ML19310A627

Brief on Appeal Before Us Court of Appeals,Dc Circuit,From Commission 800506 Orders.Case Must Be Remanded to Examine Us Common Defense & Security Under Atomic Energy Act,Nuclear Non-Proliferation Act & Nepa.Certificate of Svc Encl

ML19310A627
Person / Time
Site:	05000574
Issue date:	06/10/1980
From:	Curtis C CENTER FOR LAW & SOCIAL POLICY, FRIENDS OF THE EARTH, National Resources Defense Council, PHILIPPINE MOVEMENT FOR ENVIRONMENTAL PROTECTION, Sierra Club
To:
References
NUDOCS 8006200569
Download: ML19310A627 (99)

Text

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UNITED STATES COURT OF APPEALS YWl2O FOR THE DISTRICT OF COLUMBIA CIRCUIT 4 No. 80-1477 NATURAL RESOURCES DEFENSE COUNCIL, INC.

PHILIPPINE MOVEMENT FOR ENVIRONMENTAL PROTECTION, UNION OF CONCERNED SCIENTISTS,

• FRIENDS OF THE EARTH, SIERRA CLUB, AND CENTER FOR DEVELOPMENT POLICY, Petitioners 5

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION, AND THE UNITED STATES OF AMERICA, Respondents.

and WESTINGHOUSE ELECTRIC CORPORATION, Respondent-Applicant for Intervention on Appeal from the Orders of the United States Nuclear Regulatory Commission BRIEF FOR PETITIONERS CLIFTON E. CURTIS GRAEME W. BUSH JAMES N. BARNES Caplin & Drysdale LEONARD C. MEEKER 1101 Seventeenth Street, N.W.

Center for Lp.w and Social Policy Washington, D.C. 20036

. 1751 N Street, N.W. -

(202) 862-5060 Washington, D.C. 20036 (202) 872-0670 .

JAMES B. DOUGHEP""I Suite 620 S. JACOB SCHERR 1346 Connecticut Avenue, N.W.

THOMAS B. STOEL,. JR. ' Washington, D.C. 20036 Natural Renources Defense Council (202) 452-9600 1725 I Street, N.W. .

Washington, D.C. 20006 ELLYN WEISS (202) 223-8210 " Sheldon, Harmon &. Weiss

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1725 I Street, N.W.

Suite 506 l Washington, D.C. 20006 June 10, 1980 (202) 833-9070 Attorneys for Petitioners '

THIS DOCUMENT CONTAINS 80062 005bq POOR QUAUTY PAGES

9 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF CO,LUMBIA CIRCUIT No. 80-1477 NATURAL RESOURCES DEFENSE COUNCIL, INC. ,

PHILIPPINE MOVEMENT FOR ENVIRONMENTAL PROTECTION, UNION OF CONCERNED SCIENTISTS, FRIENDS OF THE EARTH, SIERRA CLUB, AND CENTER FOR DEVELOPMENT POLICY, Petitioners v.

UNITED STATES NUCLEAR REGULATORY COMMISSION, AND THE UNITED STATES OF AMERICA, Respondents.

and WESTINGHOUSE ELECTRIC CORPORATION, Respondent-Applicant for Intervention CERTIFICATE REQUIRED BY RULE 8(c) OF THE GENERAL RULES OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

, The undersigned, counsel of record for Petitioners, certify

that the following listed parties have an interest in the outcome j of this case. These representations are made in order that judges

~

l of this court may evaluate possible disqualification or refusal.

Natural Resources Defense Council, Inc. -- Petitioner Philippine Movement for e --

Environment Protection -- Petitioner l

union of Concerned Scientists -- Petitioner ,

l i D t

i Friends of the Earth -- Petitioner Sierra Club -- Petitioner Center for Development Policy -- Petitioner United States Nuclear Regulatory Commission -- Respondent (A Commission ,

of which John Ahearne is ,

Chairman and Victor Gilinsky, Richard Kennedy,

' Joseph Hendrie and Peter Bradford are individual members)

United States of America -- Respondent 1

Westinghouse Electric l 1

Corporation -- Applicant for export of a reactor and certain component parts;

' Repondent - Applicant for Intervention The Republic of the Philippines -- Principal with interest in application for export of a reactor and certain component parts; not a party herein Respectfully submitted,"

. CLIFTON E. CURTIS l l

JAMES N. BARNES LEONARD C. MEEiU:at Center for Law and Social Policy 1751 N Street, N.W.

l Washington, D.C. 20036 4 (202) 872-0670 Counsel for Petitioners:

Natural Resources Defense

^ Council, Inc.- -

Philippine Movement for Environmental Protection Sierra Club Friends of the Earth Center for Oevelopment Policy t

e* ,

S. JACOB SCHERR THOMAS B. STOEL, JR.

Natural Resources Defense Council 1725 I Street, N.W.

Washington, D.C. 20006 (202) 223-8210 GRAEME W. BUSH ,

Caplin & Drysdale 1101 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 862-5060 Counsel for Petitioner Natural Resources Defense Council JAMES B. DOUGEERTY Suite 620 1356 Connecticut Avenue, N.W.

Washington, D.C. 20036 (202) 452-9600 Counsel for Petitioner Philippine Movement for Environmental Protection ELLYN WEISS Sheldon, Harmon & Weiss 1725 I Street, N.W.

Suite 506 Washington, D.C. 20006 (202) 633-9040 -

Counsel for Petitioner Union of Concerned Scientists

, Dated: June 10, 1980 Washington, D.C.

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TABLE OF CONTENTS Pace TABLE OF AUTHORITIES........................................ i STATEENT OF ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . 1 REFERENCE TO PARTIES AND RULINGS............................ 3 ,

STATUTES AND REGULATIONS INVOLVED........................... 3

SUMMARY

OF ARGUMENT......................................... 3a STATEMENT OF THE CASE....................................... 4 ARGUMENT.................................................... 25 I. THE NUCLEAR REGULATORY COMMISSION VIOLATED THE ATOMIC ENERGY ACT IN FAILING TO REVIEW AVAILABLE AND RELEVANT INFORMATION IN MAKING DETERMINATIONS THAT THE EXPORT IS NOT INIMICAL TO COMMON DEFENSE AND SECURITY AND THE HEALTH AND SAFETY OF THE j PUBLIC............................................ 25 -

A. The Atomic Energy Act Requires the NRC Independently to Examine All Health, Safety and Environmental Impacts of l

the Proposed Reactor Export Which Could Affect U.S. Common Defense and Security...... 26 B. The Atomic Energy Act Imposes a Separate Obligation on the NRC to Assess the -

Impacts of the Westinghouse Export On ,

the Health and Safety of More than 32,000 U.S. Citizens Residing Near the Proposed Reactor Site................................. 34

. C. The NRC Failed to Base Its Required " Common Defense and Security" and "Public Health

- and Safety" Determinations on an Assessment of the Available Information................. 40 l

. 1. The record of this proceeding is filled with information concerning health, safety and environmental impacts of the proposed Westinghouse reactor that the Commission wrongfully disregarded in making its required inimicality deterd nations........... .. 41

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2. The Commissien's assertions of law and policy in defense of its failure to examine available information or to request additional information needed to make the required statutory determinations are without merit........ 44 (a) Sovereignty and extraterritor-iality principles do not preclude consideration of information  !

bearing cn impacts of PNPP-1 in the Philippines.................... 44 (b) The Commission's other policy arguments do not justify its .

I refusal to comply with the Act's requirement that it examine all available information.............. 49 II. THE COMMISSION VIOLATED NEPA BY INADEQUATELY l EXAMINING THE ENVIRONMENTAL EFFECTS OF THE ISSUANCE OF THE EXPORT LICENSES................... 53 )

NEPA Applies to Federal Actions Which l A.

Affect the Quality of the Human Environment Anywhere in the World............ 55 i

1. The Statutory language.................. 55

2. The Legislative history................. ~

58

3. Post-enactment expressions of congressional intent and agency interpretations.................. 64

4. Judical support for NEPA's international reach..................... 69

3. The Commission's Failure to Consider Fully the Environmental Effects of its Licensing Determination Violated NEPA......................................... 72

- 1. The NRC's refusal to examine the effects of the export license upon the Philippines, including its 32,000 American residents, violated NEPA................ 72

2. The NRC's treatment of the environmental effects of the export license upon the global commons violated yr.PA. . . . . . . . . . . . ., . . . . . .

78 1

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TABLE OF AUTMORITIES CASES 9

Page Alaska v. Andrus, 188 U.S. App. D.C. 202, 580 F.2d 465, vacated, 439 U.S. 922 (1978). . . . . 77 American Banana Co. v. United Fruit Co.,

213 U.S. 347 (1909) . . . . . . . . . . . . . . . . 45, 75, 78 '

Andrus v. Sierra Club, 442 U.S. 347 (1979). . . . . . 66 Blackmer v. United States, 284 U.S. 421 (1932). . . . 45

- Branch v. FTC, 141 F.2d 31 (7th Cir. 1944). . . . . . 77 Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 146 U.S. App. D.C. 404, 449 F.2d 1109 (1971). . . . 53, 56 Concerned About Trident v. Rumsfield, 180 U.S. App.

D.C. 345, 555 F.2d 817 (1976) . . . . . . . . . . . 71 Environmental Defense Fund v. A.I.D.,

6 Envir. L. Rep. 20121 (D.D.C. 1975). . . . . . . . 69 Environmental Defense Fund v. Tennessee Valley Authority,, 339 F.Supp. 806 (E . D . Tenn . 19 72 ) . . . . 66 Foley Brothers v. Filardo, 336 U.S. 281 (1949). . . . 45, 75 Gemeinschaft Zum Schutz des Berliner v. Marienthal, 9 Envir. L. Rep. 20011 (D.D.C. 1979). . . . . . . . 69.

Jones v. District of Columbia Redevelopment Land Agency, 162 U.S. App. D.C. 366, 499 F.2d 502 (1974), cert. denied, 423 U.S. 937 (1975) . . . . . 77 Leasco Data Processing Eculpment Co. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972). . . . . . . . . . . . 48, 75 Minnesota v. NRC, 195 U.S. App. D.C. 254, 602 F.2d 412 (1979) . . . . . . . . . . . . . . . . . . 81 National Organization for the Reform of

- Marijuana Laws v. Department of State, 452 F.Supp. 1226 (D.D.C. 19 7 8 ) . . . . . . . . . . . . . 69, 74, 77

• Natural Resources Defense Cottncil v. NRC, 178 U.S. App. D.C. 336, 54 7 F.24-633 .(19 76) , _ _

rev'd sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978). . . . . . . . . 79, 81 5

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>er. -, . . - - . - , , , - , . - - . - , . , - . , - - , , ~ . - - . . -- v.-,.r , - - , - - , - , -

. l Paga Natural Resources Defense Council v. Berklund, U.S. App. D.C. , 609 F.2d 553 (1979) . . . . 73 Natural Resources Defense Council v. Morton, 388 F.Supp. 829 (D.D.C. 1974) . . . . . . . . . . . 77 l

l

• People of Enewetak v. Laird, 353 F.Supp. 811 l (D. Hawaii 1973) . . . . . . . . . . . . . . . . . . 69, 74 l l

People of Saipan ex rel. Guerrero v. Dept. *'

of the Interior, 356 F.Supp. 645 (D. Hawaii 1973), aff'd as modified, 502 F.2d 90 (9th i Cir. 1974), ce?t. denied, 420 U.S. 1003 (1975). . . 69, 75  :

Public Service Co. of New Hampshire v. NRC,

. 582 F.2d 77 (1st Cir. 1978) . . . . . . . . . . . . 73 l i

Republic of Mexico v. Hoffman, 324 U.S. 30 (1945) . . 48 Sciuntists' Institute for Public Information I

v. AEC, 156 U.S. App. D.C. 395, 481 F.2d 1079 (1973). . . . . . . . . . . . . . . . . . . . . . . 81  ;

i

• Sierra Club v. Adams, 188 U.S. App. D.C. 197,  ;

578 F.2d 589 (1978) . . . . . . . . . . . . . . . . 69, 70, 71, 74 Sierra Club v. AEC, 4 Envir. L. Rep. 20685 (D.D.C. 1975) . . . . . . . . . . . . . . . . . . . 69 ,

Sierra Club v. Coleman, 421 F.Supp. 63 (D.D.C.

1976) ren'd sub nom. Sierra Club v. Adams, 188 U.S. App. D.C. 197, 578 F.2d 539 (1978) . . . . 70, Sierra Club v. Coleman, 405 F. Sapp. 53 (D.D.C.

1975) . . . . . . . . . . . . . . . . . . . . . . . 70  ;

Skiriotes v. Florida, 313 U.S. 69 (1941). . . . . . . 76 S.S. Lotus (France v. Turkey) [1927 P.C.I.J.

Ser. A., No. 10 . . . . . . . . . . . . . . . . . . 45 l Steele v. Bulova Watch Co., 344 U.S. 280 (1952) . . . 45, 77 l Strycker's Bay Neighborhood Council, Inc.

. v. Karlen, U.S. , 62 L.Ed 2d 433 (1980). . . . . . . . . . . . . . . . . . . . . 78 United States v. Aluminum Co. of America, 148 F.2d 412 (2d Cir. 1945). . . . . . .,. . . . . . . . ._ . ~48, 76 l l

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Paan Uni ed States v. Birch, 470 F.2d 808 (4th Cir.

1973) . . . . . . . . . . . . . . . . . . . . . . . 76 ,

l United States v. Bowman, 260 U.S. 94 (1922) . . . . . 45, 75, 76 l United States v. General Electric Co., 82 F.Supp.

753 (D.N.J. 1949) . . . . . . . . . . . . . . . . . 76 l United States v. Kane, 461 F.Supp. 554 (E . D .N . Y .

1978), rev'd, 602 F.2d 490 (2d Cir. 1979) . . . . . 73 >

i United Staces v. Mitchell, 553 F.2d 996 (5th Cir. 1977) . . . . . . . . . . . . . . . . . . 45 j United States v.. Sisal Sales Corp., 274 U.S.  ;

268 (1927). . . . . . . . . . . . . . . . . . . . . 76 <

Vermilya - Brown Co. v. Connell, 335 U.S. 377 (1948). . . . . . . . . . . . . . . . . . . . . . . 45 Warm Springs Dam Task Force v. Gribble, 417 j U.S. 1301 (1974). . . . . . . . . . . . . . . . . . 66 Westinghouse Electric Corp. v. Hendrie, et.al.,

C.A. No. 79-2110 (D.D.C. 1979). . . . . . . . . . . 2, 18, 19, 37 Westinghouse Electric Corp. v. Vance, et al.,

C.A. No. 79-2060 (D.D.C. 1979). . . . . . . . . . . 2, 18, 19

• Wilderness Society v. Morton, 150 U.S. App. D.C.

170, 463 F.2d 1261 (1972) . . . . . . . . . . . . . 69 Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970) . . . . . 7,3 4

COMMISSION DECISIONS In the Matter of Babcock & Wilcox, 5 N.R.C.

2332 (1977) . . . . . . . . . . . . . . . . . . . . 78 STATUTES 21 U.S.C. S693. . . . . . . . . . . . . . . . . . . . 46 22 U.S.C. 5287. . . . . . . . . . . . . . . . . . . . 46 22 U.S.C. 53201 . . . . . . . . . . . . . . . . . . . 25 22 U.S.C. $3202 . . . . . . _. . . . _ . . . . . .. . . .. .

25

. 28 U.S.C. $1605 . . . . . . . . . . . . . . . . . . . ~48 28 U.S.C. 52342 . . . . . . . . . . . . . . . . . . . 24 28 U.S.C. 52344 . . . . . . . . . . . . . . . . . . . 24 (iii)

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Pvqn 42 U.S.C. 52011 . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. 52013 . . . . . . . . . . . . . . . . . . . 35 42 U.S.C. S2073 . . . . . . . . . . . . . . . . . . . 26 42 U.S.C. 52077 . . . . . . . . . . . . . . . . . . . 26, 35 42 U.S.C. S2133 . . . . . . . . . . . . . . . . . . . 5, 25, 26, 27, 35, 39 42 U.S.C. 52155 . . . . . . . . . . . . . . . . . . . 5, 19, 25, 27, 28, 36, 39, 42, 47, ,

42 U.S.C. 52156 . . . . . . . . . . . . . . . . . . . 47 -

42 U.S.C. 52239 . . . . . . . . . . . . . . . . . . . 20, 24 42 U.S.C. 54321 . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 54331 . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 54332 . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. S5841 . . . . . . . . . . . . . . . . . . . 15 50 U.S.C.A. App. S2401. . . . . . . . . . . . . . . . 46 TREATIES AND INTERNATIONAL AGREIMENTS Agreement for Cooperation Between the United States and the Philippines concerning Civil Uses of Atomic Energy, 19 U.S.T. 5389, T.I.A.S. 6522, 706 U.N.T.S.

183, signed at Washington July 13, 1968, entered into force July 19, 1968. . . . . . . . . . . . . . 6 l

LEGISLATIVE HISTORY I

Reports, Hearings and Debates S. Rep. No. 1699, 83rd Cong., 2d Sess. (1954). . . . . 3p S. Rep. No. 1325, 88th Cong., 2d Sess. (1964). . . . . 36 H.R. Rep. No. 378, 91st Cong., 1st Sess. (1969),

reprinted in 1969 U.S. Code Cong. and Admin.

News 2751 . . . . ................. 60 H.R. Rep. No. 765, 91st Cong., 1st Sess. (1969). . . . 63, 64 S. Rep. No. 296, 91st Cong. ,1st Sess. (1969). . . . . 62, 63 H.R. Rep. No. 316, 92d Cong., 1st Sess. (1971) . . . . 65 H.R. Rep. No.95-587, 95th Cong., 1st Sess.

(1977); C.R.S. Leg. Hist. of the NNPA at 414

- et seq. (1978). . ................. 29 S. Rep. No.95-467, 95th Cong., 1st Sess. (1977);

- C.R.S. Leg. Hist. of the NNPA at 457 et sg .

(1978). . . . . . ................. 50 (iv)

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Pnga Environmental Quality: Hearings on H.R. 6750 et al. Before the Subcommittee on Fisheries and Wildlife Conservation of The House Committee on Merchant Marine and Fisheries, 91st Cong., 1st Sess. (1969). . . . . . . . . . . . 59 Hearings on S.1075, S.237 and S.1752 Before the Senate Committee on Interior and Insular 61 Affairs, 91st Cong., 1st Sess. (1969) . . . . . . .

Administration of the National Environmental Policy Act: Hearings Before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and 64, 65 Fisheries, 91st Cong., 2d Sess. (1970). . . . . . .

Export-Import Bank Amendments of 1978: Hearings Before the Subcommittee on Resources Protection of the Senate Committee on Environment and Public Works, 95th Cong., 2d Sess. (1978) . . . . . 66 115 Cong. Rec. 29067 (1969) (Congressional White Paper on a National Policy for the Environment) . . 58 115 CorJ. Rec. H. 8260-79 (daily ed. Sept. 23, 1969) (remarks of Congressmen Murphy, Dingell, Mailliard, Rogers, Minshall, Downing, Daddario, Cohelan and Leggett) . . . . . . . . . . . . . . . . 61 115 Cong. Rec. S. 7815-19 (daily ed., July 10, 1969) (remarks of Senator Jackson). . . . . . . . . 62 124 Cong. Rec. S. 1055-1102 (daily ed., February 2, 1978) (remarks by Sen. Wallop); C.R.S. Leg.

Hist. of the NNPA at 803 (1978) . . . . . . . . . . 29 124 Cong. Rec.-S. 1429-68 (daily ed. February 7,1978) ,

(remarks by Sen. Percy) ; C.R.S. Leg. Hist. of the .

NNPA at 745 (1978). . . . . . . . . . . . . . . . . 27 124 Cong. Rec. S. 1310-42 (daily ed. February 7, 1978) (remarks by Senator Glenn; letter from J.S. Nye); C.R.S. Leg. Hist. of the NNPA at

. 634 et seg. (1978). . . . . . . . . . . . . . . . . 28 H.R. 12549, 91st Cong., 1st Sess. (1969). . . . . . . 58, 59 S. 1075, 91st Cong., 1st Sess. (1969) . . . . . . . . 61 S. 3077, 95th Cong., 2d Sess. (1978). . . . . . . . . 65 EXECUTIVE ORDERS Exec. Order Fo. 11991, 3 C.F.R. 5123 (1978) . . . . . 66 Exec. Order No. 12114, 44 Fed. Rege 1957 (1979) .. . ,28, 79 (v)

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REGULATIONS 10 C.F.R. 5110.43 and Appendix 3 (1980) . . . . . . . 47 10 C.F.R. 5110. 44 (a) (1) (1979). . . . . . . . . . . . 25, 27 10 C.F.R. 5110.84 (1979). . . . . . . . . . . . . . . 19, 20 10 C.F.R. Ch. 1, Pts. 51, 100 (1980). . . . . . . . . 40 40 C.F.R. 51501. 4 (e) (1979) . . . . . . . . . . . . . 79 40 C.F.R. 51500.8 (1974). . . . . . . . . . . . . . . 67 OTHER SOURCES Declaration of the United Nations Conference on the Human Environment, Principle 21 (1972). . . . . 78 Restatement (Second) of the Foreign Relations Law of the United States S38 (1965) . . . . . . . . 44, 75 Frank, The Foreign Reach of NEPA, ALI-A3A -

Course of Study, Int'l and Trade Aspects of Env'l Law (R. Stein, ed. 1974). . . . . . . . . . . 68 Gaines, "Invironmental Effects Abroad of Major Federal Actions": An Executive Order Ordains a National Policy, 3 Harv. Enyt'l L. Rev. 136 (1979). . . . . . . . . . . . . . . . . . . . . . . 79 Robinson, Extraterritorial Environmental Protection Obligations of Foreign Affairs )

Agencies: The Unfulfilled Mandate of NEPA, 7 Int'l L. and Politics 257 (1974). . . . . . . . . 68 Strausberg, The National Environmental Poliev ,'

Act and the Agenev for International Development, 7 Int'l Law 46 (1973). . . . . . . . . 68 Tarlock, The Application of the National Environmental Policy Act of 1969 to the Darien Gap Highway Pro 3ect, 7 N.Y.U. J. of

. Int'l L. and Policy 459 (1975). . . . . . . . . . . 68 4

Yost, American Governmental Responsibility for

, the Environmental Effects of Actions Abroad, 43 Alb. L. Rev. 528 (1979). . . . . . . . . .. . . 67, 68 ote, Executive Order on Extrat- ritorial l Enviromental Impacts, 13 J. ine'l L. and Econ. 455 (1979). . . . . . . . . . . . . . . . . . 79

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Paga Note, The Extraterritorial Scope of NEPA's Environmental Impact Statement Requirement, 74 Mich. L. Rev. 349 (1975) . . . . . . . . . . . . 38 The Lac Lamoux, 12 U.N.R. I. A. A. 281 (1957),

53 Am. J. Int'l L. 156 (1959) . . . . . . . . . . . 78 Trail Smelter Arbitration, 3 U.N.R.I.A.A.

1938 (1941), 35 Am. J. Int'l L. 684 (1941). . . . . 78 .

Comment, Controlling The Environmental Hazards of International Development, 5 Envir. L. Q. 321 (1976). . . . . . . . . . . . . . . . . . . . . . . 68 Comment, Renewed Controversy over the International Reach of NEPA, 7 Envir. L.

Rep. 10205 (1977) . . . . . . . . . . . . . . . . . 68 Comment, Forthcoming CEO Regulations to Determine Whether NEPA Applies to Environmental Impacts Limited to Foreign Countries, 8 Envir.

L. Rep. 10111 (1978). . . . . . . . . . . . . . . . 68 Comment, President Orders Environmental Review of International Actions, 9 Envir. L. Rep.

10011 (1979). . . . . . . . . . . . . . . . . . . . 68, 79 Comment, Public Interest Litigation and United States Foreign Policy, 18 Harv. Int'l L.J. 375 (1977). . . . . . . . . . . . . . . . . . . . . . . 76 Comment, Federal Agency Responsibility to' Assess Extraterritorial Environmental Impacts, ,

14 Tex. Int'l L.J. 425 (1979) . . . . . . . . . . . 7%

Comment, The International Application of the National Environmental Policy Act of 1969:

A New S trategv, 1979 Wash. U.L.Q. (1979). . . . . . 79 e

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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 80-1477 NATURAL RESOURCES DEFENSE COUNCIL, INC.,

PHILIPPINE MOVEMENT FOR ENVIRONMENTAL PROTECTION, UNION OF CONCERNED SCIENTISTS, FRIENDS OF THE EARTH, SIERRA CLUB, AND CENTER FOR DEVELOPMENT POLICY, Petitioners, v.

UNITED STATES NUCLEAR REGULATORY COMMISSION, AND THE UNITED STATES OF AMERICA, Respondents, and WESTINGHOUSE ELECTRIC CORPORATION, Respondent-Applicant for Intervention On Appeal from the Orders of the United States Nuclear Regulatory Commission BRIEF FOR PETITIONERS

- 1 STATEMENT OF ISSUES PRESENTED FOR REVIEW l

1. Whether the Commission violated the Atomic Energy Act by:

(a) refusing to consider whether the impacts of a pro-  !

i posed nuclear reactor on the Philippines, on two U.S. military installations located near the reactor site, and on 32,000 American citizens l residing near those bases could affect the " common  !

defense and security of the Nnited Stated";

(b) refusing to consider whether the impacts of the

, proposed reactor on 32,000 American citizens e

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rociding in tha environs of the ronctor sito could affect the " health and safety of the public"; and (c) disregarding relevanc information submitted by the executive branch, the NRC staff, the Petitioners and others which indicates that the many unresolved health, safety and environmental risks associated with the proposed reactor could sub-stantially jeopardize both U.S.'" common defense and security" and "public health and safety" interests; and

2. Whether the Commission violated the requirements of the

. National Environmental Policy Act by licensing the export of a nuclear reactor to the Philippines (a) without fully examining and censidering the environmental implications of the proposed export on the Philippines, including the 32,000 American citizens residing therein, and on U.S. territories and the global commons; and (b) without preparing an environmental impact state'-

ment which addresses "to the fullest extent pos-sible" the entire range of environmental implica-tions crior to determining whether the export should be authorized.

. This case has not previously been before this Court or any other court. In August, 1979, however, Westinghouse filed two related district court lawsuits seeking to compel action by the Department of State and the. Commission on the licens_e appli- ,

-cations which were the suoject of the May 6, 1980 Orders.

Westinghouse v. Hendrie, et al. C.A. No. 79-2060 (D.D.C., 1979);

b

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and Wastinghousa v. Vanca, et al., C.A. No. 79-2110 (D.D.C.,

1979). The court dismissed the Hendrie lawsuit with prejudice, and dismissed the Vance lawsuit without prejudice (Memoranda Opinion and Orders August 31, 1979). A Notice of Appeal was filed with this Court in both the Hendrie and the Vance lawsuits (Nos. 79-2069 and 70-2070, respectively), September 10, 1979 by Westinghouse. Both appeals were subsequently withdrawn.

REFERENCE TO PARTIES AND RULINGS The petition for review concerns the Memoranda and Orders and acccompanying opinions of the Commissioners (the ,

i

" Orders") issued by the Commission on May 6, 1980, In the Matter l I

of Westinghouse Electric Corcoration (Excort to the Philippines),

CLI-80-14 and CLI-80-15 (May 6, 1980). The Orders are set forth in the Joint Appendix at 1-4.M The Petitioners on this appeal are: Natural Resources Defense Council, Inc., Philippine Movement for Environmental.

Protection, Union of Concerned Scientists, Friends of the Earth, Sierra Club, and Center for Development Policy. The Respondents are: the Nuclear Regulatory Commission and the United States of Anerica. Westinghouse Electric Corporation has filed a motion for leave to intervene in support of the Respondents.

STATUTES AND REGULATIONS Pertinent statutes and regulations'are set forth in the Addendum to this brief. .

l l

1/ Pages in the Joint Appendin are hereinafter cited as "J.A. . "; citations to the Commission's Administfative Record "

are hereinafter cited as "NRC A/R Vol. , Doc.

. Several documents within the commission's files that are c:.ted in Petitioners brief are not included in the NRC's A/R. Counsel for Petitioners have discussed this matter with Counsel for Respondent NRC, with a view towards ,

having the record supplemented to include those documents.

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SUMMARY

OF ARGUMENT The Atomic Energy Act imposes an affirmative obligatio.n on the . Nuclear Regulator; Commission to determine that the nuclear exports which it authorizes will not be inimical to either the " common defense and security" of the United States or the " health and safety of the public." 42 U.S.C. 52133(d)(1954). ,

The Act further directs the NRC to base these required statutory determinations on a judgment of the "information available to the Federal Government, including the Commission." 42 U.S.C.

52155(a)(2)(1978).

As the legislative history f the Nuclear Non-Proliferation Act makes clear, these statutory requirements were designed to vest the NRC with a non-discretionary legal duty to provide an independent check on the export licensing recommenda-tions of the executive branch. of all the agencies of the federal government, the Commission alone possesses both the statu-tory obligation and the technical expertise to ensure " effective controls" on U.S . exports of nuclear technology. 42 U.S.C.

53202(d)(1978).

In the proceeding below, the Commission was faced with the most hazardous nuclear export that it has ever been requested to license. Information made available to the NRC by the executive branch, the Petitioners, the Philippine government, and the Commission's own staff indicated that the many unresolved health, safety and environmental issues associated with the proposed Westinghouse reactor cast substantial doubt on the compatability of this export with U. S . national defense and public safety interests. A major operational failure at the proposed facility would directly threaten the lives of thousands of U.S. citizens t

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who reside nearby. Such an operational failure would concomi-tantly jeopardize the United States common defense and security interests, both as a general matter, and specifically in relation ,

to the two U . S . military bases located ir the environs of the site.

The presence of such extraordinary hazards should have compelled a vigilant NRC licensing review in the Westinghouse pro-ceeding. Instead, the Commission conducted an illegally truncated review that totally disregarded available information concerning the Westinghouss reactor's substantial risks to both the comnon defense and security and the public health and safety of the United States. Ignoring the invitation of the Department of State to review all of the reactor's foreign health, safety and environmental impacts, the NRC refused even to evaluate the factual bases of the executive branch's licensing recommendations.

The Commission has asserted no valid justification for its failure in the proceeding below to conduct a thorough review comporting with the standards of the Atomic Energy Act. The Act j i

requires a conscientious NRC assessment of the available informa- l tion relating to any of an export's health, safety and environ-mental impacts which could substantially jeopardize either the common defense and security or the public health and safety. The  ;

Commission's refusal to perform such an assessment in the pro-ceeding below requires reversal of its May 6 license authoriza-tions.

The Commission also violated the National Environmental Policy Act. NEPA requires that -- "to the fullest extent possible" -- the Commission give good faith consideration to the r

forseeable' environmental implications of decisions such as those .

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at iscua hOro. 42 U.S.C. 54332(2). The statute, its legislative history, post-enactment expressions of congressional intent ,

agency interpretations, scholarly writings and judicial decisions interpreting the Act each show unmistakeably that the Commission must prepare an environmental impact statement which addresses "to the fullest extent possible" the entire range of environ-mental implications of the proposed export prior to determining whether the esport should be licensed.

NEPA does not respect geopolitical boundaries; nothing in the Act prevents review of environmental impacts which occur outside U.S. borders. As part of its domestic responsibilities under NEPA, the Commission must evaluate the worldwide environ-mental impacts of its actions. In this case, the Commission failed to examine fully and consider ia an environmental impact statement the environmental implications of the proposed reactor export on the Philippines, including the 32,000 Americans resid-ing therein, and upon U.S. territories and the global commons.

The Commission's reliance in part on the doctrines of extraterritoriality and sovereignty as a basis for refusing to examine any environmental effects other than those occurring

. within the U.S. or upon the global commons is misplaced. The Commission's NEPA responsibilities in this case involve domestic action, i.e., the internal domestic documentation and considera-tion of environmental effects, regardless of where they may occur.

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STATEMENT OF THE CASE This case arises out of proceedings before the Commission concerning applications XR-120 and XCOM-0013 (Docket No. 110-00495) filed by the Westinghouse Electric Corporation for the export of a nuclear reactor to the Philippines, for installa-tion in the Philippines Nuclear Power Plant-1 ("PNFP-1"). '

Petitioners participated in the public proceeding ordered by the Commission regarding the Westinghouse export license applications,M submitting their views that the Commission was obligated by law to consider fully the health, safety, and environmental risks posed by the PNPP-1 reactor, particularly those threatening the well-being of over 32,000 Americans and hundreds of thousands of Filipinos, living nearby. In its Memoranda and Orders of May 6, 1980 (J.A. 1-4), the Commission rejected Petitioners' views, adopting the position -- in violation of the requirements Atomic Energy Act, the Nuclear Non-Proliferation Act and the National Environmental Policy Act --

that as a matter of law and policy it would consider only '!those health, safety and environmental impacts arising from exports of nuclear reactors that affect the territory of the United States or

. the global commons." J.A. 3. Based on a cursory examination of

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those impacts, the Commission granted Westinghouse the requested licenses. J. A.1 A. THE RESPONSIBILITIES OF TEE NUCLEAR REGULATORY COMMISSION CONCERNING TEE CONTROL OF NUCLEAR EXPORTS l The enactment of the Atomic Energy Act (the "Act") in 1954 opened the way to civilian app 1Tcations of nuclear energy.

y Crder, 44 Fed. Reg. 61475-6 (Oct. 25, 1979), J.A. 64-69; order, 45 Fed Reg.10099 (February 14, 1980), J.A. 70-71.

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Implcmanting Prcsident Eisenhowar's " Atoms for Peaco" proposal, the Act authorized cooperation by the United States with foreign nations in the peaceful uses of atomic energy. .

The Congress recognized the dangers posed by the development of nuclear power, such as the risk that accidents at civilian nuclear facilities might release radioactive materials dangerous to human health and the environment. The Act estab-lished a regulatory scheme to protect the health and safety of the public and the common defense and security. Under Section 103 of the Atomic Energy Act, as amended, 42 U.S.C. $2133, the Commission has a statutory obligation to rule upon the appropriateness of licenses for the export of nuclear reactors to foreign nations.

Before issuing a license, the Commission must determine that the export would not pose an unreasonable risk to the " common defense and security or to the health and safety of the public." 42 U.S.C. 52133(d) Following the receipt of views from the Executive Branch, Commission must make these determinations " based on a reasonable judgment of the assurances provided and other informa-tion available to the Federal Government, including the Commission" Section 126 of the Atomic Energy Act, as amended by the Nuclear Non-Proliferation Act of 1978, Section 304, 42 U.S.C. 52155.

The Commission has an independent, complimentary statu-tory obligation under the National Environmental Policy Act of 1969, 42 U.S.C. 14321 ej seq., ("NEPA"), to consider the health, safety and environmental impacts of proposed nuclear reactor exports. Under Section 102(2)(C) of NEPA, 42 U.S.C. 54332(2)(C),

4 the Commission is required "to the -fullest extent possible" to prepare and consider an environmental impact statement en its major actions significantly affecting the environment, such as i

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licensing tha.cxport of a nuclear rocctor. In addition to comply-ing with NEPA, the preparation of an environmental document assures that the Commission will havt b'efore it information bear-ing upon the statutory determinations it is required to make under the Atomic Energy Act.

B. STATEMENT OF THE FACTS ,

The United States Government has been deeply involved in the PNPP-1 project for over a decade. The U.S. Government pro-moted and financed the project, and it will be providing f".el for t

the nuclear power plant and perhaps a repository for the radio-active wastes gener.ated there. During the last three years, serious questions have been raised as to the health, safety, and environmentsi risks posed by the plant. These include the inade-quacy of the PNPP-1 reactor design, the severe volcanic and seismic hazards at the site, the problem of radioactive waste dis-posal, the capability of the Philippine Atomic Energy Commission

("PAEC") to assure the safety of the PNPP-1, and the lack of public participation in the Philippines. The Petitioners; the State Department, and other participants in the export licensing proceeding provided extensive information to the Commission on

. these questions, in addition to documentation obtained by the

' Commission staff.

1 In 1$68,~an Agreement for Cooperation Between the United States and the Philippines concerning Civil Uses of Atomic Energy was negotiated,M establishing the general framework'for the sale 1

to the Philippines of nuclear equipment and materials for research

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J/. 19 UST 5389, TIAS 6522, 706 UNTS 183, signed at Washington July 13, 1968, entered into force July 19, 1968.

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arl powar cpplications. Undar Article IIIA of the Agrcement, such exports are subject to the applicable laws, regulations and licensing requirements of the United States.

In January 1971, the Department of State instructed the U.S. Embassy in Manila to "give all possible encouragement" to the Philippine Government concerning the purchase of a nuclear '

power plant from the United States.M On March 23, 1974, the Philippine Government requested a preliminary financing commit-ment for a nuclear power plant from the Export-Import Bank of the l l

Unted States ("ExIm Bank") . On June 17, 1974, Westinghouse and i l

the Philippine Government-owned National Power Corporation signed a letter of commitment for the project. In Septe@er 1974, U.S.

Ambassador Sullivan in Manila explained to a Westinghouse ,

l official that: l the Embassy considered a great deal of American prestige riding on Westinghouse performance, and that therefore we intended to follow the project closely. I pointed out that this was in effect the Filipino Aswan Dam, being the largest and most expensive construction ever undertaken in this country.y

[

In January 1976, the ExIm Bank authorized a loan to the Filipino National Power Corporation for S277.2 million, plus loan

. guarantees of S367.2 million, for the purchase of the plant from Westinghouse and of the fuel for the initial reactor core.F on e

y

• Cable from the Departs :nt of State, dated February 8, 1971, "Meralco's Expansion Program," to U.S. Embassy Manila.

2f Cable from U.S. Embassy Manila (11505), dated September 25, 1974, to Department of State.

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y The Philippines has a contract with the Department of Energy for the enrichment of uranium for use as fuel in the PNPP-1.

See Cable for Department of State (276366), dated November 21, 1T75, to U.S. Embassy Manila.

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Fchrucry 9, 1976, National Powar Corporation contrcctsd with Westinghouse to build the nuclear power plant. In April 1976, work began on the preparation of the PNPP-1 site at Napot Point in Bataan Province, 45 miles west of Manila. Two U. S . military installations are located nearby. Subic Bay Naval Base, 12 miles away, has a permanent population of some 12,400 U.S. citizens; and  ;

Clark Air Force Base, 42 miles away, has some 18,000 U.S.

citizens.

In September 1976, Dr. Ibe, then head of the Philippine

, Atomic Energy Commission (PAEC), asked the NRC to undertake a review of the Preliminary Site Investigation Report ("PSIR") which had been prepared for the National Power Corporation by EBASCO, an American engineering firm. It was noted by the U.S. Embacsy in Manila that the PAEC did not have the " depth of technical exper-tise nor breadth of experience" to evaluate the PSIR.M The NRC staff review in March 1977 of the PSIR first revealed a number of serious problems with the reactor and the site.

1. The Safety of the Reactor Design ,

The NRC staff expressed concerns about the ofienta-

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tien of the reactor turbine and the possibility that missiles fly-ing from a damaged turbine would damage critical nuclear safety systems.M The question of the safety of the design of the PNPP-1 and other Westinghouse reactors sold only in developing countries

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y

• Cable from U. S . Embassy Manila (l3472), dated September 2, 1974, to Department of State.

y Memorandum from Richard Vollmer, Assistant Director for Site

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Analysis, Division of Site Safety and' Environment'al Analysis, dated March 8, 1977, to F.J. Maraglia. The Philippines has fully adopted U.S. nuclear safety standards. Department of State, Concise Environmental Review: PNPP-1, at 21 (September 28, 1979); NRC A/R Vol . 8, Doc . 1.

i l

was raiccd cleo by en International Atomic Enargy Agency ("IAEA")

nuclear safety expert in April 1977.II The i'NPP-1 reactor is based upon an old 2-loop plant, the design of which has never undergone rigorous regulatory review by the Commission.2/ There is no reference plant for the PNPP-1 in the United States; no similar-sized plant under construction w ich would meet U.S. stan-dards and could be licensed today.3f Responding to the Three Mile Island nuclear reactor accident, President Marcos ordered an ' ediate suspension of construction of the PNPP-1 on June 15, 1979 and appointed a special Commission to inquire into the - safety of the' plant.M The so-c.alled Puno Commission issued its report on November 16, j 1979, which stated that the PNPP-1 "as designed is not safe" and is based "on an old design-plagued with unresolved safety

-1/ Rosen, "The Critical Issue of Nuclear Power Plant Safety In Developing Countries," IAEA Bulletin (April 1977). The PNPP-1 is referenced to a reactor under construction since 1974 in Yugoslavia, which was based upon an earlier plant still under construction in Brazil? The Brazil design is referenced to a plant in Puerto Rico, which was never built nor licensed by the Commission. The Commission review of

. this plant was never completed, terminating in 1972.

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M ., at 12.

3) In its Concise Environmental Review, the Department of State does not name a reference plant for PNPP-1,-but asserts that it is an updated version of three U.S. nuclear plants, all i of which went into operation between 1972 and 1974. How-  !

ever, the Review does not describe what, if any, modifica- l tions in the design of the PNPP-1 have been made in response to the considerable upgrading of applicable commission design criteria and guidelines over the last decade.

Concise Environmental Review: PNPP-1, at 2-3 (September 28, 1979); NRC A/R Vol . 8, Doc.1.

,4f Washington Post, June 16, 1979, at A2; Bulletin Todav (Man:.la ) , June 16,1979 at 1.

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icauas."M Presid:nt Marcon rooffirm d his ocrlior suspsnaion of the construction of the PNPP-1 and announced' that the project j would be cancelled unless fundamental changes were made in the reactor design and the contract renegotiated with Westinghouse.M No such changes have been made nor has work on the reactor resumed, although negotiations between Westinghouse and the Philippines are apparently continuing.3_/

2. Volcanic and Seismic Harards The PNPP-1 is being built on a flank of Mt.

Natib, abouc 5 miles away, and within 90 miles of three active volcanoes. The 1977 Commission staff review of the PSIR concluded that the volcanic hazards to the plant had not been thoroughly j addressed and that Mt. Natib would likely be considered as a active volcano under Commission practice.M A 1978 IAEA expert mission to the Philippines stated that the PNPP-1 site i , " unique to the industry insofar as the risk associated with nearby vol-canoes is concerned" and concluded that the " eruption of Mt. Natib is a credible event which should be taken into account in ,

l_/ Commission on Nuclear Reactor Plants, "In Re: Inquiry on the Safety to the Public of the Bataan Nuclear Plant (Per Executive Order 539, June 15, 1979)," at IVB-1 (November 16, 1979). The Puno Commission found that: "The Bataan Nuclear Plant design needs fundamental changes and additional safe-guards. It appears that Westinghouse nuclear reactors do not have, among others, adequate emergency core-cooling sys-tems." I d_ .

Wall Street Journal, November 14,, 1979, at 16 Washington 2_/'

Post, November 14, 1979, at A7.

3f R. Jeffrey Smith, "NRC Skirts Safety Issues in Export Approval" 208 Science 1014 (May 30,1980) .

4j Memorandum from W.P. Gammill, Assistant Director for ~ Site Technology, NRC, dated March 9, 1977, to F.J. Miraglia.

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dacign."M Tha PAEC prcpa Gd a respongo to tha recommandations made by the IAEA mission as to measures to safeguard against the volcanic hazar'ds, including the installation of a volcanic moni-toring system and contingency arrangements for removal of radio-active materials from the site in the event of an eruption.M A subsequent NRC staff review of the PAEC response seriously ques-tiened the reliability of monitoring devices and the feasibility of moving and storing offsite highly-radioactive nuclear fuel.M The Philippines is located in one of the most seismic-ally active regions of the world. Yet the site for the PNPP-1 was chosen prior to any serious evaluation of the danger of earth-quakes.M According to the State Department, the nature of I

seismic activity in the region of the site is still "not well known or understood."5f The still unresolved controversy over the threat of (

earthquakes at the site has focused on the analysis of seismic l

l V Report of the IAEA Safety Mission for a Review of Certain Geological and Geotechnical Aspects of the Site and- its Environment for the PNPP-1, at 7 (July 1978). The mission stated that there should be a review of all the threats to the PNPP-1 resulting from a volcanic eruption, including ash fall, glowing avalanches, and mud flows. Id.

2f PAEC, " Evaluation of the Responses on the Issues Raised by the 1978 IAEA Safety Mission (March 22, 1979).

y Memorandum of Al Renneke, Acting Director, OPE, dated July 18, 1979, " Review of Documents Regarding Geological Conditions at the PNPP-1 Site," to Commissioner Ahearne, Attachment 2, at 2. -

4/ A 1972 IAEA mission selected the present site, admitting that it lacked basic data, such as detailed geological and seismic information for the area. See IAEA, " Market survey for Nuclear Power in Developing-Countries - Philippines" 81 (September 1973 ) .

5/

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Department of State, Concise Environmental Review: PNPP-1, at 18 (September 28, 1979); NRC A/R Vol. 8, Doc.1.

3

ricks and choica of dacign loval for the PNPP-1 by EBASCO, tha American engineering firm employed by the National Power Corpora-tion. The PNPP-1 is being built to withstand shallow earthquakes of intensity 4.5 on the Richter scale and 7.9 for deep earthquakes occuring 62 miles away, resulting in ground vibrations at the site of .4g (40% of gravity).M The 1978 IAEA mission criticized the methods and judgments of EBASCO and indicated that the design of the re' actor should be based on an earthquake both larger and closer to the site. The mission's report also called for further inves-tigation and analysis of a possible shore normal fault immediately south of the site.M In response to the report, the PAEC asserted that the

.4g level is adequate. During the 1979 hearings before The Puno Commission, the validity of the data base used by EBASCO was seriously challenged by Filipino scientists and an American j engineering seismotologist.3) E3ASCO's choice of the .4g level was based on its view that there are no surface faults within five .

kilometers of the site. Yet the Philippines Bureau of Mines, as a result of only a preliminary investigation, found at least two such faults. M Recognizing its own lack of technical competence, the Puno Commission relied on a hurried review of the evidence by two y IAEA Mission Report, supra note 17, at 3-6 (July 1978).

2f M. , at 4.

3f See Brief of Petitioners In Response to NRC's October 19, 1T79 Request For Views On Philippine Export Proceeding Center for Development Policy ('" CDP", et'al.) (November 19, 1979). J.A. 148-201.

y Letter from Juanito Fernande=, Director of ' Mines dated July 18, 1979 to Ricardo Pune at p. 2. cited in Brief of Petitioners (CDP, et al.), Id.

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U.S. consultants and th3ir opinion that tho EBASCO analysis was acceptable.M A January 1980 analysis of the work of these con-sultants, contracted for by the NRC, strongly disagreed with their conclusion as to the soundness of the data base:

In my judgment, the available seismic data base is inadequate to an.ess hazards to a level which would be required by good profes- .

sional practices. This deficiency will .

remain until installation and operation of a local seismic network for a duration of two ,

or more years. y

3. Radioactive Waste Disposal In ' April 1977, the PAEC stated that the Philippinss, located in a seismic belt and lacking stable rock or salt formations, would have no choice but to ship its nuclear  ;

wastes elsewhere for long-term storage and disposal.M Among the

possible disposal sites which have been mentioned are the United States, Canada, Australia, and a multinational waste facility located on U.S. territory in the Pacfic Ocean.M In November 1979, the Puno Commission found that the " critical problem" of the d

y Puno Commission Report, supra, at p. 10 note 1, at IIIE-5

, -IIIE-6.

2f Dr. John Kelleher, " Review of Reports to Puno Commission By J. Stepp and C. Lomnitz" (Submitted to the Commissioners as an Attachment to a Memorandum from David J. Honrahan, i -

January 14, 1980).

i 3] - Ibe and Aleta, " Prospects and Problems of Nuclear Power 'in the Philippines" 6 (Paper presented to the IAEA International Conference on Nuclear Power and Its Fuel Cycle, May 2-13, 1977).

l y Statement of Views on Further Public Proceedings submitted by NRDC ej a_1_. (November 19, 1979). J.A. 72-124.

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l dicpocition of rcdiocctivo wtstcc from tho PNPP-1 had not yet bonn resolved.M

4. Capability of the PAEC and Lack of Public Participation The PNPP-1 would be the first commercial nuclear reactor in the Philippines, with a rated power of 620 megawatts.

The previous experience of the PAEC has been limited to a small -

research reactor installed at the Philippines Atomic Research Center, which shares the same building as the PAEC.M The PAEC regu.15. tory staff appears to be rather small, inexperienced, and heavily reliant on Westinghouse for information to carry out its regulatory work.3j on April 4, 1979, just six days after the Three Mile Island nuclear accident, Dr. Ibe, the long-time head of the PAEC, issued the construction permit for the PN?P-1. A few days later, he unexpectedly left the Philippines for Canada without a leave of absence or notice to his superiors.M

_1/ Puno Commission Report, supra, at p. 10 note 1, at IVB-1.

The Puno Commission noted that "An international burial site as envisioned by the [PAEC] has yet to be located and its establishment is not in sight." I, d .

y In September 1972, an IAEA team made a health and safety inspection of the Center and found "potentially hazardous" conditions there. Memorandum to A.S. Friedman, Director of Division of International Programs, U.S. Atomic Energy Com-mission from R.V. Willit, " Visit of Dr. Ibe," dated May 22, 1973.

3f Statement of NRDC, et al. J.A. 118-120. The related issue has been raised as To capability of the PAEC to respond quickly in the event of to a reactor accident. During the Three Mile Island accident, hundreds of experts and a sub-stantial amount of technical equipment were rushed to the scene. It would be difficult to assenble similar resources in the Philippines which is remote from nations with sub-stantial nuclear expertise.- rd., 'at 29. See also Puno Ccmmission Report, supra, at p.70 note 1, at IID-1.

4f Bulletin Todav Manila), April 12, 1979.

4

. .- . Tha PAEC Iccks tha indcpandanco fundamental to offcctivo regulation of nuclear power.lf Both the PAEC and the National Power Corporation, the utility seeking to build the PNPP-1, are under the control of the Ministry of Energy. As a practical matter, many of the critical decisions so far concerning the plant have been made personally by President Marcos.M ,

Since martial lau was declared by President Marcos in 1972, freedom of speech, press, and assembly and other political rights have been severely curtailed in the Philippines.M Filipinos living near the PNPP-1 site were intimidated by authori-ties and some were harassed after expressing concerns about the safety of the plant.42 Even after the suspension of the construc-tion of the PNPP-1 by President Marcos in June 1979, there remained a climate of fear in the Philippines which inhibited scientists and other concerned citizens from speaking out in l If Recognizing this fact, the U.S. Congress split up the Atomic Energy Commission assigning its regulatory responsibilities to the NRC. Energy Reorganization Act of 1974, 5201,., 42 U.S.C. 55841 ,

y See generally statement of NRDC et al. , J. A.121.

y See Brief of Intervenor/ Petitioner Coalition Against Reactor Exports 17-19. (November 15, 1980); NRC A/R Vol. 2, Doc.

20. Coalition CARE is an association of Filipinos and Americans in the San Francisco Bay area concerned about U.S.

nuclear exports to the Philippines and other developing countries.

4/ Sign of the Timas, September 11, 1976. The sign of the Times, publishoTby Filipino and . foreign priests, nuns and Catholic lay vorkers, was shut down by the Government in 1976, and its publishers accused of incitement to sedition and scurrilous libel. Deptrtment of State, " Report on Human Rights Practices in Countries _ Receiving U.S. Aid." 395 (Submitted to Senate Committee on Foreign Relations and House Committee on Foreign ~ Affairs, February 8, 1979);

l NRC A/R Vol . 2, Doc. 20.

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regard to tha plant or pcrticipating in tha Puno Commission inquiry.M The Puno Commission opened public hearings on June 23, 1979, just nine days after receiving its mandate from President Marcos. The opponents to the PNPP-1 were repeatedly denied ti'.e opportunity to prepare and present their case.2f on September 14, 1979, former Senator Tanada, the principal opposition attorney, withdrew his evidence and walked out of the hearings in protest of the Puno Commission's conduct of the proceedings, declaring that:

"The Puno Commission was rushing the case

^

unreasonably and oppositors were deprived of due process of law."3]

C. PROCEEDINGS BEFORE THE NUCLEAR REGULATORY COMMISSION These proceedings were initiated on November 18, 1976,

when the Westinghouse Electric Corporation submitted to the NRC an application for a license to export a pressurized water reactor for the PNPP-1 project.M On December 12, 1977, the State Depart-

_1/ Affidavit of Sister Ma Aida Velasque=, OSB, Secretary of the Philippine Movement for' Environmental Protection 3 (Sub-mitted to the NRC, November 6,1979); NRC A/R Vol. 3 .

2] Id., at 2. The Puno Commission denied motions by the oppositors for a two-month suspension of the hearings to gather more information, for a two-week recess to revise the materials presented by the proponents, and for permis-

. sion to present testing of an American nuclear export at the end of September.

3/ The Philippine Times (Chicago, Ill.), October 1, 1979, at 1.

In June, Senator Tanada had decined the invitation of l President Marecs to serve as chairman of the Commission on the PNPP-1.

Times Journal (Manila), June 22, 1979, at 1.

In spite of the denial of a fair' opportunity for the oppo-nents to present their case, the Puno Commission could not ignore the most obvious deficiencies of the PNPP-1 and thus declared the reactor design to be unsafe. See pp. 9-10 supra. " - -

y Letter of James P. Rodi, Transportation Administrator, Power Systems Project Divisien, Westinghouse Electric Corporation, dated November '.3,1976, to Office of International Programs, Exports, Imports and International Safeguards, NRC.

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msnt transmittsd tho vicws of the Exscutiva Branch on the Wasting-house reactor export license application to the Commission recom-mending the issuance of the license.M After Congressman Clarence D. Long raised serious questions about the safety of the reactor, the severe seismic hazards at the site, the lack of long-term disposal capability in the Philippines for radioactive .

wastes, the adequacy of construction work at the plant, and sus-pected financial improprieties involving a close associate of President Marcos,M the State Department asked the Commission in January 1980 not to take any further action on the export license until the Executive Branch had the opportunity to submit addi-

, tional information in response to these concerns.3f On August 3, 1978, the Westinghouse Electric Corporation submitted to the NRC an application for export of certain compo-nents of the nuclear reactor intended for use in the PNPP-1 (Application No. XCOM-0013). On March 6, 1979, the Westinghouse Electric Corporation filed a third applica1; ion with the NRC for the export of low-enriched uranium to the Philippines, constitut- ,

-1/ Letter from Pets : Tarnoff, Executive Director, U.S. Depart-ment of State, dated December 12, 1977, to Lee V. Gossick, Executive Director for Operations, NRC.

2f Letter from Congressman Clarence Long, dated January 4, 1978 to Joseph Hendrie. J.A. 212. The Westinghouse agent in the

'ihilippines for this transaction is Herminio Disini, a relative of the First Lady of Imelda Marcos and owner of a large conglom-erate. "Disini not only sold the insurance policy for the proje.:t and won the civil construc. tion contract" but also earned an agency fee of a few million dollars. . . Id. See also Wall Street Journal, January 12, 1978, at 1; NeV York Times, January 14, 1978, at 1.

1 3f Letter from Dixon B. Hoyle, Director, Export'and - Import Control, Department of State, dated January 25, 1978, to Mr. Michael Guhin, Assistant Director for International Programs for Export and Import.

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ing tha " initial core and thrco reloads" for tha PNPP-1.

(Application No. XSM-1471).

On April 19, 1979, two of the Petitioners, the Philip-pines Movement for Environmental Protection ("PMEP") and CDP jointly submitted to the Ccmmission a Petition for Leave to Inter-vene and Request for Hearing in regard to all three of the pending ,

applications for nuclear exports to the Philippines. The petition requested that all three pending applications be consolidated and that a public hearing be held in the proceedings.M i

y In August 1979, Westinghouse filed two related lawsuits seeking to compel action by the Commission and the Depart-ment of State on the pending PNPP-1 nuclear reactor and com-ponents export license applications Westinghouse Electric Corporation v. Hendrie, et ~-

al., C.A. Ilo 79-2110, (D.D.C., .

1979); Westinghouse Electr1c Corpration v. Vance, et al., I C.A. No. 79-2060 (D.D.C., 1979). Westinghouse alleged that, inter -alia, the Commission and Department of State were wrongfuITy withholding action because they were reviewing 1 health and safety considerations related to the PNPP-1, )

i which Westinghouse contended were outside their legal authority. -

In a consolidated brief, the Commission and the Depart-ment of State responded that in nuclear reactor export licensing "it is appropriate to consider the limited but genuine way in which the safety of a nuclear power plant proposed for construction outside the United States may impact on the common defense and security or the health and safety of the United States or its citizens." Defendants' Points and Authorities In Support of 'Their Motion to Dismiss Or, In the Alternative, For Summary Judgment and In Opposi-tion to Plaintiff's Motion for Preliminary Injunction, at

26. Recognizing the status of the Philippines as a long-time ally of the United States and the proximity of two major U.S. military facilities to the reactor site, the Commission and the Department of State advised the Court that additional time was necessary". . . for the Commission to review the level of risk ass'ociated with the reactor project in order to determine the magnitude of any potential impact on the required common defense and security determi-nation." I_d. at 27.

.? - -~ ,

The Court dismissed the Vance lawsuit against the State Department without prejudice. The parties stipulated that the views of the Executive Branch concerning the reactor (continued on next page) w ,m- - - - - . . , ~ - - - . . . ~ . . , _ , .

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- 19 _

On Sept:mbat: 28, 1979, tho Stato Dcpartment forwardsd to the Commission a 14-page Executive Branch analysis of the proposed reactor export, along with a 37-page " Concise Environmental Review" of the PNPP-1.M The summary Review included considera-tion of the safety of the PNPP-1 site and the resulting risk to U.S. personnel stationed at Subic Bay Naval Base, only 12 miles from the site. In addition to the site hazards, the " Concise Environmental Review" addressed other health, safety, and environ-mental issues, such as the reactor design, planning for evacuation in case of an accident, and radioactive waste disposal. In con-cluding that "the proposed expcrt would not be inimical to the  ;

I common defense and security of the United States" and recommending I to the Commission " issuance of the requested export license," the Executive Branch took into account its review of the site safety and other environmental factors.M on October 19, 1979, the Commission acted on the Petition to Intervene and ordered a two-part public proceeding, a

pursuant to the NNPA, 5304, 42 U.S.C. 52155a and 10 CFR ,

1 1f (continued from previous page) license would be forwarded to the Commission no later than

. September 28, 1979. Memorandum Opinion, C.A. 78-2110, dated August 31, 1979, at 2, 3. In dismissing the lawsuit against the Commission, the Court stated that the " facility license is plagued by serious questions regarding site safety" and held that the commission's " determination not to act on plaintiff's component license until such time as the ques-tions regarding the safety site of the facility license [ sic]

are resolved is not arbitrary and ~ capricious. . ., and does not constitute agency action unlawfully withheld and unreasonably delayed. . . " Memorandum Opinion, C.A. 79-2060, dated August 31, 1979, at 3.

y Attachments to Memorandum of Louis V. Nosenzo, Deputy Assistant Secretary of State, dated September 28, 1979 to James R. Shea, Nuclear Regulatory Commission; NRC A/R Vol. 8, Doc. 1.

y M. at 1, 2.

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110.84(c)(1) and (2). J.A. 64M Intorostad organizations and individuals were invited to submit written comments concerning

, the scope of Commission jurisdiction to analyze health, safety, and environmental issues in this and future nuclear export pro-ceedings, and to suggest a procedural framework appropriate for NRC consideration. M.

All of the Petitioners, with the exception of Friends of the Earth, submitted extensive written comments to the Commission.2f Petitioners argued that the Commission is required by the Atomic Energy Act and NEPA to consider the health, safety and environ-mental risks posed by nuclear reactor exports and the particularly severe hazards to defense and security, public health and safety, and the environment posed by the pending exports to the Philip-pines.M Petitioners NRDC, Union of Concerned Scientists ("UCS")

and Sierra Club suggested a workable process for the examination of health, safety, and environmental factors in export licensing proceedings, recognizing that strict compliance with the domestic reactor procedures may not be possible or appropriate.M on

_lf The Commission did not rule on whether Petitioners were entitlt.d, as matter of right, to a hearing under Section 189a of the Atomic Energy Act, 42 U.S.C. 52239(a), holding the issue to be moot since the commission was authorizing a hearing pursuant to the Section 304 of the NNPA. Id., at 6.

The Commission agreed to consolidate only the reaTror and

~

components export license applications. The Commission had

~

not yet received the views of the Executive Branch on XSNM-1471, the license application to export uranium fuel for the PNPP-1 and was barred by 10 CFR 5110.84(d) from ,

. granting a hearing request prior to the receipt of such '

views. M. , at 4-5.

2_/ Natural Resources Defense Council ("NRDC") et al. Statement, l J. A. 72; Brief of CDP et al. , J. A.148. . ,

3_/' Statement of NRDC, et al. , J. A. 72-86; Brief of CDP, et al. ,

J.A. 181-183.

4f Statement of NRDC, et al. J. A. 107-111.

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Fcbrucry 8, 1980, tha Commission ordared a accond phase of tha proceedings, requesting written comment.s limited to:

(a) the health, safety, or environmental i effects the proposed exports would have l upon the global commons and the United  !

States, and i

. l (b) the relationship of those effects to i common defense and security.lj 1 All of the Petitioners ' submitted comments to the Commission in accordance with the Februcry 8, 1980 Order.M Petitioners NRDC, l PMEP, UCS, 3ierra Club, and Friends of the Earth argued that the l l

Commission was acting unlawfully in sharply limiting its review of l l

the health, safety, and environmental risks posed by the  ;

reactor.M On May 6, 1980, the Commission issued Memoranda and Orders CLI-80-14 and CLI-80-15, with accompanying Opinions, on  !

both the jurisdictional issues and tie merits of the Philippines lj Order, CLI-80-2 rop rinted at 45 Fed. Reg. 10099 February 14, 1980). J . '. . 70. According to the Commission staff, the Commission had already received substantial documentation about the health, safay, and environmental aspects of the PNPP-1, in addition to data provided .in the submissions of the Petitioners and other participants in the first phase of the proceedings. These documents include the PSIR and the Preliminary Safety Analysis Report for the plant, the Report of the IAEA Safety Mission (May 1978 and July 1978), the Commiccion staff review of seismic and related issues (July 1979), the Puno Commission Report, and the State Department's " Concise Environmental Review."

Memorandum from Leonard Bickwit, Jr., General Counsel and Edward J. Hanrahan, Director, OPE, " Philippine Export License Application," SECY-80-20, dated January 15, 1980, to the Commissioners; NRC A/R Vol. 6, Doc. 28.

y See Statement of Views Submitted On Behalf of' PMEP, the National Audubon Society, NRDC, Friends of the Earth, UCS, and Sierra Club, J.A. 128, and Comments of the CDP and the Movement for a Free Philippines r-J. A.138. -

3j " Statement of Views" submitted On Behalf of PMEP g d. ,

J.A. 128-131.

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oxport liccn'3as. J.A. 1-4. In a split dccision, the CommiJ-sioners voted 3-2 to confine their consideration of health, safety, and environmental risks to those effecting the U.S. and the global commons. J.A. 3-4.M C ommissioners Kennedy and Hendrie held that the Commission was neither required nor precluded by the Atomic Energy Act and NEPA from considering health, safety, and environmental risks to U.S. interests abroad, but that the Commis-sion would, as a matter of discretion, limit its review to those effects on U.S. territory and the global commons. J.A. 26, 30.

Commissioner Gilinsky concurred on these i nts. J. A. 49.

The effect of the majority decision was to disregard all of the material available to the commission concerning the safety of the PNPP-1 and resulting risks to U.S. interests. Commissioner Bradford dissented, arguing that the Commission has a " legal duty" to consider the health and safety risks posed by the PNPP-1:

. . .our legal responsibility to consider the common defense and security, our legal respons,ibility to consider the health ar.d safety of American pcpulations living over-seas, and a policy determination to take some effective responsibility for i.he s:fe use of -

our exports all merge in the direction of a ,

more comprehensive review than the Co:nmission has chosen to undertake.

J.A. 57. Commissioner Ahearne also dissented on policy grounds,

', stating his agreement with the recommendation "that where there is  :

1 a U.S . interest, either on a military or institutionalized long  !

1 l

1 1/ The Order also addresses the Commission's jurisdiction to consider health, safety, and environmental aspec?s of nuclear fuel exports. J.A. 3. While Petitioners disagree with this holding, it not at issue in the Court review of the licensing decision below which involved only the exped of a nuclear reactor.

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tarm prassnca of U.S. citizcas, the Commission should conaidor health and safety effects of the exported reactor in a limited manner by reviewing all the available information." J. A. 54.

Three of the five Commissioners found that the proposed export met all applicable licensing criteria and would not create unacceptable health, safety, or environmental risks to U.S. terri-tory or the global commons. Commissioner Ahearne abstained; and Commissioner Bradford voted against issuance of the license. _

J.A. 1-2.

The plurality opinion held that pursuant to NEPA, the Commission must take account of environmental impacts upon the United States and, as a matter of discretion, the global commons.

J.A. 39. The Commission chose to rely upon the Programmatic Environmental Impact Statement on "U.S. Nuclear Power Export [

Activities" prepared by the Energy Research and Development Administration (ERDA-1542, May 1.776). The NRC did not undertake any environmental review of the impacts specific to the PNPP-1, with the following exceptions. The Commission staff prepared a brief technical analysis of the effects of a possible large-scale release of radiation from the plant upon the oceans beyond twelve miles from the Philippine coast, and of the effects upon the oceans and U. S . territory of various waste disposal options. After reviewing comments submitted by other participants, the Commission

. accepted the view of its staff that such impacts would be minimal.M The Commission rejected the position of Council on EnvironmCtal Quality that the five-year-old ERDA-1542 was y The Commissioners noted their reliance also on a programmatic environmental impact statement and a generic study, prepared for domestic purposes.

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"inaufficicnt for considaring the environmental effects of the proposed Philippine reactor export under NEPA and E.O.12114." J.A.

207. CEQ concluded dat rRDA-lS42 must be supplemented, noting that statement provides no discussion of waste management or site specific impacts.Il M ., J.A. 207-208. Although recognizing these omissions, the Commission held that it did not have to defer con-sidsration of these licenses until they are assessed. M. ,

J.A. 43.2f .

The Commission deUed the Motions for a Stay Pending Appeal filed by Petitioners NRDC, UCS, and CDP. M., J.A. 1.

According to Westinghouse, the shipment of minor components was to begin immediately upon issuance of the license and the shipment of the major components was "not scheduled to occur until after August 31, 1980."3I A Petition for Review of the Commission's Orders of May 6, 1980 was filed with this Court on May 6, 1980.

The jurisdiction of this Court is invoked under 42 U.S.C. 52239 and 28 U.S.C. 52342. Petitioners are " aggrieved" by final orders of the Commission, 28 U.S.C. 52344.

1 J/. As noted by Commissioner Bradford, this decision puts the Commission in the anomalous position of considering impacts of an accident on fish more than twelve miles out at sea, while refusing to consider impacts on Filipino and U.S. citi-zens residing in proximity to the plant. J.A. 55.

, 2f In its discussion of radioactive wastes, the Commissioners took note of a draft generic EIS prepared by the Department

, of Energy entitled " Storage of Foreign Spent Power Reactor Fuel" (1978). Noting that it would be several years before the PNPP-1 generates spent fuel, the Commissioners said that the U . S . Government would have ample opportunity to as s=s the inpacts upon the return of JEpent fuel to the U.S. or to -

an international repository in U'.S.'rerritory.

3f Letter from Barton Z. Cowan, Counsel for Westinghouse Electric Corporation, dated April 22, 1980, to the Commissioners; NRC A/R Vol. 7, Doc. 81.

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ARGUMENT I. THE NUCLEAR REGULATORY COMMISSION VIOLATrD THE ATOMIC ENERGY ACT BY FAILING TO REVIEW AVAILABLE AND RELEVANT INFORMATION IN MAKING DETERMINATIONS THAT THE EXPORT IS NOT INIMICAL TO U.S. COMMON DEFENSE AND SECURITY AND THE HEALTH AND SAFETY OF THE PUBLIC The Atomic Energy Act ("The Act"), 42 U.S.C. 52011 et seq., as amended by the Nuclear Non-Prolification Act of 1978

("NNPA"), 22 U.S.C. 53201 et seq. (1978), establishes a regula-tory regime that relies primarily on the Nuclear Regulatory Com-mission ("NRC") to ensure " effective controls by the United States over its exports of nuclear materials and equipment and of nucl' ear technology." 22 U.S.C. 53202(d) (1978) (emphasis added).

The Act provides that no nuclear reactor may be exported from the  !

United States without a license granted by the Commission. 42 l U.S.C. 52155 (1978). The Act requires the NRC, prior to issuing a nuclear export license, to make an affirmative finding that the ,

i expd complies with all applicable statutory requirements. 42 U.S.C. 52155(a)(2)(1978); 10 C.F.R. $110.44(a)(1) (1979). 5mong those requirements is that of 42 U.S.C. 52133(d), which prohibits the NRC from licensing any nuclear export that would be inimical to the " common defense and security" of the United States or to "the health and safety of the public." Although it added spe-

', cific non-proliferation criteria to be considered by the Commis-sion in export licensing proceedings, the NNPA did not change the legal obligation of the Commission to make these broad findings.

The Commission's Orders of May 6, 1980, authorizing the Westinghouse Electric Corporation to export a nuclear reactor and other nuclear materials to the Philippines, were iss31ed in viola-tion of these statutory cbligations. J.A. 1-4. Although the license authorizations purport to include an NRC determination

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that thic cxport will not ba inimical to eithor U.S. common ,

defense and security or the public health and safety (J. A. 1),

- the Commission failed to support these determinations with the full measure of independent consideration that the Atomic Energy Act requires. The Commission illegally limited its assessments of both the " common defense and security" and the "public health and safety" issues to a cursory examination of the Westinghouse export's impacts on the global commonsM and U.S. territory, refusing ';o consider the available information concerning many of the health, safety and environmental risks associated with the proposed reactor which could substantially jeopardize U.S. common defense and security as well as the health and safety of the public. The NRC's truncated licensing I.eview conflicts with non-discretionary provisions of the Atomic Energy Act and the NNPA that are critical to the maintenance of " effective controls" over the export of U.S. nuclear technology.

A. THE ATOMIC ENERGY ACT REQUIRES THE NRC INDEPENDENTLY TO EXAMINE ALL HEALTH, SAFETY AND ENVIRONMENTAL IMPACTS OF THE PROPOSED REACTOR EXPORT WHICH COULD AFFECT U.S.

COMMON DEFENSE AND SECURITY Numerous provisions of the Atomic Energy Act un'derpin the NRC's legal obligation to review the possible impacts of exported nuclear technology on the common defense and security of the United States. See 42 U.S.C. 52133(d), 52073(b),

52077(c)(2) (1954). Under provisions added to the Act by NNPA, upon receipt of a nuclear export application the Secretary of State is required to convey to the Commission the executive 1/ In its Order of February 8, 195 , the CommissioI2 defined the term global commons as " geographical areas such as the high

! seas, Antarctica, and the portions of the atmosphere that are not within the territorial jurisdiction of a single nation state." J.A. 70.

l l

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branch's initial datorminntion oc to whethar or not a propocod export is inimical to the coraon defense anii security of the United States. 42 U. S .C. 52155(a)(1)(1978). No license can be issued by the Commission if it receives an unfavorable judgment from the executive branch. I_d . However, if the executive branch's assessment is favorable, the Commission must ,

independently analyze the information on which the executive branch based its judgment, as well as other relevant materials, in order to comply with the requirements of the Atomic Energy Act and the NNPA. 42 U.S.C. 52133(d)(1978).

As discussed in more detail in Part I(C) infra, the Act directs the NRC to base it.s statutory findings on "a reasonable judgment of the assurances provided and other information avail-able to the Federal Government, including the Commission." 42  ;

l U.S.C. 52155(a)(2) (1978); 10 C.F.R. $110.44(a)(1) (1979). The legislative history of the NNPA demonstrates that this language imposes a legal obligation on the NRC to independently review all j of the relevant information in making these determinations.

Senator Charles Percy, one of the principal sponsors of the NNPA, expressed Congress' interpretation of the obligation that Section 304 imposes on the Commission as follows:

[T]here is no question that the NRC should have full access to all information available to the executive branch. . . and that the NRC, in making the findings and judgements under this act, should independently assess the information which is available to it.

124 Cong. Rec. S1429-S1468 (daily ed. Feb. 7, 1978) (remarks of Sen. Percy); CRS Leg. Hist. of the NNPA, at 745. , _ _

of all federal agencies that have roles to play regarding the U.S. nuclear export program, the NRC alone possesses both the i l

l 8

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technical exportiso end the legal recponsibility to provida an independent check on the judgments of the executive branch. The legislative history of the NNPA clarifies the significance of thorough NRC assessments of executive branch common defense and security recommendations. Senator Percy emphasized during the floor debates on this legislation that Congress wanted the Commission to act as a " strong, independent check on executive branch nuclear export decisions." M. Senator John Glenn, another of the bill's sponsors, underscored this concern by successfully opposing amendments that would " constrain the NRC from performing the role we have given it as an independent check on the judgments of the executive branch." 124 Cong. Rec.

S1310-S1342 (daily ed. Feb. 7, 1978) (remarks by Sen. Glenn); CRS Leg. Hist. of NNPA, at 676 (1978). Additionally, the Department of State has recognized the NRC's role, indicating that, "The Executive Branch does not propose to. . . relegate the conmission to rubber-stamping. license recommendations." M The scope of the Commission's common defense and  ;

security review is not, as Ccamissioners Kennedy and Hendrh.e sug-gest, properly limited to nuclear weapons proliferation concerns.

J.A. 16. Rather, this standard is one, encompassing all aspects of the national defense and security of the United States.

Section.2155(a)(2) of the Act, as amended in 1978, specifically recognizes that a nuclear export could undermine " United States non-proliferation objectives el otherwise jeopardize the common y 124 Cong. Rec. S1310-S1342 (daily ed. Feb. 7, 1978). Letter from Joseph S. Nye, Deputy to the Under Secretary of State to the Hon. Frank Church, February 4, 1978); CRS Leg. Hist. .

of NNPA, at 685 (1978). l

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dafcnso and sccurity." (emphcaic cddcd). In cddracsing this issue, the drafters of the NNPA explicitly instructed the Commission to conduct a broad common defense and security review when " unusual circumstances" exist. House Rep.95-587, 95th Cong., 1st Sess. 21 (1977)CRS Leg. Hist. of the NNPA, at 434 (1978).M The Commissier acknowledges that the Philippines pre-sents a "different context" from other countries that have received U.S. s.eactor exports (J.A. 10), and concedes that U.S.

" interests" in the Philippines do include both the two military bases and the large concentration of U.S. citizens residing here.

M. But they conclude, after a tortured reasoning process, that the NRC lacks legal authority to consider health, safety and environmental impacts upon citizens of a foreign nation -- even when those impacts could affect U.S. interests -- and that the NRC only has discretion (but no legal duty) to analyze these factors as they affect the two bases and the 32,000 citizens.

The opinion thus ignores the plain meaning of the phrase " unusual f

circumstances," even though conceding that the NRC ~had the' legal ,

authority to analyze "other factors" prior to passage of the NNPA (J.A. 14), and that they have the power now to conduct a M.

" detailed analysis" in any export proceeding.

This posture is all the more curious given the govern-cent's position in related cases filed by Westinghouse in August, 1979 challenging the pace at which the NRC and Executive Branch 1/ An amendment proposed to.the NNFA on the Senate floor which would have precluded NRC examination of the health, safety and environmental impacts in export licensing proceedings was withdrawn at the request of the bill's sponsors. 124 Cong. Rec. 51055-S1102 (daily ed. Feb. 2, 1978) (remarks by Sen. Wallop); CRS Leg. Hist. of the NNPA at 803, 804.

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waro procaccing tha Philippina export cpplications. Sco discus-sion at p 18, note 1, supra. The Commission and Department of I state based their defense on an interpretation of the Act's common defense and security requirement that is not consistent with the majority opinion here.

In the NRC proceeding below, even the Department of ,

State based its own common defense and security recommendation on an assessment of the proposed reactor's impacts on Philippine territory.M As the Department noted in comments filed with the NRC:

In the instant case, questions were raised as to whether the criteria chosen for the plant were appropriate in view of the area's general seismic and volcanic activity. The Depart-ment considered these questions serious enough to warrant a review to determine whether health, safety or environmental j impacts could be anticipated which would be of a sufficient gravity to lead to the con-4 clusion that issuance of the export license would be inimical to U.S. common defense and security. -

y The State Department's action in this regard reflects a shift in the position of the executive branch concerning the responsibility of the United States to ensure that its activities do not unreasonably harm the health of foreign citizens or the environments of other nations. This responsibility was strongly affirmed by Executive Order

. 12114, " Environmental Effects Abroad of Major Federal Actions," 44 Fed. Reg. 19157 (January 4, 1979), which specifically applies to " export licenses. . . and. . .

actions providing to a foreign nation a nuclear production or utilization facility as defined by the Atomic Energy Act 1

of 1954." $2-5(V). The Order reflects the judgment that legitimate foreign policy considerations compel the review by government agencies of the overseas impacts of U.S.

nuclear exports. Former Secretary of State Vance reached a similar conclusion concerning the proposed Westinghouse expert to the Philippines: "I feel that we would be remiss in our responsibility if we were to-approve any-exports from the United States without consideration of hazards that l might accrue from such exports." Letter from secretary Vance to Hon. Frank Church, May 12, 1979.

S

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Vicws of tho Departm nt of Stata on Procadural and Juriodictional Issues, November 15, 1979, p . 4 ; NRC A/R Vol . 2, Doc . 17.

Subsequently, the State Department invited the Commis-sion to conduct its own review of the reactor's foreign health, safety and environmental impacts in independently reaching its common defense and security determination. The Department ,

alerted the NRC that:

It is conceivable that a health, safety or environmental risk could so threaten United States relations with a recipient country --

or a U.S. military facility in that country --

that it would jeopardize important United States security or defense interests.

M. , at 3. Therefore, the Department concluded:

The Commission may appropriately review the judgment of the Executive Branch that the criteria chosen for the plant, taking into account the areas's seismic and volcanic activity, are '. lot likely to cause health, safety or environmental risks of a gravity sufficient to warrant the conclusion that issuance of the export licenses would be inimical to the United States common defene and security. ,

M. at 5.

The NRC's own staff further underscored these concerns, a particularly with reference to the presence of two major U.S.

military installations located near the proposed reactor site:

The factual consideration of proximity of the proposed site to U.S. military installations is pertinent to the sub-ject applications . . . since this con-sideration is related to the statutory requirement that the export not be inimical to the common defense and security.

NRC's Staff Submission in Response to the Commission's Order Dated October 19,1979, at 28.

Finally, the NRC majority opinion acknowledges that Section 2(d) of the NNPA sets out a basic policy of " cooperation"

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with foroign nations to davolop suitablo onorgy technologies that are consistent with environmental protection ~, noting also that conducting analyses of impacts just on U.S. citizens in the Philippines could benefit the foreign country by revealing important information about reactor design and site problems, and that this could serve to increase confidence in the safety of the reactor. J.A. 26. But the NRC opts for overall blindness. The opinion does not bother to explain how this " cooperation" policy of the Act can be implemented if the available information is not analyzed, or how there can be proper assurances given the othe country about the suitability of the technology or the likely dangers to the environment without analysis.

Disregarding all the arguments of law and policy pre-sented to it, the Commission ultimately based its finding that the Westinghouse export would not be inimical to the common defense and security on an illegally narrow review that dis-regarded the reactor's most significant common defense and security impacts. The NRC's decision to limit the scope of its licensing review in the instant proceeding conflicts witil its responsibilties under the Atomic Energy Act. As the Department of State, the Council oc Environmental Quality and the NRC staff all recognized, the Westinghouse reactor's hazards to the Philippines and to U.S. citizens and military installations located near the site could have a direct impact on U.S. common defense and security. Moreover, because the government of the United States has played a major role in promoting and financing the Westinghouse export, any serious accident at the si_te . that jeopardizes the health and safety of Philippine citizens would result in " strong political pressures for relief from the United t

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Stotco through claim 3 for coopcasation and for aid in cleaning up and repairing the damage caused."1/ Even a minor mishap that resulted in a prolonged shutdown could have a substantially ,

detrimental effect on U.S.-Philippine relations.2_/ An accident, l 1

moreover, could cripple the operations of the two maj or U. S . '

military installations located within approximately forty miles of the site. As the governments of the United States and the l Philippines emphasized in a joint communique issued on l l

_lf Letter to the NRC of Sen. Claiborne Pell, Nov. 9,1979; NRC l A/R Vol. 2, Dec. 19. The Senator pointed out the broader '

implications for the U.S. common defense and security aris-  ;

ing from an accident at a U.S.-supplied reactor abroad: l l

"The voice of many countries would '

, quickly shift to criticism of the United States for permitting a dangerous export with insufficient attention to the risks ,

te public health and safety and to the environment. . . . Such reaction would exacerbate U.S. foreign relations and j

, might well be seized upon by hostile nations in an effort to embarrass and discredit this country and thereby to weaken our influence abroad. M. at 2. -

2f The conclusion of the Barber Report, an authoritative study published by the Energy Research and Development Administra-tion, was that: without U.S. government licensing require-ments which assure responsible industrial conduct in the

, nuclear export area, controversies over safety incidents almost inevitably will heighten tensions between the U.S.

and developing countries that impo..-t our nuclear technology.

Barber Associates Report: CDC Muclear Power Prospects, l 1975-1980 -- Commerical, Economic and Safety. In a similar vein, Rep. Clarence Long emphasized in testimony before a subcommittee of the House Foreign Affairs Committee that "In the case of a project which was 'once described by the U.S.

Ambassador to the Philippines as the " Filipino Aswan Dam,"

the political cost to the U.S. of any major disaster or

. breakdown would be far worse than just prestige." statement of Hon. Clarence D. Long before the Subcommittee on Inter-national Economic Policy and Trade of the Foreign Affairs Committee, December 18, 1979, at 8.

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D cembor 7, 1975, tha continusd vitality of thoco inatallations remains "important in maintaining an effective United States presence in the Western Pacific."M The Commission is obligated under the Atomic Energy Act to consider the Westinghouse reactor's risks to health and safety of U.S. and Filipino citizens and to the operations of the Clark ,

and Subic Bay military installations before making a finding that this export will not be inimical to the common defense and security of the United States. The NRC's refusal to assess these impacts not only violated the Act's express requirements, but also effectively precluded the Commission's exercise of its Congressionally-mandated role as an independent, technical check on the common defense and security recommendation of the execu-tive branch. In order adequately to perform this function, the Commission must conduct a common defense and security review that addresses both those foreign health, safety and environmental risks that the State Department considered in making its own recommendations on the export licenses, and other factors not addressed by the State Department. The latter included .most prominently the adequacy of the reactor design. The NRC's refusal to do so requires reversal of the May 6 license i 1

authorizations. l B. THE ATOMIC ENERGY ACT IMPOSES A SEPARATE OBLIGATION ON THE NRC TO ASSESS THE IMPACTS OF THE WESTINGHOUSE EXPORT ON THE HEALTH AND SAFETY OF MORE THAN 32,000 U.S. CITIZENS RESIDING NEAR THE PROPOSED REACTOR SITE In addition to the Commission's obligation under the j Act to assess any of the foreign heal %, safety and environmental

=== . - - -

j/. Ford /Marcos Joint Communique, December 7,1975, p. 2.

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impccto of tho propoccd Wastinghouco rocctor which could jcopcrd-ize the common defense and security of the dnited States, the Atomic Energy Act imposes a separate and distinct obligation on -

the Commission to analyze fully these impacts in terms of their inimicality to the health and safety of over 32,000 U.S. military personnel and other U.S. citizens residing in the area of the ,

Philippine reactor site. The Commission's failure to comply with this separate statutory requirement similarly requires the reversal of its May 6 Orders authorizing the Westinghouse reactor export.

Section 57 of the Atomic Energy Act explicitly pre-cludes the Commission from issuing an export license pursuant to Section 53 if such issuance would create "an unreasonable risk to the health and safety of the public." 42 U.S.C. 52077(c)(2).

Additionally, Section 103 provides that the Commission may not under any circumstances license exports that "would be inimical...to the health and safety of the public." 42 U.S.C.

52133(d)(1954). See also 52013(d). When Congress established  !

general requirements for the issuance of export licenses for pro- I duction and utilization facilities in 1954, it included consid-eration of health and safety factors without distinguishing export authorization from the other licensing functions of the Commission:

The licensed operations are subject to i regulation by the Commission in the interest '

of the common defense and security and in order to protect the health and safety of the public ... Licenses cannot be granted to any person where the issuance of such license I would be inimical to .. the health and -

safety of the public.

S. Rep. No. 1639, 83rd Cong., 2d Sess. 19 (1954). In 1964, when

the Atomic Energy Act was amended to provide for the licensing of p ,ae s g .. e.,w e + = m em e .w,

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cxports of cpccial nuclenr mnterials, tha Scnnto Rcport m d2 it clear that this license procedure should include a thorough i l

health and safety review:

In particular, the amendment of section 57 would remove the absolute prohibitiion against the import or export of special i nuclear material, consistent with the elimi-nation of mandatory government ownership of such material. The Commission would regulate, by licensing, imports and exports so as to I safeguard the pualic health and saTetv aEd ,

the common'He"fense and security. l S. Rep. No. 1325, 88th Cong'. , 2d Sess. 28-29 (1964) (emphasis added).M The Senate Report on the NNPA further instructs the NRC to consider the threat posed by reactors exported from the U.S.

to the health and safety of American citizens regardless of where they are located:

_lf The Nuclear Nonproliferation Act of 1978 provides clear indication of Congress' intent that the NRC assess all health and safety issues before issuing export licenses.

Section 304(a) states:

l No license may be issued by the Nuclear .

Regulatory Commission (the Commission) for .

the export of any production or utilization facility or any source material or special ,

1 nuclear material. . .until -

(2) the Commission finds...that the criteria in section 127 of this Act or their equiva- ,

lent, and any other applicable statutory l requirements are met ...

(enphasis added) 42 U.S .C. 52155(a)(2). The legislative history of this section specifies that:

Other applicable statutory requirements refer l primarily to two requirements: first, section 103 (of the Atomic Energy Act) requires the

.*RC to find that a proposed export .will. not -

be inimical to the common defense and security or to the health and safety of the public ...

S. Rep. No.95-467, 95th Cong. ,1st Sess, 13 (1977); CRS Leg.

Hist. of the NNPA, at 469 (1978). .

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Although the NRC finding on tha hanlth and safety of the public refers only ' to the American public it should be recognized that certain overseas activities 'could pose a threat to Americans.lf .

Commissioners Kennedy and Hendrie acknowledge this expression of Congressional intent, but suggest th:t it indicates only "that if a proposed reactor export to Canada or Mexico is to be located ,

near the U.S. border, the U.S. must consider the impacts on U.S.

citizens and territory." J.A. 24. This analysis misconstrues the scope of foreign health and safety impacts that Congress requires the NRC to assess.M The term " overseas" shows that the drafters of the NNPA expected full NRC consideration of the health and safety threats to Americans from all nuclear exports -- not just from those to countries bordering the United States -- wherever their health and safety may be endangered by the construction of a U.S. reactor overseas.

In Westinghouse Electric Corporation v. Hendrie, Civil Action No. 79-2110 (D.D.C. 1979), the government asserted that additional time was necessary for the Commission to assess com-pletely the impacts of the proposed Westinghouse export on the health and safety of the thousands of U.S. citizens residing in

, the Philippines. The Justice Department argued to the court that If-d Id.

2_/ Commissioner Bradford emphasized this point in his dissent-ing opinion to the NRC Orders of May 6, 1980: "The Commis-sion suggests that the word 'Jeverseas"- means -only that activities on the Canadian and Mexican borders having an impact on the U.S. public must be considered. As to just what " seas" such activities would be "over," the Commission maintains a dignified silence." J.A. 60.

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l "the Napot Point facility could have a pottn- ,

tial impact on (1) a large number of U. S . I Citizens that are (2) located at a close proximity to a (3) major United States facility on a (4) sustained and continuing basis."

The Department emphasized that the health and safety of thousands of American citizens in the Philippines " engaged in official ,

activities conducted by the United States Government in and of its national defense effort, could be directly threatened by an accident at the Westinghouse reactor site." Defendant's Points and Authorities in Support of their Motion to Dismiss, at 28 (emphasis added). Under these circumstances, the Department con-cluded, it was particularly important for the Commission to con-sider thoroughly "the health and safety aspects of the Napot Point facility" in order to determine the reactor's potential impacts on " citizens of the United States" residing in the  ;

Philippines. Id_. at 27-28.

The concerns articulated by the Department of Justice over the proposed Westinghouse reactor's implications to the health and safety of U.S. citizens in the Philippines were under-scored in comments filed with the NRC by the Council on Environ-mental Quality:

The known characteristics of the site and the close proximity of the Subic Bay Naval Base and Clark Air Force Base also clearly indi-cate the need under ... the Atomic Energy Act for the Commi.ssion to examine the potential l

• health, safety and environmental effects of '

i the proposed exports on U.S . citizens sta-tioned at those bases.]/

If Letter from C. Foster Knight Acting General Counsel, Council on Environmental Quality, to Dr. John F. Ahearne, Chairman, NRC, February 29,1980, at 3.

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i Tha Commission's authorization of the Wastinghouso nuclear export reflects a total disregard of these concerns.

Contradicting arguments it made before the district court, the NRC ruled that the Westinghouse reactor would not be inimical to the " health and safety of the public" without making even a cursory examination of the reactor's impacts on that portion of  ;

the public most substantially jeopardized by this export - the i thousands of U.S. citizens now residing in the Philippines. J.A.

1.W The. Commission's decision so to limit its public health l

and safety review is untenable. As Commissioner Bradford has noted, in his dissenting opinion, such a decision (J. A. 55):

leads to an assessment of the impact of an accident on fish no closer than twelve miles to the Philippine coast while ignoring the '

impact of an accident on the 30,000 U.S. 1 citizens stationed by the Subic Bay Naval )

Pase and the Clark Air Fcrce Base within 10 l and 30 miles of the plant. ,

I y In his concurring opinion to the NRC's May 6 Orders, Commis- l sioner Gilinsky asserted that the local impacts of U. S .

nuclear exports should not be ignored, "particularly when they potentially affect Americans abroad." His conclusion, however, was that such impacts should not be considered during a required NRC health and safety review, but rather only in the assessments conducted by the executive branch. l J.A. 50. This conclusion reflects a misapprehension of the 1 Act's export licensing procedures. Under the provisions of 42 U. S .C. 52155, the executive branch has no authority to j address the public health and safety issue. Agencies like the State Departmen't must examine each nuclear export's i local impacts to the extent tnat they bear on U.S. common defense and security, and the Act requires the Commission to analyze the factual bases of favorable executive branch judgments on this issue. The Act futher stipulates, how-ever, that the direct public health and safety determination )

is a technical one, which must be addressed by the NRC i 42 U.S.C. 12133(d) (19547 alone. -

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Tha Commiccion'a dscison effcetively excmpts thousands of Americans residing in the Philippines from the' regulatory protec-tion that Congress has extended to the entire U.S. public, and constitutes a clear violation of the Atomic Energy Act.M C. THE NRC FAILED TO BASE ITS REQUIRED " COMMON DEFENSE AND SECURITY" AND "PUBLIC HEALTH AND SAFETY" DETERMINATIONS ON AN ASSESSMENT OF THE AVAILABLE INFORMATION ,

For a variety of stated reasons, the Commission failed to analyse and consider a substantial portion of the information j submitted by the Executive Branch, several public interest organi-zations (including the Petitioners in this case) and its own staff. As noted above, the Act requires that the NRC base its inimicality determinations on a judgment of the "information j available to the Federal Government, including the Commission."

That available information specifically addressed the following critical issues: (1) the nature and magnitude of the seismic and geological risks posed by the reactor site, (2) the adequacy of h the reactor design (3) the environmental impacts of the reactor, l (4) implications of the disposition of the reactor's radioactive waste in U.S. territory and the global commons, (5)riskspdsedby the reactor to the effective operation of two major U.S. military installations that are proximate to the site, and (6) dangers to i the health and safety of more than 33,000 U.S. citizens who reside in the area of the reactor site and whose livelihoods depend on the operation of these military installations. The available information relating to these issues is. critical to a proper, y It is worth noting the radicall-y different treatment that the Commission would accord this question in a domestic licensing situation, particularly where there were facts of the sort presented in this case regarding reactor design and site suitability. See generally, 10 C.F.R., Ch. 1, Pts.,

51, 100 (1980).

i i . . . . _ . - - . . . ._- . - . . ~

- 41 - .

rocconad datarminntion by the Comminaion of tha propoacd export's possible inimicality to the common defense and security of the United States and the health and safety of the public.

1. The Record Of This Proceeding Is Filled With Information Concerning Health, Safety And Environmental Impacts Of The Proposed Westinghouse Reactor That The Commission Wrongfully Disregarded In Making Its Required Inimicalitv Determinations. ,

During the proceeding belov, the NRC disregarded a substantial amount of information, much of which was made avail-able by the Department of State, or obtained by its staff, that was relevant to its required assessment of the impacts of the Westinghouse reactor on both U.S. common defense and security and the public health and safety. Without thorough consideration by the Commission of all available information relating to among other things, the seismic, geological and volcanic risks posed by the reactor site, the safety of the proposed reactor's design, and the regulatory program of the recipient country, no reasoned determi-nation of these issues is possible.

As the record in this proceeding demonstrates, informa -

tion available to the Commission raised serious questions 5s to l

the suitability of the reactor's proposed site. (See Statement of Facts, supra at 10-13) The State Department's own environmental review, the assessments of the NRC staff, and reports made avail-able to the Commission by the Philippim government and the International Atomic Energy Agency all concluded that the inherent l

seismic and volcanic hazards of the site have never been ade-quately assessed. Other information available to the Commission in this proceeding casts doubt both on the safety of the proposed reactor's design and on the capacity of the Philippine Atomic Energy Commission to carry out a sound regulatory program that e

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will provida for tho safe operation of the PNPP-1 facility and assure safe disposal of the reactor's radioactive waste. (See Statement of Facts, supra at 14-16)

In this connection, it should be noted that the commis-sion has complete power to obtain the data it needs to fulfill both its statutory obligations and whatever actions are dictated ,

by sound policy considerations. Section 304 of the NNPA author-izes the NRC, at any time during an export license proceeding, to request additional information from the executive branch in order to assure that a particular export fulfills all applicable statu-tory requirements. 42 U.S.C. 52155(a)(1) (1978). Pursuant to such requests, this provision compels the Secretary of State "to provide appropriate data. . . as required by the Commission." J_d .

The NRC did not make use of its statutory right to request addi-tional information from the executive branch during the Westing-house license proceeding.M Taken as a whole, the information available to the NRC in the Westinghouse proceeding indicates that PNPP-1 is the most hazardous nuclear reactor export that the Commission has ever been requested to license. The many unresolved health, safety and environmental risks associated with this reactor are directly related to the Commission's required inimicality determinations.

As the executive branch has acknowledged, an operational failure

, at the proposed facility could substantially undermine U.S. rela-1/ We do not address in this brief whether, given the known facts about the difficulties associated with the site, the problems with the reactor-desigm (including whr.t'.er_it could legally be licensed in the U.S. ) and the prern.ce of U.S.

bases and large numbers of U.S. citizens near the site, the NRC had a legal obligation to request additional information and studies.

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tions with tha Philippines, threntaa the continued operations of U.S. military facilities proximate to the proposed site, and thereby jeopardize U.S. common defense and security interests in the far east. Views of the De;.artment of State on Procedural and Jurisdictional Issues, November 14, 1979, at 3; NRC A/R Vol. 2, Doc. 17. Such an operational failure could impair the health and .

safety of the public by endangering the lives of thousands of U.S.

citizens residing nearby as well as impairing the functioning of the military bases. Given these circumstances, the NRC's refusal l

I to consider available information directly relating to its required inimicality determinations constituted a clear violation of the Atomic Energy Act.

Commissioner Bradford notes in his dissent that both law and policy in this case merge to require the NRC to at least determine (1) whether the proposed reactor design would be licenseable in the United States, and if not, why not, and (2) whether the site contains any obvious features that would make it unlicenseable in the U.S. , including an appraisal of whether par-ticular features should be of sufficient concern to the recipient country to require further inquiry on its part, (3) whether the recipient countrr has created a regulatory framework adequate to ensure the safety of its nuclear program.M J. A. 4. We agree. i 1

1

_1f An NRC staff decision memorandum has recognized this type of risk: "The Philippine applications raised the foreign health and safety question in a different context than previously considered. This is the first time the Commission has been requested to address the issue in the context of an export to a nation which has had no previous construction or operation experience with nuclear pover reactors."- Memorandum from Leonard Bickwit to the NRC Commissioners, October 3, 1979, at 3.. Commissioner Eradford felt this was an important area of inquiry (J. A. 3-4), but the NRC majority totally ignored it.

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. . . . 2. The Commission's Assertions Of- Law and Policy In Defense Of Its Failure To Examine Available Information Or To Request Additional Information Needed To Make The Required Statutory Determinations Are Without Merit.

(a) Sovereignty and extraterritoriality principles do not preclude consideration of information bearing on impacts of PNPP-1 in the Philippines.

The principal basis for the Commission determination that it lacks authority under the Atomic Energy Act to consider all available evidence of the reactor's adverse impacts upon the Philippines is the " extraterritoriality rule" of statutory con-struction by which United States statutes are presumed to apply solely to conduct within the United States unless a contrary intent appears from the statute or legislative history.1/ The

, commission concluded that there was no indication of any intent in the statute's legislative history to recuire an examination of such evidence in connection with its coumon defense and security , and health and safety determinations. On the contrary, this principle of construction has no application to the Atomic Energy Act, which ,

neither prohibits nor requires conduct in the Philippines.M The statutes in the instant case, which affect only the

~

issuance of a license to export nuclear equipment material from this l country, regulate conduct occurring solely in the United States.

l

_1/ J.A. 12. The Restatement (Second) of the Foreign Relations Law of the Unitad States 538 (1965) states, in pertinent part: "P.ules of United States statutory law. . . app 1y only to conduct occurring within, or having effect within the territory ~ of the United States, unicss the contrary is clearly indicated the statute." , , ,

2f Similarly, the principle has no application to NEPA, which requires the collection and analysis of information concern-ing the environmental impacts of internal federal decision-making by the NRC. See discussion infra, p. 74-78.

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. .. . In contrant, tho extratorritoriality principle governs the con-struction of statutes which are sought to be applied in a manner which proscribes or prescribes activity in the sovereign territory of a foreign country. The cases relied upon by the Commission without exception fit this pattern.M They have no bearing an the interpretation of a statute such as the Act, the sole application  ;

of which is to regulate the agency's internal decision whether to grant an export license.2f y Foley Brothers v. Filardo, 336 U.S. 281 (1949) (Federal Eight Hour law did not apply to workers on a construction project which the United States government had contracted to have performed in Iran); Steele v. Buleva Watch Co., 344 U.S. 280 (1952) (Lanham Act precluded the use abroad by United States citizens of a trademark registered in the United States);

American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909)

(antitrust laws did not proscribe conduct by a United States corporation occurring wholly abroad and having no impact on

' United States commerce); United States v. Mitchell, 553 F.2d 996 (5th Cir. 1977) (criminal sanctions under tne Marine Mammal Protection Act did not apply to a United States citizen whose capture of protected dolphins occurred wholly within the territorial waters of the Bahamas) . Other c'ases applying the extraterritoriality rule have also involved the proscription or prescription of conduct in a foreign nation.

E.g., Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948)

(applicability of Fair Labor Standards Act to American employees in Bermuda); Blackmer v. United States, 284 U.S.

421 (1932) (U.S. citizen living in France subject to contempt for refusing to respond to a subpoena); United States v.

Bowman, 260 U.S. 94 (1922) (criminal sanctions imposec for fraud on United States government occurring on the high seas and in Brazil) .

2f The Commission recognized that the extraterritoriality rule is based upon the fundamental principle of sovereignty restricting a state from exercising its power within the territory of another state. Thus, for example, state A's sovereignty may be infringed where state B seeks to impose

' criminal penalties for acts in A's territory which have no impacts upon B's interests and are not committed by B's citi-zens. E.S. Lotus (France v. Turkey) [1927] P.C.I.J. Ser. A.,

No. 10. But where, as here, no criminal penalties are sought to be imposed, the regulated cond'uct occurs within the United

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l States and the conduct may ultimately have a significant i impact on United States interests, there is no question that l the United States has the authority to protect its interests, l

and in doing so does not infringe Philippine sovereignty.

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Thi fcct that in regulating wholly U.S. conduct matters relating to the use of an export abroad are considered does not mean the Act is being applied abroad. The United States may, in tha exercise of its authority to control its export trade, place conditions upon exports to a foreign country without violating that country's sovereignty. Indeed, Congress may enact statutes restricting trade with foreign countries based on political ideology,M racial policies,2/ matters clearly within such country's sovereign authority.3f These statutes do not infringe sovereignty precisely because they do not regulate conduct in a foreign country. Similarly, the United States may, without infringing the sovereignty of foreign countries, ensure that its nuclear exports are utilized in a manner that is not injurious to U.S. interests.

Even if tested by the extraterritoriality principle, it could hardly be clearer, as set forth in detail above, that the regulatory scheme governing nuclear exports is intended to require consideration of factors within the control of a foreign sovereign. The entire focus of the Act, as amended by the NNPA, concerns the evaluation of the handling and impact of nuclear technology in the recipient foreign country. In order to ensure that non-proliferation objectives are met, the Act permits site-V E. . , The Export Administration Act of 1979, 50 U.S.C.A. App.

1 g. seq.

2/ E.g., 22 U.S.C. 5287c(c), authorizing the President to restrict trade with Southern Rhodesia. __

3f See also 21 U.S.C. $693 under which United States standards for . inspection of dairy products are applied to dairy pro-ducts intended for export.

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. .. . cpccific visits,M in addition to sotting physical security standards./

2 for the site and requiring United States approva'. of the retransfer of technology and fuel.M Such direct intrusions upon foreign sovereignty render insignificant by comparison what-ever impositions may result from the considerations mandated by the more general common defense and security and health and safety ,

standards.M Furthermore, the Philippines has cooperated with the NRC in allowing inspection of the site and in supplying information bearing on the determination required in the licensing proceeding.

Pursuant to the site-inspection requirements of the NNPA, above, visits by U.S. officials to check the physical security of the site occurred in 1975 and 1976 and a further visit is scheduled in 1980.5j The Philippines government has acknowledged the applicability of the United States licensing criteriaf6 and has y 5304(a) of the NNPA; 42 U.S.C. 52155(a)(2) (Supp. II 1978).

The NRC requires site-visits to determine whether physical security standards are met where large qualitities of nuclear materials are involved. 10 C.F.R. 5110.43 and Appendix C at 580 (1980).

2] 5304(d) of the NNPA; 42 U.S.C. 52156(a) (Supp. II 1978).

y 5305 of the NNPA; 42 U.S.C. 52156(4) (supp. II 1978).

, 4j It should be noted that non-proliferation objectives were, prior to the NNPA, considered under the general standarcs.

The enumeration of specific non-proliferation considerations by the NNPA, some of which are described above, does not alter the applicability of the general standards to impacts

, abroad which affect the common defense and security and health and safety.

y Memorandum from James R. Shea, Director, NRC Office of International Programs, to the J:ommissioners, SECY _So-142, March 14,1980 at 3 & 4.

6/ Philippines-U.S. Agreement for Cooperation, June 13, 1968 Act III Sa.

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itacif supplied information to tha NRC, such as the Puno Commis-sion Report described in detail above, calling into question the reactor's safety.M It is evident that, in all respects, the two governments have worked hand in glove on the PNPP-1 project. For the NRC to refuse, due to sovereignty concerns, to consider infor-mation directly or indirectly made available by the Philippines government is manifestly irrational.

Finally, it should be remembered that the focus of the Act's inquiry in export licensing proceedings is the potential impact of a proposed export on United States interests. Courts have not hesitated'to apply statutes with no express indication of foreign applicability where conduct in another country has impacts upon United States interests.M Thus, assuming that the extra-territoriality rule and sovereignty considerations come into play, statutory review of the reactor is justified because of its poten-tial impacts in the United States.3f lf Affidavit of James R. Shea, Director, NRC Office of Interna-tional Programs, August 24, 1979. Furthermore, the National Power Corporation has recognized that issues "affecting the common defense and security of the U. S . " are among those "that the Commission may legitimately examine and review relative to nuclear export license applications, be it for the Philippines or any other foreign country." Statement of Views of the National Power Corporation, November 15, 1979 at 5. NRC A/R Vol. 2, Doc. 21 y See e.g., Leasco Data Processing Corp. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972) (federal securities laws); United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir.

1945 ) (antitrust laws ) . .

3f It should be noted that any sovereignty interests of the Philippines arise in this case in the context of a commercial transaction, namely the contract by a United States corpora-tion to supply nuclear technology- to a state-owned Philippine corporation. It is well recognized that a state acting in l its commercial capacity is entitled to much lesser protection i from sovereignty doctrines than when acting in its political capacity. See Republic of Mexico v. Ho ffman, 324 U.S. 30, 40-41 (1945) (Franxfurter, J., concurring); Foreign Sovereign Immunities Act of 1974, 28 U.S.C. 51605 ( a)(2 ) (1976 ) . -

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(b) The Commission's other policy arguments do not justify its refusal to comply with the Act's requirement that it examine all available information. __

As discussed in detail above, the Westinghouse export poses unprecedented hazards to both the common defense and security of the United States and the health and safety of the ,

public. Nonetheless, Commissioners Kennedy and Hendrie have asserted that the NRC need not comply with its obligations under the Atomic Energy Act to assess all available information relating to these impacts because of " countervailing policy arguments."

J.A. 26. As a matter of law, such policy arguments cannot justify the Commission's failure to comport with its statutory obliga-tions. If this court upholds the plurality's contention that  ;

illegally truncated NRC inimicality reviews are justifiable on policy grounds despite the extraordinary dangers posed by the proposed export, it is likely that similar policy allegations will preclude an effective assessment of the impacts of nuclear exports in all future proceedings. The clear intention of Congress that the Commission independently review available information relating to all of a proposed nuclear export's common defense and security

, and public health and s&fety risks could be permanently negated.

The plurality contends that a review of available infor-mation concerning all of the proposed reactor's common defense and security, health, safety and environmental impacts would be

" exceedingly difficult," and would " place a strain on NRC resources." J.A. 27, 28. It is difficult to forsee how a review of information already before the Commission would o erextend NRC t

- - . , - . - - . - - ,, , . . , _ . , - - , . - . , a

I resourcas. Whatever the merits of this contention, howaver, it provides no legally sufficient basis for the Commission's failure to perform the thorough inimicality assessments that the Atomic Energy Act requires. If current levels of NRC resources are insufficient to allow the Commission to meet its statutory obliga-tions in the export licensing area, additional appropriations -

l should be sought from Congress to allow compliance with the Act's regulatory provisions.M The plurality additionally asserts that a review of available information concerning the risks posed by the proposed l reactor to the common defense and security and the public health 1

and safety would not guarantee the continuous safe operation of 1 the facility by the recipient country. J.A. 27. This assertion, l however, provides no justification for the Commission's decision 4

to ignore the unresolved foreign health, safety and environmental questions raised by the export. If anything, it should have com-pelled the NRC to conduct as complete a review as possible of the information available so as to increase the chances that the pro- ,

l l

_lf In this context, Commissioner Hendrie explicitly acknowl-l edged that such increased appropriations might be necessary 1 in a statement incorporated in the Senate Report on the l NNPA:

[B]ecause of the NRC's expanded licensing activities (under the Nuclear Non- -

Proliferation Act), . . . I'should indicate ,

that the Commission may need to seek addi- 1 tional resources by way of funding and j personnel authorizations to meet its i increased responsibilitiest - --

- l S. Rep. No.95-467, 95th Cong., 1st Sess. 109, 113 (1977);

CRS Leg. Hist. of NNPA at 565, 569 (1978).

'l 1

1 a

posed plant will be safely operated. M A thorough NRC inimicality review would not, as the plurality suggests, convey the

" misleading impression" to the Philippine government that safe operation of the plant is assured. There is no reason that such a review could not be accompanied by whatever disclaimer is appro-priate, emphasizing that the Commission is in no position to -

assure the safety of the facility over its thirty-year lifespan.2f Similarly, it is unreasonable to assume, as Commissioners Kennedy and Hendrie do, that a review of available information concerning the common defense and security and public health and safety impacts of a proposed reactor export "would be construed as a declaration that a recipient government is incap-able of determining what is in the best interests of individuals residing in its country." J.A. 28. As discussed above, the Atomic Energy Act and the NNPA were intended to involve the NRC with the activities of foreign governments. These acts impose conditions on all licenseable U.S. nuclear exports designed to assure that such exports do not jeopardize U.S. interests, conditions that involve substantial NRC review over a recipient 1/ Commissioner Bradford strongly emphasized this point in his dissent to the NRC's May 6 Orders: "The conclusion should not be that no review is in order because the review cannot guarantee safe operation. It should be that, because the U.S. has little control over the operating practices or quality assurance and control programs, we should at least do what we reasonably can to advise at the outset on the safety of the site, the design, and the regulatory program."

J.A. 57.

2j Commissioner Gilinsky's opinion contains an example of how such an effective disclaimer mf4ht be worded: ~"[T}he Com-mission's present decision does not in any

• fashion address the manner in which this nuclear power plant will be operated. It should in no way be regarded as an endorsement of the safety of the plant. " J. A. 52-53.

country's mathods for utilizing nuclear power. The Commission has given no legally sufficient reason for concluding that the Act's l parallel requirement that NRC actions be consistent with the common defense and security and health and safety of the public  ;

l should be treated differently from non-proliferation requirements. '

P e

e F

6 ae l

a

II. THE COMMISSION VIOLATED NEPA BY INADEQUATELY EXAMINING THE ENVIRONMENTAL EFFECTS OF THE ISSUANCE OF THE EXPORT LICENSES This case presents the Court with a question of statu-tory interpretation that has evaded definitive judicial resolu-tion: whether the extent to which NEPA obligates federal agencies l to assess the environmental impacts of " major Federal actions , i significantly affecting the quality of the human environment"M when the impacts are beyond the borders of the United States. In l i

the decision on review the NRC attempts to constrict NEPA's scope j so as to avoid totally or partially the statutory requirements vis-a-vis worldwide environmental effects. Petitioners will demonstrate that the NRC's " crabbed"M i nterpretation of the Act conflicts with the Act's plain language and its legislative l history. Moreover, the Commissioner's interpretation is con-tradicted by numerous federal court decisions, and by the over-whelming weight of scholarly authority, years of express and l

l implicit interpretation of NEPA by federal agencies including the Council on Environmental Quality, and the Secretary of State.

A review of the opinions issued by the NRC in support of its decision to issue the Westinghouse license reveals that the Commission divided the analysis of the its jurisdiction under NEPA into three segments. First, the Commission concluded that it was preventad by law from considering the site-specific effects of its action on the Philicoings_. J.A. 12. Second, two Commissioners concluded that although the Commission

e. -

1/ NEPA $102(2)(C), 42 U.S.C. 54332(2)(C) (1977).

2f See Calvert Cliffs Coordinating Committee. Inc, v. AEC, 146 U . S . App . D . C . 33, 449 F . 2d 1109, 1117 ( 1971 ) .

• 1

is not preclud:d by law, policy considerations compelled it to refrain from considering the implications of license issuance for the 33,000 Americans who reside within close proximity to the reactor site. J.A. 26.M Third, the Commissioners considered separately the possible environmental impacts of their action upon the " global commons," i.e., that portion of the human ,

environment over which no nation claims sovereign jurisdiction, such as the high seas, upper atmosphere, etc. Commissioners Kennedy and Hendrie allegedly looked to both the text and legis-lative history of NEPA, but found "no legislative guidance" as to j how to treat these impacts. They decided to consider such l

impacts as a matter of discretion and found them sufficiently insignificant so as to issue the license. J. A. 42. Commissioner Gilinsky concurred. J. A. 53.

In defense of its narrow reading of NEPA the Commission did not attempt to interpret, nor did it even refer to 5102(2)(C), the impact statement provision; nor was a single reference made to the voluminous legislative history relating to this issue. Instead, reference was made to an " extraterritorial-ity" rule of statutory construction which, in the NRC's opinion, restricts the applicability of NEPA. J.A. 12. At no time has the Commission, in connection with the instant proceeding, pre-pared an environmental impact statement (EIS) or any other document J/. Commissioner Gilinsky concurred on other grounds, finding that such effects should be considered by agencies other than the NRC. J.A. 50. The remaining Commissioners disagreed.

e

which collects and discusace the existing environmental data relevant to the export decision and presents it to the public for their information or comments.

Petitioners claim that NEPA requires the NRC, before embarking on a major federal action significantly affecting the environment of either a foreign country or the United States, to ,

evaluate the action in an environmental impact statement. In this case, the NRC must appraise the environmental impacts of the proposed reactor, such as the effects of radiation releases from PNPP-1 upon the surrounding population and environment, on the basis of the best information obtainable. "To the fullest extent possible," it must give good faith consideration to the foresee-able environmental implications of any such licensing decision.

42 U.S.C. 54332(2)(C). Obviously, because the affected environ-ment is overseas, the detail and exhaustiveness that can be expected of the EIS will be limited by considerations of data availability, staff expertise, and perhaps other factors. The NRC's stance, on the other hand, is that these considerations give it carte blanche to avoid NEPA's mandate at the threshold, a view which should not be sustained by this Court.

. A. NEPA Applies to Federal Actions Which Affect the Quality of the Human Environment Anywhere In the World.

~

1. The Statutorv Language Section 102(2)(C) of NEPA requires the NRC to pre-1 pare an EIS on "every major Federal action significantly affect-ing the quality of the human environment."M on its face, the term " human environment" belies any constraction which limits

_lf NEPA 5102(C), 42 U.S.C. $4332(2)(C) (1977).

56 -

its scope to the United States. Indeed, the term embodies l

Congress' recognition of the fact that environmental problems are )

inherently transnational; it cannot be construed more narrowly than Congress' wide-ranging design. As this Court has noted, the scope of NEPA is " extraordinarily broad, compelling consideration i

of any and all types of environmental impacts of federal -

action."M Under Sec. 102(2)(F), federal agencies are specifically required to incorporate international environmental concerns into all aspects of their internal decisionmaking. Thus "all agencies of the Federal Government shall. . .

recognize the worldwide and long-range character of environmental problems. . .

Section 102(2)(F) goes on to direct the agencies, "where consistent with the foreign policy of the United States, [to]

lend appropriate support to initiatives, resolutions, and programs designed to maxi'-

mize international cooperation in anticipat-

. ing and preventin a decline in mankind's world environment;" Mg Thus, Congress qualified the mandate of the agencies tofenter into agreements with foreign governments but left unqualified their domestic duty to evaluate worldwide enviromnental impacts of their actions to the fullest extent possible. The mandatory directive that agencies "shall" consider the " worldwide charac-ter" of environmental effects in assessing the effects of their actions, when read in conjunction with'the mandatory requirement that an impact statement "shall" be prepared on "every" major y Calvert Cliffs Coordinatinc Ccmmittee. Inc. v. AEC, 146 U.S.

App . D . C . 33, 449 F . 2 d 1109, 1122 ( 1971 ) .

2f 42 U.S.C. 94332(F) (1977). ,

action affecting the " human environment", permits of only one interpretation. The NRC's NEPA responsibilities do not stop at the borders of the United States or.any other country.

Section 2 lists the purposes of NEPA, which accent the global scope of the Act and set the stage for viewing the remainder of its requirements. In pertinent part, .they are: '

"[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; [and]

l to promote efforts which will prevent or eliminate damage to the environment and  !

biosphere and stimulate the health and l welf are of man.

42 U.S.C. $4321 (1977) (emphasis added). That Congress was addressing what it saw as an international problem is evident from the use of the term " biosphere." Similarly, the goal of promoting " harmony between man and his environment" hardly evinces concern over the location of geopolitical boundari.es.

The breadth of this language dispels any argument that the terms

" biosphere," " man and his environment," or " human environment" were intended to be domestically restricted in their reach.'

In 5101(a) Cor.gress recognized explicitly the " profound impact of man's activity on all components of the natural environment. . .

42 U.S.C. 54331(a) (1977). It then directed the federal government "to use all practicable means and measures. . . to create and maintain conditions under which man and nature can exist in productive harmony." Sec. 101(a).

While the terms " man" and " human" are inherently transnational, their breadth as used in NEPA 'is con ~ firmed by~other ~ references in 5101 to " Americans." In short, the text of NEPA shows that Congress was addressing as a nation problems which confront us i as inhabitants of the biosphere. The " action-forcing" requirements t

e. --- - , _ , , - , - , , , .,

in 5102 ara designed to implemcnt tho worldwida policies and purposes set out in 552 and 101. Therefore those requirements share the global scope of 552 and 101 and are equally immune to a domestically-oriented interpretation.

2. The Lecislative Historv The legislative history of NEPA is replete with ,

evidence of congressional intent to apply NEPA fully to the international as well as the domestic aspects of federal environment-shaping activities.

In 1968, for example, Congress covened a colloquium to consider the formulation of a national policy for the environ-ment. The results of the proceedings were published as a White Paper M which ultimately recommended adoption of a national environmental policy requiring "[e]nvironmental quality and pro- l ductivity [to] be considered in a worldwide context."M It went on to stress that:

[a]lthough the influence of U.S. policy will be limited outside its borders, the global character of ecological relationships must be -

the guide for domestic activities. Ecologi- -

cal considerations should be infused into all international relations. 3/

The Ecuse bill which ultimately was passed and partially incorporated into the text of NEPA, H.R. 12549,M had two primary objectives: to declare a national environmental policy which was to embrace "all components of the natural l_/ Congressional White Paper on a National Policy for the Environment, reprinted at 115 Cong. Rec. 29067 (1969).  ;

\

y Id_. at 29081.

3/ Id_. at 29082. (Emphasis added). l 4/ 91st Cong. ,1st Sess. (1969) .

e w m

l cnvironmant," and to crecto CEQ, which was to be domantically-oriented.M At hearings before the House Committee on Merchant Marine and Fisheries, witnesces testified repeatedly as to the need for a global approach to environmental assessment.E The l

I

'l 1/ See H.R.12549 at p. 7.

2f "Any discussion has to include the fact that these problems are international, not only in terms of a Canadian border over which a piece of pollution may go easily or in terms of what may happen in Japan as a result of our nuclear tests in the Pacific, but also in terms of our " developed technology. . . " We. . . are setting up in other countries technological problems that are giving them a great deal of trouble. Also as we tackle these problems better, and on a more scien-tific basis and have the scientific research necessary to solve them, our solutions will also be exploited, so that we have a kind of double responsibility not to export trouble and to have in mind designs that will also export our solutions in forms that can be used by other people rather than complicating their lives further."

Environmental Qualitv: Hearings on H.R. 6750 et al. Before the Subcommittee on Fisheries and Wildlife Conservation of l the House Committee Merchant Marine and Fisheries, 91st Cong. ,

1st Sess. at 26-27 (remarks of Margaret Mead); see also id.

at 44 (remarks of John Cairns: "the earth might be viewed as a life support system"); 108-109 (remarks of S. Dillon Ripley recommending studies of foreign environments, includ-

, ing analyses of soil and water conditions, anthropological studies of native tribes, etc.); 109-110 (remarks of

~

Congressman Goodling relating to ocean dumping); 118 (remarks of Lloyd Tupling relating to transnational pollu-tion of Antartica, Egypt, Mediterranean Sea, East Africa, Brazil, Southeast Asia and uhe upper atmospher'e); 130 (remarks of David Brower relating to pesticide exports); 133 (remarks of Congressman Keith rel'ating to exports of DDT to India); 226 (remarks of Congressman Dingell relating to ocean dumping of toxic substances); 327 (remarks of David Gates: "[W]e have not yet come to grips with the complexity of the entire earth ecosystem?); 425 (remarks of. Peter Hunt: "[s]ome of our foreign aid programs have created serious environmental problems amongst the intended benefactors.")

t

report of the House Committee on Merchant Marine and Fisheries 1 demonstrates that the committee shared those views. The report quotes extensively from testimony as to the inherently worldwide scope of envoronmental problems,M and emphasizes the need for international environmental analyses:

It is an unfortunate fact that many and perhaps most forms of environmental pollution cross international boundaries as easily as they cross state lines. Contamination of the oceans, with insufficient consideration paid to its long-term consequences, appears to be a major problem, to which far too little attention has been spent in the past.3f Thus, while the committee restricted the responsibilities of the Council to the "American environment,"4/ it retained the global scope of the policy statement, which continued to refer to

" man's" impact upon "his environment. "5f The floor debate leading to passage of H.R. 12549 was in complete agreement with the substance and tenor of the commit-1/ H.R. Rep. 378, 91st Cong., 1st Sess. (1969), reprinted in 1969 U.S. Code Cong. and Admin. News 2751.

2f M. at 2755-2756 (quoting from statement of David Gates):

The complexity of the earth's ecosystem and its component parts of individual ecosystems makes the understanding of it and the management of it a massive l

• challenge. . . we are harassed by ecological disasters

. such as the Santa Barbara ovil slick, the mud slides, the Rhine River fish kills...

3/ M. at 2757.

4/

~

Id. at 2759. Paradoxically, fowev'r, e the Committee noted l Eat "[i]mplicit in this section is the understanding that l the international implications of our current activities l

will also be considered, inseparable as they are from the purely national consequences of our action." M.

5/ Id.

tee hearings and report,M and no member of the House suggested that the international reach of the statement of policy be pared back. It was the broad statement of policy in'the House bill which was later selected in conference for inclusion (with insignificant revisions) within the text of NEPA.

In the form in which the Senate bill, S. 1075, was -

introduced, it was evidently aimed largely at adverse environ-mental effects stamming from "the management and development of the Nation's natural resources."2/ Its domestic limitations, however, had vanished by the time the bill emerged from the Senate.

This dramatic change in orientation is consistent with the tes-timony of witnesses at the Senate hearings, including the Depart-ment of State, who urged an expanded scope for the legislation.3f

_lf Congressman Dingell first described not only " man's" but ,

" Western man's" long history of abuse of the environment.

115 Cong. Rec. H. 8266 (daily ed. Sept. 23, 1969). See also id. at H. 8269 (Congressman Mailliard's comments on environ-mental degradation in England and on the plant Earth);

H.8271 (remarks of Congressman Rogers); H.8272 (remarks of Congressman Minshall); H.8277 (remarks of Congressmen Downing and Daddario); H.8278 (remarks of Congressman Cohelan); H.8279 (remarks of Congressman Leggett concerning l

" man's indirected use of technology"); id. (remarks of I Congressman Boland: "ours is a society tfiat has succumbed )

to the bewitchment of technology, a process which has trans-formed the world around us"); H.8260 (remarks of Congressman ,

Murphy). l 2j S.1075, 91st Cong. ,1st Sess. at 7 (1969) .

3f See, e.g., Hearings on S.1075, S.237, and S.1752 Before the Senate Committee on Interior an,d Insular Affairs, 91st Cong., 1st Sess. 128 (1969) (remarks of Dr. Caldwell); see also M. at 8 (remarks of State Department representative: )

"[A]ny proposition dedicated to the protec-tion of the national envi:tument, cannot be -

effectively achieved unless it recognizes that existing ecosystems are interrelated by nature or by the activities of man, and that the environmental forces affecting our natural resources disregard political and geographical frontiers."

Wh raca tha enacting clause accompanying the original j bill had been addressed to preventing deterioration of domestic natural resources, the stated purposes of the bill as it was reported by committee included prevention of " damage to the . . .

biosphere."Il To the bill was added the $102(2)(C) impact state-ment requirement and a directive to federal agencies to recognize ,

the " worldwide and long-range character of environmental problems."M These changes are explained in the Senate report, in which the committee emphasized its conviction that we must address environmental problems "[a]s a nation, and as a world."M cn the floor of the Senate the international reach of the legis-lation was pointed out within the introductory comments made by Senator Jackson,M and one amendment to the bill was adopted.

While the title of the bill as reported had referred to the b

" Nation's ecological systems and natural resources / on the floor the title was changed to refer to ecological systems and natural resources generally, and to the " human" environment.6j If See S.1075, reprinted in S. Rep. 296, 91st Cong., 1st Sess.

at 1 (1968) .

y Ld. at 2.

3f M. at 6-7.

4f "What is involved is a congressional declaration that we do not intend, as a government or as a people, to. . . initiate actions which will do irreparable damage to the air, land, and water which support life on earth." 115 Cong. Pec. S.

~

7815 (daily ed. , July 10, 1966)

SJ S.1075 as reprinted in S. Rep. No. 296, 91st Cong., 1st Sess. (1969).

6f dA bill to establish a national policy for the environment; to authorized studies, surveys, and research relating to i

)

eL43gical systems, natural resources, and the quality of the human environment." 115 Cong. Rec. S.7819 col. 2 (daily  ;

ed. July 10, 1969)  !

• \

l 1

In shaping a final product, the conference committee drew from the internationally-oriented segments of both the House and Senate bills. Thus the initial policy section of the House bill, which recognized man's impact on the " natural environ-ment" and otherwise demonstrated a global purview, was incor-porated, with minor alterations, into 5101(a) of the conference billll and . ultimately the Act;2j the balance of the House bill, which was concerned _with the "American environment," was largely discarded. Section 2 of the Senate bill, which stated Congress' intent to encourage " harmony between man and his environment" and to prevent damage to the " biosphere,"M was retained and is now 52 of the Act.N The broad declaration of policy found in 5101(a) of the Senate bill was transplanted into 5101(b) of the conference bill 3l and the Act I with the exception of one clause referring to domestic environmental problems.M The committee's adoption and modification of $102(2)(F) is a useful barometer of congressional intent. When the provi-sion was passed by the Senate it required all agencies to ,'

recognize the worldwide and long-range character of environmental problems and lend appropriate support to initiatives, resolutions, and programs designed to maxi-mize international cooperation in anticipat-

]./ See H.R. No. 765, 91st Cong., 1st Sess. (conference report)

M (1969). .

2f 42 U.S.C. 54331(a) (1977).

3f See S. Rep. No. 296, 91st Cong. ,1st Sess.1 (1969) .

~

4f 42 U.S .C. 54321 (1977 ) .

Sj See H.R. Rep. No. 765, 91st Cong. ,1st Sess. 2 (1969) .

6/ 42 U.S.C. 54331(b) (1977) .  ;

y See Senate report at 1.

~

ing and preventing a decline in the quality -

of mankind's world environment. .

. lf when the bill emerged from conference, however, it had been amended to require all agencies to recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of ,

the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international coopera-tion in anticipating and preventing a decline in the quality of mankind's world environment.y The addition of the italicized phrase shows that Congress was sensitive to foreign affairs when drafting the Act. After con-sidering the possibility of conflict between the nation's foreign and environmental policies, Congress saw only one respect in which the latter should yield to the former: the second clause of 102(2)(F). It manifestly did not intend any agency to dis-regard worldwide environmental effects on the grounds that con-l sidering them might be inconsistent with U.S. foreign policy.

3. Post-enactment expressions of congressional.-

intent and agency interpretations -

In 1970 the House Committee on Merchant Marine and Fisheries held oversight hearings b on the implementation of NEPA e 1 by the federal agencies. In response to a statement by a repre-1 y d at 2. The section was then designated 5102(2)(E).

I_d.

2f Conference report at 9 (emphasis a~dded).

3f Administration of the National Environmental Policy Act:

Hearings Before the Subcommittee on Fisheries and Wildlife Conservation of the House Comm71 tee on Merchant-Marine and Fisheries, 91st Cong. , 2d Sess. (1970) .

S s

- -- - - . . .,,..,,c . . _ , - - , . - - , , . ,----,,,w , - -

sentativo from tho Dspertm:nt of Stata to the offect that d3cpito

" considerable confusion" as to NEPA's international reach, the Department's ." feeling" was that in light of the practical dif-ficulties in preparing EISs on environmental impacts abroad, Congress did not intend NEPA to apply to actions with extrater-ritorial impacts,M the Committee condemned this narrow reading ,

of the Act:

Stated most charitably, the commitee dis-agrees 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. 2f The issue arose again in 1978 when a bill was intro-duced in the Senate which would have had the effect of exempting the Export-Import Bank from NEPA with respect to actions having no domestic environmental impacts.M In hearings on the bill, which was never enacted, then-Senator Muskie, one of the archi-tects of NEPA, conveyed clearly his understanding as to the original legislative intent. Expressing his concern over

" bureaucratic descriptions of legislative intent 180* opposite

, y Id. at 1425.

2f Administration of the National Environmental Policy Act, H.R. Rep. No. 316, 92d Cong., 1st Sess. 33 (1971).

. Congressman Dingell, the original sponsor of the bill, made his views known at the hearings:

"If you are not covered, just tell me why are are not covered. Give me a specific statu-tory authority. You said [NEPA) doesn't cover what goes on in Nigeria or the United Kingdom or wherever else: .Where is yocr _

exemption?

Hearings, supra note 1, at 1433.

y S. 3077, 95th Cong. , 2d Sess. 55 (1978 ) .

. . . - - ..- .-- - . ~ , . . - - - --

y- , - , .

~'

from what I know actual legislative intent to have been," he stated that I

the thought 'never occurred to me that some- l

where down the line 9 years later the argu-  !

ment would be made that because major Federal i actions impacting on areas outside the United States were not specifically referenced that, I therefore, they were excluded. I don't need -l a court to decide that question for me. I ' I i have no doubt about it. . . (quotation from

$102(2)(C) omitted) And does the human environment end at our borders? Is that the argument of the lawyers, that the human environment ends at our borders?. . . Does  ;

! man's environment stop at our borders? l In my view, the intention of the National Environmental Policy Act and the environmental impact statement was to apply to major Federal actions wherever they impact within the United States or outside.1/

On any question of NEPA's interpretation, the opinion of the Council on Environmental Quality, which has a statutory mandate to oversee the Act's implementation,M is entitled to

" substantial deference" in the courts.3/ Since NEPA's infancy CEQ's opinion has been that "the language and legislative history of [NEPA, and] the law of the United States" require that , impact statements be prepared for agency actions carried out within the l

]./ Export-Impcrt Bank Amendments of 1978: Hearings before the Su3 committee on Resource Protection of the Senate Committee on Environment and Public Works, 95th Cong., 2d Sess. 220 (1978). See also M. at 42 (remarks of Senator Wallop) .

2/ NEPA $204, 42 U.S.C. $4344 (1977). See also Exec. Order No. 11991 (1977) (giving CEQ authority to promulgate NEPA regulations that are binding on other agencies) .

3f Andrus v. Sierra Club, 442 U. S . 347, 358 (1979). See also Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 1309-10 (opinion of Douglas, ~J.' sitting as Circilit Justice);

Environmental Defense Fund v. Tennessee Vallev Authority, j 339 F. Supp. 806, 811 (E.D. Tenn. 1972) (CEQ's "interpreta-tion cannot be ignored except for the strongest reasons, l particularly where the interpretation is a construction of a l statute by the men designated by the statute to put it into ,l effect"). ,

i

torritorial jurisdiction of other nations.M Substantial agrea-ment with this approach to NEPA is evident from the fact that dozens of " foreign EISs" have been produced by virtually all agencies involved in international actions, including the Depart-ments of Defense, Commerce, Transportation, Interior, State and ERDA.M Such statements have addressed actions whose effects ,

are limited to the global commons as well as those with effects primarily within a foreign country.M In the latter instances, the statements reveal no reluctance to analyze in considerable l detail the makeup of the foreign environment and the nature and extent of the probable environmental damage resulting from the U.S.-sponsored actions, at times including cultural and economic I

i

]/. Legal Advisory Committee, Report to the President's Council on Environmental Quality 14 (1971); accord, 40 C.F.R.

$1500.8(a)(3)(i) (1974); " Memorandum to Heads of Agencies on Applying the EIS Requirement to Environmental Impacts Abroad," reprinted in 42 Fed. Reg. 61068 , 61069 (1977);

Memorandum from Charles Warren, Chairman, to Heads of Agencies, Jan. 19, 1978. See also Yost, American Govern-mental Responsibility for the Environmental Effects of Actions Abroad, 43 Alb. L. Rev. 528 (1979) (authored by CEQ General Counsel).

y See, e.g. Dept. of the Navy, FEIS for the Proposed Removal of the Argus Island Facility-Bermuda, No. 73-1898 (1973);

Dept. of Commerce, Final Environmental Statement, Importa-

. tion of South African Sealskins, No. 73-1380 (1973); Dept.

of Transportation, Darien Gap Highway, Final EIS-Panama-

. Columbia, No. 76-0867 (1976); Dept. of the Interior, Final Environmental Statement, World Heritage Convention, No. 73-0621 (1973); Dept. of State, EIS on the Agency for International Development Pest Management Program, No.

77-0593 (1977); ERDA, Final Environmental Statement, U.S Nuclear Power Export Activities, (ERDA-1542) No. 76-0523 (1976).

3/ See'e.g., Department of Commerce, Waiver of tbh Moratorium on the Import of South African Sealskins, Final EIS, No.

76-0209 (1976).

t

~ - - . --w..- - . +. .-

. impcets on foreign psoplos.M Thus, in at least these instancos, I

the agencies appear to have embraced NEPA's requirements whole-heartedly.

In addition, the question of NEPA's international reach has engendered a substantial body of scholarly writing. With few dissents, the authorities have read the Act to apply to all major ,

j federal actions without regard to where the impacts fall.M y See e.g. id. at 11-21; Bermuda EIS, supra page 68, note 2, at 6 (efficts on foreign fishermen); Panama Canal Co./ Canal Zone Government, Final EIS, License Application for Power Transmission in the Canal Zone, No. 74-1905 (1974) at 11-18 (effects on Panamanian forests and citizens) . Indeed, in 1977 the State Department prepared an EIS for the proposed new Panamal Canal treaties. Final EIS for the New Panama i Canal Treaties, No. 77-1549 (1977). Within the section analyzing the probable effects of the treaties upon Panamanian lands and waters, the EIS explains that the United States' discussion of the local environment would be a useful contribution to the " environmental issues involved," and that the U.S. has a continuing interest in the Panama governments' environmental management program j because of probable effects on the health of U.S. citizens residing in the area. M. at 36.

y See e.g., Frank, The Foreign Reach of NEPA, ALI-ABA Course of Study, Int'l aM Trade Aspects of Envt'l Law (R. Stein ed.) (1974); Robinson, Extraterritorial Environmental Protection Oblic ations of Foreign Affairs Agencies: The Unfulfilled Manc ate of NEPA, 7 Int'l L. and Politics 257 (1974); Strausbefg, he National Environmental Policy Act and the Agency for International Development, 7 Int'l Law.

46 (1973); Tarlock, The Application of the National Environ-mental Policy Act of 1969 to the Darien Gap Highway Project, 7 N.Y.U. J. of Int'l L. and Policy 459 (1975); Yost, American Governmental Responsibility for the Environmental Effects of Actions Abroad, 43 Alb. L. Rev. 528 (1979);

Comment, Controlling the Environmental Hazards of Interna-tional Development, 5 Enyt'l L. Q. 321 (1976); Comment,

. Forthcoming CEQ Regulations to Determine Whether NEPA Applies to Environmental Impacts Limited to Foreign Countries, 8 ELR 10111 (1978); Comment, President Orders Environmental Review of International Actions, 9 ELR 10011 (1979); Comment, Renewed Controversv Over the International Reach of NEPA, 7 ELR 10205 (1977); Note, The Extraterrl-torial Scope of NEPA's Environmental Impact Statement Requirement, 74 Mich. L. Rev. 349 (1975).

e m-.-. ~ . . . . . . - s- - -. . . . -..

v -. - , _ , -

e-- -

-n- .m . - - - - -

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. .. , 4. Judicial Support For NEPA's International Roach The case law over the past decade reflects wide-spread agreement that NEPA requires an examination of environ- I l

mental effects beyond U.S. borders. In Wilderness Societv v.

Morton, 150 U. S . App . D . C . 170, 463 F.2d 1261 (1972), involving the application of NEPA to the askan oil pipeline, this Court >

held that Canadian nationals were entitled to intervene as of  !

right in order to protect their interest in the quality of the local environment. Implicit in this holding is that NEPA's scope is coextensive with the environmental effects of federal agency actions. In People of Enewetak v. Laird, 353 F.Supp. 811 (D. Hawaii 1973), the district court enjoined certain Department l of Defense activities on Enewetak Atoll, a Pacific Trust Terri-tory, pending compliance with 5102(2)(C). In Judge King's view, I "NEPA is framed in expansive language that clearly evidences a concern for all persons subject to federal action which ha.s a l major impact on their environment. . .

M. at 816. Accord, I People of Saipan ex rel. Guerrero v. Department of the Interior, 356 F.Supp. 645 (D. Hawaii 1973), aff'd as modified, 502 f.2d 90 (9th Cir.1974), cert, denied, 420 U.S.1003 (1975) .

In all of the recent reported cases in this area, the defendant agencies have agreed to analyze the foreign impacts of the activity at issue and either settled the lawsuit or effec-tively mooted it.M A case in point is Sierra Club v. AEC, 4 ELR 1/ See Sierra Club v. Adams, 188 U. S . App . D.C. 197, 578 F.2d 389 (1976), rev'q on other grounds sub nom. Sierra Club v.

Coleman, 421 F.Supp. 63 (D.D.C.1975); National Organization for the Reform of Marijuana Laws v. Dept. of State, 452 F.Supp. 1226 (D.D.C. 1978); Environmental Defense Fund v.

, A.I.D., 6 ELR 20121 (D.D.C. 1975); Sierra Club v. AEC, 4 ELR 20685 (D.D.C. 1974). Another of the recent " interna-donal NEPA" cases, Gemeinschaft Zum Schutz des Berliner '

Baumbestandes v. Marienthal, 9 ELR 20011 (D.D.C. 1979), was decided in defendants' favor on other grounds.

, . - - . - . . - _ , 7_ c - - . - . - 9 %

. . . . 10685 (D.D.C. 1975), which involved a challcnga to the participe-tion by several agencies in a program of exporting nuclear reactors.

Although the parties stipulated that an EIS would be prepared, they could not agree on a timetable for its preparation. When plaintiffs asked the court to impose a one-year deadline it did so -- over the " vigorous" opposition of the federal defendants and  ;

the intervenors. Id at 20686. Clearly, a prerequisite to this ruling was the determination by the court that the EIS was in fact required under 5102(2)(C).

Simlarly, in Sierra Club v. Coleman, plaintiffs chal-lenged the Department of Transportation's failure to prepare an EIS for the Darien Gap Highway, which was located in Panama and posed environmental threats both there and in the United States.

The district court enjoined construction on the project due to defendants' failure to prepare an EIS. 405 F.Supp. 53 (D.D.C.

1975). When an EIS was later prepared the court found it inade-quate and extended the injunction. 421 F.Supp. 63 (D.D.C. 1975).

In both instances the district court focused particul,arly on the need to analyze the impact of the highway on indiigenous Indian tribes, despite the fact that such impacts had received some of the most detailed analysis.M Although this court reversed on the facts, it did not disagree with the lower court as to NEPA's international reach. Rather, it found the EIS ade-quate because "the decisionmaker was presented with [ environ-

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me'ntal infomation] in sufficient detail to allow him to balance the appropriate environmental factors."M Having found DOT to 1/ See 405 F.Supp. 55-56; 421 F.Supp. at 66. (citing the lack of " serious anthropological or ethnographic analysis."

y Sierra Club v. Adams, 188 U.S. App. D.C. 197, 578 F.2d 389, ,

396 (1976).

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hCvo compligd with the Act, tha court could "cssumo, without deciding, that NEPA is fully applicable to construction in Panama."W The cases applying NEPA to federal actions abroad draw support from a long line of cases documenting the overriding importance of full agency compliance with the Act's impact state- ,

ment requirement. NEPA does not permit agencies to refrain from preparing impact statements because of foreign policy or other prudential considerations; on the contrary, it requires that they be prepared "to the fullest extent possible." Sec. 102(2). This language establishes an exacting mandate which gi'res way only in the face of a " clear and unavoidable conflict in statutory authority."2f In other words, 5102(2)(C) does not authorize any agency to decline to prepare an impact statement unless the policies opposing preparation of the EIS have been articulated by Congress within a federal statute. Thus, in Concerned About l Trident v. Rumsfeld, this court held that $102(2)(C) cannot yield to general " national defense" concerns, even where those concerns may potentially be critical.M The implications for the illstant case are obvious. There is no " foreign policy" exemption from j ,

NEPA which allows the NRC to eliminate from its decisionmaking process concern for the environment of the Philippines or elsewhere.

If 578 F.2d at 392 n.14.

y Concerned About Trident v. Rumsfeld, 180 U.S. App. D.C. 345,

- 555 F.2d 817 (1976), quoting from Flint Ridge Development Co. v. Scenic Rivers Ass'n of Oklahoma, 426 U.S. 776, (emphasis :.n Rumsfeld) .

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B. THE COMMISSION'S FAILURE TO CONSIDER FULLY THE ENVIRONMENTAL EFFECTS OF ITS LICENSING DETERMINATION VIOLATED NEPA

1. The NRC'S Refusal To Examine The Effects Of The Export License Upon The Philippines, Including Its 32,000 American Residents, Violated NEPA The first segment of the plurality opinion's three-part NEPA analysis concludes that the Commission is not required to evaluate the effects of its export decisions upon the environ-ment of the Philippines. J.A. 11-17. Moreover, the opinion con-tinues, the same rule of extraterritoriality which vitiates the NRC's duty under NEPA also eliminates its discretion to consider ench effects. J. A.16 n. 33.

As shown in Section II(A) above, NEPA requires that an EIS be prepared on the environmental effects of major federal actions wherever they fall, domestically or internationally.

NEPA, like the environment, does not respect geopolitical bound-aries; nothing in the Act prevents review of environmental impacts which fall outside U.S. international boundaries. Commissioner Bradford's dissenting opinion points out the absurdity of the commissions' decision to geographically limit its environmental assessment such that the only impacts assessed are those which occur beyond the territorial seas of the Phillipines. J.A. 55.

However, for the Commission to say that it is not required to consider effects within the Phillipines is one thing; to . conclude that it lacks discretion to do so is quite another.

It is well established that 5102(1) of NEPA supplements the legal mandates of the agencies to give them-broad. discretion to. consider l

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mitted by the participants in the export proceeding, a broad brush recounting of data found within several generic EISs prepared in past years on different topics, and a decision to postpone serious consideration of the environmental impacts associated with the spent nuclear fuel to be generated b.~ the reactor. The conclusion:

such impacts would not be unacceptable.

The plurality opinaon improperly segments the effects of the reactor, suggesting that the environmental effects of the export upon the global commons will be " extremely slight," and that the effects of the entire action are not sufficiently "significant" to trigger the EIS requirement of $102(2)(C) of NEPA.M When addressing the environmental implications of nuclear reactors, NEPA does not allow such segmentation. Every decision to license a nuclear reactor, whether for domestic operation or

export, unavoidably sanctions a "significant" quantum of environ-mental harm and therefore must be accompanied by an EIS.Y y Not one of the four opinions of the Commission conta'i ns a

" finding of no significant impact" as required by CEQ regu-l lations. 40 C.F.R. $1501.4(e)(1979).

2f Natural Resources Defense Council v. NRC, 178 U.S. App. D.C.

336, 547 F.2d 633, 641 (1976), reversed on other grounds, Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).

Executive Order No. 12114, 44 Fed. Reg. 1957 (1979),also requires the preparation of an EIS on the effects of the export license on the global commons. The Commission has read 52-5(v) of the Executive Order to exempt nuclear reactor

. exports from its coverage. J. A. 20. The NRC's reading of the Order is in direct contradiction to its plain language as well as the unanimous interpretation of the commentators. See Gaines, " Environmental Effects Abroad of Maior Federal Actions": An Executive Order Ordains a National Policy, 3 Harv. Enyt'l L. Rev. 136, 150, 155 (1979); Comment, Federal Agencv Responsibility to Assess Extraterritorial Environmental Impacts,14 Texas Int'l L.J. 425, 448 n. 122 (1979); Comment, President Orders Environmental Review of International Actions, 9 ELR 10011, 10012 (1979); Note, Execurive Order on Extraterritorial Environmental Impacts. 13 J. Int'l L. .

(continued en next page) 4

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of AmericansM or to American property,M even where the affected Americans resided overseas.M Indeed, when this Court, in. Sierra Club v. Adams, deferred "to another day" the question of NEPAis international reach, it was referring solely to the defendantsi obligation to consider the effects of the Darien Gap highway upon foreign Indian tribes.M It had no u_abt as to the need to

• l evaluate fully the possible risks to American environmental i

interests.

One of the chief grounds on which the NRC defends its restrictive interpretation of NEPA is the " presumption against extraterritoriality" which, according to the Commission, precludes consideration of environmental effects upon Filipino territory.

The Commission offers no explanation as to how the rule can operate to prohibit analysis of the extraterritorial environmental impacts of the reactor upon the Philippines yet permit analysis of

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extraterritorial effects on the oceans. Moreover, in a strained analysis of NEPA's application vis-a-vis the 32,000 Americans residing near the reactor site, it evidently offsets comp'eting legal theories to permit a " presumption-less" look at NEPA.

This analysis leads the Commission to conclude that it "could" either examine or ignore these impacts so long as its basis is defensible on policy grounds." J. A. at 26.

If , NORML v. Department of State, 452 E.Supp.1226 (D.D.C.1978) .

y Sierra Club v. Adams, 188 U.S. App. D.C. 197, 578 F.2d 389 (1978).

y People of Enewetak v. Laird, ~35T F.'Supp. 811 lD.~-Hawaii 1973).

4/ Sierra Club v. Adams, supra, 578 F.2d at 392 n.14.

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Ac was the came with tha Atomic Enargy Act, (sco scc I, pp. 46-50, supra), the Commission's interpretation of the law is erroneous. Even if it were assumed that the extraterritoriality rule has any applicability to the construction of NEPA, it has expressly been held not to bar consideration of environmental impacts pursuant to the Act.12 Further, the rule exempts only .

" conduct" occurring outside the U.S.2f If the NRC were actually constructing or even exporting the Napot Point reactor there might be some basis for arguing that such conduct was occurring at least in part overseas. NEPA, however, requires only the internal domestic documentation and consideration of environmental effects.

The key cases on which the rule is founded show that it restricts the application only of statutes which are silent as to their possible application abroad.3f NEPA is not such a statute.

i Its plain language demonstrates its international scope, and it was clearly enacted by a Congress concerned with international environmental deterioration. In addition, the rule is inapposite to NEPA on still another ground. As the comments to the Restate-ment acknowledge,M the rule addresses primarily penal statutes.

The Supreme Court, however, hat 1stinguished between such statutes 1/ People of Saipan v. Dep't of the Interior, 356 F. Supp. 645, 649-650 (D. Hawaii 1973 ) .

2/ See cases cited at p. 47 n.1, supra.

3f

• See Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949); See id.

. (Wage-Bour law); United States v. Bowman, 260 U.S. 94 (1922)

(general criminal statute); American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909) (Sherman Act). See also, Leasco Data Processing EquipmentT orp. v.' Maxwell, 468 F.2d 1326 (2d Cir.1972) (Securities Exchange Act).

4/ Restatement 138, comment b.

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and those that protect the operations of government. Statutes in the latter category, the Court has noted, "which are in their nature regulatory measures,. .. are such that to limit their locus to the strictly territorial jurisdic-tion, would be greatly to curtail the scope -

and usefulness of the statute. . . In such '

cases, Congress has not thought it necessary to make specific provisions in the law that the locus shall include the high seas and foreign countries. y Thus, the presumption runs in favor of applyin'g NEPA to actions with effects in foreign countries.M Similar reasoning underlies the .well-established exemption from.the extraterritorality rule for conduct which, though it occurs in a foreign country, nevertheless has domestic effects. In other words, statutes which are silent cs to their international reach are nevertheless apply to conduct with adverse domestic effects.M Although NEPA is intended indirectly to benefit foreign environments, any failure to prepare

, an EIS has substantial and direct impacts on the U.S. public,'and y United States v. Bowman, 260 U.S. 94, 98 (1922) (statute pro-hibiting falsification of documentation submitted to the federal. government). Accord, Skiriotes v. Flcrida, 313 U.S.

69 73-74 (1941) See also U.S. v. Birch, 470 F.2d 808, 811 (4th Cir. 1973).

y ,-Accord, Comment, Public Interest Litigation and United States Foreign Policy, 18 Earv. Int'l L.J. 375 424 (1977).

3] United States v. Sisal Sales Corp. , . 274 U.S. 268 (1927);

United States v. Aluminum Co. of _ America,148 F.2d 416 (2d ^

Cir. 1945); United States v. General Electric Co.', 82'F.

Supp. 753_(D.N.J. 1949).

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on the particular agency.M Thus, where an agency fails to pre-pare an EIS on conduct in a foreign country, the U.S. public suf-fers a direct informational injury. 2_/

At one point, the plurality decision of Commissioners Kennedy and Hendrie seems to depart from an application of the extra-territoriality doctrine and to apply what appears to be a substan- ,

tive " principal of sovereignty" that blocks NEPA's application as a matter of international law. J.A. 12, 28. The Commission's application of this doctrine is equally erroneous. When enforcing regulatory statutes, courts have gone so far as to enjoin conduct in foreign nations, expressiy dismissing assertions that applica-tion of such statutes even within another country might interfere with foreign sovereignty.3_/ A fortiori, no Philippine sovereignty interests are conceivably involved in the collection and evalua-tion of information bearing on the environmental impact of PNPP-1.

The NRC's assertion that its compliance with NEPA might impinge upon Philippine sovereignty is based on antiquated case i lj See Jones v. District of Columbia Redevelopment Land Agency 132 U. S . App. D.C. 366, 376, 499 F.2d 502, 512 (1974) ("the harm against which NEPA's impact statement requirement was directed was not. . . even primarily adverse consequences to the environment; [rather], the harm with which courts must be concerned in NEPA cases is. . . the failure of decision-makers to take environmental factors into account in the way that NEPA mandates"); see also Alaska v.Andrus, 188 U.S. App. D.C. 202, 580 F.2d 465, 474 (1978); NORML v.

Dept. of State, 452 F. Supp.1226,1230 (D.D.C.1978 ) .

2j. See Jones, supra; Natural Resources Defense Council v Morton, 388 F. Supp. 829 (D.D.C.1974) .

3/ See Steele v. Bulova Watch Co. 344 U.S. 280 (1952); Branch v.

FTC, 141 F.2d 31 (7th Cir. 1944.);. Letter. from Department of State to Ambassador of Japan, reprinted in 6 Whiteman, International Law Digest at 133 (1970) ( American antitrust proceedings cannot constitute an encroachment upon the sovereigt ty of any other nation).

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Icw.M Govarnm:nts havo long recogni:cd the need to protect the worldwide environmentM and international law has changed to assign liability to countries' actions causing environmental pol-lution within other countries.32 Nor can NEPA operate to " impose American environmental standards on other peoples." The Act does not substantively prohibit any domestic, much less a foreign ,

agency from taking any environmentally damaging action. It merely requires such decisions to be made on an informed basis.47 In essence, common sense rejects the NRC's argument that NEPA operates in foreign lands to subvert the functions of other governments.

2. The NRC's Treatment of The Environmental Effects of The Export License Upon The Global Commons Violated NEPA The plurality opinion concludes that NEPA does not require the Commission to analyze the impacts of the Napot Point reactor upon the environment of the global commons. J.A. 2 7 . 42

. However, it goes on to find a limited review of such impacts nevertheless " legally permissible." Id. The limited review.which was conducted consists of a summary of the relevant comments sub-1/ See American Banana Co. v. United Fruit Co. , 213 U.S. 347 (1909) .

y See Principle 21 of the Declaration of the United Nations Conference on the Human Environment (1972) (nations have "the responsibility to ensure that activities within their juris-diction or control do not cause damage to the environment of

. other states or of areas outside the limits of national jurisdiction.").

3/ See, e.g. the Trail Smelter arbitration, 3 U.N.R. I . A. A.1938 (1941), 35 Am. J. Int'l..L. 681 (1941); . The Lac Lamoux 12

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U.N.R.I.A.A. 281 (1957) 53 Am. J'. Int'l L. 156 (1959).

4f See Strycker's Bav Neighborhood Council, Inc. v. Karlen U.S. , 62 L.Ed 2d 433 (1980).

5j Contra, In the Matter of Babcock & Wilcox, 5 NRC 1332, 1337 ,

(1977) (global commons effects mu.st be fully evaluated).

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mitted by the participants in the export proceeding, a broad brush recounting of data found within several generic EISs prepared in past years on different topics, and a decision to postpone serious consideration of the environmental impacts associated with the spent nuclear fuel to be generated by the reactor. The conclusion:

such impacts would not be unacceptable.

• The plurality opinion improperly segments the effects of the reactor, suggesting that the environmental effects of the export upon the global commons will be " extremely slight," and that the effects of the entire action are not sufficiently "significant" to trigger the EIS requirement of 5102(2)(C) of NEPA.M When addressing the environmecal implications of nuclear reactors, NEPA does not allow such segmentation. Every decision to license a nuclear reactor, whether for domestic operation or export, unavoidably sanctions a "significant" quantum of environ-mental harm and therefore must be accompanied by an EIS.'M If Not one of the four opinions of the Commission contains a

" finding of no significant impact" as required by CEQ regu-lations. 40 C.F.R. 51501.4(e)(1979).

y Natural Resources Defense Council v. NRC, 178 U.S. App. D.C.

336, 547 F.2d 633, 641 (1976), reversed on other grounds, Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).

Executive Order No. 12114, 44 Fed. Reg. 1957 (1979),also

requires the preparation of an EIS on the effects of the export license on the global commons. The commission has read 52-5(v) of the Executi"? 'rder to exempt nuclear reactor exports from its coverage. J.A. 20 The NRC's reading of the order is in direct contradiction to its plain language as well as the unanimous interpretation of the commentators. See Gaines, " Environmental Effects Abroad of Major Federal l Actions"

An Executive Order Ordains a National Policy, 3 l Harv. Enyt'l L.- Rev. 13 6, 150, 155-(1979); Comment, Federal Agency Responsibility to Assess Extraterritorial Environmental l Impacts, 14 Texas Int'l L.J. 425, 448 n. 122 (1979); Comment, President Orders Environmental Review of International Actions, 9 ELR 10011, 10012 (1979); Note, Executive Order on Extraterritorial Environmental Impacts,13 J. Int'l L.

(continued on next page)

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v The degree of the Commission's disregard for NEPA's requirements is epitomized by the inadequate discussion of environmental concerns within the plurality opinion. The Commis-sion's finding that the environmental effects of the license issuance will be " acceptable" is based on data within three generic EISs, two of which were prepared by another agency and none of which considered the specific impacts posed by this export. Of these, ERDA-1542 has been aclared by the CEQ to be outdated and otherwise inadequate to support the specific deci-sions on review in this case. M Another (NUREG-0056) states expressly that it does not address authorization or approval of any specific reactor site; 2j moreover, it relates only to

" floating nuclear power plants" and expressly states its inapplicability to decisions involving land-based plants. M The third, a Department of Energy draft EIS relating to spent fuel 2] (continued from previous page) ,

and Econ. 455, 462 n. 56 (1979); see also Comment, The International Application of the National Environmental Policy Act of 1969: A New Strateqv, 1979 Wash. U.L.Q.

1063, 1082 n. 110, 1083 n. 120.

y See, Energy Research and Development Administration, Final Environmental Statement, U.S. Nuclear Power Export Activities

("ERDA-1542") EIS No. 76-0523 (1976). See also Letter from CEQ General Counsel Yost to NRC Chairman Ahearne, January 25, 1980; NRC A/R vol. 7 doc. 5; see also Comments of

. Petitioners, November 15, 1979. J. A. 202-205.

y NRC, Final Environmental Statement Relating to Manufacture of Floating Nuclear Power Plants, (NUREG-0056), EIS No. 76-1435 at 1-1 (1976 ) . ...

3/ Id. at 1-2. In addition, the document focuses only on the environment of coastal waters surrounding the United States.

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. .. . dicpacol within tha Unitsd Statas, relatos that a "datailed analysis of the environmental issues" has yet to be prepared.M In addition, the Commission, recognizing that these generic EISs did not address issues relating to the long-term storage and environmental effects of the spent fuel to be generated by the reactor, decided simply to defer considation of these issues for "several years" on the ground that hard a.lalysis was not needed until the plant is constructed. J.A. 44. This Court has previously repudiated identical reasoning while remand-ing an NRC license for full and immediate consideration of spent fuel disposal issues.M Elsewhere this Court has emphasized that issues of long term waste disposal " require the most searching scrutiny under NEPA."M And above all, this Court has emphasized the duties of agencies under NEPA to engage in long-range planning so that future environmental problems can be foreseen and avoided.M The Commission's casual deferral of these c ucial ,

long-term issues, like its dismissal of the environmenta' risks posed by the Napot Point reactor, underscores the pattern of avoidance and violation of NEPA which runs throughout its decision.

y Dep't of Energy, Draft EIS, Storage of Foreign Spent Reactor Fuel, EIS No. 78-1310, at iii (1978) .

Natural Resources Defense Council, Inc. v. NRC, 178 U.S.

y " App. D.C. 336, 547 F.2d 633, (1976) rev'd on other grounds, Vermont Yankee Nuclear Power Corp. v. NRDC, Inc., 435 U.S. 519 (1978).

3/ Scientists' Institute for Public7nfonation v. AEC, -

156 U.S. App. D.C. 395, 481 F.2d 1079,1098 (1973 ) .

4f See Scientists' Institute, supra; cf. Minnesota v. NRC, TDT F.2d 412,195 U.S. App. D.C. 2347 1979).

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4 CONCLUSION For the foregoing reasons, the Commission's Orders dated May 6, 1980 should be set aside and the case remanded to the Commission with instructions (1) that, under the Atomic

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Energy Act and the Nuclear Non-Proliferation Act, the Commission must independently examine all health, safety and environmental risks of the proposed Philippine reactor export which could affect U.S. common defense and security, (2) that under the j l

Atomic Energy Act and the Nuclear Nonproliferation Act, the j Commission must fully assess the health, safety and environmental risks of the proposed export to the more than 32,000 U.S. mill-  ;

1 tary personnel and other U.S. citizens residing in the Philip-pines, (3) that the Commission is obliged, under the National Environmental Policy Act, to fully examine and consider the environmental implications of the proposed export on the P5ilip-pines, including the more than 32,000 U.S. citizens residing therein, and on U.S. territories and the global commons, and (4) that the Commission is obliged, under the National Environmental Policy Act, to prepare an environmental impact statement which addresses "to the fullest extent possible" the entire range of

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i environmental implications prior to determining whether the export should be authorized.

Respectfully submitted,

/s/ Clifton E. Curtis CLIFTON E. CURTIS JAMES N. BARNES LEONARD C. MEEIGR Center for Law and Social Policy */

1751 N Street, N.W.

Washington, D.C. 20036 (202) 872-0670 Counsel for Petitioners:

Natural Resources Defense Council, Inc.

Philippine Movement for Environmental Protection Sierra Club Friends of the Earth Center for Development Policy

/s/ S. Jacob Scherr S. JACOB SCHERR '

THOMAS 3. STOEL, JR.

• Natural Resources Defense Council

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1725 I Street, N.W.

Washington, D.C. 20006 (202) 223-8210 '

/s/ Graeme W. Bush GRAEME W. BUSH Caplin & Drysdale 1101 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 862-5060 Counsel for Petitioner Natural Resources Defense Council

• / Timothy Harrison, Daniel Wake and Ross Rhodes, law student interns in the Center's clinical program, assisted in the ,'

preparation of this brief.

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/s/ James B. Dougherty JAMES B. DOUGHERTY Suite 620 1356 Connecticut Avenue, N.W.

Washington, D.C. 20036 (202) 452-9600 Counsel for Petitioner .

Philippine Movement for .

Environmental Protection

/s/ Ellyn Weiss ELLYN WEISS Sheldon, Harmon & Weiss 1725 I Street, N.W.

Suite 506 Washington, D.C. 20006 (202) 833-9040 Counsel for Petitioner Union of Concerned Scientists Dated: June 10,1980 Washington, D.C.

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Brief of Petitioners was hand-delivered this 10th day of June,1980, to the following: ,

Leonard Bickwit, Jr.

Office of the General Counsel U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1035 Washington, D.C. 20055-Carlton Stoiber Office of the General Counsel U.S. Nuclear Regulatory Commission l 1717 H Street, N.W., Room 1035 i Washington, D.C. 20555 '

l Stephen Eilperin ,

Office of the General Counsel i U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1035 Washington, D.C. 20555 Peter R. Steenland, Jr.

Chief, Appellate Section

, Land and Natural Resources Division Department of Justice Room 2339 -

Washington, D.C. 20530 .

4 Ronald J. Bettauer Legal Advisor for Nuclear Affairs U.S. Department of State

. Room 6420 Washington, D.C. 20520 Barton Z. Cowan John R. Kenrick Eckert, Seamans, Cherin & Mellott 42nd Floor, 600 Grant Street Pittsburgh, Pennsylvanik 15219 S

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. Christoph3r H. Buck 1Gy, Jr.

Jonathan Z. Cannon Beveridge, Fairbanks & Diamond 1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036 Thomas M. Daugherty Law Department Westinghouse Electric Corporation 17th Floor, Westinghouse Building Pittsburgh, Pennsylvania 15222 ,

LIFTON E. CURTIS d

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ADDENDUM (Pertinent Statutes)

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I. Authorities Cited In The Atomic Energy Act Section 103 of the Atomic Energy Act of.1954, 42 U.S.C.

.52133: .

9 2133. commercial licenses-condiuans (a) The Commission is authorised to issue licenses to persons applying therefor to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use, import, or ex-port under the terms of an agreement for cooperation arranged pur-svant to section 2153 of this title, utilization or production facilities for industrial or commercial purposes. Such licenses shall be is-sued in accordance with the provisions of subchapter XV of this chapter and subject to such conditions as the Commission may by rule or regulation establish to effects, ate the purposes and provi-sions of this chapter.

.Nomeselusive bes4e (b) The Commission shall issue such licenses on a nonexclusive basis to persons applying therefor (1) whose proposed activities will serve a useful purpose proportionate to the quantities of special nu.

clear material or source material to be utilized; (2) who are equipped to observe and who agree to observe such safety standards to protect health and to minimize danger to life or property as the Commission may by rule estabilsh; and (3) who agree to make available to the Commission such technical information and data concerning activities under such licenses as the Commission may de- .

termine necessary to promote the common defense and security and to protect the health and safety of the public. All such information -

may be used by the Commission only for the purposes of the com- -

mon defense and security and to protect the health and safety of the public.

Lleense period (c) Each such license sha!! be issued fo.- a specified period, as determined by the Commission, depending on the type of activity to

• be licensed, but not exceeding forty years, and may be renewed upon the expiration of such period.

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(d) No license under this section may be given to any person for

- activities which are not under or within thejurisdiction of the Unit-ed States, except for the export of production or utilization facifi-ties under terms of an agreement for cooperation arranged pursuant to section 2153 of this title, or except under the provisions of sec-tion 2139 of this title. No license may be issued to an alien or any any corporation or other entity if the7emmission knows or-has reason to believe it is owned, controlled, or dominsted by an alien, a In any event, no 11-foreign corporation, or a foreign government.

cense may be issued to any person within the United States if, in the opinion of the Commission, the lasuance of a license to such per-son would be inimical to'the common defense and security or to the

.I health and safety of the public, h

Section 126 of the Atomic Energy Act of 1954, as I

amended, 42 U.S.C. 52155:

3 2255. Export licensing proceduree-Ezecutive breach judgment on orport applications: criteria governing United States nuclear exporta '

(a) No lleense may be issued by the Nuclear Regulatory Commission (the "Commfnefon") for the export of any production or utilization fa-cility, or any source material or special nuclear material, including dis-tributions of any material by the Department of Energy under section 2074, 2074, or 2112 of this title, for which a license is required or re- )

quested, and no exemption from any requirement for such an export 11-conse may be granted by the Commission, as the case may be, until-(1) the Commission has been notifled by the Secretary of State that it is the judgment of the esecutive branch that the proposed i j

export or exemption will not be inimical to the common defense and security, or that any export in the category to which the proposed export behogs would not be inimics? to the common defense and security because it lacks sigulficance for nuclear explosive purposes.

The Secretary of State shall, within ninety days after March 10.

1 1973..eetab11sh orderly and expeditious procedures. Including provi-sfon for necessary administrative actions and inter. agency memo-rsada of understanding, which are mutually agreeable to the Secro-taries of Energy, Defense, and Commerce, the Director of the Arms Control and Disarmament Agency, and the Nuclear Regulatory Com-mission for the preparation of the executive branch judgment on export applications under this section. Such procedures shallinclude, at a minimum, explicit direction on the handling of such app!!ca-tions, express dead!!nes for the solicitation and collection of the views of the consulte:1 agencies (with identifled officials responsible for meeting such dead!!nes), an inter.agancy coordinating authority to monitor the processing of such applications, predetermined pro-cedures for the expeditious hand 11ag of intra-agency and inter-agency disagreements and appeals to higher authorities, frequent meetings of inter. agency administrative coordinators to review the status of a!! pending app!! cations, and similar administrative mech- .

anisms. To the extent practicable, an appucant should be ad- '

I vised of all the information required of the applicant for the entire process for every agency's needs at the beginning of the process. <

Potentfally controversf al app!! cations shen!d be identitled as quick- '

17 as poss.ble so that any required po!!cy decisions or diplomttic consultations con

• be initiated in a timely manner.' An immediate effort should be undertaken to establish quickly any necessary stand- ,

ards and critaria. tactuding the nature of any required assurances or l evidentjary showings, for the decialons required under this section.

The processlug of any export app!! cation proposed and f!!ed as of f March 10,1973, shall not be delayed pending the development and establishment of procedures to implement the requirements of this

- section. The executive branch judgment shall be completed in not more than sixty days from receipt of the app!! cation or request, un-less the Secretary of State in his d!seretion specifically authorizes additional time for consideration of the application or request be-cause it is in the national interest to allow such additional time.

The Secretary shall notify the Committee on Foreign Relations of

. the Senate and the Committee on International Relations of the Heuse of Representatives of any such authorization. In submitting any such judgment. the Secretary of State sha!! specif! cat r address the extent to which the export criteria then.in effect are met' and _

the extent to which the cooperating party has adhered to the provf-sions of the app 1! cable agreement for cooperation. In the event he considers !t warranted, the Secretary may also address the fol-lowing additional factors, among others:

(A) whether issuing the license or granting the esemption will mater:a:ly advance the non. pro!!!aration policy of the Unit-ed S*.ates by encouraging the recipient nation to adhere to the

• Treaty, or to participate in the undertakings contemplated by  ;

section 2153b or 2153c(a) of this titJe; '

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(B) whether failure to issue the licens3 cr gra:t the cz-empUon would otherwise be seriously prejudicial to the aca-

+ prollieration objectives of the United States; and (C) whether the recipient nation or group of nations has agreed that conditions substantially idendcal to the esport criteria set forth in section 2155 of this due will be applied by  ;

another r,uclear supplier nation or group of nations to the pro-posed United States export. and whether in the Secretary's judg-ment .those conditions will be implemented in a manner ac-ceptable to the United States.

The Secretary of State shall provide appropriate data and recom-mesdations. subject to requests for . additional data and recom-mandations, as required by the Commission or the Secretary of , ,

Energy, es the case may be; and (2) the Commission finds, based on a reasonable judgment of the assurancos provided and other informadon available to the Fed.

eral Government. facluding the Comm!ssion, that the criteria in section 2156 of this title or their equivalent and any other applica.

ble statutory requirements, are met: Promded. That continued co-operation under an agreement for cooperation as authorized in ac-cordance with section 2154 of this title shall not be prevented by failure to meet the provtalons of paragraph (4) or (5) of section 2156 of this t!ue for a period of thirty days after hfarch 10. 1975.

and for a period of twenty three months thereafter if the Secretary of State notifies the Commission that the nation or group of na- i tions bound by the relevant agreement has agreed to acgotiaticas as called for in section 2153c(a) of this title; however, nothing in this subsection sha!! be deemed to tellaquish any rights which the Unit.

ed States may have under agreements for cooperatJon in force on afarch 10. 1378: provided fur Aer. That if, upon the ezptration of such twenty four month period, the President determines that fa!!.

ure to continue cooperation with any group of nations which has been exempted pursuant to the above proviso from the provisions of paragraph (4) or (5) of section 2155 of this t?! s. but which has not yet agreed to comply with those provisions would be seriously prejudicfk1 to the schievement of United States non proliferation objectives or otherwise jeopardize the common defense and security.

he may, after notifytag the Congress of his determination, extend by Executive order the duration of the above proviso for a period of twelve months, and may further extend the duration of such proviso by one year increments annually thereafter if he again makes such determination and so notifies the congress. In the event that the Cosamittee on Internat!cnal Relations of the House of Representa-

• tives or the Committee on Foreign Relations of the Senate reports l a jotat resolution to take any action with respect to any such ex- -

tension, such joint resolution will be considered in the House or Senate, as the case may be, under procedures identical to thcee 3,ro-vided for the consideration of resolutions pursuant to section 2159 of this title: hd addufonsHy promded, That the Commission is au-thorized to (A) make a single !!nding under this subsection for more a than a single application or request . where the app!! cations or're-quests involve exports to the same country. In the same geners!

' time frame, of similar signifleance for nuclear explosive purposes and under reasonably similar circumstances and (B) make a finding under this subeection that thero is no material changed circumstance associated' with a new application or request from thcse ez! sting at the time of the last application or request for an export to the same country, where the prior app!! cation or request was approved by the Commission using a!! applicable procedures of this section. and such finding of no material changed circumstance shat! be deemed to satisfy the requirement of this paragraph for f!nd!nt- of the

- Com mlecion. The decision not to make any such f!ndle in !!eu of the !!adtags which would otherwise be recu! red to be mue under i

i this pa,rarrsph shall not be subject to judicial review: And provided forner. That nothing contained br-this section is intended to rg quire the Commisslos Independently to conduct or prohibit the Com-mission from independently conducting country or site spee!fic vis!-

tations in the Commission's consideration of the application of IAEA safeguards, l

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Regeeste to See priven tisselv osselderelless Presleential rwelew 18 Coenlaiselee to semble to seeks tegelred etetsterr deserumanatieses conneueeses reesew (b)(1) Timely consideration shall be given by the Commission to re-quests for asport Itcenses and exemptions and such requests shall be granted upon a determination that all app!! cable statutory requirements have been met.

(2) If, after receiving the executive branch judgment that the issuance of a proposed export !! cense will not be inimical to the common defense and security, the Commission does not lasue the proposed !! cense on a timely basis because it is unable to make the statutory determinations required under this chapter, the Commisstoa shall publicly issue its de-cision to that effect. and shall submit the license application to the ,

The Commission's decision shall faclude an explanation of President. If, after the basis for the decfslon and any dlssenting or separate views.

receiving the proposed !! cense app!! cation and reviewing the Comm!asion's decision. the President determines that withholding the proposed export would be seriously prejudicial to the achtetement of United States non-proliferation objectives, or would otherwise jeopardize the common de-fease and security, the proposed export may be authorised by Executive ordert promded. That prior to any such export, the President sha!! sub-

, mit the Executive order, together with his explanation of why, in light of the Commission's decfslon, the export should nonetheless be made, to the Congress for a period of sixty days of continuous session (as defined in section* 2159(g) of this title) and shall be referred to the Committee on International Relations of the House' of Representatives and the Committee on Foreign Relations of the Senate, but any such proposed export shall not occur it durlag such sixty-day period the Congress adopts a concurrent resolution stating in substance that it does not favor the proposed export. Any such Executive order sha!! be considered pursuaat to the procedures set forth la section 2253 of this title for the considers-tjon of Presidential submissions: Astd procided /srfAer,'That the pro-cedures estab!!shed pursuant to subsection (a) of section 2258a of this title shall provide that the Commission shall immediately fait! ate review )

of any app!! cation for a !! cense under this section and to the mazfmum J extent feasible shall expeditjously process the application concurrently ]

with the executive branch review. while awalting the final executive branch judgment. In initiating its revtew, the Commission may identify a set of concerns and requests for informatfos assocfated vtih the pro-jected tasuance of such license and shall transmit such concerns and requests to the executive branch which shall address such concesas and Such pro-

• requests ta its written communications with the Commissfos.

cedures shall also provide that !! the Commission has not completed so- -

tion ou the application within sixty days after the receipt of an execu. ,

tive branch judgment that the proposed export or azemption is not !almi-cal to the common defense and security or that any export la the category to which the prcposed export belongs would not be inimles! to the com-mon defense and security because it lacks significance for nuclear ex-plosive purposes, the Commission sha!! Inform the applicant in writsng If of the reason for delay and provide foW r-up reporta as appropriate.

• the Commission has not completed actson by the end of an additfosal stzty daye '(a total of one hundred and twenty days from receipt of the executive branch judgment), the President may authorise the proposed -

s.

export by Executive order, upon a finding that further delay would be excesette and upon maklag the fladings required for such Presidential authorisstless under this subsection, and subject to the Congressional review procedures set forth herois. However, if the Commission has commenced procedures for pub!!c participation regarding the proposed export under regulattoss promulgated pursuant to subeection(s) of see-tion 2255a of this title, or-within sixty days after receipt of the ex-

. ecutive branch judgment on the proposed export-the Commissica,has ,

Identified and transmitted to the executive branch a set of additional concerns or requests for information. the President may not authorise the proposed export until sixty days after public proceedlars are completed ,

or staty days after a fn!! executive branch response to the Commission's sdd!tional concerne or requests has been made consistent with subsec-tion (a)(1) of this section: Provided furiner, That nothing in this sec-tion shall affect the right of the Commission to obtain data and recom-mandatless from the Secretary of State at any time as provided in sub-secties (a)(1) of this section.

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Adents.eas esp ee enterna (c) In the event that the House of Representatives or the Senate pass-es a joint resolution which would adopt one or more additional export criteria, or would modify any estating export criteria under this chapter, any such joint resolution shall be referred in the other House to the Com-mittee on Foreign Relations of the Senate or the Committee on Interna-tional Relations of the House of Representatives, as the esse may be, ,

and shall be considered by the other House under applicable procedures provided for the consideration of resolu*.lons pursuant to section 2153 of this title.

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II. Authoritico Cit d in tha Nuclsar Non-Proliferation Act Section 3 of the Nuclear Non-Proliferation Act of 1978, 522 U.S.C. 53202:

9 3202. congressional statement or purpose It is the purpose of this chapter to promote the policies set forth above by-(a) establishing a more effective framework for international cooperation to meet the energy needs of all nations and to en-sure that the worldwide development of peaceful nuclear ac.

tivities and the export by any nation of nuclear materials and equipment and nuclear technology intended for use in peaceful nucles'r activities do not contribute to proliferation; (b) authorizing the United States to take such actions as are required to ensure that it will act reliably in meeting its com-mitment to supply nuclear reactors and fuel to nations which adhere to effective non-proliferation policies; l (c) providing incentives to the other nations of the world to Join in such international cooperative efforts and to ratify the Treaty; and (d) ensuring effective controls by the United States over its exports of nuclear materials and equipment and of nuclear tech-nology.

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JIII. Authorities Cited in National Environmental Policy Act Section 2 of the National Environmental Policy Act of 1969, 42 U.S.C. S 4321: i 5 4321. congressionar declaration of purpose The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man

' and his environment; to promote efforts which will prevent or elimi-nate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecolog-ical systems and natural resources important to the Nation; and to ,

establish a Council on Environmental Quality.

Title I of the National Environmental Policy Act

.of 1969, 42 U.S.C. S 4331 ej seq.:

5 4331. congressional declaration of national environ-mental policy .

Creetton and seeinsennsee et eendittene under whlek sean and nature can ezlet in produettee herseeny (a) The Congress, recognizing the profound impact of man's activi- '

ty on the interrelations of all components of the natural environment, "

particularly the profound influences of population growth, high-densi-ty urbanization, industrial expansion, resource exploitation, and n1tw and expanding technological advances and recognizing further the crit-ical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the con-tinuing policy of the Federal Government, in cooperation with State

• and local aovernments, and other concerned public and private organi-zations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote

- the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americana.

Coatimolag reopenethlitty of Federal Governament to use all praetleable usesse to Ismprove and eeerdinate Federal plane, functlens.

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(b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all

. I prac8 cable means. consistent with other essential considerations of na-tional policy, to improve and coerdinate Federal plans, functions, pro- l grams, ar.d rescurces to the end that the Nation may-1

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(1). fulfill th] responsibilities cf each gen:rcti:n r.s trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and es-thetically and culturally pleasing surroundings; I

(3) attain the widest range of beneficial uses of the environ.

ment without degradation, risk to health or safety, or other unde- l sirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an envi-ronment which supporta diversity and variety of individual che! ,

(~ achieve a balance between pop 61ation and resource use which will permit high standards of living and a wide sharing of life's amenities; an'd (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

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and . shame. ment .f eavar. ament (c) The Congress recognizes that each person should enjoy a health-ful environment and that each person has a responsibility to contrib-ute to the preservation and enhancement of the environment.

$ 4332. cooperation of agencies; reports; avnlinbility ofin-formation; reconunendations; international and national coordinntion of efforts The Congress authorizes and directs that, to the fullest extent possi-ble: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Govern-ment shall-(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and -

the environmental design arts in planning and in decisionmaking ,

which may have an impact on man's environment; (B) identify and develop methods and procedures, in consulta-tion with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently un-

- quantified environmental amenities and values may be given ap-propriate consideration in decisionmaking along with economic and technical considerations;

-(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 environmentalimpact of the proposed action, (ii) any adverse environmental effects which cannot be l avoided should the proposal be implemented, (iii) alternatives to the proposed action, . ._  ;

(iv) the relationship between. local short-term uses of man's environment and the maintenance and enhancement of long term productivity, and t

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(v) cny.irreversibl2 r.nd irretrisvabla c:mmitmtnts ci re-sources. which would be ~ involved in the proposed action

- should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with re-spect to any environmental impact involved. Copies of such state.

ment and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and en-force environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public ,

as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; (D) Any detailed statement required under subparagraph (C) after January 1,1970, for any major Federal action funded under

! a program of grants to States shall not be deemed to be legally in-

' sufficient solely by reason of having been prepared by a State agency or official,if:

(I) the State agency or official has statewide jurisdiction ,

and has the responsibility for such action, l (ii) the responsible Federal official furnishes guidance and participates in such preparation,

?- (iii) the responsible Federal official independently evalu-

ates such statement prior to its approval and adoption, and (iv) after January 1,1976, the responsible Federal official l provides early notification to, and solicits the views of, any other State or any Federa! !and management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land manage-ment entity and, if there is any disagreement on such im.

pacts, prepares a written assessment of such impacts and views for incorporation into su6h detailed statement.

The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and con- -

tent of the entire statement or of any other responsibility under ,

this chapter; and further, this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide Jurisdiction.

, (E) study, develop, and describe appropriate alternatives to

- recommended courses of action in any proposal which involves un.

. resolved conflicts concerning alternative uses of available re-sources;

- (F) recognise the worldwide and long range character of envi-ronmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, reso-

. lutions, and programa designed to maxamfze international cooper-ation in anticipating and preventing a dec!!ne in the quality of mankind's world environment; (G) make available to States, counties, municipalities, institu-tions, a'nd individuals, advice and Information.useful in restoring, ,

maintaining, and enhancing the quality of the environment; j'

(H) initiate and utilize ecological information in the planning

and development of resource-oriented projects

and

! (I) . assist the Council on Environmental Quality established by

[ subchapter II of this chapter.

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f 4333. conformity of administrative procedures to nation-al environmental policy All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this chapter and shall proe,se to the President not later than July 1,1971, such measures at uay be ,

necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter, f 4334. Other statutory obligations of agencies l Nothing in section 4332 or 4333 of this title shall in any way affect the specific statutory obligations of any Federal agency (1) to comply ,

with criteria or standards of environmental quality. (2) to coordinate  !

or consult with any other Federal or State arency, or (3) to act. cr re-frain from acting contingent upon the recommendations or cert: fica-tion of any other Federal or State agency.  ;

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s 4335. Efforts supplemental to existing authorizations

• The policies and goals set forth in this chapter are supplementary to

. those set forth in existing authorizations of Federal agencies.

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