On January 5, 1977, President Carter issued Executive Order No. 12,1142 (Executive Order) describing the scope of United States federal agencies' obligations to consider the environmental consequences of proposed agency actions abroad. In so doing, Carter purported to establish the sole legal authority governing agency response to the concern for the global environment. Moreover, the Executive Order was intended to resolve a heated debate over the extraterritorial applicability of the National Environmental Policy Act [NEPA] which had concerned federal agencies, courts, Congress, and the Executive Branch during three successive administrations.
The controversy focused on whether NEPA's requirement that an environmental impact statement (EIS)--prepared for all "major Federal actions significantly affecting the quality of the human environment"--applied to actions having an effect on the natural environment beyond United States borders. NEPA's applicability to actions beyond the United States borders depended on interpretation of the term "human environment" as used in the Act.
The era of federal environmental legislation is only one decade old, and the intertwining of new legal doctrine with foreign policy considerations has raised unprecedented problems for parties on both sides of the NEPA debate. First, this Note will describe the magnitude of international concern for the environmental effects of economic development, the differing domestic interpretations of NEPA, and the history of the debate within the United States government and courts concerning the Act's extraterritorial effect. Next, the Note will analyze President Carter's attempted resolution of the controversy under Executive Order 12,114, the extent to which the Order accommodates opposing viewpoints, and the Order's practical enforceability in light of the agencies' primary role in developing the implementing regulations of self-governance.
Sue D. Sheridan,
The Extraterritorial Application of NEPA Under Executive Order 12,114,
13 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol13/iss1/8