It's a Small World after All: Making the Case for the Extraterritorial Application of the National Environmental Policy Act

The purpose of this article is to illustrate why NEPA should be applied extraterritorially. For purposes of this article, extraterritorially means "beyond the territorial jurisdiction of the United States." Section One discusses the mandates of NEPA and its importance to the protection of the environment. In the second section, the article addresses the historic treatment of the issue of NEPA' s extraterritorial application by the legislative, executive and judicial branches. The third section analyzes the possible future treatment of the issue by those branches. The fourth section consists of a discussion of the reasons why NEPA should be applied extraterritorially. NEPA should be applied extraterritorially because there is no conclusive evidence that Congress intended to limit the scope of the statute. In addition, the extraterritorial application of NEPA would not violate the principles of international law. Because the courts have yet to reach a definitive conclusion on the issue, Congress should amend the statute to allow it to be applied extraterritorially. Moreover, the extraterritorial application of American Jaws has been extensively litigated under the Sherman Act and the securities laws. In those contexts, the courts have permitted United States legislation to be applied abroad. The reasoning in those cases supports the extraterritorial application of NEPA. The fifth section explains why the presumption against extraterritoriality should not be applied to limit the scope of NEPA to "major federal actions" inside the United States.