El Ambiente v. U.S.A., 99-1412

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Citation: 198 F.3d 297
• Docket Number: No. 99-1412,99-1412
• Parties: (1st Cir. 1999) MAYAGUEZANOS POR LA SALUD Y EL AMBIENTE, ET AL., Plaintiffs, Appellants, v. UNITED STATES OF AMERICA, ET AL., Defendants, Appellees. . Heard
• Decision Date: 03 November 1999

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198 F.3d 297 (1st Cir. 1999) MAYAGUEZANOS POR LA SALUD Y EL AMBIENTE, ET AL., Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA, ET AL., Defendants, Appellees. No. 99-1412. United States Court of Appeals, for the First Circuit. Heard Nov. 3, 1999.
Decided December 20, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Salvador E. Casellas, U.S. District Judge.

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Juan A. Giusti-Cordero, with whom Pedro J. Varela-Fernandez was on brief, for appellants.

Sean H. Donahue, Attorney, Environmental and Natural Resources Division, U.S. Department of Justice, with whom Janet Masters, Trial Attorney, Office of General Counsel, U.S. Department of Energy; Horst Greczmiel, Office of Environmental Law, United States Coast Guard; James F. Simon, Acting Assistant Attorney General, Environmental and Natural Resources Division, U.S. Department of Justice; Guillermo Gil, United States Attorney, Isabel Munoz Acosta, Assistant United States Attorney; Ellen Durkee, John T. Stahr, and Stephen G. Bartell, Attorneys, U.S. Department of Justice, were on brief, for appellees.

Before Lynch, Circuit Judge, Campbell, Senior Circuit Judge, and O'Toole, District Judge.^*

LYNCH, Circuit Judge.

On February 3, 1998, the Pacific Swan, a British-flag freighter carrying a cargo of vitrified high-level nuclear waste, passed through the Mona Passage, a stretch of seas between the islands of Puerto Rico and Hispaniola. It was bound for Japan, by way of the Panama Canal, from France. A day earlier, a group of fishermen and environmental organizations from western Puerto Rico, fearing an accident or maritime disaster, brought this action for an injunction to stop the shipment until the United States filed an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. After the parties filed cross-motions for summary judgment, the district court denied the claim for injunctive relief and dismissed the action. See Mayaguezanos por la Salud y el Ambiente v. United States, 38 F. Supp. 2d 168, 178 (D.P.R. 1999). We affirm on different reasoning.

I

The voyage of the Pacific Swan is part of a modern circumferential trade. Uranium from the United States is sent to Japan to fuel nuclear energy reactors. Japan

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ships the reactors' spent fuel to COGEMA, a French nuclear power company, for recycling at its La Hague plant. This process recovers a substantial portion of reusable fissionable material, which is turned into nuclear fuel (either RepU fuel, comprising uranium, or MOX fuel, comprising plutonium and uranium). It also generates high-level nuclear waste, which includes trace amounts of uranium and plutonium. The waste is vitrified¹ according to specifications that have been approved by French and Japanese governments and placed in casks that meet criteria set forth by the International Atomic Energy Agency in its Regulations for the Safe Transport of Radioactive Material. Both the waste and the fuel are returned to Japan on board specially designed ships that meet the standards of the International Maritime Organization's Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on Board Ships, IMO Resolution A 18/Res. 748, Annex (1993).² The private shippers³ choose the return route to Japan from three options: the Cape of Good Hope, Cape Horn, or the Panama Canal.

The U.S. connection to this trade occurs in two ways. First, the United States supplies the uranium to Japan under a 1988 agreement between the two countries. See Agreement for Cooperation Between the Government of the United States and the Government of Japan Concerning Peaceful Uses of Nuclear Energy, Nov. 4, 1987, H.R. Doc. No. 100-128 (1987) (entered into force July 17, 1988), available at 1988 WL 582501 at *3 ("U.S.-Japan Agreement"). Second, the transport of the nuclear waste shipments through the Mona Passage means that the ship traverses waters in which the United States has some interest, even if they are not territorial waters.

II

Because these waste-laden voyages through the Mona Passage continue, the case is not moot, which the United States appropriately concedes. See Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990). Review of entry of summary judgment is de novo; further, the issues presented are ones of law and our review is plenary. See National Foreign Trade Council v. Natsios, 181 F.3d 38, 49 (1st Cir. 1999), cert. granted, 68 U.S.L.W. 3178 (U.S. Nov. 29, 1999) (No. 99-474).

On appeal, Mayaguezanos⁴ has refined its argument to a single attack: the federal courts have jurisdiction to consider this action under NEPA and the United States's⁵ failure to regulate the passage of such nuclear waste through its Exclusive Economic Zone (EEZ) waters is a "major federal action" within the meaning of

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NEPA.⁶ Mayaguezanos argues that there is a major federal action because the United States is required to play some role in the transport of this waste under various international agreements and customary international law. This complex of interests and responsibilities, they contend, suffices to establish "major federal action" under NEPA. The United States rejoins that the shipment of waste is the "action," it is not being carried out by a federal agency but by private parties, and the facts do not meet the tests to determine if there is federal action where the primary action is carried out by private players.

Under NEPA, all U.S. agencies are required to "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment" a "detailed statement." 42 U.S.C. § 4332(2). This detailed statement, known as an EIS, must address the environmental impact of proposed actions and alternatives. NEPA § 102(2)(C) provides, in pertinent part, that

all agencies of the Federal Government shall -- . . . (C) include in every recommendation or report on proposals for legislation and other 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, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action . . . .

42 U.S.C. § 4332(2)(C). NEPA's aims are two-fold: to "place[] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action" and to "ensure[] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983) (internal quotation marks and citations omitted); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

Mayaguezanos has described the significance of a maritime accident or incident involving this waste and the government has responded that all safety precautions have been taken.⁷ Arguments about the safety of such shipments may be made to a variety of bodies, both in the United States and internationally. Before, however, U.S. courts may speak to the safety matter, they must first decide whether they have any authority to address such issues, a question that turns on whether NEPA applies at all.

The arguments seem to contain two implicit assumptions: that NEPA applies to actions outside territorial U.S. lands and

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waters⁸ and that NEPA's "major federal action" requirement would work in the same fashion in the domestic and the international contexts.⁹ We are skeptical. See, e.g., United States v. Nippon Paper Indus. Co., 109 F.3d 1, 12 n.10 (1st Cir. 1997) (Lynch, J., concurring). These are difficult problems, but because Mayaguezanos's claims fail even under the "major federal action" tests used in domestic cases, we need not inquire into the validity of these assumptions. Consequently, we turn to the domestic case law.

This circuit has not recently addressed the criteria to be used in domestic cases to determine when private activities may be deemed to be major federal actions under NEPA. In Citizens for Responsible Area Growth v. Adams, 680 F.2d 835 (1st Cir. 1982), this court held that construction of an airport hangar by private parties with private monies was not federal action for NEPA purposes and that the mere appearance of the proposed construction on a federally approved Airport Layout Plan did not create sufficient federal involvement to require an EIS. See id. at 839-40. The court acknowledged that the need for a federal license or approval could sometimes trigger NEPA, but not where the approval did not involve close scrutiny of the action or anything more than notice for safety purposes. See id. at 840.

Additional guidance comes from the definition articulated by the Council on Environmental Quality (CEQ). The regulations of the CEQ suggest that actions by non-federal actors "with effects that may be major and which are potentially subject to Federal control and responsibility" can be major federal actions. 40 C.F.R. § 1508.18. Under CEQ regulations, "actions" include "projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies." 40 C.F.R. § 1508.18(a). The "CEQ's interpretation of NEPA is entitled to substantial deference." Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).

There are two situations that generally will not constitute major federal actions under NEPA. The first situation is governmental inaction, where that failure to act is not otherwise subject to review by the courts or administrative agencies under the Administrative Procedure Act or other laws. See 40 C.F.R. § 1508.18. The second situation is mere approval by the federal government of action...