Natural Resources Defense Council, Inc., et al., Petitioners, v. Nuclear Regulatory Commission and United States of America,respondents,westinghouse Electric Corporation, Intervenor, 647 F.2d 1345 (D.C. Cir. 1981)

Carlton R. Stoiber, Deputy Gen. Counsel, Nuclear Regulatory Commission of the bar of the Supreme Court of Colorado, Washington, D. C., by special leave of Court pro hac vice with whom Leonard Bickwit, Jr., Gen. Counsel, Nuclear Regulatory Commission, Stephen F. Eilperin, Sol. and Irwin B. Rothschild, III, Atty., Nuclear Regulatory Commission, Washington, D. C., were on the brief, for respondent, Nuclear Regulatory Commission.

Peter R. Steenland, Jr., Atty., Dept. of Justice, Washington, D. C., with whom Sanford Sagalkin, Acting Asst. Atty. Gen., David C. Shilton, Atty., Dept. of Justice, Mark B. Feldman, Deputy Legal Adviser, Dept. of State, and Ronald J. Bettauer, Asst. Legal Adviser, Dept. of State, Washington, D. C., were on the brief, for respondent United States.

Peter D. Trooboff, Washington, D. C., with whom Brice M. Clagett and Paul G. Gaston, Washington, D. C., were on the brief, for amicus curiae urging that the Commission's decision to grant the nuclear export licenses be upheld.

Barton Z. Cowan, Pittsburgh, Pa., with whom John R. Kenrick, John J. Myers, Pittsburgh, Pa., Christopher H. Buckley, Jr., Jonathan Z. Cannon, Washington, D. C., and John R. Erbey, Pittsburgh, Pa., were on the brief, for intervenor.

Before SPOTTSWOOD W. ROBINSON, III, WILKEY and GINSBURG^* , Circuit Judges.

Opinion filed by Circuit Judge WILKEY.

Opinion filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III, concurring in the judgment.

WILKEY, Circuit Judge:

This appeal raises the issue of whether and to what extent "effective control" of nuclear exports requires the Nuclear Regulatory Commission (NRC or Commission) to consider projected health and safety impacts associated with an exported reactor in the recipient foreign country. To answer this question it is necessary to look closely at the complex statutory mandate for atomic energy.

OUTLINE

1. Atomic Energy Act.

2. National Environmental Policy of 1969 (NEPA).

1. How could consideration by the NRC, in a domestic

decisionmaking context, of health, safety and

environmental impacts in the Phillipines 'constitute

an exercise of American sovereign power within the

area of the foreign country's territorial sovereignty'?

2. Do the actions of the NRC affect the foreign relations

of the United States?

C. Legal Standard of ReviewIII. THE ATOMIC ENERGY ACT AS AMENDED BY NNPA

1. Statutes.

2. Precedents.

C. 'Non-Inimicality'

1. Not inimical to the 'common defense and security'

a. Policy considerations

b. Reliance on the executive.

2. Not inimical to the 'health and safety of the public.'

IV. NEPA REQUIREMENT AS TO EXTRATERRITORIAL IMPACTS

One important object of our nuclear energy laws in the international area is nonproliferation. Nonproliferation cannot be achieved by nonparticipation by the United States in the world commerce in nuclear machinery and materials; our policy set by the Congress recognizes that American abstention from international nuclear trade risks leaving the field to less responsible suppliers and encouraging uncontrolled proliferation. Reliable exports from the United States of reactors and fissile materials are thus a necessary implement of nuclear nonproliferation and nuclear safety control. Such assurance of reliability casts the United States as an attractive supplier for international customers intent upon developing their own national nuclear power programs. An attractive supplier, Congress hoped, would make reliance on "less responsible" sources for nuclear development unnecessary. American safety standards would naturally be built in, and exported along with the American products sold abroad. More importantly, however, the United States, as a nuclear supplier insisting on nonproliferation standards, is committed to being "more responsible" for the prevention of uncontrolled proliferation of nuclear weapons. Thus, nonproliferation, safety, and nuclear exports from the United States march in tandem.

In furtherance of these objectives Congress has created a regulatory and foreign policy regime designed to ensure "effective controls by the United States over its exports of nuclear materials and equipment and of nuclear technology."¹  The Commission decided in the case before us to license a nuclear export without evaluating health, safety and environmental impacts within the recipient nation. We must judge the conformity of that decision with the Atomic Energy Act of 1954 (the Act),²  as amended by the Nuclear Non-Proliferation Act of 1978 (NNPA).³  My review of the two acts leads me to conclude that the Commission acted lawfully in declining to consider foreign impacts. Its deference to the evaluation and foreign policy judgment made by the executive appears to me fully consistent with the objectives set by Congress.

Furthermore, I cannot find that the National Environmental Policy Act of 1969 (NEPA)⁴  imposes an environmental impact statement (EIS) requirement on nuclear export decisions with respect to impacts falling exclusively within foreign jurisdictions. Within the language of the statute, solicitude for the President's prerogative in foreign relations dictates that NEPA's putative extra-territorial reach be curbed in the case of nuclear exports. Here, nonproliferation and foreign policy objectives superimpose a special perspective on the singular goal NEPA serves in the wholly domestic context. For international nuclear transactions, it appears to be the will of Congress that bilateral or multilateral cooperation respecting the environment take precedence over unilateral American efforts.

The Commission, on 6 May 1980, authorized the export by Westinghouse Electric Corporation (Westinghouse) to the Philippines of (a) a nuclear reactor, and (b) complementary nuclear materials. On 10 December 1980 this court denied petitioners' motion for a stay enjoining shipments of some of those materials. Today we uphold the Commission's two orders of 6 May 1980.

The Commission concluded, in the first order⁵  here under review, that Westinghouse's export license applications met all applicable licensing criteria required by the Atomic Energy Act as amended by NNPA. The exports, the Commission believed, "would not create unacceptable health, safety or environmental risks to U.S. territory or the global commons."⁶  In the second order⁷  the Commission declared that it would "only consider those health, safety and environmental impacts arising from exports of nuclear reactors that affect the territory of the United States or the global commons."⁸  Petitioners, various organizations representing environmental interests, have challenged the Commission's decision to grant the export licenses. Westinghouse, the prospective exporter, has intervened. The Republic of the Philippines, as amicus curiae, has also appeared before us.⁹ 

The procedural framework applicable to applications for nuclear export licenses is established in section 126 of the amended Atomic Energy Act.¹⁰  The process is quite detailed and entails both administrative and executive participation. A brief outline of the regulatory scheme is as follows:

A prospective nuclear exporter files with the NRC an application for an export license. The NRC forwards the application to the Department of State, thereby triggering executive branch review by the Departments of State, Defense, Commerce, and Energy, as well as the Arms Control and Disarmament Agency. The NRC considers the application concurrently with the review undertaken within the executive. The executive branch must then forward to the Commission its recommendation concerning the issuance of the license. Having received the executive's views, the Commission must then act within sixty days, or alternatively, inform the applicant of the reasons for the delay, and provide follow-up reports. Sixty days after that, the President may withdraw the license application from the Commission if it has not yet acted, and authorize the export by executive order. Presidential authorization would be contingent upon a determination that "further delay would be excessive" and that "withholding the proposed export would be seriously prejudicial to the achievement of United States non-proliferation objectives, or would otherwise jeopardize the common defense and security."¹¹ 

On the other hand, if the Commission does not issue a license because it finds itself unable to make the required statutory determinations, then the Commission may refer the pending license back to the President. The President may then rule on the license application subject to no statutory time limits. A presidential decision, however, in either the "withdrawal" or "referral" context, may be reviewed within sixty days by Congress. By a resolution of disapproval Congress may block a nuclear export authorized by the President (as opposed to one authorized by the NRC pursuant to the prerequisite executive recommendation). Finally, the Commission may also order public proceedings. In such event, the statutory time constraint on NRC action is extended until another sixty days after the termination of the proceeding.

Sections 127 and 128 of the Act¹²  stipulate several licensing criteria whose satisfaction must be determined by the Commission before it can issue the export license. Those criteria are set out in full in the margin.¹³  But most importantly for the legal issue in dispute in this case, the Commission must determine under section 103(d) of the Act that the proposed reactor export "would (not) be inimical to the common defense and security or to the health and safety of the public" of the United States.¹⁴ 

On 17 June 1974 the government of the Philippines, acting through its wholly owned National Power Corporation, undertook to acquire from Westinghouse the country's first nuclear generator. The 620 megawatt nuclear power plant was to be constructed at Napot Point, Municipality of Morong, Province of Bataan, on the island of Luzon in the Philippines, and was designated Philippines Nuclear Power Project $ 1 (PNPP-1). The Export-Import Bank of the United States in January 1976 authorized loans and loan guarantees upwards of $600 million to finance PNPP-1.¹⁵ 

On 18 November 1976 Westinghouse filed an export license application for the Philippines reactor with the NRC. The Commission submitted the application to the executive branch which recommended issuance on 12 December 1977. However, on 25 January 1978 the Department of State, wishing to make its own further studies, requested that the NRC defer action on Westinghouse's application. The Napot Point site is about twelve miles from the Subic Bay Naval Base and forty miles from Clark Air Force Base where a total of 32,000 American armed service members are stationed. This area is also seismically active. These considerations motivated the Department to think further about the suitability of the reactor site, along with certain alleged contractual improprieties, and a few other concerns. Construction at Napot Point continued with materials not subject to NRC licensing requirements.

Department of State concerns were evidently assuaged by the response of the Philippine Atomic Energy Commission. The regulatory body of the Philippines called, in turn, upon the International Atomic Energy Agency as well as its own specially convened "Puno Commission." So on 3 November 1978 the executive branch advised the NRC that it recommended the issuance of an export license for the proposed reactor's component parts. On 28 September 1979 the executive informed the Commission of its view that the proposed reactor itself met all export licensing requirements and recommended the issuance of the license. At this time the executive branch submitted to the NRC a "Concise Environmental Review" discussing siting and environmental considerations, and the Philippines nuclear regulatory process. On 19 October 1979 the Commission ordered public proceedings to address the statutory licensing determinations.¹⁶  The next NRC order on 8 February 1980 solicited public comment on the effects that the proposed export might have on the global commons, United States territory, and the common defense and security of the United States.¹⁷  On 6 May 1980 the Commission issued the two orders here under review.

1. Atomic Energy Act.

The Commission issued the export license to Westinghouse on 6 May 1980, having determined by a split vote that the statutory criteria were all satisfied.¹⁸  The Commission simultaneously decided that its consideration of health, safety and environmental impacts was properly confined to those that affect the territory of the United States or the global commons.¹⁹  The Commission held that it was without jurisdiction to consider "impacts upon the citizens of the recipient nation," the Philippines.²⁰  This conclusion was based on the Commission's understanding that federal statutes apply only to conduct within, or having effect within, the territorial United States, unless the contrary is manifest in the statute itself. As to United States interests abroad, such as potential impacts on American armed service members based in the Philippines, the Commission held that its "legislative mandate neither compels nor precludes examination of such impacts. The decision whether to examine such effects is thus a question of policy to be decided as a matter of agency discretion."²¹ 

The Commission concluded that prevailing considerations of policy did not call for consideration by the agency itself of foreign impacts on American interests.²²  The Commission pointed out that the effect of foreign impacts would be assimilated in the export licensing process in any event. Whatever judgment the agency might reach, the executive branch, pursuant to Executive Order No. 12,114,²³  will assess these foreign impacts in making its recommendation to the Commission.²⁴ 

With regard to impacts on the global commons, the Commission adopted a median position. It eschewed a comprehensive review citing the absence of legislative or judicial guidance, but determined on policy grounds that NRC review of these impacts could be "based upon generally available literature, such as generic environmental impact statements prepared by the Commission and other federal agencies, information contained in environmental assessments prepared by the Executive Branch pursuant to E.O. 12114, and calculations prepared by the NRC staff based on analytical models "²⁵ 

All of the above considerations were factored into the Commission's finding that issuing the Philippines export license would not be "inimical to the common defense and security or to the health and safety of the public."²⁶  This finding of "non-inimicality," of course, is required by section 103(d) of the Atomic Energy Act.²⁷  Petitioners contend, as one of their principal arguments, that the Commission, by so narrowly confining its environmental review, violated its obligation to make the section 103(d) finding of "non-inimicality." Before such a finding can be made, petitioners urge, the Commission is bound to consider the adequacy of the reactor design, the site location, operation requirements, and environmental effects. Conversely, the Commission reasoned "that more comprehensive reviews could intrude upon foreign sovereignty and that the responsibility for protecting the health and safety of U. S. citizens residing abroad resides with the recipient nation."²⁸ 

2. National Environmental Policy Act of 1969 (NEPA).

An environmental impact statement evaluating the environmental consequences of the nuclear export to the Philippines was not prepared. The Commission interpreted NEPA to require consideration of environmental impacts on the United States, and to permit consideration of impacts on the global commons.²⁹  Relying on public comments and generic environmental analyses,³⁰  the Commission stated its view "that the impacts on the global commons and U.S. territory that would result from the reactor export do not rise to a level of magnitude that would require us to vote to deny the export licenses."³¹  It was the Commission's judgment that even in the worst case, such as a meltdown of the exported reactor's core, the impact on the global commons and United States territory would be "extremely small" and "insignificant."³²  Regarding storage of spent fuel and nuclear waste, the Commission also decided that "storage on site would not have adverse impacts upon the global commons or U.S. territory."³³ 

The Commission explained its decision not to evaluate site-specific impacts on the global commons by emphasizing that United States regulatory officials are constrained by principles of national sovereignty from insisting on visits to sites within foreign territory.³⁴  Absent such visits, reliance on generic analyses, extrapolation from domestic environmental impact statements, and information gathered and submitted to the NRC by the executive branch in its concise environmental review (prepared pursuant to Executive Order No. 12,114), is sufficient. The Commission noted as well that it had undertaken several specific cooperative programs with the Philippines to implement NEPA's section 102(2) (F)³⁵  requirement that agencies "maximize international cooperation" to prevent deterioration of the worldwide environment.³⁶  A regulatory information exchange agreement reached with the Philippines on 28 April 1980 ensures that the Philippines Atomic Energy Commission will regularly receive NRC regulatory guidelines, safety information, including Three Mile Island-related documentation and staff reports, and any information it requests.³⁷ 

3. Separate Opinions.

The foregoing synopsis of the NRC decision in this case refers to the plurality opinion of Commissioners Kennedy and Hendrie. Commissioner Gilinsky concurred "in the result reached by the Commission that favorable findings on the health, safety and environmental impacts of U.S. nuclear exports abroad should not be a condition of export authorization by the NRC."³⁸  Commissioner Gilinsky underscored the importance of reactor operation and training of plant managers and operators as primary safety features.³⁹  He stated that the Commission was simply not in a position to "go to the heart of the safety issue" of exported reactors.⁴⁰ 

Commission Chairman Ahearne and Commissioner Bradford each dissented separately from the decision to grant the export licenses. The Chairman agreed that the Commission was without jurisdiction to evaluate effects on the citizens and interests of the recipient nation. He dissented, however, because of his view that some limited review of available information on impacts affecting United States interests in the recipient country should be undertaken by the Commission. He wrote:

The Commission did not fully articulate its position on the question of jurisdictional reach until this decision. I find it not possible to simultaneously evaluate the appropriate jurisdictional reach and whether the Commission position warrants granting the export in this case (although I suspect that it does). Therefore, I abstain from the Commission's determination on the pending application.⁴¹ 

Only Commissioner Bradford's dissent represents a substantive disagreement about the scope of the NRC's statutory obligations. "Thus," he wrote,

our legal responsibility to consider the common defense and security, our legal responsibility to consider the health and safety of American populations living overseas, and a policy determination to take some effective responsibility for the safe use of our exports all merge in the direction of a more comprehensive review than the Commission has chosen to undertake.⁴² 

Furthermore, Commissioner Bradford adduced the following considerations in response to Commissioner Gilinsky's point:

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.⁴³ 

The Commissioner did not feel, however, "that such a review could be a basis for the denial of an export in any but the most extraordinary case."⁴⁴  He did feel, though, that a foreign accident as severe as Three Mile Island would be inimical to the common defense and security and, perhaps, the health and safety of local Americans.⁴⁵  Finally, the dissent suggests that NRC review of local impacts around the Philippines reactor would not necessarily be any more intrusive than the nonproliferation reviews required by international treaties. Commissioner Bradford voted against issuing the licenses. He did not address the NEPA issue.

The Commission's decision in this case, as we have seen, was a determination that it could not, or should not, evaluate health, safety and environmental impacts associated with the Westinghouse export applications (a) on the Philippines, or (b) on the American bases and personnel located nearby the Philippines reactor site.

Petitioners first contend that the Commission's review of these matters, so circumscribed, resulted in a meaningless NRC finding that the export of the Westinghouse reactor to the Philippines would not be inimical to the "common defense and security" of the United States or to the "health and safety of the public." This hollow finding of non-inimicality, petitioners allege, violates the Commission's legal obligations under the amended Atomic Energy Act.⁴⁶  A nuclear accident befalling a United States reactor in the Philippines, say the petitioners, would undermine national defense interests generally by shaking world confidence in the United States and the confidence of our allies, and more specifically, by jeopardizing the viability of the military forces near the reactor site. Thus petitioners would claim the Commission is obligated to demonstrate wholly independently from the executive's statutory submissions and representations that operation of the reactor in the light of hypothetical events in the Philippines will not be "inimical" to this country's strategic interests.

Respondents counter that "common defense and security" is a congressional construct relating to nonproliferation, and that "(w)hile health and safety impacts might, in extraordinary cases, affect the common defense and security, the Commission may defer to the determination of the Executive Branch that such impacts do not warrant denial of the license."⁴⁷ 

The second major issue on appeal here is the Commission's decision not to prepare a site-specific environmental impact statement because of its understanding that NEPA does not apply to impacts in a foreign country as occasioned by the federally licensed export of a nuclear reactor to the Philippines. Subsidiary environmental questions involve the Commission's reliance on programmatic and generic environmental analyses with respect to impacts on the global commons as well as the territory of the United States. The parties argue, on the one hand, that NEPA applies to the foreign effects of a domestic licensing decision, and on the other, that the NEPA prescription the procedural requirement of an environmental impact statement "to the fullest extent possible" is limited more narrowly to major federal actions occurring within, or having effects upon, the United States itself. This dispute, of course, is a legal question entirely. Construing the equivocal reach of NEPA abroad, however, is a judicial endeavor oft-encountered, but not yet fully realized by any court. We, too, will face this issue tentatively.

The two issues invoke the separate standards of two different statutes. Nevertheless, there is plainly some analogy between the statutory issues each questions whether there is the duty that an independent agency of the United States explore consequences in a foreign land, consequences in which the foreign government is also interested, and, moreover, whether that agency then must be influenced in its own decisionmaking by the results of the exploration of foreign consequences. I shall attempt a concise synthesis of the overlapping problems before moving on to analyze what is required of the Commission under each statute separately.

The export licensing of nuclear reactors takes place, of course, at NRC headquarters inside the United States. One must therefore examine the following proposed characterization: that the Commission's extension of health, safety and environmental review to the foreign impacts of nuclear exports (a) constitutes an extraterritorial application of United States law, and/or (b) implicates the foreign relations of the United States and impairs its conduct by the President.

1. How could consideration by the NRC, in a domestic decisionmaking context, of health, safety and environmental impacts in the Philippines "constitute () an exercise of American sovereign power within the area of the foreign country's territorial sovereignty"?⁴⁸ 

The export of any commodity across national boundaries calls into play, and sometimes into conflict, the national interests of the exporter-country and the importer-country. Where nuclear power programs and the sale or purchase of nuclear reactors are involved, the public policy of each country, the exporting jurisdiction and the importing jurisdiction, is scrupulously engaged. One country wants both to promote its own nuclear industry and to effect its plan for restraining the proliferation of nuclear weapons and weapons potential. The other country wants to plan the national development of an electric power network.⁴⁹  Neither country wants the plant to blow up but each for its own different reasons. The distant United States has its "common defense and security" and international reputation on the line. Generalized humanitarian concerns are also prominent. But the Philippines is interested in actually providing power, and safety. Thus the legitimate regulatory jurisdictions of the two countries overlap, but are not the same. In fact, the Philippines, as amicus curiae, portends the danger in transnational regulatory conflict:

If the United States followed a policy of imposing its own regulatory procedures and standards on all host countries involved in advanced technology trade with the United States, such a policy would undoubtedly bode ill for the ability of the United States to maintain military facilities in as many locations around the world as it now does.

Most importantly, the Republic believes that an examination of impacts on United States citizens residing in the Philippines should not be used as a disguised way of substituting United States regulatory standards for the Republic's own.⁵⁰ 

This is not a case of the United States imperiously imposing its will on the Philippines. Nevertheless, conditioning export licenses on the satisfaction of standards fashioned in the United States may unnecessarily displace domestic regulation by the government of the Philippines.

I do not disagree with petitioners' note that "the extraterritoriality principle governs the construction of statutes which are sought to be applied in a manner which proscribes or prescribes activity in the sovereign territory of a foreign country,"⁵¹  and would therefore be inapposite where "the regulated conduct occurs within the United States." That note, however, conveys only half the story. Conditioning an export license on the health, safety and environmental standards we think sound for the foreign nation's regulation directs that nation's choices just about as effectively as a law whose explicit purpose is to compel foreign behavior. In short, failure to perceive extraterritorial consequence in the course petitioners propose for the NRC would be naive.

Regulatory coercion across national borders is plainly a possibility for the United States when we hold the cards. But when a foreign development program the public provision of electricity is at stake, we should not assign an insignificant place to the foreign political interest. Some balancing, or recognition of latent conflict of laws, would seem judicious to reconcile the separate but not inconsistent national interests to regulate reactors with an eye to health, safety and the environment.⁵²  As this court said in a recent case about the Federal Trade Commission's authority to serve investigatory subpoenas in France,

(t)he exercise of jurisdiction by any governmental body in the United States is subject to limitations reflecting principles of international and constitutional law, as well as the strictures of the particular statute governing that body's conduct.⁵³ 

But whatever the wisdom of restraining the extraterritorial grasp of this country in order to align ourselves with principles of international law, it would shrink before an unequivocal mandate from Congress.⁵⁴  Where a statute directs an agency of the United States to consider foreign environmental impacts no court of the United States will contravene the will of Congress. The only exception would be if the legislature were wholly without jurisdiction to prescribe the relevant conduct: this would occur only if that conduct occurred outside the territory of the United States, had or was intended to have no effects within the United States, or involved no conduct of nationals of the United States.⁵⁵  This is not such a case. The Congress most assuredly may prescribe conduct relating to the grant or denial of a license authorizing the export of a nuclear reactor from the United States.⁵⁶ 

Here, however, the Congressional mandate is vague. We ought somehow to accommodate the two separate national regulatory interests with the "extraterritoriality principle." We do honor to the sovereignty of national governments, our own included, when we respect foreign public policy by not automatically displacing theirs with ours. This calls for a thorough understanding of our interests as defined by Congress we can then reasonably balance the scope of our own regulation alongside the rightful regulatory jurisdiction of the Philippines. I will undertake this specific investigation in Parts III and IV below.

2. Do the actions of the NRC affect the foreign relations of the United States?

After the immediately preceding discussion, it cannot be gainsaid that NRC decisionmaking touches on matters germane to foreign public policymakers. Technical NRC decisions will confront equally technical, but also political, decisions of the President (and executive branch), and foreign leaders. If the Commission's health, safety and environmental review of foreign impacts were to impede or challenge the development of foreign nuclear energy programs, it would, in turn, inhibit the conduct of United States foreign relations.

Under the Atomic Energy Act the Commission must make judgments that the future behavior of foreign governments will not be inimical to this country's "common defense and security," and also, that proposed exports fall under applicable bilateral or multilateral agreements for cooperation.⁵⁷  It is difficult to imagine how the licensing acts of NRC affecting the United States role as a nuclear supplier could escape association with our foreign relations goals. This is true a fortiori in the NNPA context of suppressing the international spread of nuclear weapons potential by replacing it with predictable, formalized export licensing. The Senate Committee Report on NNPA declared the bill's purpose as one of "promot(ing) our nonproliferation policies by establishing a more effective framework for international cooperation to meet the energy needs of all nations and ensure that the worldwide development of peaceful nuclear activities including nuclear commerce does not contribute to proliferation "⁵⁸ 

Plainly, the Commission simply by deliberating on nuclear export questions will influence the denouement of United States foreign relations in a particularly sensitive arena: that of controlling proliferation of nuclear materials among nations. It is equally plain, however, that the Commission's statutory role requires the agency's entry into the field of foreign affairs, within certain limits. Those limits are principally defined in the amended Atomic Energy Act (and, broadly speaking, in the Constitution, of course) by the President's dominion over foreign affairs.⁵⁹  NNPA specifically provides that the President may overrule an NRC decision, and order authorization of the nuclear export license.⁶⁰  Responsibility thus rests finally in the executive branch to ensure achievement of the nation's foreign policy goal to defeat nuclear proliferation. The Commission's task is complementary. I will explore below whether or to what extent, extraterritorial health, safety and environmental review by the Commission comports with the statutory framework, or whether, it risks unduly impeding the conduct of United States foreign relations.

The issues on appeal before this court are questions of law. This court must interpret statutory terms like "common defense and security" and "health and safety of the public," among others. Likewise, the extension of NEPA to foreign impacts requires traditional (albeit somewhat problematic) statutory construction and analysis. The Administrative Procedure Act requires the reviewing court to "decide all relevant questions of law."⁶¹  Though a court will grant some deference to the Commission's interpretations of the statute it must administer, the expertise of the judiciary is in statutory analysis and must be applied when appropriate.⁶²  We do not face here any factual or technical determinations reached by the Commission. Rather, issues of agency jurisdiction and legal obligation are at stake. We should reject respondents' proposition that this case is governed by the "arbitrary and capricious" standard.⁶³  The term "substantial evidence" is also immaterial where the issues turn on the legal basis, not the factual underpinning, of the agency's action.

We have seen earlier that Congress was competent to impose such restrictions or conditions as it pleased on our trade in nuclear exports.⁶⁴  Nuances of foreign sovereignty and foreign policy will color our statutory analysis where there are interstices in the Act, but the Act's criteria for nuclear export licensing must be directly confronted and construed. The question, simply put, is whether Congress required the NRC to consider health and safety impacts in the foreign environment around the site of the exported reactor. In this regard the Act stipulates only that the Commission may not grant an export license should it find that the export would be inimical to the "common defense and security" of the United States, or inimical to the "health and safety of the public."⁶⁵ 

I find that this statutory language and legislative history are inconclusive and do not obligate the Commission to evaluate foreign health, safety and environmental impacts to find "non-inimicality." The Commission may defer to the executive on these matters. I also find that the Commission is not precluded from considering foreign health, safety and environmental impacts, and under "unusual circumstances" may deny an export license on that basis. The Commission, moreover, has the discretion to consider possible effects exported nuclear reactors may have on United States interests located near the site of the exported reactor. However, where the Commission may act on a discretionary basis, it must take care to avoid ad hoc decisionmaking that could jeopardize the administrative consistency contemplated by Congress.

By adding NNPA on top of the existing Atomic Energy Act Congress confirmed its intention that assurances of nonproliferation and maintenance of the military balance be the indispensable conditions of United States nuclear exporting.⁶⁶  Congress established mechanisms of export control designed to constrain nuclear importers from acquiring nuclear weapons capability. NNPA amendments added rigorous, more comprehensive substantive and procedural criteria for nuclear exports; under the unamended Atomic Energy Act the standard for granting an export license had been no more elaborate than the criterion of "common defense and security."⁶⁷  The NNPA nonproliferation standards introduced safeguards providing that nuclear exports be used only for peaceful (nonexplosive) purposes.⁶⁸ 

But apart from specific safeguards, Congress recognized that its hopes for worldwide forbearance from nuclear weapons capability depended on the satisfaction of (seemingly irrepressible) world demand for nuclear generating capability. The United States, by virtue of its leading position in nuclear technology, can satisfy prospective foreign consumers of nuclear power. A predictable, reliable supplier might obviate the nascent urges of non-nuclear-weapons countries to develop their own unchecked channel of nuclear supply. This was the "carrot" approach towards influence with other nations. In the words of the House Committee Report:

This legislation recognizes that the best way to control proliferation, however, is not through unilateral strictures, but rather through policies that provide incentives strong enough to attract the adherence of other countries to our anti-proliferation aims

The legislation would assure nations which share our antiproliferation goals a reliable source of fuel for nuclear light water reactor(s) These provisions have the effect of diminishing the need for technologies, such as conventional reprocessing, that lead to quick weapons capability.

The bill seeks to provide a clear and understandable set of standards and export criteria to replace the loose and inconsistent (past) policies⁶⁹ 

The floor manager of the bill in the House, Congressman Bingham, said that NNPA was intended in part to remedy prior "uncertainty as to what the U.S. nuclear export standards are" by "establish(ing) consistent and effective criteria for the licensing of all U.S. exports and procedures for prompt consideration of export applications (to) enhance our position as a reliable supplier of nuclear fuel to nations which share our antiproliferation policies."⁷⁰  It is apparent that Congress wished the creation of a relatively formal and finite system for regulating exports⁷¹  rather than a more tentative ad hoc approach.⁷²  To this end, Congress outlined strict statutory time limits in NNPA to standardize and expedite the administrative licensing process.

The congressional focus on systematic criteria undercuts the suggestion that Congress intended NRC decisionmaking to reach out to inscrutable, or remote considerations. Evidently, Congress insisted on categorical, but yet modest export controls whose application could be accepted not unenthusiastically by likeminded foreign nations. The desire to see opportunities for proliferation quashed resulted in a mitigation of "unilateral strictures."⁷³  NNPA was intended to win fellow adherents to our philosophy of nonproliferation. NNPA promises cooperation, not confrontation, so long as the principle of peaceful exploitation of nuclear power is vindicated by the recipient nation. This understanding of the statute discourages inviting an administrative review likely to trench on foreign sensibilities.⁷⁴  The foreigners' conviction that they themselves are competent to regulate their own environment is not to be lightly rejected. To do so could thwart the overall purpose of the legislation.⁷⁵ 

1. Statutes.

The provisions of the Atomic Energy Act and NNPA do not stipulate environmental criteria or guidelines.⁷⁶  Rather, after extended debate on the Senate floor,⁷⁷  a compromise provision was inserted the compromise agreement would reflect some concern for environmental protection, but was not to affect interpretation of NEPA one way or another.⁷⁸ 

The terms of the amendment called on the President to "endeavor to provide," in any new or modified bi- or multilateral agreement "for cooperation between the parties in protecting the international environment from radioactive, chemical or thermal contamination arising from peaceful nuclear activities."⁷⁹  Existing agreements for cooperation, including those with the Philippines, do not contain such environmental provisions.⁸⁰  Thus, there is no explicit mandate in NNPA, or pursuant to NNPA, which requires administrative review of environmental factors in the recipient country.

2. Precedents.

The Commission has consistently declined to number foreign environmental, health or safety impacts among its export licensing considerations.⁸¹  Similarly, in this case the Commission has concluded that it should not engage in an examination of such impacts.

The Commission's consistent legal interpretation is relevant here, because Congress has required that the agency keep that body fully and currently informed of nuclear export licensing practices.⁸²  This court has earlier noted the sensitive relationship between the Atomic Energy Commission (predecessor to the NRC) and the Congress.⁸³  If anything, the extensive congressional oversight of nuclear export activities in force prior to NNPA has been increased under NNPA.⁸⁴  Given Congress' special efforts to scrutinize nuclear export actions, the failure of Congress to correct consistent NRC interpretation is probative of likely congressional approval.⁸⁵  Also, Congress has plainly cast consistency in NRC licensing as an independent virtue in itself.⁸⁶  For these reasons, and since we know that Congress in other contexts has provided explicitly for administrative review of health and safety factors encompassing foreign impacts,⁸⁷  some weight to the Commission's historic view that NNPA is without plenary reference to foreign environmental factors is in order.

C. "Non-Inimicality "

The conclusions of the preceding section necessarily suggest that the Commission has appropriately declined to consider foreign impacts. We need to determine more precisely, however, the meaning of section 103(d) of the Atomic Energy Act,⁸⁸  the Act's general holdover criterion which survived the NNPA's addition of specific nonproliferation criteria. The relevant provision reads: "(N)o license may be issued if, in the opinion of the Commission, the issuance of a license would be inimical to the common defense and security or to the health and safety of the public."

1. Not inimical to the "common defense and security."

(I)n the absence of unusual circumstances, the committee believes that any proposed export meeting the (nonproliferation safeguards) criteria set forth in subsection 127a. and, subsection 128a., would also satisfy the common defense and security standard.⁸⁹ 

I read the statement by the House Committee quoted above as establishing that, as a general rule, the Commission need not look beyond the nonproliferation safeguards in determining whether the common defense and security standard is met. "Unusual circumstances" requiring inquiry beyond the nonproliferation criteria cannot have reference to the American bases in the Philippines. That is hardly an unusual circumstance. We also have bases and reactors of which we can suppose Congress was not unaware, in Spain, Germany, etc.⁹⁰  And seismic activity, like American troops, tourists and business interests, is also ubiquitous about the globe. The seismological attributes of Napot Point have not escaped the Commission, the executive, or the Philippines I am prepared to defer to the NRC's finding that long extant volcanoes and past and future earthquakes in the Philippines do not rise to the level of "unusual circumstance"⁹¹  as far as our own nation's "common defense and security" is concerned.⁹² 

a. Policy considerations. I have already discussed the congressional purpose and viewpoints at some length.⁹³  It was evident that Congress eschewed unilateral measures in favor of a provision stating that "(t)he President shall endeavor" to negotiate bilateral or multilateral agreements "for cooperation between the parties in protecting the international environment."⁹⁴  The best inference I can draw from these manifestations of congressional purpose (like the availability of nuclear equipment and supplies from the United States to make nonproliferation attractive, and the reliance on cooperative efforts ministering to shared environmental concerns) is that Congress would not have obligated the NRC to study foreign impacts ultimately within foreign control. NRC consideration of these impacts conceivably might mire nuclear export licensing in plain contravention of the NNPA objectives: expedition and predictability. Prolonged consideration by NRC would challenge the very administrative implementation of NNPA.

Moreover, safety and local environmental impact would turn substantially on the ongoing operation and management of the foreign reactor (albeit one imported from the United States)⁹⁵  factors beyond the Commission's ken. Surely, by tendering comprehensive safety data and assistance as it is solicited,⁹⁶  the Commission would satisfy whatever are its statutory duties beyond the nonproliferation criteria. Congress has clearly intended that the Commission not make nuclear export licensing so arduous that we lose our foreign customers to other suppliers, and hence lose our chance to export the built-in nuclear standards of our products.

b. Reliance on the executive. The President has the last word on nuclear exports.⁹⁷  The President is also responsible for the conduct of foreign relations⁹⁸  as well as being the Commander-in-Chief. These considerations militate against the hypothesis that the NRC is obliged to decide whether impacts on the Philippines, or on American armed service members stationed there, are inimical to the "common defense and security." Prejudicial impacts on that country or our armed forces would without doubt jeopardize our country's strategic or tactical military posture. However, these are judgments the executive the President, and Departments of State and Defense is best equipped to make. These actors are all closely involved in the export licensing process. Their representations to the NRC on matters of national security are entitled to deference. Furthermore, among the representations and submissions prepared by the executive is a concise environmental review⁹⁹  of local, site-specific impacts.¹⁰⁰  Given the manifold bilateral treaties and agreements between the two governments, it would be presumptious for the Commission to weigh the safety of the Philippines and the soldiers there on a "common defense and security" scale without expert sensitivity to foreign policy repercussions.

The executive has fully reviewed and determined that the export to the Philippines is not inimical to our "common defense and security."¹⁰¹  I find that the Commission has properly and sufficiently relied on the executive's foreign policy, extraterritorial and national security conclusions.¹⁰²  To be sure, in deliberating over nuclear export licensing the Commission serves well as an independent, expert check on the executive's parallel technical findings. But should the Commission duplicate the executive's strategic judgments, it risks impairing them.¹⁰³ 

2. Not inimical to the "health and safety of the public."

The current of the logical analysis brought to bear on "common defense and security" above flows in the same direction now for the "health and safety of the public." In addition, I turn finally to the "presumption against extraterritoriality" to uphold the Commission's decision that the public health and safety standard obligates it to consider only the American public within the United States.

I have discussed above¹⁰⁴  how United States laws will not be applied extraterritorially unless the mandate to do so is unequivocal. This proposition is most sound here, where the legislative perception expressly incorporated notions of blending the national interests of other countries with our own. There is a problem in achieving the American ideal of nonproliferation which is unattainable without likeminded decisions by the rest of the world. Congress' solution is to encourage foreign decisionmaking in one particular direction. Thus the NNPA theme is to gain global influence in a world-wide struggle to constrain the spread of nuclear weapons. To gain converts to the nonproliferation ideal, rather than antagonize our sovereign equals, Congress made the United States into a nuclear supplier at the world's disposal, to the extent that reciprocal acceptance of our ideal is promised. Simply put, the congressional commitment to nuclear reliability entailed a diminished capacity of the United States to be quirky or exclusive with its exports.¹⁰⁵ 

So, then, the rule against extraterritoriality is applied here to justify the Commission's refusal to assimilate the American public in America to American armed forces in the Philippines (or in the many other places around the globe where the United States has military personnel). The premise that the Philippines is sensitive to foreign regulatory forays inside its borders seems fair,¹⁰⁶  as does the postulate that on balance the Philippines sovereign interest¹⁰⁷  may prevail over and displace the NRC administrative interest.¹⁰⁸ 

IV. NEPA REQUIREMENT AS TO EXTRATERRITORIAL IMPACTS

The Commission evaluated possible health, safety and environmental effects of the Philippines reactor upon United States territory and the global commons before deciding to grant the export application.¹⁰⁹  After evaluating the concise environmental review provided by the executive and other environmental documents,¹¹⁰  the Commission concluded the domestic and global effects were not significant.¹¹¹  I do not find this assessment unreasonable, or in violation of NEPA, which requires:

that, to the fullest extent possible: (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 Government shall

(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 official¹¹² 

The material NEPA issue on appeal is whether the federal decision to export a reactor, causing no significant American or global impacts, nevertheless triggers the requirement of a site-specific environmental impact statement, solely because of effects occurring in a foreign jurisdiction. In other words, must the NRC take cognizance of Philippine impacts in an environmental impact statement (EIS)?

Since the Commission prepared no EIS, one must go beyond the issue of strict compliance¹¹³  to decide whether NEPA applies at all in this situation. My reluctance to apply NEPA extraterritorially is animated by the same anti-extraterritorial policy arguments and understandings adumbrated in the NNPA analysis. I also note that the NEPA jurisprudence indicates that exclusively foreign impacts do not automatically invoke the statute's environmental obligations.¹¹⁴  I find only that NEPA does not apply to NRC nuclear export licensing decisions and not necessarily that the EIS requirement is inapplicable to some other kind of major federal action abroad.

Here, the foreign policy qualification provided by Congress in NEPA itself engages the policy rationales so critical to NNPA. Given the agenda for transnational order implicit in the nonproliferation statutes, one must give force to the NEPA imperative to

(F) 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 cooperation in anticipating and preventing a decline in the quality of mankind's world environment¹¹⁵ 

This NEPA prescription, I find, looks toward cooperation, not unilateral action, in a manner consistent with our foreign policy.¹¹⁶  Moreover, if an EIS requirement attached to nuclear exports, there would be the spectre of litigation over the adequacy of the EIS, with delay the inevitable result. Unilateral EIS review thus appears incongruous in the nuclear exports/nuclear nonproliferation context.

The United States Congress can outline national goals for Americans only.¹¹⁷  NEPA thus reflects the perception of a global problem from the American perspective, and offers a procedural remedy to assist in a solution for Americans. There is, of course, the likelihood that other cultures, other countries at diverse stages of development, will react in their own way to the same global problem. Did Congress mean for NEPA to address environmental concerns for those countries too?

In an earlier section¹¹⁸  we have seen that, when the NNPA Congress turned to environmental protection, it focused on international cooperation and left open the issue of extraterritorial application of NEPA. The intention of the NEPA Congress, however, is obscure. All we can know for sure is that the earlier Congress also recognized the merits of cooperation and foreign policy temperance.¹¹⁹  The parties refer us to various pre- and post-enactment hearings held before congressional subcommittees pondering NEPA issues. They are inconclusive; I must conclude that NEPA's legislative history illuminates nothing in regard to extraterritorial application.

A district court for the District of Columbia has recently stated that "(t)he extraterritoriality of NEPA remains an open question in this Circuit."¹²⁰  It was correct. There are a number of cases, however, which do address the application of NEPA beyond United States borders. These cases are both factually distinguishable and missing the foreign policy element. To be assured that NEPA has not been de jure extended "overseas," I examine a number of those cases.

In Wilderness Society v. Morton¹²¹  our court considered whether nonresident Canadian citizens could intervene in an action challenging the adequacy of an EIS prepared for the proposed TransAlaska pipeline. The court permitted the Canadian intervention, noting briefly (in a two page per curiam opinion) that possible oil spills in or around Canada distinguished the intervenors' environmental advocacy from that of the existing parties coming from adjacent America. The court based its ratio decidendi on a "mere recitation of appellants' contentions, plus a look at the map," which made "it quite clear that the interests of the United States and Canadian environmental groups are sufficiently antagonistic in this litigation to require granting of the application for intervention."¹²² 

The case at bar is of course not an intervention case dealing only with a procedural question. The petitioners here advocate environmental concerns expressing Philippine interests. If anything, the direction of the foreign antagonism runs against the petitioners themselves, who from non-adjacent America presume that they can represent the Philippine environment. Another difference is that Wilderness Society posed "no problem with regard to separation of powers or interference with the conduct of foreign relations in the narrow questions presented here."¹²³  Wilderness does not address at all the substantive issue whether NEPA extends to a foreign environment. It is entirely silent on the question before us, whether an EIS must be prepared for a project with no environmental impact within the United States. A significant substantive difference between our case and Wilderness Society was the ongoing control exercised by the United States with respect to the pipeline. In the Philippines nuclear export, on the other hand, United States responsibility is limited within the confines of a licensing decision.

In People of Enewetak v. Laird¹²⁴  the district court for Hawaii found NEPA applicable to the United States trust territories in the Pacific. The court noted the foreign policy caveat in section 102(2) (F)¹²⁵  and said: "In areas like the Trust Territories there is little, if any, need for concern about conflicts with United States foreign policy or the balance of world power."¹²⁶  In our case the Commission has conceded that trust territories fall under its obligatory jurisdiction.¹²⁷  This decision declining to apply NEPA to an independent country is completely consistent with People of Enewetak.¹²⁸ 

After a district court decision requiring an EIS for federal highway construction in Panama and Colombia,¹²⁹  this court in Sierra Club v. Adams¹³⁰  reversed the trial court's finding that the EIS was inadequate.¹³¹  The Sierra Club court did not decide the NEPA extraterritoriality issue, because the government in that case "never questioned the applicability of NEPA to the construction of this highway in Panama."¹³²  The facts in Sierra Club reveal that the United States had two-thirds of the ongoing financial responsibility and control over the South American highway construction. Moreover, the EIS requirement had been originally triggered by health effects on United States livestock herds.¹³³  The highway was viewed as significantly threatening to open a potential line of transmission of "foot-and-mouth" disease from Colombia, where it is epidemic, to cattle in this country. Road construction was feared as possibly disrupting the existing effective natural land barrier to the disease. Plainly, Sierra Club environmental considerations were of a different nature from those we face in this case with respect to the Philippines.

For the foregoing reasons I would uphold the Commission's grant of nuclear export license applications XR-120 and XCOM-0013 to Westinghouse for shipment to the Philippines.

So ordered.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring in the judgment.

Seldom if ever has an administrative agency been assigned a mission so important to the well-being and survival of mankind as that entrusted by Congress to the Nuclear Regulatory Commission (NRC). Recent events have sharpened our awareness that growing reliance on nuclear power has brought not simply the blessings of technological progress, but also the ever-present spectre of nuclear accident, the escalating peril of nuclear weapons proliferation, and the potential for devastating effects on the fragile environment of our planet. Concomitantly, however, the universal search for alternatives to fossil fuels has prompted many nations, both industrial and developing, to look more and more to nuclear energy as a key source of power, at least for the foreseeable future.

In an effort to contain this evolving conflict between human need and danger, Congress began in 1946 to set up defined procedures governing the domestic use of nuclear power and the export of peaceful nuclear technology to foreign nations.¹  NRC is the central figure in the administration of the various legislative schemes that have followed over the years,²  and among NRC's many statutory responsibilities is the licensing of critical nuclear reactor components for export. It is NRC's response to this fateful duty imposed by the Nuclear Nonproliferation Act of 1978 (NNPA)³  in conjunction with the Atomic Energy Act of 1954 (AEA)⁴  that is the target of this litigation. I join Judge Wilkey in affirming the agency action under review, but because my reasoning for so doing differs substantially from his, I write separately to explain my rationale.

Specifically at stake here is NRC's divided decision to approve the export of critical components for Philippines Nuclear Power Plant-1 (PNPP-1),⁵  the first commercial nuclear generating station to be erected in the Philippine Islands.⁶  Although in any NNPA licensing proceeding the President may overrule NRC's determination should it withhold a license or find itself unable to make the findings required by statute,⁷  the significance of NRC's role cannot be overemphasized. At the heart of the statutory scheme lie the mandate to NRC "to provide a strong, independent check" on the judgment of the Executive Branch,⁸  and Congress' reservation to itself of the power to reinstate NRC's decision if it considers the President's justification unconvincing in light of NRC's own findings.⁹  Thus NRC bears a weighty responsibility in keeping the world safe from the potential hazards of nuclear power.¹⁰ 

The majority of NRC's commissioners interpreted their statutory responsibilities so as to minimize the extent to which the agency must employ its technological expertise in the course of the licensing process.¹¹  In the rulings we uphold today, NRC authorized the export of critical PNPP-1 components with virtually no technical review of the potential health, safety, and environmental impacts from the reactor that ultimately will be constructed.¹²  This is troubling to me, not only because of the awesome risks inseparably accompanying any nuclear power plant, but also because this reactor will be built and operated by a country almost totally without prior experience with nuclear energy,¹³  and will be sited in the shadow of four volcanoes¹⁴  in a known earthquake zone.¹⁵  Despite the command of Section 103(d) of NNPA to refuse an export license when it would be "inimical to the common defense and security or to the health and safety of the public,"¹⁶  NRC has concluded that it can fulfill that obligation by drawing on but little of its technological expertise in the course of the licensing process.

Whatever the wisdom and even the validity of the course NRC has pursued, this court has little choice but to affirm it. The relevant legislative texts and histories are devoid of clear guidance on the issues presented in this case. Even were we able to come to a more definitive resolution of the meaning of the statutes involved, we could not upset the action under review. Courts must yield great deference to an interpretation of a statute by the agency entrusted with its administration.¹⁷  "Particularly is this respect due when the administrative practice at stake 'involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.' "¹⁸  Moreover, "(t)o sustain the (agency's) application of (the) statutory term(s), we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings."¹⁹  Rather, our call as judges is to honor the "venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong "²⁰ 

I am led to concurrence in affirmance essentially by force of these teachings. My view is that NRC's interpretation of its statutory responsibilities must prevail simply because there is insufficient cause to overturn it judicially, and that is my principal difference with Judge Wilkey. I cannot subscribe to decisional grounds that go beyond affirmance on grounds of deference and read the statutes as NRC has done, or to his views with respect to the foreign policy considerations bearing on the questions at issue in this litigation. After highlighting the relevant legislative history of NNPA,²¹  I shall explain more fully how we deviate, first on the NNPA-AEA questions presented²²  and then on the NEPA issues.²³ 

NNPA was enacted in 1978 as a comprehensive amendment of AEA with respect to the regulation and control of the export of nuclear reactors and critical nuclear reactor components. In drafting NNPA, the overriding objective of Congress was to take measures to stem the tide of nuclear weapons proliferation. As the House Report on one of the bills that formed the basis for NNPA²⁴  elaborately explains, the new legislation was intended to

mark() a new and important phase in the history of U.S. policy on the civil use of atomic energy. After the first nuclear weapons were dropped on Hiroshima and Nagasaki American policymakers clung, understandably enough, to the hope that atomic secrets and materials could be withheld from the rest of the world. Eventually, the United States began to contemplate sharing nuclear items essential to the production of electrical power; but even this limited sharing was proposed originally under policies that were uncompromising in their insistence on provisions capable of providing a significant degree of security and protection.

With the advent in 1954 of the Atoms for Peace program, the United States undertook to liberalize its policy and openly to promote the civil use of atomic energy. Research reactors were disseminated widely and became, after a time, a kind of new international status symbol. Nuclear power projects were initiated, sometimes irrespective of need and economic feasibility, in scores of countries around the world. And foreign nationals began to receive training in the U.S. in all branches of nuclear technology. As American nuclear sharing grew, standards and safeguards criteria became more diffuse, and important inconsistencies of policy began to arise. The United States continued, for example, to prohibit the export of reprocessing facilities because of the weapons grade material such facilities inevitably produced. Yet export was permitted for certain reactor fuels that were themselves already suitable for immediate use in nuclear explosives. By the middle of the 1960's, the consequences of such looseness became increasingly apparent.

With the implementation of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT),²⁵  a new and somewhat more ambiguous phase of atomic history began. The proliferation problem was elevated to position of prominence, but efforts at achieving greater control were incomplete and sometimes even dubious in value. In the NPT itself, nuclear weapon States pledged to share the benefits of nuclear power to those countries which vowed not to develop a nuclear weapon. Unfortunately, the nuclear sharing provision came to be used by some as a justification for the spread of technologies that were not only economically quite marginal, but they tended as well to erode the distinction between nuclear weapon and non-nuclear weapon States.

The detonation of a nuclear explosion by India in the spring of 1974 shattered the tranquility of the early 1970's and led to nonproliferation initiatives of considerable breadth and vigor²⁶ 

As the report later recounts, the United States began an intensive process of reassessing its nuclear export policies following the nuclear explosion in India.²⁷  Several Senate and House committees and subcommittees held hearings in order to identify the problems²⁸  and to formulate potential solutions. The end product was the enactment of NNPA in 1978; the purpose of the new legislation was

to establish new and more rigorous criteria and procedures to govern the export of nuclear material and technology by the United States The approach to the legislation (was) to provide both incentives for foreign nations to conform to comprehensive antiproliferation safeguards, and deterrents to attainment of technologies and materials which would enable other nations to produce nuclear explosives in a short time.²⁹ 

NNPA, then, was intended to balance measures designed to make the standards governing United States' nuclear exports more reliable and consistent and the process of reviewing export license applications more predictable, while providing safeguards against the danger that the export program would intensify the risk of nuclear weapons proliferation as had the unfocused ad hoc policies of the mid-1960's.³⁰  Congress also emphasized the need for expeditious processing of nuclear export license applications, because it was felt that excessive time lags would cause potential purchasers to turn to other suppliers, foiling the goals of NNPA.³¹ 

In addition to the congressional concern with nonproliferation, other objectives also emerge from a study of the legislative history. Principal among these was the desire to enable American businesses and consequently the American economy to reap the benefits of sales of nuclear reactors and reactor components. According to Senator McClure, speaking with reference to the lull in nuclear reactor sales by American companies in the preceding two years,

(a) significant element in the foreign competition has been a marked decline in the creditability of the United States as a reliable supplier, because (of) inordinate delays in obtaining licenses for nuclear exports, a lack of new enrichment service capacity, delays in the formulation of U.S. nonproliferation policy, and increasingly competitive positions by foreign vendors, whose business capacity was predicated on the basis of continuing export sales.³² 

Senator McClure went on to say, that "(t)he dramatic impact() of domestic employment and balance of payments cannot lightly be dismissed in the policy considerations associated with (NNPA)."³³  A related view was that the market share of American corporations was inextricably intertwined not only with the American economy, but also with the ability of the United States to achieve its nonproliferation goals, since influence furthering these objectives could be extended only if the United States continued to export nuclear technology.³⁴ 

Another subject prominent in the NNPA debates and reports was the environment. The thoughts articulated were of two types: a few legislators were troubled by the delay that could be caused by requiring an environmental impact statement (EIS) for reactor exports,³⁵  while others wanted to be sure that environmental consequences of exported reactors and components would be taken into account.³⁶  The fears of those who opposed application of NEPA's requirements were typified by a statement made by Senator McClure, who worried that

a misinterpretation (of NNPA) could lead to an administrative or judicial requirement for the preparation of environmental impact statements for individual nuclear export applications, specifically taking into account the environmental considerations associated with the ultimate destination for the export in a foreign country.³⁷ 

Senator Wallop analyzed cases involving the extraterritorial application of NEPA in his remarks,³⁸  voicing the belief that NEPA should not apply to export proceedings.³⁹  Senator Glenn, however, countered with the observation that NEPA provides "a very broad mandate," whose implementation should be left to the Council on Environmental Quality (CEQ).⁴⁰  Similar sentiments were expressed by Senator Percy.⁴¹  Congress ultimately decided that NNPA would be neutral with respect to the application of NEPA both to the particular problem of nuclear exports and to extraterritorial federal actions in general.⁴² 

Another set of concerns was addressed to assistance to other countries, and several patterns of thought were again evident. A principal focus centered on devising a reasoned strategy to assist energy-poor countries, particularly members of the Third World, thus ensuring that nuclear power would be offered where appropriate but not foisted off on purchasers unable to employ reactors advantageously.⁴³  Several legislators worried about potential environmental consequences in purchaser nations,⁴⁴  although their views on possible solutions varied.⁴⁵  There was also substantial feeling that care should be taken to avoid arousing the resentment of other countries by overzealous efforts to force compliance with American regulatory standards.⁴⁶ 

These, then, were the objectives of Congress in amending AEA by enacting NNPA in 1978. The resulting statutory scheme requires formal participation in export licensing by both NRC and the Executive Branch.⁴⁷  In brief, NRC and the Executive Branch are to begin working on license applications concurrently. The Executive is to submit its views on a particular application to NRC within sixty days, unless the Secretary of State determines that the national interest necessitates additional time.⁴⁸  If the Executive Branch opposes the license, none will issue.⁴⁹  If NRC receives the Executive's recommendation that issuance of the license will not be inimical to the common defense and security, NRC must make an independent determination whether to issue the license on the basis of specific nonproliferation criteria embodied in Sections 127 and 128⁵⁰  of NNPA, and its evaluation whether the export would be inimical to the common defense and security or public health and safety pursuant to Section 103(d).⁵¹  NRC has 120 days to make these findings, unless it elects to invoke statutory provisions authorizing submission of requests for information to the Executive Branch and/or a public comment period, both of which toll the ordinary time limits.⁵²  If NRC denies the license, the President may still authorize the export if the national interest so requires.⁵³  Congress, however, may overturn the presidential authorization in any of the above contexts within sixty days of the issuance of the executive order granting the license.⁵⁴ 

In carrying out its functions, NRC is to provide a "strong independent check on executive branch nuclear export decisions."⁵⁵  The importance of the independence of NRC in this matter is underscored by comments in both the House and Senate Reports and throughout the debates.⁵⁶  The override power given to the President does not undercut the role of NRC; as the House Report explains,

by providing for the public issuance of the Commission's determination and for congressional review of any Presidential decision to reverse that determination, the independence of the Commission (is) preserved.⁵⁷ 

Similarly, the Senate Report states:

It is important to note that any such referral of an unfavorable NRC decision on an export license application to the President will be marked by a public notice of that action, and that any decision by the President to override the NRC will be subject to careful scrutiny in Congress.⁵⁸ 

The function of NRC was clearly to be based on its technical expertise, and public participation to aid NRC in the exercise of this expertise was considered to be crucial. For example, the House Report emphasizes

the intent of the committee to guarantee to citizens and public interest groups their right to make their views known during the export licensing process. Too often in the past, U.S. nuclear export policies have not been subject to public review and comment until after their implementation. Exclusion of public views during the export licensing process invites subsequent recourse to the courts by frustrated participants; this can only undermine our position as a reliable supplier of nuclear materials to those nations which share our antiproliferation policies.⁵⁹ 

Despite these extensive expressions of congressional concerns, however, the legislative history nowhere precisely defines the phrases "common defense and security" or "public health and safety" contained in Section 103(d) of NNPA. Since the Section 103(d) requirement was initially the only finding NRC's predecessor, the Atomic Energy Commission (AEC),⁶⁰  was required to make under AEA, and the inquiry into the legislative history of the 1954 Act and the subsequent amendments unfortunately is of little if any assistance. Although these phrases were used in several provisions of the original AEA and the subsequent amending legislation,⁶¹  they were not defined in any manner helpful to the task at hand.⁶² 

The principal committee reports on NNPA itself contain only three specific references to "common defense and security" and "public health and safety," while the debates do not appear to have addressed the meaning of the phrases. Firstly, the Senate Report informs readers that

(a)lthough the NRC finding on the health 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.⁶³ 

Secondly, the House Report reveals that the findings set forth in Sections 127 and 128 "are in addition to any others required by law."⁶⁴  Thirdly, the same passage of the House Report states that in order to issue a license NRC is still required to find

that a particular export would not be "inimical to the common defense and security." However, in the absence of unusual circumstances, the Committee believes that any proposed export meeting the criteria set forth in subsection 127a and, when it becomes effective, subsection 128a, would also satisfy the common defense and security standard.⁶⁵ 

The issue over compliance with NNPA and AEA centers on the extent of the findings NRC is required to make under Section 103(d) of AEA,⁶⁶  which provides in pertinent part that

no license may be issued to any person within the United States if, in the opinion of the Commission, the issuance of a license to such person would be inimical to the common defense and security or to the health and safety of the public.⁶⁷ 

In order to fulfill this mandate, NRC conceivably could be required to evaluate the effects of the construction of PNPP-1 on (a) the territorial United States and its residents, (b) the Philippines and its residents, (c) United States interests in the Philippines, and (d) the global commons.⁶⁸ 

A. NRC's Decision to Permit the PNPP-1 Component Export

In the decisions under review, NRC interpreted AEA as amended by NNPA to require analysis of the potential effects of the PNPP-1 export license only with respect to the territorial United States,⁶⁹  and concluded that assessments in the other categories were discretionary.⁷⁰  NRC chose to exercise this discretion only with respect to the global commons, principally because of its perceptions of international law and foreign policy concerns,⁷¹  but also because of its belief that in any event additional evaluations of the proposed reactor's effects on the local environment would be somewhat illusory since the operation and maintenance of PNPP-1 factors beyond NRC's control will be the principal determinants of the reactor's safety and environmental consequences.⁷² 

At the outset, several threshhold matters deserve comment. I believe that NRC's notion of extraterritorial application of these statutes is mistaken.⁷³  As Judge Wilkey points out,⁷⁴  the conduct regulated by the licensing process is not extraterritorial in nature; it consists of consideration of the suitability of nuclear reactor components for export, a procedure that takes place entirely within the United States. Moreover, while NRC's attention to international legal principles is praiseworthy, under the American system tenets of international law must give way before positive domestic law.⁷⁵  Thus, while statutes are to be interpreted consistently with international law where possible,⁷⁶  neither courts nor agencies may adhere to international law if to do so would create any conflict whatsoever with the positive statutory laws of this country.

I also question the force of the foreign policy considerations voiced by NRC and Judge Wilkey, for I believe that both have oversimplified the competing principles and interests involved in this litigation. Judge Wilkey states, for example, that "(i)f anything, the direction of the foreign antagonism runs against the petitioners themselves, who form nonadjacent America presume that they can represent the Philippine environment."⁷⁷  It is not simply Americans who have decried NRC's action, however. One of the petitioners, for example, is the Philippine Movement for Environmental Protection, while other Filipino public interest groups participated in the comment phase of the licensing proceeding.⁷⁸  Additionally, we are told that PNPP-1 has encountered substantial opposition in the Philippines, which the government there has suppressed.⁷⁹  In short, my point is that there are no overriding principles of international relations to guide us in this decision. Concern over possible foreign resentment of American regulatory standards should not be permitted to obscure other considerations. As Senator Pell has pointed out, if anything ever should go wrong with an exported reactor or component, "(t)he voice of many countries would quickly shift to criticism of the United States for permitting a dangerous export with insufficient attention to the risks to public health and safety and to the environment."⁸⁰ 

I must also take exception to NRC's assertion that its review of the safety features and other technical facets of proposed reactor exports would serve no purpose.⁸¹  By making NRC responsible for the licensing process, Congress indicated its intent to draw upon the agency's scientific expertise.⁸²  Instead of utilizing it, the NRC plurality devoted most of its energy to a discussion of foreign policy. There is something that strikes me as inherently wrong where, as here, the only extensive technical evaluation of critical nuclear reactor components is undertaken by the State Department rather than NRC.⁸³  Even though the risks associated with PNPP-1 depend heavily upon its operation and maintenance, and though even a well-designed reactor may malfunction, the problems inherent in a poorly-designed power plant or a flawed component surely cannot be overcome solely by good maintenance. As Commissioner Bradford has pointed out, at least a limited review designed to catch obvious flaws could have been conducted.⁸⁴ 

Proceeding now to the substantive issues at hand, I have little trouble affirming NRC's analysis of the potential effects of the PNPP-1 export license on the territorial United States,⁸⁵  though for reasons different than those set forth in Judge Wilkey's opinion. First, NRC has acknowledged a duty to evaluate these consequences, and presumably has recognized the environmental, health and defense effects aspects of the problem.⁸⁶ The plurality rendered a specific finding that the effects would not be inimical to the common defense or security, or to the public health or safety of the United States or its residents.⁸⁷  I do have some concerns about NRC's methodology in reaching this decision, however, for its analysis of the potential dangers of the reactor whether operating properly or in the event of various possible malfunctions appears to be cursory at best.⁸⁸  While none of the petitioners has quarreled with NRC's conclusions on potential effects on the territorial United States, NRC will be well advised to take this obligation seriously. I would have serious reservations were the reactor not so far removed from this country and relatively distant from any of its territories or possessions, but perhaps that is why NRC did not say more than it did.⁸⁹ 

I have no difficulty in deferring to NRC's ruling that it is not required to undertake a review of the effects of the construction of PNPP-1 on the Philippines or its citizens. The legislative history contains references to assistance to other countries and concern for their inhabitants,⁹⁰  but it also has passages evidencing reluctance to undertake actions that could arouse the resentment of recipient governments.⁹¹  Finding no clear indication either way, I bow to NRC's judgment. While the United States should be expected to recognize and honor its responsibilities as a supplier of nuclear reactor components,⁹²  NRC is certainly correct in saying that Congress has not issued any plain mandate to NRC to safeguard the environment or even the citizens of recipient countries.⁹³  This may seem unfortunate in that however well-trained their personnel or good their proposed regulatory programs, the expertise and experience of many of those countries does not even begin to approach that of NRC.⁹⁴  But petitioners have cited no legal basis sufficient to support an invariable duty on NRC to make a finding as to the effects on a purchaser country and its citizens. Particular situations may be such as to demand an assessment of that kind, but I agree that identification of the occasions appropriate therefor is within NRC's discretion absent a clear indication to the contrary in the legislative history.

3. Effects on United States Interests Abroad

The most difficult questions arising in this litigation are those concerning the extent of NRC's obligation to evaluate American interests in the Philippines and the global commons. In both of these instances NRC has determined to do a minimum of work in its area of expertise, and that is hardly the most commendable outcome one can envision. But, notwithstanding the silence of Congress, at least the agency has struggled with difficult problems and has achieved some resolution. I move on to closer analyses of these issues in turn.

It will be recalled that in revamping the critical nuclear component export licensing process through enactment of NNPA, Congress was seeking primarily to further the goals of nonproliferation⁹⁵  and secondly to enable American industry to increase its share of the world nuclear technology market.⁹⁶  Both objectives were tempered by concern over environmental consequences⁹⁷  and a desire to assist countries in need of new energy sources.⁹⁸  NNPA was fashioned to achieve these goals by making nuclear reactor and component purchases from United States companies attractive to nations⁹⁹  willing to adhere to American nonproliferation policies.¹⁰⁰  To remove the obstacles to prospective customers posed by a lengthy, unpredictable export license application process, Congress streamlined the procedure; Congress, however, also imposed specific stringent nonproliferation criteria to avoid the possibility of aggravating weapons proliferation problems or precipitating occurrences contrary to United States' interests in other respects.¹⁰¹  As the legislative history demonstrates, among the most important portions of NNPA are Sections 127¹⁰²  and 128,¹⁰³  which set forth specific nonproliferation criteria that every proposed export must meet, and Section 103(d), which incorporates the non-inimicality provision which had been part of AEA since 1954.¹⁰⁴ 

I begin with the premise that the language of Section 103(d) must have some continuing efficacy, else it would have been deleted; as the Supreme Court has repeatedly admonished, words of a statute are not to be considered mere surplusage.¹⁰⁵  Accordingly, I have tried to harmonize the statutory language with the House Report's reference to Sections 126 and 127 as "findings in addition to those required by law,"¹⁰⁶  with its statement that "in the absence of unusual circumstances, fulfillment of the (Sections 127 and 128) criteria would ordinarily fulfill the Section 103(d) requirements,"¹⁰⁷  and with the Senate Report's even more cryptic remark that "it should be recognized that certain overseas activities could pose a threat to Americans,"¹⁰⁸  as well as with passages from both the reports and the debates evincing congressional concern with potential environmental consequences¹⁰⁹  and admonishing that NRC is to provide a strong independent check on the judgment of the Executive Branch.¹¹⁰  Were I engaged in an original interpretation of the statutory language it would be my belief that NRC's proper approach, when faced with an export license application, would be to ascertain whether there are any "unusual circumstances" meriting inquiry beyond the standard evaluation based on the Sections 127 and 128 criteria. This is almost exactly the approach suggested by Commissioner Bradford,¹¹¹  and briefed as a possible option by NRC's staff;¹¹²  it would supply a rational explanation for the retention of the non-inimicality finding and provide a reasoned approach to the analysis conducted by NRC. In contrast, I find the NRC plurality opinion confusing on this point, and I am unable to fathom the reasoning of its subscribers. Though alluding to the possibility that the proximity of American overseas bases to the proposed reactor might be considered an unusual circumstance,¹¹³  the plurality implied that American bases do not constitute part of the common defense and security.¹¹⁴ 

The plurality similarly made short shrift of petitioners' suggestion that risk of a nuclear accident here is increased by the nature of PNPP-1's site, and that such an occurrence would injure the foreign policy interests of the United States and damage its reputation as a reliable supplier of nuclear technology.¹¹⁵  In his dissenting opinion, Commissioner Bradford pointed out the questionable wisdom of this omission, noting that "an accident as severe as Three Mile Island would be inimical to the common defense and security "¹¹⁶  Consistent with this view is an opinion by Ambassador Sullivan, United States Ambassador to the Philippines, who stated that

the Embassy considered a great deal of American prestige (to be) 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.¹¹⁷ 

While NRC should not be required to explore the intricacies of foreign policy, it takes little to realize that a significant accident attributable to a readily discoverable defect in a reactor exported by the United States or even a far less egregious malfunction that could have been prevented by NRC during the course of the licensing procedure could damage the foreign policy interests of the United States. Perhaps most significantly, the reputation of this country as a dependable supplier of nuclear technology could be harmed irreparably.¹¹⁸ 

Nevertheless, NRC has concluded that it need not look at the effects on American interests in this particular situation. As indicated earlier, I believe this to be a debatable result, and would not be prone to uphold it had Congress provided any credible indication beyond what is contained in the legislative history. But both the statutory language and the legislative history are cryptic on this point. Although on balance I believe that the latter especially the Senate Report's language concerning overseas impacts on the American public¹¹⁹  supports the conclusion that more is required of NRC, I perceive no "compelling indication that (NRC) is wrong,"¹²⁰  and therefore must defer to its judgment.¹²¹  For this reason, and this reason alone, I join Judge Wilkey in affirming NRC on this point.

In so doing, I must confess an inability to understand how NRC can believe that American military bases are not part of the common defense and security of the territorial United States. I agree with Commissioner Bradford¹²²  that the very reason for overseas bases is to protect this country and its allies. Nor do I understand why American servicepersons are not part of the public; they are not in the Philippines for personal reasons, but to serve their country. Moreover, to say that the first reactor to be built near American military bases in one of the most seismically dangerous regions on earth¹²³  is not an unusual circumstance seems strange to me, particularly since this is the first time either event has occurred.¹²⁴  Nonetheless, I am forced to defer to NRC's construction on this point, but I do not join Judge Wilkey in concluding that the presence of American bases and American servicepersons and the construction of a nuclear power plant in a seismically active area near four volcanoes are, as a matter of law, not unusual circumstances.¹²⁵  If the Commission has any discretion under the statutory scheme, it must encompass primary authority to determine what constitutes unusual circumstances. This court is not involved in the business of licensing nuclear reactor exports, and has no experience with the problems and only limited knowledge of the facts surrounding the construction and operation of nuclear facilities. It is not our function to intrude unnecessarily into this area.

NRC takes the position that its authority to undertake an evaluation of the effects of PNPP-1 on the global commons is purely discretionary.¹²⁶  For substantially the same reasons discussed in connection with American interests abroad, I must yield to NRC's judgment: there is nothing in the legislative history demonstrating that NRC is plainly wrong in so holding.¹²⁷  In this instance, however, NRC chose to exercise its discretion affirmatively. It reviewed the potential impact on the global commons on the basis of three generic studies: a programmatic impact statement prepared in 1976 to analyze the overall effects of American nuclear exports,¹²⁸  a study on floating nuclear power plants,¹²⁹  and a liquid pathway analysis.¹³⁰  NRC has concluded that risk to the global commons, if existent at all, is bound to be negligible.¹³¹ 

I am troubled by NRC's willingness to predicate its determination on generic documents alone. This is the more so in light of the special circumstances surrounding PNPP-1 circumstances that caused the International Atomic Energy Authority and prominent environmentalists to conclude that the volcanic and seismic hazards of the site had not been adequately assessed,¹³²  and a commission appointed by the Government of the Philippines to fear that the reactor might have serious design flaws.¹³³  Despite this concern, however, I must defer to NRC's expertise,¹³⁴  and it is for this reason that I concur in upholding NRC on this point.

NRC should be aware, however, that at some point reliance on aging, generic analyses may no longer be acceptable. While the deference we owe the expertise of an administrative agency in circumstances such as these is considerable, should the agency persist in questionable practices and eventually push beyond reasonable limits, a court would be compelled to find an abuse of discretion. Nor is my vote for affirmance in this case intended to justify without more a later NRC holding altering its decision to exercise only a discretionary authority to review the effects of nuclear component exports on the territorial United States or on the global commons, for as Judge Wilkey admonishes every federal agency has a legal obligation to avoid ad hoc decisionmaking.¹³⁵ 

My comments on the NEPA issues are quite brief. The first inquiry is whether NEPA requires an assessment of the impact of PNPP-1 on the environment of the Philippines. Since NEPA is addressed to "major Federal actions significantly affecting the quality of the human environment,"¹³⁶  an appropriate analysis ordinarily would develop two questions: (a) whether the grant of a license for the export of critical reactor components for PNPP-1 constitutes a major federal action, and (b) whether the issuance of the license significantly affects the quality of the human environment within the meaning of the statute.

As NRC has pointed out,¹³⁷  the problem is that Congress has provided little guidance on these matters. Indeed, while fully aware that the extraterritorial application of NEPA¹³⁸  remained an open question in the courts,¹³⁹  Congress specifically stated that the enactment of NNPA was not to affect decisions on the enforcement of NEPA's environmental policy prescriptions outside the territorial United States.¹⁴⁰  Fortunately, I do not think it necessary in this case to attempt to divine the meaning of either "major federal action" or "human environment."¹⁴¹  This is principally because another consideration assumes paramount importance.

In Flint Ridge Development Co. v. Scenic Rivers Association,¹⁴²  the Supreme Court ruled that even assuming a major federal action significantly affecting the human environment, NEPA's requirement of preparation of a detailed (EIS) must yield where a clear conflict in statutory authority is unavoidable.¹⁴³  There the Interstate Land Sales Full Disclosure Act¹⁴⁴  provided that a property report on specific housing-related items required of developers would automatically become effective thirty days from the date of filing unless the Secretary of Housing and Urban Development determined that the report was inaccurate or incomplete in some material respect.¹⁴⁵  The Court deemed this statutory directive antithetical to NEPA's EIS mandate because drafting, circulation, comment, and revision of such a statement could not possibly be completed within thirty days. The Secretary was thus absolved from the obligation of supplying an EIS.¹⁴⁶ 

The time frame is far less circumscribed in the instant case, since NRC has at least 180 days to act on each export license application.¹⁴⁷  And, it is conceivable that preparation of an EIS could be included in the public-proceeding stage of NRC's review of export license applications, at which time the agency might set aside a period additional to the normal time limit for public comment on the EIS.¹⁴⁸  Consequently, a statutory clash is not so evident here as it was in Flint Ridge. But NRC has emphasized the difficulty of arranging to acquire all the necessary data,¹⁴⁹  the NRC staff has estimated that preparation of a detailed EIS would take two years,¹⁵⁰  and the process could be further bogged down by litigation over the adequacy of the impact analysis.¹⁵¹  Considering the circumstances, I am forced to agree that the period NRC could count on might not be sufficient.¹⁵² 

Even more persuasive is the congressional concern with expedition in export licensing an objective that runs directly counter to the notion that a formal EIS was intended to be a precondition to an export license.¹⁵³  Thus, while Flint Ridge may not be controlling here, I believe the situation is analogous enough to warrant adherence to its rationale.¹⁵⁴  These considerations, along with the foreign policy concerns articulated by NRC¹⁵⁵  and the deference owed the Commission's interpretation of NEPA,¹⁵⁶  prompt me to join Judge Wilkey in acceding to NRC's determination that no formal EIS is required with respect to the effects of PNPP-1 on the environment of the Philippines.

I hasten to add, however, that this position does not imply that NRC may ignore its other NEPA obligations. As the Supreme Court cautioned in Flint Ridge, a determination that a formal EIS is unnecessary "is not to say that environmental concerns are irrelevant."¹⁵⁷  For example, pursuant to NEPA's policy directives¹⁵⁸  and its provision for multinational cooperation¹⁵⁹  the Commission has inaugurated information interchange programs and other cooperative efforts,¹⁶⁰  and certainly it should continue to pursue these diligently. NEPA sets forth the policy of the United States with respect to the ecological well-being of this planet in recognition of its importance to the health and welfare of its people.¹⁶¹  In addition to the specific EIS requirement, NEPA admonishes federal 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 cooperation in anticipating and preventing a decline in the quality of mankind's world environment¹⁶² 

In this regard, Congress has commanded federal agencies to comply with NEPA's directives "to the fullest extent possible,"¹⁶³  and NRC should remain cognizant of this responsibility. And just as the Supreme Court noted with respect to the dictates of the conflicting statute in Flint Ridge,¹⁶⁴  I hasten to add that my view of NEPA's operation here is in no way intended to reflect on the environmental assessments that NNPA may demand of NRC.¹⁶⁵ 

The second NEPA issue in this litigation is the validity of NRC's finding that the grant of the PNPP-1 export license will have no significant effect on the global commons.¹⁶⁶  In reaching this conclusion, NRC relied principally upon a 1976 programmatic impact statement ERDA -1542 examining the effects of the entire nuclear export program of the United States on the global environment.¹⁶⁷  This analysis is considered to be outdated by many environmentalists as well as by CEQ, which has stated flatly that ERDA -1542 is "insufficient for considering the environmental effects of the proposed Philippine reactor export under NEPA "¹⁶⁸  Still, mindful of the teachings of Flint Ridge and the deference due NRC, I am constrained to conclude that petitioners have not advanced a reason substantial enough to invalidate NRC's decision on this basis. The Commission has assigned these data current value, and surely it has acted in good faith; as a judge, I am hardly in position to override this appraisal. NRC should, however, remain cautious in fulfilling its duties, and receptive to the concerns of coordinate expert agencies and public interest groups, as Congress clearly intended.¹⁶⁹  With respect to NEPA as well as NNPA, it is not beyond the realm of possibility that on-going reliance on dated information without any evaluation of the data's continuing efficacy, could result in a finding of abuse of discretion by NRC in some later litigation.

Judge Wilkey optimistically asserts that "nonproliferation, safety, and nuclear exports from the United States march in tandem."¹⁷⁰  Congress may indeed have fashioned a statutory scheme capable of stimulating reactor sales while furthering the goals of nonproliferation, and all humanity should hope that it did. I must agree with petitioners, however, that NRC's interpretation of its role in the export licensing process invites grave reservations about the safety of the PNPP-1 reactor. As Commissioner Bradford points out, surely some obligation rests on "suppliers of a potentially dangerous technology, to fully inform the purchaser of the best information that we can develop."¹⁷¹ 

By my estimate, the decision we render today, does not necessarily portray the United States as a more responsible exporter of nuclear technology than the "less responsible" suppliers spoken of by Judge Wilkey.¹⁷²  In the first place, we have nothing before us to support the premise that the United States has a monopoly on safe nuclear power plants;¹⁷³  in fact, PNPP-1 was found to have serious flaws as originally designed.¹⁷⁴  To boot, by affirming NRC today, we sanction its rejection of all obligation to employ its technological expertise in this area, even to determine whether the reactor in question has any obvious safety flaws. That another nuclear exporting country might do the same is no reason to assume that Congress intended the United States to complicate matters by joining the ranks of the "less responsible."

Yet in the end, whether pragmatically NRC's performance is applauded or condemned, its outcome in this case seems to remain beyond legal reproach. No explicit statutory command has been disobeyed, nor any unmistakable legislative signpost ignored; at most, NRC has made a choice among signals always weak and sometimes conflicting that have emanated from the halls of Congress. Those discernible here, though read divergently by a jurist, do not provide a sound foundation for overturning the agency's interpretation of its procedural responsibilities. In sum, I cannot be sure that NRC is right, but I certainly cannot declare it wrong.