Environmental Defense Fund, Inc. v. Massey
| Citation | 300 U.S. App. D.C. 65,986 F.2d 528 |
| Decision Date | 29 January 1993 |
| Docket Number | No. 91-5278,91-5278 |
| Parties | , 300 U.S.App.D.C. 65, 61 USLW 2490, 23 Envtl. L. Rep. 20,601 ENVIRONMENTAL DEFENSE FUND, INC., a Non-Profit Corporation, Appellant, v. Walter E. MASSEY, in his Official Capacity as Director, National Science Foundation, and National Science Foundation, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia Civ. No. 91-1068.
Bruce S. Manheim, Jr., Washington, D.C., was on the brief, for the appellant.
J. Carol Williams, Atty., Dept. of Justice, with whom John A. Bryson, Washington, D.C., was on the brief, for the appellees.
Before: MIKVA, Chief Judge, WALD and EDWARDS, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
The Environmental Defense Fund ("EDF") appeals the district court's order dismissing its action seeking declaratory and injunctive relief under the National Environmental Policy Act ("NEPA"). EDF alleges that the National Science Foundation ("NSF") violated NEPA by failing to prepare an environmental impact statement ("EIS") in accordance with Section 102(2)(C) before going forward with plans to incinerate food wastes in Antarctica. The district court dismissed EDF's action for lack of subject matter jurisdiction. The court explained that while Congress utilized broad language in NEPA, the statute nevertheless did not contain "a clear expression of legislative intent through a plain statement of extraterritorial statutory effect;" consequently, the court was compelled by the recent Supreme Court decision in Equal Employment Opportunity Commission v. Arabian American Oil Co., --- U.S. ----, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) ("Aramco" ) to conclude that NEPA does not apply to NSF's decision to incinerate food wastes in Antarctica. See Environmental Defense Fund, Inc. v. Massey, 772 F.Supp. 1296, 1297 (D.D.C.1991).
We reverse the district court's decision, and hold that the presumption against the extraterritorial application of statutes described in Aramco does not apply where the conduct regulated by the statute occurs primarily, if not exclusively, in the United States, and the alleged extraterritorial effect of the statute will be felt in Antarctica--a continent without a sovereign, and an area over which the United States has a great measure of legislative control. We therefore remand to the district court for a determination of whether NSF actually failed to comply with Section 102(2)(C) of NEPA, as EDF alleges in its complaint.
As both parties readily acknowledge, Antarctica is not only a unique continent, but somewhat of an international anomaly. Antarctica is the only continent on earth which has never been, and is not now, subject to the sovereign rule of any nation. Since entry into force of the Antarctic Treaty in 1961, the United States and 39 other nations have agreed not to assert any territorial claims to the continent or to establish rights of sovereignty there. See The Antarctica Treaty, 12 U.S.T. 794 (Dec. 1, 1959). Hence, Antarctica is generally considered to be a "global common" and frequently analogized to outer space. See Beattie v. United States, 756 F.2d 91, 99 (D.C.Cir.1984).
Under the auspices of the United States Antarctica Program, NSF operates the McMurdo Station research facility in Antarctica. McMurdo Station is one of three year-round installations that the United States has established in Antarctica, and over which NSF exercises exclusive control. All of the installations serve as platforms or logistic centers for U.S. scientific research; McMurdo Station is the largest of the three, with more than 100 buildings and a summer population of approximately 1200.
Over the years, NSF has burned food wastes at McMurdo Station in an open landfill as a means of disposal. In early 1991, NSF decided to improve its environmental practices in Antarctica by halting its practice of burning food wastes in the open by October, 1991. After discovering asbestos in the landfill, however, NSF decided to cease open burning in the landfill even earlier, and to develop quickly an alternative plan for disposal of its food waste. NSF stored the waste at McMurdo Station from February, 1991 to July, 1991, but subsequently decided to resume incineration Section 102(2)(C) of NEPA requires "all federal agencies" to prepare an EIS in connection with any proposal for a "major action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The EIS requirement, along with the many other provisions in the statute, is designed to "promote efforts which will prevent or eliminate damage to the environment and biosphere." 42 U.S.C. § 4321. Following the passage of NEPA, NSF promulgated regulations applying the EIS requirement to its decisions regarding proposed actions in Antarctica. See 29 Fed.Reg. 3544, 3547 (Jan. 28, 1974) (codified at 45 C.F.R. § 640.3(e) (1977)). Since the issuance of Executive Order 12114, however, NSF has contended that proposed action affecting the environment in Antarctica is governed by the Executive Order, not NEPA. See Exec.Order 12114, 3 C.F.R. 356 (1980) [hereinafter cited as E.O. 12114].
in an "interim incinerator" until a state-of-the-art incinerator could be delivered to McMurdo Station. EDF contends that the planned incineration may produce highly toxic pollutants which could be hazardous to the environment, and that NSF failed to consider fully the consequences of its decision to resume incineration as required by the decisionmaking process established by NEPA
Executive Order 12114 declares that federal agencies are required to prepare environmental analyses for "major Federal actions significantly affecting the environment of the global commons outside the jurisdiction of any nation (e.g., the oceans or Antarctica)." E.O. 12114 § 2-3(a). According to the Executive Order, major federal actions significantly affecting the environment of foreign countries may also require environmental analyses under certain circumstances. Id. Although the procedural requirements imposed by the Executive Order are analogous to those under NEPA, the Executive Order does not provide a cause of action to a plaintiff seeking agency compliance with the EIS requirement. The Executive Order explicitly states that the requirements contained therein are "solely for the purpose of establishing internal procedures for Federal agencies ... and nothing in [the Order] shall be construed to create a cause of action." E.O. 12114 § 3-1. Thus, what is at stake in this litigation is whether a federal agency may decide to take actions significantly affecting the human environment in Antarctica without complying with NEPA and without being subject to judicial review.
As the district court correctly noted, the Supreme Court recently reaffirmed the general presumption against the extraterritorial application of statutes in Equal Employment Opportunity Commission v. Arabian American Oil Co., --- U.S. ----, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) ("Aramco" ). Extraterritoriality is essentially, and in common sense, a jurisdictional concept concerning the authority of a nation to adjudicate the rights of particular parties and to establish the norms of conduct applicable to events or persons outside its borders. More specifically, the extraterritoriality principle provides that "[r]ules of the United States statutory law, whether prescribed by federal or state authority, apply only to conduct occurring within, or having effect within, the territory of the United States." RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 38 (1965) [hereinafter RESTATEMENT (SECOND) ]; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 403, Com. (g) (1987) [hereinafter RESTATEMENT (THIRD) ]. As stated by the Supreme Court in Aramco, the primary purpose of this presumption against extraterritoriality is "to protect against the unintended clashes between our laws and those of other nations which could result in international discord." Aramco, --- U.S. at ----, 111 S.Ct. at 1230.
An early example of the application of the extraterritoriality principle is American Banana Co. v. United States Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 Similarly, in Foley Bros. v. Filardo, 336 U.S. 281, 282, 69 S.Ct. 575, 576, 93 L.Ed. 680 (1949), the Supreme Court declined to give extraterritorial effect to the Eight Hour Law, a labor statute applying to "[e]very contract made to which the United States ... is a party." The Court recognized that extraterritorial application of the statute would have "extend[ed] its coverage beyond places over which the United States has sovereignty or has some measure of legislative control," and therefore held that the intention "to regulate labor conditions, which are the primary concern of a foreign country, should not be attributed to Congress in the absence of a clearly expressed purpose." Id. at 285-286, 69 S.Ct. at 578.
(1909). In that case, the plaintiff alleged that the defendant, a U.S. corporation, had violated United States antitrust laws by inducing a foreign government to take actions within its own territory which were adverse to the plaintiff's business. The Supreme Court refused, in the absence of a clear statement of extraterritorial scope, to infer congressional intent to apply the federal statute to the conduct of a foreign government because enforcement would have interfered with the exercise of foreign sovereignty
Most recently, in Aramco, the Supreme Court held that Title VII of the 1964 Civil Rights Act does not apply extraterritorially to regulate the employment practices of United States firms that employ American citizens abroad. Aramco, --- U.S. at ----, 111 S.Ct. at 1236. In that case, the discriminatory conduct...
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