NEPA at 40: International Dimensions

• Date: 01 July 2009

39 ELR 10674 EnviRonmEntaL Law REpoRtER 7-2009

NEPA at 40:

International Dimensions

by Nicholas A. Robinson

Nicholas A. Robinson is a professor at Pace University School of Law.

Section 102 of the National Environmental Policy Act

(NEPA)1 contains a broad mandate to apply the poli-

cies of §101 on an international plane. I explored these

concepts initia lly on assignment as a member of the Legal

Advisory Committee to the Council on Environmental

Quality (CEQ ) in 1969-1971, and published the analysis in

1974,2 after that Committee wound up its business.

After several judicial decisions conrmed that NEPA’s

environmental impact assessment (EIA) provisions in

§102(2(C ) applied to actions outside the territorial United

States, the CEQ under President Ronald W. Reagan studied

and restated the international scope of federal EIA.3

While the scope of NEPA application of EIA under

§1012(2)(C ) abroad has been rearmed, most of the inter-

national scope of the rest of §102 remains to be examined.

Some quiet application of the concepts in §102 of NEPA has

made its way into law. For instance, the need for a strategic

and more pervasive analysis of transboundary environmental

trends is §102(2) (A) and (B) as well as (F) and (G). A deci-

sion to embrace a new methodology a nd tool to assist all

agencies, whether local, state, or federal or international, with

respect to the Great Lakes Basin between Canada and the

United States, has recently launched a new era of employing

these hitherto little used NEPA mandates. e 20th Annual

Report of the CEQ prepared for President George H.W.

Bush scoped out the need for tra nsnational EIA within the

Great L akes Ba sin.4 In November 2008, President George

W. Bush signed the Great Lakes Compact, which requires a

process for cumulative impact assessment every ve years for

anthropogenic impacts on the Great Lakes basinwide.

1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

2. Nicholas A. Robinson, Extraterritorial Environmental Protection Obligations of

the Foreign Aairs Agencies: e Unfullled Mandate of NEPA, 7 N.Y.U. J. I’

L.  P. 257 (1974).

3. Environmental Eects Abroad of Major Federal Actions, Exec. Order No.

12114, 3 C.F.R. 356 (1980), A. M. 45023.

4. CEQ,  A R—T G L, ch. 8 (1990).

e World Bank, the A sian Development Bank, and the

European Ba nk for Reconstruction and Development, and

other regional development bank s and institutions, have all

implemented innovations in EIA that go beyond the provi-

sions of §1012(2)(C ) and implicate other provisions of §102.

e European Union’s strategic EIA Directive also does so.

It is time for t he CEQ to revisit the rest of §102, and

elaborate guidance and reg ulations for federal agencies to

comply with and use the environmental management man-

dates in §102(A), (B), (E), (F), (G), and (H). Not only have

40 years elapsed since the CEQ’s own Legal Advisory Com-

mittee recommended that this be done, but the gathering

challenges of mitigating or adapting to the adverse impacts

of climate change make the use of all environmental assess-

ment and planning techniques a matter of urgency. e vigor

and vision within NEPA §102(2)(C ) has made NEPA’s EIA

a model for comparable laws in over 160 nations, and in

several treaties. If a comparable commitment were made to

implement the balance of §102, the CEQ would provide the

world with a pervasive and enormously eective set of tools

to combat climate change and environmental degradation.

is latent statutory mandate is needed now more than ever.