First Circuit holds that
shipment of vitrified nuclear waste on U.K. vessel sailing from France to Japan
through United States' Exclusive Economic Zone in Caribbean was not "major
federal action" so as to require U.S. to file Environmental Impact
Statement under NEPA
On February 3, 1998, the Pacific Swan, a British-flag freighter,
passed through the Mona Passage between the Islands of Puerto Rico and
Hispaniola bound for Japan via the Panama Canal. Because it carried a cargo of
high-level, vitrified nuclear waste, Mayaguezanos por la Salud y el Ambiente
(MSA) and other environmental organizations along with fishermen groups were
afraid of an accident or maritime disaster. Several groups filed suit against the
United States and others to enjoin the vessel's passage until the U.S. had
filed an Environmental Impact Statement (EIS) under the National Environmental
Policy Act (NEPA).
The voyage in question forms part of a regular pattern of
circumferential trade in fissionable material. The U.S. sends uranium to Japan
to fuel its nuclear reactors. When the fuel is spent, Japan ships the material
to COGEMA for recycling at its plant in La Hague in France. This process turns
out a substantial portion of fissionable material reusable as fuel plus
high-level waste containing trace amounts of uranium and plutonium.
The French company vitrifies the waste and puts it in casks that
meet safe transport criteria laid down by the International Atomic Energy
Agency (IAEA). The vitrification process changes the waste into a solid glass
form which is claimed to be very insoluble in water, resistant to heat, and
extremely stable. In sending the fuel and waste back to Japan, the parties use
specially-designed private ships that meet the safety standards of the
International Maritime Organization (IMO). The private shippers have a choice
of three routes back to Japan: the Cape of Good Hope, Cape Horn, or the Panama
Canal.
The parties filed cross-motions for summary judgment. The District
Court denied injunctive relief and dismissed the complaint. MSA and others
noted an appeal. The U. S. Court of Appeals for the First Circuit affirms.
The U.S. has two links to this trade. In the first place, the U.S.
had originally supplied the uranium to Japan pursuant to a 1988 agreement to
cooperate on the peaceful uses of atomic energy [see 1988 WL 582501, at 3].
Secondly, the transport of the waste through the Mona Passage means that the
ship sailed through non-territorial waters in which the U.S. has an interest.
On appeal, MSA first argued that the transport of this waste
involved a "major federal action" under NEPA because the U.S. has a
significant role in transporting the waste under various international
agreements and customary international law. In reply, the U.S. contended that
the fact that private parties, not the U.S., are the primary ones who handle
the shipping deprived the voyage of any federal character.
This Court approves the Fourth Circuit's reading of NEPA as
involving whether federal approval was a prerequisite to the private parties'
activity and whether a federal agency had some type of authority over the
outcome. MSA basically contended that the U.S. has impliedly consented to the
shipments under the U.S.--EURATOM Agreement as well as acted under the 1954
Atomic Energy Act (AEA) and the Nuclear Non-Proliferation Act (NNPA) of 1978.
It also argued that the U.S. had the power to stop shipments like this from
transiting the waters of its Exclusive Economic Zone (EEZ); its failure to do
so amounted to an implicit grant of authority.
The Court disagrees with plaintiffs. It explains that the AEA and
the NNPA require the U.S. to ship nuclear materials abroad only pursuant to
international agreements containing adequate safeguards and effective controls.
The 1988 Agreement with Japan exercised this authority.
When the irradiated material leaves Japan for France, the
U.S.-EURATOM Agreement of 1996 applies. France and the U.K. are parties thereto
along with thirteen other European nations. This agreement also demands the
taking of "safeguards" against the misuse of nuclear materials for
other than peaceful purposes.
Once one of the parties has determined the materials to be no
longer usable for nuclear activity or to have become "practically
irrecoverable," the Agreement ceased to apply. Here, the appropriate
authority, which was not the United States, made that determination. For the same
reason, the IAEA also terminated its safeguards as to this shipment. As a
result, no "major federal action" was involved
The second string to MSA's bow was that there was federal action
when the U.S. allowed the Pacific Swan to make use of the Mona Passage. The
Court preliminarily notes that there is at least a fifteen-mile-wide channel of
international waters in the straits between Puerto Rico and Hispaniola.
Moreover, even as to U.S. territorial waters, customary international law
recognizes a foreign vessel's right of innocent passage.
Though the Pacific Swan indisputably did not pass through U.S.
territorial waters, it presumably did transit its EEZ. The limited EEZ
interests of coastal states largely center on the development of natural
resources, the availability of scientific research and preventing oceanic
pollution
For example, there may be clear evidence that a foreign vessel has
discharged material that pollutes the EEZ or that may damage the coastline or
other national resources. In such a case, the coastal state may stop the
vessel, investigate its papers and otherwise conduct a relevant physical
inspection of the ship. In serious cases, the coastal state may file
proceedings to detain the vessel.
Foreign ships do not need U.S. permission to pass through its EEZ.
Moreover, no violation of U.S. economic interests has taken place here.
Although the U.S. has chosen to forego regulating shipments of nuclear waste
through its EEZ, the Court sees it as far from clear that it would have the power
to regulate under the facts of this case.
"Under these circumstances, there is no major federal action.
Where this country's multilateral relationships are involved there is a
particularly heavy burden on Mayaguezanos to demonstrate a ‘major federal action'
for NEPA purposes, and thus to involve the courts. It has not come close. That
is not to say that Mayaguezanos's concerns about the safety of the shipments
are frivolous, a matter that we do not judge, only that such concerns should be
presented elsewhere. The grant of summary judgment for defendants is
affirmed." [Slip op. 7-8]
Citation: Mayaguezanos por la Salud y el
Ambiente v. United States, No. 99-1412 (1st Cir. December 20, 1999).
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