pieces of paper, but wiser federal actions.
The second consideration that altered my choice of topic today was a meeting that CEQ held on January 6. Our guests were 81 officials from 30 federal agencies including, among others, the Army, the Navy, the Air Force, the Departments of Agriculture, Commerce. Interior, Justice, and State, the Nuclear Regulatory Commission, the Federal Highway Administration, the Export-Import Bank ... even the CIA showed up. Our purpose in inviting these people was to discuss a draft set of proposals requiring them to comply with NEPA in their actions overseas.
Well, there was very little discussion, but plenty of reaction. Our draft regulations were criticized on several grounds: that there is no legal justification for extending NEPA to U.S. actions abroad; that NEPA-caused delays would hold up U.S. exports and send foreign buyers elsewhere; and that our regulations would impose U.S. environmental standards on other, sovereign nations.
Columnists Evans and Novak decided that the proposed regulations would make "Uncle Sam the environmental policeman of the world." The Arizona Republic denounced CEQ for its arrogant "hunger for power".
These criticisms, if true, are important. They are practical ones. Perhaps most to the credit of our governmental colleagues, the questions they ask are those that private citizens — from board rooms to production lines — would ask: Does any agency of the U.S. government have the right to tell other countries what environmental standards to impose? Would the CEQ regulations cost sales and jobs? Do these proposals have any justification in law ... or are they, indeed, an arrogant and unfounded reach for power?
Ultimately, beyond all these issues is an even more important one for the great majority of our citizens: do the CEQ proposals make any sense? If the law is foolish, or if we are reading more into it than Congress intended, most Americans would agree that the law ought to be changed.
I would like to discuss these questions with you today. To some degree, the answers involve your own interests. Beyond your professional stake in the matter, however, I believe such an international application of NEPA not only is required by law, but it also practically and politically in the best interests of the United States.
First, let's look at what Congress said when it wrote the National Environmental Policy Act. In NEPA, Congress speaks of "national policy" and "national heritage", but its references to the environment do not imply any geographical limitation. Instead we find references to "man and his environment"; the "human environment"; the "natural environment"; the importance of . maintaining environmental quality to the overall welfare and development of man"; and the global term "biosphere". In one section of the Act, Congress directs all federal agencies to recognize "the worldwide and long range character of environmental problems.
Nowhere does the Act specify or suggest that it is only the U.S. environment whose quality is to be guarded by U.S. agencies.
This legislative language is, I concede, indicative rather than definitive. As in similar problems of interpretation the legislative history may help determine whether the law was written to be as all embracing as it appears.
The legislative history indicates that Congress indeed addressed the question of NEPA's application beyond our borders. On October 8, 1969, during floor debate on NEPA, Senator Henry Jackson inserted into the Congressional Record this summary of an earlier House-Senate colloquium on national environmental policy: "(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."
More explicitly, during oversight hearings held in 1971 — the year after NEPA was passed — the House Merchant Marine and Fisheries Committee specifically rejected the argument that NEPA should not be applied to U.S. actions within the jurisdiction of another nation. Its statement reads as follows:
"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 decision making process, and must be considered in that context."
Thus, the legislative history of NEPA supports the view that Congress did intend the Act to apply to U.S. government actions beyond our borders.
More importantly, the courts — the ultimate arbiter of what the law says and means — have addressed the international application of NEPA on several occasions:
In Wilderness Society v. Morton; the D.C. Court of Appeals ruled that Canadian environmentalists had a substantial interest in the choice of route for the Trans Alaska oil pipeline, and that this interest was protected by NEPA.
In Sierra Club v. Atomic Energy Commission, the AEC and the Export-Import Bank were sued to force their compliance with NEPA on nuclear exports. In this case, the court assumed that government actions abroad were covered by the Act.
In Environmental Defense Fund v. Agency for International Development, AID agreed to prepare an environmental impact statement on its pest management program. The court-approved settlement specifically required that the EIS cover impacts within individual foreign countries.
Finally, some agencies have already applied NEPA to some of their actions abroad. Examples include the State Department, with its recent EIS on the Panama Canal Treaties; the Interior Department and the Federal Power Commission, with EISs on theTrans Alaska natural gas pipeline through Canada; the National Oceanic and Atmospheric Administration, with an EIS on its hurricane-seeding program; and AID, on its worldwide pesticide program.
Last October, the Office of Management and Budget asked several federal agencies with foreign affairs responsibilities about their experience with NEPA on projects abroad. John J. Gilligan, Administrator of AID, replied in this way:
"(O)ur overall experience is a positive one.We have discovered that developing countries themselves have come increasingly to recognize the interrelated nature of environment and development, and to seek to ensure that environmental considerations are adequately addressed in development projects." (emphasis added)
AID, Gilligan continued, has been able "to undertake environmental analyses without strain" on foreign relations. Pertinent to the complaint that NEPA would delay imports and cost us sales, Gilligan wrote: "No project has fallen through because of environmental analyses ..."
At this point, let me summarize my argument so far. The language of NEPA strongly implies a Congressional concern with the environmental impact of U.S. projects abroad; the legislative history of NEPA is explicit on this point; the courts have ruled, in specific cases, that NEPA governs the actions of U.S. agencies abroad; and several agencies have implicitly recognized that governance by voluntarily filing EISs.
I believe, in sum, that CEQ's position on the international reach of NEPA is solidly based in U.S. law. Now let me address perhaps the most important question: Would not the application of NEPA to U.S. projects abroad violate foreign sovereignty?
In discussing this question, it is crucial to realize that NEPA imposes no environmental regulatory standards on anybody, not even on U.S. agencies. Other laws, such as the Clean Air Act do that. NEPA, by contrast, creates a process. Its emphasis is on "full disclosure" with two parts: One, it requires each federal agency to analyze the environmental impacts of its proposed actions; two, it requires the agency to publish its analysis, so that other government agencies can inspect the analysis for accuracy and thoroughness.
In the international context, NEPA would give foreign governments the same access to analytical data on a proposed U.S. action. The foreign government would make its own decision on the project, regardless of U.S. environmental standards. CEQ's proposed draft regulations require an agency to point out any activities that are "unlawful or strictly regulated" in the U.S.; however, should another nation choose to proceed with such an activity — illegal by U.S. standards — it would be perfectly free to do so.
In addition, CEQ's proposals recognize "special factors" that may limit the scope of a foreign environmental statement, the length of time for public review of it, or even whether it is made public at all. The regulations specifically provide modifications of the NEPA process to accommodate "diplomatic considerations or the relative unavailability of information ... international competition and confidentiality."
Given these "special factors" that limit the applicability of our proposed rules, is it worth applying NEPA to foreign actions at all?
The answer lies not in our regulations nor in U.S. law, but in the common experience of mankind as we have tried to shape natural systems to human convenience. Heaven knows we have succeeded. The citizens of the advanced nations lead better, healthier, longer lives than any other humans since the Garden of Eden closed; it is to our credit that we are attempting to extend the fruits of our development to other nations less fortunate in natural and human resources.
But within our borders and beyond, we have seen, again and again, the direct and indirect environmental impacts of well-intended projects create havoc with a nation's food supplies and its people's health.
In the Ryukyu Islands following World War II, a U.S. attempt to improve sanitary and dietary standards in the schools led, indirectly, to the spread of trachoma, an eye disease, among children. In untreated cases, this disease can cause blindness. Also in the Ryukyus, the U.S. introduction of piped water led to an extensive outbreak of dysentery.
In Indonesia, the farmers used an imported pesticidea chlorinated hydrocarbon similar to DDT — to control a destructive insect known as the rice borer. The highly toxic pesticide also killed fish in the rice paddies. Not only had the fish provided the farmers with a cash crop, fertilized the rice, and helped control many caterpillars of insect pests, but they had also given the farmers a vital source of protein.
In Brazil's Sao Francisco Valley, a hydroelectric project was built with financial aid from two international agencies, two U.S. agencies, and private banks in Canada, France, and the U.S. Unanticipated environmental impacts from this project forced the expenditure of more than $150 millions to resettle farmers and control floods.
In Egypt — perhaps the best known case of development gone wrong — the Aswan High Dam financed by the Soviet Union has sharply increased the incidence of a blood disease caused by a waterborne parasite. The last estimate I saw was that infection had jumped from 5 percent of farmers living along the Upper Nile to 65 percent. The disease, which is difficult and expensive to cure, is usually debilitating and sometimes fatal.
The moral is not that developing areas should be left without running water, that pesticides should be prohibited, or that dams should not be built. The moral, rather, is that the transfer of modern technologies into underdeveloped lands can trigger social and natural mechanisms that lead to trouble. Before advanced nations undertake such transfers, therefore, they should try to anticipate the unwanted, potentially damaging side effects of their actions.
Because of the relatively embryonic state of our ecological science, not even the advanced nations can always predict such side effects. But our knowledge, our experience, and our resources vastly exceed those of underdeveloped nations — and through NEPA the United States can provide access to the considerable ecological expertise it does possess.
Let me discuss a current project that has recently been questioned by Congressman Long of Maryland. I think it will buttress my argument that the international application of NEPA is in the best interest of our country as well as that of foreign nations.
On January, 1971, the government of the Philippine Islands expressed interest in purchasing a nuclear power plant. The U.S. State Department instructed our embassy in Manila to "give all possible encouragement" to the purchase.
In January, 1976, the U.S. Export-Import Bank authorized a loan of $277 million plus loan guarantees of $367 million to permit the Philippines to buy a power reactor ... the first to be located there. Under the terms of CEQ's proposed regulations, the ExIm authorization would be a "significant federal action" with a possible impact on the environment. In addition, under the requirements of the Atomic Energy Act, an export license for the reactor would have to be granted by the Nuclear Regulatory Commission ... a related "significant federal action". These and other agencies involved in the project would be required, under our draft rules, to file a joint foreign environmental statement prior to granting the loan and export license.
No such statement has been filed. If such a statement, adequate by U.S. standards, had been filed, it would have revealed the following information:
The Philippine Islands are located in an earthquake belt — one of two such belts in the world.
The Philippines are also in a volcanic belt, and have no stable salt formations; hence they cannot dispose of their own radioactive wastes, and must ship them to the United States or to some other international burial site.
The proposed site of the reactor on Luzon is about 14 miles from Mount Natib — a volcano which, based on information supplied by a U.S. consultant to the Philippine National Power Corporation, would likely be considered "active"under current NRC criteria.
In a review of alternate energy sources, the Philippine Energy Development Board computed the cost of hydropower at $1,000 per kilowatt, of geothermal at $900 per kilowatt, and coal at $800 per kilowatt, it estimates the cost of nuclear at $1,500 per kilowatt.
The Government of the Philippines has by no means been apathetic about this information. President Ferdinard Marcos has displayed a lively concern about environmental matters. In July, 1976, he established a Presidential Council for the management of forest ecosystems and, last year, an Environmental Protection Council. In August, 1976, following an earthquake in Mindanao, he asked the manufacturer of the reactor for written assurance that the plant would be earthquake-proof.
Other Philippine officials have expressed concern. Because his agency lacked the technical expertise and breadth of experience to evaluate the reactor site, the chairman of the Philippine Atomic Energy Commission asked the U.S. Nuclear Regulatory Commission for help. The NRC did its best with the information supplied it — but when asked to contribute an expert for a two week safety review of the project, an NRC official pointed out that review of a nuclear license application in the U.S. requires the equivalent of six man-years of effort.
It seems to me that the facts in this case speak for themselves; I will not comment on them. I wish, rather, to emphasize two matters:
First, had a foreign environmental statement been prepared on this export proposal, none of the information developed would prevent the government of the Philippines from buying the reactor.
It could ignore the facts and environmental impacts, and go ahead with the purchase.
Second, many developing nations do not have experts qualified to develop such information concerning complex and sophisticated technology. In the absence of rules that require U.S. agencies to provide environmental information, such governments are forced to request help from our experts — or to rely on that supplied by consultants who may have a stake in making a sale.
Health and safety issues and environmental impacts should not have to be uncovered little by little. On major governmental actions affecting the environment, we should fully and openly reveal such impacts so that another government can make its own decisions. Applying NEPA to the actions of U.S. agencies abroad is in no sense a violation of foreign sovereignty; indeed, it represents a respect for foreign sovereignty. Foreign policy considerations may warrant our supporting dubious projects abroad; at an absolute minimum, however, the underdeveloped nations to whom the bulk of our non-military assistance goes have a right to know when a project we support might get them into serious health, safety, and environmental trouble.
Most developing nations cannot duplicate our environmental expertise; we should not force them to duplicate our environmental misfortunes. Our own pragmatic self-interest dictates that, when our government engages in activities abroad, we should help other nations look before they — or we — leap.
CEQ believes that NEPA requires such a look too — not only as a matter of law, but as a matter of prudence and judgment.
Thank you.
WASHINGTON, D.C.,
February 2, 1978.
Mr. STUART EIZENSTAT,
Assistant to the President for Domestic Affairs and Policy,
The White House,
Washington, D.C.
DEAR STU: On October 11, 1972, I wrote to Russell E. Train, Chairman of the Council on Environmental Quality, regarding the need for compliance with the National Environmental Policy Act by the Agency for International Development, the Export-Import Bank and the Overseas Private Investment Corporation. Some progress was made during the previous Administration to assure compliance with NEPA by other agencies. Now, the Council has proposed regulations which contemplate the preparation of an environmental impact statement — as required by the statute — in all cases where a major federal action would significantly affect the quality of the human environment, including instances where the federal action and its impacts might occur outside the United States.
Recent press reports quote the representatives of some government agencies as stating that NEPA does not apply to actions and impacts abroad and that such application would be seen as "unwarranted intrusion" into matters subject to the "sovereign authority of other governments."
These views are based on an obvious misapprehension of the National Environmental Policy Act generally and the environmental impact statement requirements.
First, as to the coverage of NEPA: the language of the statute indicates clearly the intent of Congress that environmental impact statements are to be prepared in all situations covered by section 102(2)(C), regardless of the site of the federal action or the location of its impacts. The legislative history of NEPA is along the same lines. For example, Senator Jackson, who sponsored the legislation, said in the Senate debate just before passage:
"What is involved 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 actions which will do irreparable damage to the air, land, and water which supports life on earth."
Virtually all government agencies have now begun to apply the statute to cases where the federal activities and their impacts are located outside the United States. Agencies having international programs, such as the Departments of State and Defense and the Agency for International Development, have reflected this in their regulations, and a number of government agencies have prepared environmental impact statements on activities carried out abroad or which have impacts abroad. The few court cases that have considered the question likewise have held that NEPA applies to major federal actions and their impacts regardless of location.
This is not a question of the U.S. imposing its environmental laws and standards on other countries. Rather, the requirement of section 102(2) (C) of NEPA is for the preparation of an analysis that will illuminate the environmental consequences of a particular action before the decision is made to go ahead. The statute does not determine what decision will be made. In the case of an action to be undertaken abroad or having impacts abroad, the function of an environmental impact statement is to furnish the U.S. government agency, and other governments affected, with the best available environmental information and evaluation before decisions are made.
I hope the Administration will support vigorously the protection of the global environment through assuring that the relevant factors are brought to light and made available in the decision making process under NEPA. The Council on Environmental Quality deserves support and encouragement as it proceeds with steps to give effect to the mandate of Congress.
Sincerely,
EDMUND S. MUSKIE,
Subcommittee on Environmental Pollution.
WASHINGTON, D.C.,
February 21, 1978.
Hon. JIMMY CARTER,
The White House,
Washington, D.C.
DEAR MR. PRESIDENT: The Council on Environmental Quality (CEQ) has recently proposed draft regulations for applying the National Environmental Policy Act (NEPA) to the Federal Government's actions abroad. According to press accounts, representatives of some agencies are opposed to the Council's proposals, contending that NEPA does not apply to American actions with environmental effects located in the jurisdiction of another country. They apparently view this as "unwarranted intrusion" into matters that fall under foreign sovereignty.
As Chairman of the House Subcommittee charged with overseeing NEPA's implementation, I must strongly disagree with these agencies' interpretation of the law. It is contrary to Congress' intent. NEPA itself makes clear that Congress' concern for the environment does not end at American borders. In section 101, we recognized "the profound impacts of man's activity on the interrelations of all components of the natural environment," and in section 102, we directed. Federal agencies "to recognize the worldwide and long range character of environmental problems."
Section 102(2) (C), that portion of NEPA which requires environmental impact statements, similarly sets no national boundaries. The environmental impact statement is an analysis of the environmental consequences of a proposed Federal action. It imposes no environmental standards on anyone. When an environmental impact statement is prepared for a U.S. supported project abroad, the statement simply provides our Government with information which is appropriate to guide sound decisions.
Several Federal agencies have already prepared environmental statements on their activities abroad. The Agency for International Development has routinely prepared more than 30 environmental assessments of major development projects, and it reports that its assessment program has been welcomed by host nations.
Faced with these same questions during NEPA oversight hearings over seven years ago, my Committee emphatically rejected the State Department's assertion that NEPA's impact statement requirement should not apply to our overseas projects. Let me state once again the conclusion we reached then. "[T]he global effects of environmental decisions are inevitably a part of the decision making process and must be considered in that context."
CEQ has assured me of its willingness to work with the agencies in developing regulations that are sensitive to foreign policy and other considerations. Indeed, the Council has taken a much more flexible approach as to the mechanics of applying NEPA to effects abroad than did the previous Council under the Ford Administration. Former CEQ Chairman Petersen, in his 1976 memorandum to heads of agencies, required full preparation of EIS's on effects in individual foreign countries. Chairman Warren has shown a flexibility in devising a statement that accounts for special factors abroad. It is time for other agencies to cooperate.
I hope CEQ's efforts to see that Congress' directives are carried out receive your full support and assistance.
Sincerely,
ROBERT L.LEGGETT,
Chairman, Subcommittee on Fisheries and Wildlife, Conservation and the Environment.
QUESTIONS AND ANSWERS
GENERAL
Q. What is the status of CEQ's international NEPA regulations?
A. In January CEQ sent proposed draft regulations on the application of NEPA to U.S. agency activities abroad to all federal agencies for review and comment. CEQ has placed no deadline on agency comments and, as of April 1, 1978, most agencies had not responded. However, CEQ and the agencies principally affected are working together informally, and are making progress toward resolution of the issue.
Q. How does NEPA mandate environmental impact statements for federal activities in foreign countries?
A. NEPA requires statements for all "major federal actions significantly affecting the quality of the human environment." It does not make an exception for effects that occur abroad.
Q. Why hasn't such a mandate been recognized before?
A. It has. Since 1971 CEQ has consistently maintained that NEPA applies abroad. Many agencies believe NEPA applies in some way. Only a few have asserted that it does not. The real question is how it applies. CEQ is securing the views of all agencies on how to apply it.
Q. Can federal agencies comply with NEPA responsibilities with respect to environmental impacts that occur within a foreign country without preparing a complete EIS as the EIS is defined in CEQ's Guidelines or draft regulations?
A. This is what CEQ is aiming for. In cooperation with affected agencies CEQ is trying to devise a means of NEPA compliance regarding environmental impacts that occur within a foreign country that does not require preparation of a complete EIS.
Q. Could CEQ establish that an EIS is not necessary for U.S. activities abroad?
A. No. CEQ cannot repeal a law passed by Congress. What we can do and propose to do is devise regulations that will comply with the law but allow federal agencies enough flexibility to accomplish their statutory missions and objectives abroad.
Q. Should NEPA be amended to exclude U.S. agency activities abroad?
A. No.
Q. Why not?
A. U.S. agencies and foreign countries will benefit by being fully informed of the environmental effects of their actions. U.S. agencies have a responsibility to avoid inflicting careless or inadvertent environmental damage as a result of their activities abroad.
Q. Are there other examples of U.S. laws that apply to U.S. activities abroad?
A. Yes. One is the Civil Rights Act and related nondiscrimination laws which apply to all federal agencies and their activities, wherever they take place. Another is the Foreign Assistance Act, which specifically requires AID to consider the degree to which a foreign country has integrated women into the economy before approving a development project. The same law also requires AID to consider environmental consequences of its development projects abroad.
Q. What are CEQ's principal concerns in developing regulations regarding NEPA's application to U.S. activities abroad?
A. CEQ has three major concerns:
We want to insure that if a product is banned or strictly regulated in the United States on health grounds the U.S. agency and other officials are at least aware of this before providing the product to a foreign country.
We want a minimum full disclosure before a U.S. decision maker takes an action which threatens natural resources of global importance.
We want to be sure that the U.S. decision maker is aware of what she or he is doing if the actions, however beneficial to one country, cause a significant adverse effect in another country.
EFFECT ON U.S. EXPORTS
Q. How will NEPA affect the "average" U.S. exporter?
A. The "average" exporter will not be affected by NEPA because most exports do not require specific federal agency approvals.
Most exports financed by ExIm Bank, for example, do not involve significant environmental effects and therefore would be exempt from the environmental statement process. Where there is doubt, brief (2–3 page) environmental assessments would be prepared, and CEQ anticipates that generally no further environmental analysis would be required.
Q. Can you give more examples of exports financed by ExIm Bank that would require a foreign environmental statement?
A. Exports that significantly affect the environment where ExIm Bank finances the export are the kinds of actions for which foreign environmental statements would be prepared. Examples are a nuclear power plant, a toxic pesticide, or a petrochemical complex. Most export items financed by ExIm Bank such as sewing machines, commercial aircraft, machine tools, are likely either
to be exempt from NEPA or to require only a brief 2 or 3 page environmental assessment.
Q. How can the Export-Import Bank protect the international competitive position of U.S. exporters who get ExIm financing if ExIm prepares foreign environmental statements that discuss highly guarded details of the item to be exported?
A. Under CEQ's proposal the foreign environmental statement may be exempted from public review and comment if ExIm determines that public disclosure would compromise necessary commercial confidentiality and would thereby frustrate ExIm Bank's statutory objective to promote exports.
JUDICIAL REVIEW
Q. Won't CEQ's regulations make it possible to bring lawsuits that will cause delays and hurt the U.S. balance of trade?
A. Regardless of what CEQ does, someone can file a lawsuit claiming a NEPA violation. For example, ExIm Bank was sued in January 1977 for noncompliance with NEPA long before CEQ developed its proposal. CEQ hopes its regulations will minimize litigation and delays. The regulations would provide a practical, expeditious way of complying with NEPA.
Q. Are there any court decisions dealing with NEPA's application to U.S. activities abroad?
A. Yes. Recently the D.C. Circuit Court of Appeals held in the case of Sierra Club v. Adams that the Department of Transportation's EIS on its Darien Gap highway project in Panama was legally adequate. The Court assumed an EIS was required in such circumstances and therefore did not decide that issue. Other cases are outlined in the attached memorandum by CEQ Chairman Charles Warren to Heads of Agencies dated January 19, 1978.
TIME REQUIRED FOR PREPARATION AND AGENCY REVIEW
Q. What is the minimum delay involved in preparing a foreign EIS?
A. CEQ believes that the preparation of a foreign environmental statement will not cause delays because the statement can — and should — be prepared at the same time that the agency is making its decision on whether to approve the project.
Q. Why should a foreign EIS be reviewed by other agencies?
A. NEPA specifies that statements be reviewed by agencies with special expertise or jurisdiction by law. The idea is to give federal agency carrying out the action the benefit of the views of the federal agencies that are best informed on the subject. For instance, if an agency proposes to distribute a particularly toxic pesticide in another country, it should have the comments of Agriculture and EPA — the agencies which know most about the subject.
SPECIAL CONSIDERATIONS
Q. What if a proposed U.S. federal action is expected to deal with an emergency?
A. CEQ's NEPA regulations allow waivers for emergencies and the provisions which deal with the application of NEPA to U.S. agency activities abroad will be part of CEQ's NEPA regulations.
Q. How can a federal agency prepare a foreign environmental statement for its activity in a foreign country if environmental impact information is not available?
A. Under CEQ's proposal agencies are required to make a good faith effort to obtain information. If it is unavailable the statement should note that fact.
NATIONAL SOVEREIGNTY
Q. Does environmental analysis by U.S. agencies of their activities abroad violate a foreign country's sovereignty?
A. No. It represents a respect for foreign sovereignty. Other countries have a right to know whether U.S. activities in their countries might get them into serious health, safety, and environmental problems.
Q. When a U.S. agency prepares a foreign environmental statement on a proposed activity in a foreign country, aren't we imposing our own environmental standards and values on that country?
A. No. The agency is first informing itself of potential environmental consequences of its own actions. The foreign country can use the environmental analysis as it sees fit and both the U.S. agency and the country can decide to proceed with environmentally damaging activities if they see fit.
THE LEGAL PARAMETERS OF NEPA — DOES THE CEQ's GRASP EXCEED ITS REACH?
(By Charles N. Brower)
Since its initiation in the early 1970's, the building of the TransGabon Railroad has been seen by the Government of the Republic of Gabon as the backbone of that country's future economic development. Running over 700 kilometers across the heart of Gabon, the railroad passes through hitherto impassable rain forests, swamps and savannah, thus tying together for the first time the mineral rich areas of the interior with the coast. Its final projected cost is over $1 billion.
The TransGabon Railroad is not a project of American foreign aid. In collaboration with their former French colonial advisers, the Gabonese themselves have planned, initiated, and carried the project forward on their own initiative. They have entered into numerous individual contracts with foreign firms, and each such contract was the product of keen international competition.
Only one small part of the project was initially provided to a firm from the United States. A New York engineering firm was engaged to share with a French firm and an Italian firm the duties of providing consultative quality control services for the continuing construction of the railway.
Since provision of financing was a prerequisite to securing any part of the contract at all, the United States firm solicited and received a $4.6 million preliminary commitment from the Export-Import Bank of the United States.
Modest though the American involvement may be, it has now become the basis of an attempt to extend the procedural provisions of the United States National Environmental Policy Act into the heart of Gabon. Noting that the construction of the railroad may jeopardize the habitats of such endangered species as the gorilla, crocodile, forest buffalo and African elephant, the Natural Resources Defense Council and the National Audubon Society have alleged, in a lawsuit against the Export-Import Bank, that the Eximbank support of exports for the project constitutes a "major Federal action significantly affecting the quality of the human environment." They say that the National Environmental Policy Act requires the preparation, consideration, and circulation of a "detailed environmental impact statement" concerning the environmental cost of the TransGabon railway and its alternatives.
Several questions are presented by such an extraordinary application of United States environmental law. Was the National Environmental Policy Act ever intended to be applied in favor of the protection of foreign environments? Would such an application of NEPA amount to a practical infringement upon the sovereignty of Gabon?
Is the railway a "major Federal action" merely because it is partly financed by Eximbank credits?
Would the requirement that an environmental impact statement be issued conflict with Eximbank's primary statutory duty to provide competitive support for United States exports?
I raise these questions not only because I happen to represent a group of exporters and manufacturers associations who have intervened in the lawsuit involving the TransGabon Railroad. I raise them not because plaintiffs in that case (represented by one of the panelists here this morning, Mr. Stoel) seek declaratory and injunctive relief with respect to a few projects in Gabon, in Indonesia, in Trinidad and Tobago, and in Zaire. I raise them because I am concerned about the practical impact of granting the relief plaintiffs seek and about the attitude of the Council on Environmental Quality on similar issues. Plaintiffs seek a declaratory judgment that NEPA applies "with full force and effect to Eximbank" and an injunction requiring the Eximbank to comply with Section 102(2) (C) of NEPA by preparing "detailed environmental impact statements" with respect to the export of "all environmentally significant equipment and services." And, as we have heard this morning from the General Counsel of the Council on Environmental Quality, the CEQ has issued draft regulations concerning the extraterritorial application of NEPA which presumably would require environmental assessments of most, if not all, United States actions abroad, including Eximbank financing of United States goods and services to other countries.
These facts are most disturbing not only from a strictly legal point of view but from an economic one as well. To condition the offer of a United States export upon performance of an environmental analysis could only lead to one predictable result: that the foreign country would choose to avoid the delays, expense, and insult to its sovereignty of such gratuitous, unilateral environmental second-guessing by Uncle Sam by merely electing to take its business elsewhere.
The winner would be the foreign competitor, the loser would be the United States exporter. The application of the NEPA environmental impact statement requirement over the impact of United States exports abroad would thus be not only extraordinary legally but disastrous economically. It should be squarely rejected for at least three reasons: (1) there is a conflict between NEPA and the primary statutory mandate of the Export-Import Bank to promote United States exports; (2) the foreign projects which are the recipients of Eximbank supported exports of United States equipment and services are not "major Federal actions" within the meaning of NEPA: and (3) NEPA does not apply over even "Federal" actions where both the actions and their environmental effects are confined to the jurisdiction of a foreign sovereign state. I shall briefly discuss each of these three points this morning.
The question posed by the pending lawsuit and, to a large extent, by CEQ's draft regulations is whether the Export-Import Bank of the United States should issue environmental impact statements as a precondition to its credit support for the sale of specific items of goods and services abroad. The most immediate answer, I believe, is that such an application of NEPA would directly conflict with the primary statutory responsibility of the Eximbank, which, under the Export-Import Bank Act, is to provide "guarantees, insurance and extensions of credit at rates and on terms and conditions which are competitive with the Government-supported rates and terms and other conditions available for the financing of exports from the principal countries whose exporters compete with United States exporters." 12 U.S.C. § 635(b) (1) (A).
The preparation of an environmental impact statement or its equivalent would involve too much time, too much money, too much uncertainty, and too much plain and simple arrogance to be favorably received by foreign purchasers of American products. The requirement that such a statement be prepared would thus be in "clear and irreconcilable conflict" with the primary statutory duties of Eximbank, and, under the case law, it is therefore not required under NEPA.
Similar statutory conflicts have led the courts to preempt the requirement of an environmental impact statement in favor of the primary statutory mandates of no less than eleven federal statutes and affected agencies.
In the case of the Export-Import Bank, the conflict of statutes is clear. The Eximbank is specifically directed by statute to provide competitive terms of finance for American exports in order to maintain their parity with financial terms offered by the financial institutions of the governments of virtually all of the United States' major industrial competitors. Whenever the Congress has wished to make exception to the pure commercial criteria of Eximbank support, it has done so by express enactment. It has, for example, required the Bank to consider such factors as human rights and domestic employment effects in granting loans. But it has only done so by express enactment. Congress has made no such express provision for Eximbank to consider environmental factors, and none should be implied.
The second argument against extension of NEPA over United States exports is related to the first. Because United States exports are merely purchases of specific items of goods and equipment for use in foreign projects, these projects are not "major Federal actions" for which an environmental impact statement was ever intended to be prepared. Indeed, the CEQ's own current regulations recognize that federal presence in an otherwise private or local project will not "federalize" the entire enterprise for purposes of NEPA unless there is sufficient "Federal control and responsibility" over the project to give the United States decision maker some real authority and power.
Such Federal responsibility simply does not exist in regard to the use of United States exports, even when they are purchased with direct Eximbank support. There is a general presumption in domestic projects that federal financing or licensing may give the government effective control.
However, these same factors do not hold true in the case of licenses or finance for American exports, where the recipient of Eximbank credit, for example, has been offered and accepted such credit only as an inducement to purchase American goods or services in preference to similar goods or services offered by foreign firms. The mere fact that Eximbank financed a few million dollars in professional engineering services for the billion-dollar-plus Gabon railway, for example, does not mean that that project was "ours." The only action affecting the environment whatsoever — the decision to build the railroad — was an exclusively Gabonese decision. It should not demand a United States environmental impact statement merely because there was some Federal presence.
The final point is that the Congress never intended to export the particularly rigorous and exactly procedural requirements of NEPA environmental impact statements to regulate events taking place exclusively within the sovereign territory of a foreign country.
First, I should make clear that I am concerned only with the preparation of United States environmental impact statements for exclusively foreign actions, be they assisted by exports or otherwise. I am not now questioning whether Federal agencies should apply environmental factors when considering regional foreign aid programs or major actions which may have a significant effect on the territory of the high seas or other "global commons." Indeed, as the CEQ has pointed out, both the Agency for International Development and several other federal agencies involved in the international sphere have already adopted environmental procedures and have on occasion issued full impact statements when such projects were involved.
What I am concerned with are actions having exclusively foreign effects. To take the substantial leap into evaluating the affairs of such foreign countries would be an extraordinary measure indeed. It is an established rule of statutory construction that United States law will be applied "only to conduct occurring within, or having effect within, the territory of the United States, unless the contrary is clearly indicated by statute." Our domestic statutory requirements are simply not appropriate for application overseas, lest our misdirected good intentions be allowed to rise to the level of "unwarranted encroachment upon the sovereignty of [a foreign] state."
It is for this reason that the Fair Labor Standards Act, the National Labor Relations Act and numerous other acts of Congress have been held not to be applicable overseas even to United States citizens working for United States companies. In such cases, it has been held that the regulation of local labor conditions rests solely with the foreign sovereign state. Certainly the prerogative of deciding the appropriate level of environmental protection for its citizens should also lie exclusively with the host state, unless under the rule of statutory construction I have mentioned, Congress has clearly expressed a contrary intention.
But there is nothing in either the language or the legislative history of NEPA to counteract this strong presumption. Although the text of NEPA does make broad reference to the protection of "man's" and the "human" environment, there is equal reference throughout the statute to purposes of preserving the environment of "the Nation" on behalf of future generations of "Americans." In both cases, this broad language serves only as a declaration of environmental policy concerns and does not govern the quite specific directives and duties which were imposed by NEPA upon Federal agencies. For these specific directives, one must look to the so-called "action-forcing" provisions of NEPA. And there is only one point where the statute makes express reference to global concerns among its "action-forcing" provisions. In one subsection, NEPA directs agencies to institute general programs "designed to maximize international cooperation" on environmental matters, with the important proviso that all such measures must be "consistent with the foreign policy of the United States." It is apparent however, from every other "action-forcing" provision of the statute, that Congress did not envision the application of its environmental directives where foreign countries would be exclusively affected. While Congress certainly was concerned with protection of the international environment, it intended that such protection be achieved only through cooperative and negotiated efforts, and not through the inflexible statutory procedure for formal, detailed environmental impact statements required domestically by other provisions of NEPA.
A flexible, cooperative approach to international environmental responsibilities — not the unilateral imposition of rigid statutory procedures — has been consistently adopted by both Congress and agencies of the Federal Government since the passage of NEPA. For example, when Congress sought to provide environmental responsibilities for the Government's foreign private investment insurance company, the Overseas Private Investment Corporation, it did not rely upon the terms of NEPA but rather acted directly end expressly to insure that OPIC would consider environmental effects, but only in an informal, cooperative way.
Finally, contrary to the repeated representations of the CEQ and of CEQ Chairman Charles Warren, no court has ever ruled that environmental impact statements should be prepared for actions entirely within the jurisdiction of a foreign sovereign state. Two of the cases which the CEQ is fond of citing — the NRDC pesticide suit against AID and an earlier suit brought by the Sierra Club against several agencies involved with nuclear exports — were settled, and the courts thus never reached the issue. Although the CEQ states that the court in the Sierra Club litigation "assumed" that governmental actions abroad were covered by the Act, this interpretation is particularly peculiar in light of the fact that the programmatic impact statement by the Atomic Energy Commission which in fact settled the case expressly disavowed any application to foreign environmental impacts and limited itself only to activities and impacts in "the U.S. and [on] the high seas."
The other two cases cited by the CEQ — the Trans-Alaskan Canadian pipeline case and the Darien Gap Highway case — both involved impacts within the United States as well as without. The issue of NEPA's independent foreign reach was never before the courts. As we stated only last month by the United States Court of Appeals for the District of Columbia Circuit — the jurisdiction in which all four of these cases were decided — "We leave resolution of this important issue to another day."
I should like to conclude by noting that just as the CEQ has been somewhat cavalier in its approach to the legal authority for the unilateral extension of NEPA to cover certain Federal actions abroad, so also has it obfuscated or misunderstood the true nature and effects which its proposals will have. The imposition of unilateral United States environmental impact statements for actions in foreign countries most certainly would involve the direct application of American public procedural standards in a highly offensive manner. This is particularly true in regard to exports. The preparation of a foreign environmental impact statement would require United States agencies to gather extensive foreign environmental information, "detailed statements" concerning localized impacts, and to subject this entire process to the scrutiny and second-guessing of American public comment. Such is the very essence of the environmental impact statement process.
The paternalistic assessment of foreign environmental factors through unilateral impact statements is simply in no way a cooperative "gift" which foreign governments may be expected to welcome and encourage. Rather, the very attempt to extend American environmental values in such a manner will ultimately lead only to the rejection of American exports, with no real effect upon the improvement of the foreign environment whatsoever.