1. The Agreed Measures for the Conservation of
Antarctic Fauna and Flora

At the Third Antarctic Treaty Consultative Meeting in 1964, the Consultative parties approved Recommendation III-VIII, which contained a set of provisions entitled "Agreed Measures for the Conservation of Antarctic Fauna and Flora." The conservation provisions of the Agreed Measures prohibit the non-permitted killing, wounding, capturing or molesting of any native mammal or bird; provide a mechanism to designate Specially Protected Species and Specially Protected Areas (SPAs); regulate the importation into Antarctica of non-indigenous species, parasites, and diseases; call for minimizing harmful interference with the normal living conditions of Antarctic mammals and birds; require the preparation and circulation of information to members of expeditions and stations so that they understand and observe the Agreed Measures; and encourage the exchange of information between Consultative Parties regarding permitted activities. At two Consultative Meetings (ATCM VII and VIII), the Treaty parties incorporated additional recommendations creating a system for designating sites of special scientific interest (SSSIs).

Success of these Agreed Measures depends, in large part, upon Article III, which directs each participating Government to "take appropriate action to carry out these Agreed Measures." The United States implemented Article III through enactment of the Antarctic Conservation Act of 1978 (ACA), and NSF's promulgation of conservation regulations.

2. The Antarctic Conservation Act

The ACA provides the primary legal framework for all of NSF's conservation efforts. It imposes rulemaking obligations, permitting requirements, and other responsibilities for the conservation and protection of the fauna and flora of Antarctica, consistent with the Antarctic Treaty, the Agreed Measures, and Recommendation VIII-3 of the Eighth Consultative Meeting.

The key operative provision of the ACA makes it unlawful for any United States citizen without a permit to "take" any native Antarctic mammal or bird; collect any native plant within an SPA; enter any SPA or SSSI; introduce into Antarctica any non-indigenous animal or plant; or sell, possess, import for sale, or otherwise attempt to sell or transport native mammals, birds, or plants collected in an 138 SPA. The Foundation's regulations at 45 C.F.R. Part 670 incorporate these prohibited acts and set forth the procedural requirements, criteria, and conditions necessary to obtain a permit.

142

The Antarctic Marine Living Resources Convention Act of 1984141 implements the Convention on the Conservation of Antarctic Marine Living Resources. The Act applies to marine living resources found south of the Antarctic Convergence," making it unlawful for any person to engage in harvesting of those resources or other associated activities in violation of the Convention, conservation measures in force under the Convention, or regulations promulgated under the Act. 143 The Act also prohibits possession, transportation, or importation of Antarctic marine living resources that one knows, or should have known, were harvested in violation of a conservation measure or regulation. The Department of Commerce has adopted regulations implementing the Act, which are

found at 50 C.F.R. Part 380. By its terms, the Act applies to Antarctica.

The Secretary of State, with the concurrence of the Director of NSF, is authorized to appoint the U.S. representative to the Commission for the Conservation of Antarctic Marine 144

146

145

Living Resources, determine when a conservation measure is no longer acceptable to the U.S.," and to agree on behalf of the U.S. to the establishment of a system of observation and inspection." The Secretary of Commerce and the Director of NSF, with the concurrence of the Secretary of State, appoint the U.S. Representative to the Scientific Committee. The Secretary of Commerce, after consultation with the Secretary of State, the Secretary overseeing the Coast Guard, and the heads of other appropriate agencies of the United States, promulgates regulations to implement the Act.

147

148

5. The Endangered Species Act

The Endangered Species Act (ESA)149 establishes procedures for identifying endangered species and developing plans for their protection. The ESA, on its face, is not limited to animals and plants found only in the United States. If an animal or plant found in Antarctica is on the endangered species list, then the ESA applies to U.S. nationals engaged in activities affecting that species in Antarctica. This comports with the view of the U.S. State 150 Department.

151

Prohibited acts "by persons subject to the jurisdiction of the United States" include (i) importation of designated species into the United States, and (ii) "taking" of animals (but not plants) on the high seas." The ESA defines the term "take" to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage 152 in any such conduct," and regulations issued under the ESA describe the term "high seas" as "all waters seaward of the territorial sea of the United States, except waters officially recognized by the United States as the territorial sea of another country, under international law." Since the United States does not recognize any claims of sovereignty in the Antarctic, the taking of endangered wildlife in Antarctic waters would be subject to the ESA.

153

The ESA also prohibits the transportation of endangered species in interstate or foreign commerce. However, since any movement of species in Antarctica would normally be part of research and not a part of commerce, this prohibition does not directly reach NSF research activities.

The ESA authorizes the head of any Federal agency to immediately revoke a license or permit issued by the

The Antarctic Conservation Act explicitly recognizes the overlap between its coverage and the Marine Mammal Protection Act. As part of the permitting process, the ACA requires that a copy of any application for a permit involving a marine mammal covered by the Marine Mammal Protection Act be sent to the Secretary of Commerce or Interior, as appropriate. The Secretary will then determine whether a permit is also required under Departmental regulations. If NSF is notified by the Secretary that the application requires a permit, then NSF may not issue a permit until one has been issued by the Secretary."

160

161

8. Miscellaneous Conservation Measures

The Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964) and the Convention for the Conservation of Antarctic Seals (1972) contain specific provisions governing wildlife conservation in the Antarctic. Annexes A and B of the Agreed Measures designate Specially Protected Species and Specially Protected Areas shielding unique natural ecological systems from potential harm. Eight years later representatives of the Consultative Parties to the Antarctic Treaty adopted the Seal Convention as a free standing instrument. The Seal Convention covers all species of seal in Antarctic waters, setting conservative catch limits for certain species and prohibiting the taking of others.

With support from the Department of State and NSF, Congress recently extended U.S. judicial authority to serious crimes committed by or against U.S. nationals "in any place outside the jurisdiction of nation 169 any which, of course, includes the United States. Congress included Antarctica within the extra-territorial jurisdiction of this statute, since the U.S. does not recognize any claims of sovereignty in Antarctica. This law exemplifies the uniqueness of Antarctica, which perhaps more closely resembles the high seas for jurisdictional purposes than any land mass on the face of the earth. The geo-political status of the Antarctic is critical to determining which United States laws apply on the Continent.

Well-established common law principles ordinarily restrict the application of United States legislation to the fifty states and statutorily recognized United States territories. The Supreme Court has consistently utilized "the canon of

The Departments and agencies of the United States responsible for Antarctic operations have consistently maintained that the Foley doctrine governs the determination of which United States domestic laws apply to our operations in Antarctica. Foley was affirmed by the Supreme Court as recently as this year in Argentine Republic v. Amerada Hess Shipping Corp., 109 S. Ct. 683, 691 (1989), when the Supreme Court held that Foley's presumption against the extraterritorial reach of legislation applied to cases involving activities on the high seas. Antarctica (where no claims of sovereignty are recognized) is closely analogous to the high seas for juridical purposes. See Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 647 F.2d 1345, 1348 n. 8 (D.C. Cir. 1981).

172

Foley, first and foremost, establishes a method for determining the intent of Congress when legislation is silent or ambiguous regarding its extraterritorial reach. Federal statutes designed to apply to conduct taking place outside the United States must usually expressly provide for such coverage. To paraphrase the Supreme Court's recent analysis of Foley, "[w]hen it desires to do so, Congress knows how to place the high seas [and Antarctica] within the territorial reach of a statute." 173 The aforementioned amendment to the special maritime and territorial jurisdic174 tion provision in the Federal Criminal Code, the Antarctica Conservation Act of 1978," and the Antarctic Marine Living Resources Convention Act of 1984 are just such examples of explicit Congressional extensions of jurisdiction to the Antarctic.176

175

In Executive Order 12088, analyzed in detail later, President Carter reaffirmed domestic environmental law compliance requirements for federal facilities located in the United States. The Executive Order established a separate track for federal facilities located outside the United States, 177 based on the laws of the host jurisdiction." The Executive Order's dual track reflects the Foley presumption against extraterritorial application of domestic laws.

The Supreme Court's decisions in Foley and Argentine Republic were intentionally crafted to determine whether Congress intended any extraterritorial reach for United

States statutes. Nevertheless, some environmental groups commenting on NSF's draft report inexplicably ignored Argentine Republic and argued that Foley's canon of statutory construction should be restricted to cases involving the possible application of United States statutes to activities in foreign countries.178

This attempt to convert the Foley canon of statutory construction into solely a conflicts-of-laws principle flies in the face of the Supreme Court decision in Argentine Republic regarding the high seas, as well as direct legal 179 precedent applying the Foley doctrine to Antarctica. Not surprisingly, the only federal judges who have spoken directly to the issue have held that Foley's presumption against extraterritorial application of legislation govers cases involving Antarctica. Smith v. United States, 702 F. Supp. 1480, 1481 (D. Or. 1989)(currently on appeal); and Beattie v. United States, 756 F.2d 91, 113 (D.C. Cir. 1984) (Justice Scalia, formerly of the D.C. Circuit, applied Foley while dissenting in the result reached; majority found that Congress clearly intended the Federal Tort Claims Act to apply in Antarctica without mentioning Foley). Moreover, the Department of Justice has consistently maintained in the Beattie and Smith litigations that the Foley doctrine controls the determination of whether a United States

statute applies in Antarctica. 180 Therefore, absent a clear expression by Congress, domestic environmental statutes, such as the National Environmental Policy Act, the Clean Water Act, and the Clean Air Act, would be inapplicable to federal facilities located in Antarctica.

provision, which is included in, and adapted to, the aforementioned statutes:

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any . facility, or (2) engaged in any activity resulting, or which may result in the discharge of ... pollutants, and each officer, agent or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements... respecting the control and abatement of ... pollution in the same manner, and to the same extent as any nongovernmental entity."

182

184

Additional analysis is necessary to determine whether the standard federal-facilities provisions impose pollution control requirements for activities outside the territorial jurisdiction of the United States. The first portion of the standard language refers broadly to all federal facilities. Such a broad statement alone does not unambiguously resolve Congressional intent, however, and fails to overcome the Foley presumption." The common provision then specifies that federal facilities must conform to all federal, state, interstate, and local requirements that private operators meet. The phrase "federal, state, interstate and local requirements" is consistently used by Congress in environmental statutes to refer to the totality of requirements triggered by the precise locality of a facility within the United States. Therefore, it is highly unlikely that the phrase encompasses international or extraterritorial pollution requirements.

185

The standard federal-facilities provision itself imposes no substantive extraterritorial pollution standards. Thus, even interpreting "federal" or "local" restrictions to include international or extraterritorial requirements isn't dispositive since they only apply to federal facilities if they also govern private entities. To complete this analytical loop, therefore, one must look to the remaining portions of the environmental statutes to see if private operators are subject to federally imposed standards for operations located outside the territorial jurisdiction of the United States.

All of the above-stated environmental statutes gover private citizens primarily through requirements contained in permits issued by the states. As we shall see later, those

statutes, with few exceptions, fail to establish pollution control standards for operators located outside the territorial jurisdiction of the United States. A State Department Memorandum issued in 1978 reached the same conclusion:

As one might expect, the majority of the conservation/pollution related laws enacted by Congress are specifically limited in their application to the states or territory of the United States ... render[ing] application of the law to the Antarctic Treaty area 186 inappropriate.

The common provision dealing with international pollution control contained in the same statutes bolsters this conclusion. For example, the statutory provisions on international water and air pollution deal solely with emission sources within the United States that create pollution problems in other countries. 187 The provisions set no standards whatsoever for international pollution caused by sources outside the United States. If Congress wanted to reach emissions originating outside the U.S. and generated by U.S. citizens, it clearly would have done so in this provision, but chose not to. Therefore, the standard federal-facilities and international law provisions together demonstrate a contrary intent— that the laws apply only to federal facilities within the United States. The Foley presumption only strengthens this conclusion, although the doctrine is seldom invoked unless there is some ambiguity or silence contained in the statute leaving room for an interpretation that gives it extraterritorial reach. Here there is no such room.

The absence of an express statement making the federalfacilities provisions applicable to all federal operations, wherever located in the world, further reinforces this conclusion. 188 Nothing in the legislative history indicates that the principal substantive provisions of our environmental laws were intended to apply to facilities outside the United States. 189 Moreover, the standard federal-facilities provisions track the domestic approach taken throughout the relevant statutes. They reiterate the role federal/state cooperation plays as the very foundation of the environmental laws, without clearly imposing obligations on operators outside the United States.

190

The Environmental Protection Agency's enforcement of U.S. environmental laws further buttresses this view. To the best of our knowledge, EPA has never asserted jurisdiction over NSF Antarctic activities, nor enforced any U.S. environmental statute based on activities confined solely to Antarctica. Based on EPA's own actions as the agency responsible for implementing these environmental

Some environmental statutes, however, do not contain these standard federal-facilities and international pollution control provisions. And, it is possible that individual requirements of the laws that do contain such provisions apply to private citizens of the United States or other entities, including operators of federal facilities, without regard to their geographical location. 192 Therefore, OGC has analyzed all of the major United States environmental laws to determine, on a statute-by-statute, provision-byprovision basis, whether Congress has expressed an intent that individual laws or portions of laws apply to U.S. citizens or other entities throughout the world.