Environmental Engineering Reference
In-Depth Information
to the initiatives .” There was much confusion created by this ambiguous NEPA
clause and CEQ implementing regulations (see Section 2.3 for a discussion
of NEPA implementing regulations) did little to address the confusion in the
applicability of NEPA for international federal actions that affect the environ-
ment of sovereign nations. In order to add clarity to the international aspects
of NEPA, President Carter issued Executive Order 12114.* The intent of the
order was to give federal agencies, involved in international activity, guidance
for compliance with NEPA for overseas actions. The order does not address
impacts on foreign nations (primarily Mexico and Canada) from actions within
the borders of the United States (transboundary effects). CEQ has issued sepa-
rate guidance on transboundary effects (CEQ Guidance on NEPA Analyses for
Transboundary Impacts, July 1, 1997).
Executive Order 12114 did give some clarity, but it is limited, flexible, and
gives deference to the state department. Any federal agency proposing inter-
national action is required to coordinate with the state department and work
with them to determine the NEPA applicability and specific procedures to
follow for each proposed action. The limitations of the executive order and
deference to the state department are acknowledgment that international
relations and the sovereignty of a foreign nation take precedence over NEPA.
There are three general situations identified in the executive order requir-
ing a federal agency to consider NEPA in international situations. The first is
whether the action could affect the global commons outside the jurisdiction
of any nation (e.g., Mediterranean Sea, oceans, or Antarctica) or environmen-
tal resources protected by U.S. treaties or international agreements signed by
the United States. The second condition of creating NEPA jurisdiction out-
side of U.S. borders is action taken by a federal agency that could affect the
environment in a foreign nation that is not participating or involved in the
action. This second type of action would rarely, if ever, apply because except
for armed conflicts, which are exempted from NEPA (see below), U.S. federal
agencies rarely, if ever, take overt actions in other countries without their
involvement or participation.
The final condition specified in the executive order requiring application of
NEPA procedures for international activity is the most complex. If a federal
agency is providing a product, facility, infrastructure, or service to a foreign
government with their participation, then NEPA applies under some circum-
stances. If a similar action was carried out within the United States and it was
prohibited, strictly regulated by federal law, or it could create environmental
conditions posing a risk to human health, NEPA would apply to the action car-
ried out in a sovereign foreign nation. For example, if the U.S. State Department,
Agency for International Development (USAID) were proposing to plan, design,
and construct a comprehensive sewage treatment system in a developing nation
and if the effluent from the wastewater treatment process could pose a risk to
human health, USAID would be required to implement NEPA procedures.
* Executive Order No. 12114: 44 Fed. Reg. 1957, 1979.
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