Analysing the Extraterritorial Application of the National Environmental Policy Act

The purpose of this paper is to examine the issue of whether, in light of Congress' actions and the judicial precedents, NEPA should be applied extraterritorially. Section One discusses the extraterritorial application of United States laws in general, the bases supporting the extraterritorial application, and the tests courts have relied upon to determine the appropriateness of extraterritorial application. The section also explores the presumption against extraterritoriality and the logic behind it.In the second section, the paper addresses the extraterritorial application of NEPA. That sections includes an analysis of the congressional, executive and judicial treatment of the issue. The third section analyses the pros and cons of applying NEPA extraterritorially. Section four speculates about the future of NEPA's extraterritorial application relying upon proposed actions by Congress and the Executive branch, and upon judicial precedent. The paper concludes that NEPA should be applied extraterritorially when the United States agencies' actions have environmental impact in foreign countries. That conclusion will be supported by several factors including: (1) since NEPA is a procedural statute, the potential for conflict with foreign laws is minimal; (2) the language of NEPA indicates that Congress was concerned with the global environment; and (3) the reasoning the courts have used to apply antitrust laws extraterritorially is applicable to NEPA.