9Id. at Article VI. Under Annex III of the Convention, the charac- "Id. at Article VI. "Marine Protection, Research and Sanctuaries Act of 1982, 33 "Pub. L. No. 93-254 (1974 Amendment); See S. REP. NO. 276, 93rd 10033 U.S.C. §1411(a)(2). This provision applies "in the case of a 10133 U.S.C. $1402(e) 102 See Department of State Memorandum, dated July 5, 1978, from 10333 U.S.C. $1402(f). 10433 U.S.C. $1412(e). 105 SAFETY PANEL REPORT, # 8-6. 106 See ITT Antarctic Services Inc., MCMURDO STATION 107 The standards embodied in the Code serve as a model for environ- 109S. REP. NO. 276, 93rd Cong., 2d Sess. 2, reprinted in 1974 U.S. CODE & CONG. AD. NEWS 2792. 110 Ocean Dumping Ban Act of 1988, Pub. L. No. 100-688, 102 STAT. 4139 (1988). 111Id. at section 1002, amending Ocean Dumping Act, section 112 Ocean Dumping Act, section 104B(a)(1)(A); 33 U.S.C. 113 The Ocean Dumping Act includes, within its general definition of 114 The MARPOL Protocol, concluded at London on February 17, 115 The term "marine environment" is not defined in the 1973 Con- 116See 117 The United States is a signatory to the MARPOL Protocol, and has accepted Annexes I, II and V of the Protocol. Annex I concerns discharges of oil, and Annex II concerns noxious liquid substances from vessels. These Annexes not only impose significant restrictions on discharges of oil and hazardous substances, but also prescribe construction, equipment, and certification standards for ships, as well as enforcement requirements for flag and port states. Annex V, which entered into force on December 31, 1988, concerns disposal at sea of plastics and other garbage, including food wastes. 1133 U.S.C. 1901 et seq., as amended by the Marine Plastic Pollution Research and Control Act, Pub. L. No. 100-220, 101 STAT. 1460 (1987). 11933 U.S.C. §1902 (a)(1). The APPS applies Annexes I and II to seagoing foreign vessels while in the navigable waters of the U.S., and Annex V applies to foreign vessels in navigable waters or the U.S. Exclusive Economic Zone. Annex V also requires certain reception facilities to be placed in U.S. ports or terminals. 120 As in the MARPOL Protocol, APPS does not apply to a warship, naval auxiliary, or other ship owned or operated by the United States when engaged in noncommercial service. APPS does apply the provisions of Annex V to such vessels, however, after five years from the effective date of the statutory amendment to APPS. Annex V will apply to U.S. vessels otherwise entitled to sovereign immunity on December 31, 1993. 121 For example, the Polar Duke is of Canadian registry. By failing to determine the registry or nationality of NSF's research vessels, one environmental group erroneously implied that all NSF's research vessels are subject to the Act. It was also suggested that the U.S. Coast Guard regulations at 46 C.F.R. Part 188, which purportedly implement the APPS, apply to all NSF research vessels, ignoring a specific provision which states that the Coast Guard regulations at issue apply only to U.S. flag vessels. See 46 C.F.R. $188.05-1. Regardless of whether NSF vessels are technically outside the reach of these regulations, NSF should examine the operation of its oceanographic research vessels and seek to comply with U.S. regulations regarding oil pollution prevention, handling of oil and noxious substances, and oil and hazardous materials operations. See text and accompanying notes, infra, regarding prevention of oil spills throughout Antarctica. 122See Port and Tanker Safety Act, Pub. L. No. 95-474, amending Ports and Waterways Safety Act, 33 U.S.C. §1221. This Act relates to port, waterway, and tank vessel safety, and the protection of the marine environment. It defines the term "marine environment" as "the navigable water of the United States and the land and resources therein and thereunder, the waters and fishery resources of any area over which the United States asserts exclusive fishery management authority; the seabed and subsoil of the Outer Continental Shelf of the United States, the resources thereof and the waters superjacent thereto; and the recreational, economic, and scenic values of such water and resources." Although one environmental group apparently assumes that NSF research vessels operating in the Antarctic must also be in compliance with this statute, the group does not acknowledge the express statutory language which defines marine environment and arguably limits the geographic scope of the Act. 33 U.S.C. §1222. 123 This report does not examine all of the numerous international accords or maritime statutes that may be triggered by waste disposal or discharges from vessels. United States nationals who own or operate covered vessels, however, must nevertheless comply with applicable standards. In addition, a recent recommendation adopted at ATCM-XV requires states to take measures within their competence to ensure compliance by their vessels engaged in Antarctic operations with the relevant provisions of the following six international agreements: 1972 London Dumping Convention; 1973 International Convention for the Prevention of Pollution from Ships, and the Protocol of 1978 (including Annexes I, II, III, and V); 1974 International Convention for the Safety of Life at Sea, and the Protocol of 1978 (SOLAS); 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers; 1976 International Convention on Load Lines; and 1972 Convention on the International Regulations for Preventing Collisions at Sea. 12TIAS. No. 8068. 125 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, T.L.A.S. No. 8068, Article L The United States is a party to this Convention, concluded at Brussels, Belgium, on November 29, 1969. 126Id. at Article II, Section 4. 127TIA.S. No. 10561. 12833 U.S.C. §1471 et seq. 12933 U.S.C. §1472. The statute defines "convention oil" as "crude oil, fuel oil, diesel oil, and lubricating oil." 33 U.S.C. §1471(3). 13033 U.S.C. §1321(b)(3). 13133 U.S.C. §1321(f). Other provisions in the Intervention on the High Seas Act, 33 U.S.C. §1471 et seq., provide for federal intervention whenever the coastline or related interests of the United States is in grave and imminent danger from oil pollution, and allow reimbursement from the revolving fund under section 1321(k) of Title 33. See 33 U.S.C. $$1472 and 1486. 1321977 U.S. CODE CONG. & AD. NEWS 4390. 13333 U.S.C. §1322(b)(1). 13433 C.F.R. $159.1. 13533 U.S.C. §1322(d). At the present time, NSF does not own and operate any research vessels in the Antarctic. 136Paragraph 4 of the Code of Conduct sets forth guidelines for Antarctic operating organizations planning major Antarctic projects. It provides that: (a) In the planning of major operations in the Antarctic Treaty Area evaluation of the environmental impact of the proposed activity should be carried out by the Antarctic operating organizations concerned. Such an evaluation should include: (i) A description of the proposed action and an assessment of its potential benefits and its possible impact on the relevant ecosystems. (ii) A consideration of alternative actions which might alter the pattern of benefits versus adverse environmental effects expected to result from the action. (b) These evaluations may be circulated for information through SCAR channels to all the states engaged in Antarctic activities. See also Recommendation XIV-2, Human Impact on the Antarctic Environment: Environmental Impact Assessment, October 1987; Recommendation XII-3, Man's Impact on the Antarctic Environment, September 1983. 13716 U.S.C. $2401 et seq. and 45 C.F.R. Part 670. The Agreed Measures also contain a self-executing provision in Article XIII, which provides that the Agreed Measures, once approved by those Governments entitled to participate in Article IX Antarctic Treaty meetings, shall become effective for those Governments. The Agreed Measures were adopted at the Third Antarctic Treaty Consultative Meeting, and subsequently approved by the necessary Governments. 138 ACA, section 4. 139 Code of Conduct, Para. 2, referencing Article IX of the Agreed Measures. 140 Code of Conduct, Para. 3, referencing Article VII of the Agreed Measures. 141 Antarctic Marine Living Resources Convention Act of 1984, 16 U.S.C. §2431 et seq. 14216 U.S.C. §2432(2). 14316 U.S.C. $2435. The term "person" is defined as "an individual, partnership, corporation, trust, association, and any other entity subject to the jurisdiction of the United States." 16 U.S.C. §2432(8). 14416 U.S.C. §2433(a). 14516 U.S.C. §2434(a). 14616 U.S.C. §2434(b). 14716 U.S.C. §2433(b). 14816 U.S.C. $2436. 149 Endangered Species Act, 16 U.S.C. §1531 et seq. 150 See Department of State Memorandum, dated July 5, 1978, from T.A. Fitzgerald to Kintner. 15116 U.S.C. 1538. Taking "within the United States or the territorial sea of the United States" is also prohibited. 16 U.S.C. §1538 (1XB). This provision would not apply to activities in Antarctica or on adjacent islands, since they are not U.S. territories. 15216 U.S.C. §1532(19). 153 See 33 C.F.R. 2.05-1. 15416 U.S.C. §1540(b)(2). 155 16 U.S.C. 32404(c)(1). 156 Marine Mammal Protection Act of 1972, 16 U.S.C. §1361 et seq. 15716 U.S.C. §1371. 15816 U.S.C. §1372. 159 16 U.S.C. §1374(c). 16016 U.S.C. 82404(c)(3). 16116 U.S.C. $2404(c)(3). 12 Migratory Bird Treaty Act, 16 U.S.C. §701 et seq. 10350 C.F.R. 10.13. 16445 C.F.R. 670.18. The native birds listed in both NSF's and Interior's regulations are: Jaeger: Parasitic (Stercorarious parasiticus) Petrel: Mottled (Pterodroma inexpectata) 16516 U.S.C. $2404 16648 U.S.C. §1 et seq. 167 Law of the Sea Negotiations: Hearings Before the Subcomm. on Arms Control, Oceans, International Operations and Environment of the Senate Comm. on Foreign Relations, 97th Cong., 1st Sess. 24-25 (1981)(Statement of Assistant Secretary of State James L. Malone). Beattie v. United States, 756 F.2d 91, 127-30 (D.C. Cir. 1985)(J. Scalia, dissenting). 168 Id. 16918 U.S.C. §7(7) (1989 Supp.). 170 Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). This fundamental principle of U.S. jurisdiction was acknowledged by the U.S. Department of State in a memorandum discussing the possible application of several laws to Antarctica. See Memorandum, dated July 5, 1978, from T. A. Fitzgerald to Kintner. 171 United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir. 1977); Smith v. United States, 702 F. Supp. 1480, 1481 (D. Or. 1989); See also Foley, 336 U.S. at 285. 172 An exception applies to certain criminal statutes where the very nature of the offense mandates its extraterritorial application. See U.S. v. Mitchell, 553 F.2d 996, 1002 (5th Cir. 1977), citing U.S. v. Bowman, 260 U.S. 94, 98 (1922); Steel v. Bulova Watch Co., 344 U.S. 280, 285 (1952). struction are grounded upon fundamental concepts of dus process and the right of individuals and organizations to fair notice regarding which laws govern their activities. While cases delimiting the extraterritorial reach of United States laws often involve possible conflicts between the substantive laws of two nations arising from actions of U.S. nationals in foreign countries, that is not always the case. Argentine Republic v. Amerada Hess Shipping Corp., 109 S.Ct. 683, 691 (1989). In fact, the Supreme Court has consistently applied the Foley doctrine to determine the extraterritorial reach of U.S. statutes in cases that admittedly present no conflict-of-laws issue or potential for infringement on the sovereignty of another nation. Steele v. Bulova Watch Co., 344 U.S. 280, 285-86 (1952); Argentine Republic v. Amerada Hess Shipping Corp., 109 S.Ct. 683, 691 (1989). The sole question in these cases is the intent of the Congress. The Court has no difficulty recognizing that two separate and distinct considerations control whether a particular U.S. law applies to activities outside the United States. This first relates to foreign policy considerations such as respecting the authority of other sovereigns to regulate and control activities on their soil. Second, regardless of any foreign policy concerns, Congress must express its intent to regulate activity beyond the territorial jurisdiction of the United States. As noted by the Supreme Court and others, Foley's presumption against extraterritorial application is "doubly fortified" in contexts where, in addition, sovereign immunity, conflicts-of-law, foreign sovereignty, and comity questions are implicated by possible application of U.S. law in foreign countries. United States v. Spelar, 338 U.S. 217, 222 (1949); Brief of Appellee United States of America at p. 13, Smith v. United States, Civil No. 89-35088 (9th Cir. Aug. 2, 1989). In any event, with the number of claimant nations in Antarctica (some asserting jurisdiction over the same areas), cases involving Antarctica cannot be assumed free of the type of conflicts between the laws of various sovereigns or the "choiceof-law" questions that the environmental groups inaccurately describe as the sole underpinning of the Foley doctrine. See generally THE ANTARCTIC LEGAL REGIME (C. Joyner & S. Chopra, 1988). Finally, attempts to limit the Supreme Court's articulation of this broad statutory construction principle, based on the facts, the precise statutes, or dicta contained in lower court decisions, or in Supreme Court cases decided decades before Foley, is a transparent exercise in wishful thinking. If the consistent interpretation of Foley's plain meaning by the various Departments and agencies charged with Antarctic operations is insufficient persuasive force, the decisions in Argentine Republic and Smith, together with cases applying Foley to environmental disputes, should end the debate. See, e.g., U.S. v. Mitchell, 553 F.2d 996 (5th Cir. 1977) (Foley applied to determine the extraterritorial reach of Marine Mammal Protection Act); Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm'n, 647 F.2d 1345, 1357 & n.54 (D.C. Cir. 1981)(Foley "extraterritorial principles" relevant to analysis of the reach of NEPA). 180 See, eg., United States of America (Defendant), Petition For Permission to Appeal at pp. 11-12, Beattie v. United States, Civil Action 82-3520 (D.DC July 5, 1984); Brief of Appellant, United States of America at p. 13, Beattie v. United States (D.C.Cir. Sept. 6, 1984); Defendant United States of America's Reply Memorandum in Support of Its Motion to Dismiss Plaintiff's Complaint for Lack of Subject Matter Jurisdiction at 5, Smith v. United States, Civil Action No. 87-8883 FR (D.Or. Nov. 28, 1988); and Brief of Appellee United States of America at p. 13, Smith v. United States, Civil No. 89-35088 (9th Cir. Aug. 2, 1989). 181 See Department of State Memorandum, dated July 5, 1978, from T. A. Fitzgerald to Kintner. 182 See, e.g., 42 U.S.C. §7418(a)(Clean Air Act); 33 U.S.C. $1323(a)(Clean Water Act); 42 U.S.C. §6961 (RCRA); 42 U.S.C. $300j-6(a)(Safe Drinking Water Act). The language of the federalfacilities provision varies somewhat to accommodate the precise reach of individual statutes. The variations are not substantive. 183 The states, in most instances, may adopt more stringent pollution control requirements than the federal govemment imposes. The standard provisions also waive sovereign immunity for violations of pollution control standards by federal facilities. However, federal officials are not made personally liable by virtue of these sections. 184 All inclusive language such as "all contracts" or "any facility" is insufficient to demonstrate a Congressional intent to apply domestic law to U.S. facilities located outside the United States. See, e.g., Folay case analyzed supra; U.S. v. Mitchell, 553 F.2d 996 (5th Cir. 1977). 185 See.e.g., 42 U.S.C. 37418(a) (Clean Air Act); 33 U.S.C. §1323(a) (Clean Water Act); 42 U.S.C. 46961 (RCRA); 42 U.S.C. §300j-6(a) (Safe Drinking Water Act). When Congress intends a statutory provision to apply internationally, it usually does so by express language. See, e.g., 30 U.S.C. §1126; 33 U.S.C. §1320; 33 U.S.C. §1411; and 42 U.S.C. $7415. 1%See Department of State Memorandum, dated July 5, 1978, from T.A. Fitzgerald to Kintner, at p. 2. 18733 U.S.C. §1320(a) ("Whenever the Administrator, upon receipts of reports, surveys, or studies from any duly constituted international agency, has reason to believe that pollution is occurring which endangers the health or welfare of persons in a foreign country, and the Secretary of State requests him to abate such pollution, he shall give formal notification thereof to the State water pollution control agency of the State or States in which such discharge or discharges originate and to the appropriate interstate agency, if any. He shall also promptly call such a hearing, if he believes that such pollution is occurring in sufficient quantity to warrant such action, and if such foreign country has given the United States essentially the same rights with respect to the prevention and control of pollution occurring in that country as is given that country by this subsection"); 42 U.S.C. §7415(a) ("Whenever the Administrator, upon receipt of reports, surveys or studies from any duly constituted international agency has reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country or whenever the Secretary of State requests him to do so with respect to such pollution which the Secretary of State alleges is of such a nature, the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate.") 188 See, e.g., 42 U.S.C. §7418(a) (Clean Air Act); 33 U.S.C. §1323(a) (Clean Water Act); 42 U.S.C. §6961 (RCRA); 42 U.S.C. 300j-6(a) (Safe Drinking Water Act). See also text and accompanying footnotes, supra, at 15-16. 189 Review of major environmental statutes by OGC failed to produce any legislative history that such statutes were intended to apply internationally. Nor have other interested parties outside NSF found any relevant legislative history to support such an argument. 190 See Department of State Memorandum, dated July 5, 1978, from T. A. Fitzgerald to Kintner. 191 To determine whether Congress specifically intended a domestic law to apply to federal facilities outside the United States, the statutory language itself must first be examined. Abourezk v. Reagan, 785 F.2d 1043, 1053 (D.C. Chr. 1986). Both legislative history and past axinistrative practice also shed light on Congressional intent. Id. The abeance of any language expressly extending environmental standards to federal facilities wherever located, together with international pollution control provisions that regulate emission sources only within the United States, reflect a clear intent by Congress to limit the reach of most environmental statutes. Nothing in the statutory lanaga, legislative history, or agency practice suggests otherwise. "If the Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congrem." Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984)(and cases cited therein). Even if EPA were to assert that various domestic statutes apply to Antarctica, that assertion alone would not be conclusive. Although it is well-settled that an agency's interpretation of a statute that is administers should be accorded "considerable weight”, 467 U.S. at 843, the administrative practice of the responsible agency plays an equally important role in discerning Congressional intent. "Just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.” Bankamerica Corp. v. United States, 462 U.S. 122, 131 (1983)(citing FTC v. Bunte Brothers, Inc., 312 U.S. 349, 352 (1941)). See also E.I. du Pont De Nemours & Co. v. FTC, 729 F.2d 128, 137 n.8 (2nd Cir. 1984). 10 This report does not discuss the nature of NSF's facilities in the Antarctic for enforcement purposes, ie., whether NSF stations in the Antarctic are "GOCOs" (Government-Owned/Contractor-Operated Facilities) or some other entity. 193 Executive Order 12088- Federal Compliance with Pollution Control Standards (signed October 13, 1978), Section 1-102. 194 Id. at Prefatory statement; Section 1-101. 195 Id. at Section 1-801. 197 Executive Order 12088, Section 1-102: The head of each Executive agency is responsible for compliance with applicable pollution control standards, including those established pursuant to, but not Himited to, the following: (a) Toxic Substances Control Act (15 U.S.C. §2601 et seq.). (b) Federal Water Pollution Control Act, as amended (33 U.S.C. $1251 et seq.). (c) Public Health Service Act, as amended by the Safe Drinking Water Act (42 U.S.C. §300f et seq.). (d) Clean Air Act, as amended (42 U.S.C. §7401 et seq.). (e) Noise Control Act of 1972 (42 U.S.C. §4901 et seq.). (f) Solid Waste Disposal Act, as amended (42 U.S.C. 46901 et seq.). (g) Radiation guidance pursuant to Section 274(h) of the Atomic Energy Act of 1954, as amended (42 U.S.C. §2021(h); see also, the Radiation Protection Guidance to Federal Agencies for Diagnostic X Rays approved by the President on January 26, 1978 and published at page 4377 of the FEDERAL REGISTER on February 1, 1978). (h) Marine Protection, Research, and Sanctuaries Act of 1972, amended (33 U.S.C. §§1401, 1402, 1411-1421, 1441-1444 and 16 U.S.C.1431-1434). (i) Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. $136 et seq.). 19% Executive Order 12088, Prefatory statement and Sections 1-1, 1-2, 1-6, and 1-8. 199 See, a.g., 42 U.S.C. §7416; 33 U.S.C. §1370. 20033 U.S.C. Chapter 26, Subchapters III, IV and V; 42 U.S.C. Chapter 85, Subchapters I and III. 201 See Sections 3(a) and (c), Executive Order 11752 (December 17, 1973). 202 The term "United States" is defined as the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Trust Territory of the Pacific Islands. Section 2(5), Executive Order 11752. 203 Except for minor editorial changes in the sentence, section 1-801 of Executive Order 12088 is virtually identical to section 3(c) of Executive Order 11752. 204 One environmental group, in an effort to disregard the plain language of section 1-801, compares the different organization of paragraphs in the two Executive Orders, and suggests — without any support, citation, or reference to presidential documents — that Execu tive Order 12088 "reflects a conscious decision by the President to extend domestic standards to facilities operating abroad." This selfserving statement ignores the very reason for the new Executive Order, which was to curtail the frequent exemptions applied by agency heads under the previous Executive Order, and also subject federal facilities in the United States not just to substantive standards, but to all of the "substantive, procedural, and other requirements that would apply to a private person." Sections 1-701 and 1-103, Executive Order 12088. Even a cursory comparison between the Executive Orders reveals these material changes. For example, in order to eliminate the widespread granting of exemptions from applicable pollution control standards by heads of Federal agencies under Section 5(a) of Executive Order 11752, the subsequent Executive Order 12088 provided that such exemptions can only be granted if the President makes a determination that the exemption is necessary in the interest of national security, or in the paramount interest of the United States. Section 1-701, Executive Order 12088 (emphasis added). The elevation of this determination to the President made exemptions much less frequent. Although many existing environmental statutes contain federal facilities clauses which arguably make the Executive Order redundant, the additional requirements mentioned above clearly explain and justify the need for such an order. In fact, the only "conscious decision" by the President and purpose for issuing Executive Order 12088 can be found in the President's Statement on Signing Executive Order 12088, and Memorandum From the President, both dated October 13, 1978. In those documents, the President clearly describes the purpose of Executive Order 12088, i.e., to prohibit "exemption from these requirements except in the interests of National security or in extraordinary cases where an exemption is otherwise in the paramount interest of the United States," and to require federal facilities to "comply with the same Federal, State, and local environmental standards, procedural requirements, and schedules for cleanup that apply to individual citizens and corporations." (emphasis added). No mention whatsoever is made regarding any "extension" of domestic standards to facilities operating abroad. 205 See text and accompanying notes, supra, at 16-17. 20642 U.S.C. $7401-7642, as amended. 207E. REHBINDER & R. STEWART, ENVIRONMENTAL PROTECTION POLICY: LEGAL INTEGRATION IN THE UNITED STATES AND THE EUROPEAN COMMUNITY (1988). |