ELR Citation: ELR 20648
No(s). 91-1522 (D.D.C. Nov 30, 1993)

The court holds that the presumption against extraterritoriality prevents the U.S. Department of Defense (DOD) from having to prepare environmental impact studies (EISs) under the National Environmental Policy Act (NEPA) for U.S. military installations in Japan. The presumption is supported by foreign policy and treaty concerns involving a security relationship between the United States and a sovereign power. Although a court held that NEPA applies extraterritorially to a U.S. research station in Antarctica, it did not consider whether NEPA applies in an action involving an internationally recognized sovereign power. The court determines that the legal status of military bases in Japan is not analogous to the status of research stations in Antarctica, because DOD operations and the governance of military bases in Japan are controlled by a long-standing and complex treaty arrangement, which established a committee empowered to address concerns such as those raised by the plaintiff. Moreover, in the absence of clear congressional intent to apply domestic regulations overseas, the presumption against extraterritoriality is particularly strong when there is a substantial likelihood that treaty relations will be affected. Even if NEPA did apply as an initial matter, the EIS requirement would yield to DOD's plausible assertions that EIS preparation would impact foreign policy.

Counsel for Plaintiffs
Edward L. Rogers
1130 17th St. NW, Washington DC 20036
(202) 628-3330

Counsel for Defendants
Charles W. Findlay III
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000