The opinion of the court was delivered by: JOHN H. PRATT
On November 4, 1993, this Court conducted a hearing to consider whether the National Environmental Policy Act ("NEPA")
requires that the Department of Defense ("DOD") prepare Environmental Impact Studies ("EIS") for certain U.S. military installations in Japan. Based on the arguments and authorities presented by the parties in their briefs and during the hearing, the Court found that NEPA is not applicable in the situation before us. This Order memorializes the Court's bench ruling granting summary judgment for defendants.
There is a presumption against the extraterritorial application of statutes ("the presumption"). See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 93 L. Ed. 680, 69 S. Ct. 575 (1942). A court is to assume that Congress legislates with an awareness of this presumption. E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 111 S. Ct. 1227, 1230, 113 L. Ed. 2d 274 (1991). Any doubts concerning the extraterritorial application of statutes must be resolved restrictively. Smith v. United States, U.S. , 113 S. Ct. 1178, 1182, 122 L. Ed. 2d 548 (1993).
Plaintiffs contend that under the controlling precedent in this Circuit the Court should apply NEPA overseas. See Environmental Defense Fund, Inc. v. Massey, 300 U.S. App. D.C. 65, 986 F.2d 528, 531 (D.C. Cir. 1993) (applying NEPA to a U.S. research station in Antarctica). Massey, however, involved the unique status of Antarctica, which the Court of Appeals noted "is not a foreign country, but rather a continent that is most frequently analogized to outer space."
Id. at 533. The Massey court expressly limited its ruling by refusing to decide whether NEPA might apply to actions involving an internationally recognized sovereign power. Id. at 537.
The Court determines that the legal status of United States bases in Japan is not analogous to the status of American research stations in Antarctica. DOD operations in Japan are governed by complex and long standing treaty arrangements. U.S. bases there, several of which are also utilized by the Japanese Self Defense Forces, are operated pursuant to the Treaty of Mutual Cooperation and Security of 1960, 11 U.S.T. 1633-35, and the Status of Forces Agreement ("SOFA"), 3 U.S.T. 3342-62. Article XXV of the SOFA establishes the Joint Japanese/American Committee ("Joint Committee") with 15 constituent standing subcommittees. Among the subcommittees is the Subcommittee on Environment and Noise Abatement which meets biweekly to examine the types of concerns expressed by plaintiffs.
By requiring the DOD to prepare EISs, the Court would risk intruding upon a long standing treaty relationship.
For completeness, the Court notes that even if NEPA did apply in this case, as an initial proposition, no EISs would be required because U.S. foreign policy interests outweigh the benefits from preparing an EIS. Massey, 986 F.2d at 535 (considering whether NEPA, if enforced, would threaten foreign policy); see also Committee for Nuclear Responsibility v. Seaborg, 149 U.S. App. D.C. 393, 463 F.2d 796, 798 (D.C. Cir. 1971) (NEPA requirements must give way when government made "assertions of harm to national security and foreign policy"); and Greenpeace v. Stone, 748 F. Supp. 749, 760 (D.Haw. 1990). Plausible assertions have been made that EIS preparation would impact upon the foreign policy of the United States. Therefore, NEPA requirements would necessarily yield.
The Court notes the limits of its holding. We determine that the presumption against extraterritoriality not only is applicable, but particularly applies in this case because there are clear foreign policy and treaty concerns involving a security relationship between the United States and a sovereign power. We do not address whether NEPA applies in other factual contexts.
An order in accordance with this opinion has been filed this date.
United States District ...