1 The vitrification process turns the waste into a solid glass form, thereby “immobilizing” it. According to Frederick F. McGoldrick, the State Department's Principal Deputy Director of Nuclear Energy Affairs, the vitrified waste is “very insoluble in water, resistant to heat, and extremely stable.“

2 This case is concerned with the passage of nuclear waste, not nuclear fuel. Though shipments of spent nuclear fuel, plutonium, and lower-level waste have passed through the Canal before, this, apparently, was the first such shipment of high-level nuclear waste.

3 Japanese electric utilities have contracted for the reprocessing of spent fuel with COGEMA and British Nuclear Fuels Ltd. (BNFL). The Pacific Swan was operated by Pacific Nuclear Transport Ltd., a company jointly run by BNFL, COGEMA, and ten Japanese utilities.

4 In addition to Mayagüezanos, the named plaintiffs are Liga Ecológica Puertorriqueña del Noroeste, Inc., Tourism Association of Rincón, Inc., Asociación de Pescadores del El Maní, and Asociación de Pescadores de El Seco. The United States has not challenged the plaintiffs’ standing.

5 In addition to the United States, the named defendants are the Departments and Secretaries of State and Energy, the U.S. Coast Guard, BNFL, COGEMA, Pacific Nuclear Transport Ltd., Malcolm L. Miller, Gavin Carter, and Christophe Xerri.

6 In its brief, Mayagüsezanos also contended that the shipments of vitrified high-level nuclear waste from France to Japan violate the U.S.-EURATOM Agreement and the Atomic Energy Act, as amended by the Nuclear Non-Proliferation Act. Mayagüezanos abandoned that theory at oral argument.

7 Mayagüezanos asserts that “[t]he serial transportation of [this waste] through the Mona Passage is likely to cause loss of marine habitat, degradation of water quality, and irreparable damages to the ecosystem of the West Coast of Puerto Rico, as well as to threaten rare plant and animal species in Mona Island and to impair long-term scientific research projects in the area.” The United States says that it is “keenly interested in ensuring that the transportation of [vitrified high-level nuclear waste] be carried out safely in accordance with applicable international standards … , particularly when the transportation route approaches United States territory,” and that it has “every reason to believe that this and future shipments will be completed in a safe and secure manner, and that the shipments do not pose any significant risk to ‘health, safety, or the environment.'” It points to the conclusion of Charles D. Massey of Sandia National Laboratories that “the risk that there would be any significant environmental impact from marine transport of vitrified high level waste is less than one chance in a billion.“

8 The Supreme Court, in EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991), reaffirmed the presumption against extraterritorial application of statutes. But see id. at 261-66 (Marshall, J., dissenting). Few courts, however, have decided whether NEPA applies extraterritorially. Compare Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528,533 (D.C. Cir. 1993) (” [S]ince NEPA is designed to regulate conduct occurring within the territory of the United States, and imposes no substantive requirements which could be interpreted to govern conduct abroad, the presumption against extraterritoriality does not apply to this case.“), with Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm'n, 647F.2d 1345,1366 (D.C. Cir. 1981) (Wilkey, J.) (“I find only that NEPA does not apply to [Nuclear Regulatory Commission] nuclear export licensing decisions — and not necessarily that the EIS requirement is inapplicable to some other kind of major federal action abroad.“), and NEPA Coalition of Japan v. Aspin, 837 F. Supp. 466, 467 (D.D.C. 1993) (finding that NEPA did not apply to U.S. actions at military installations in Japan in light of treaty obligations). See also Exec. Order No. 12114, 44 Fed. Reg. 1957 (1979) (“[M]ajor Federal actions significantly affecting the environment of the global commons” require an EIS.). See generally Mandelker, NEPA Law and Litigation § 5.04 (2d ed. 19991; Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int'l L. 85, 101-19 (1998); Gonzalez-Perez & Klein, The International Reach of the Environmental Impact Statement Requirement of the National Environmental Policy Act, 62 Geo. Wash. L. Rev. 757, 774-94 (1994).

9 Since the power over foreign relations is given to Congress and the President, intervention by the courts should require a clear expression of intention from the other branches that such intervention is warranted. See United States v. Lui Kin-Hong, 110 F.3d 103, 106 (1st Cir. 1997).

10 The district court reasoned that because the United States had no power or discretion to regulate shipments of nuclear waste due to the right of innocent passage, it followed that there was no major federal action. A possible, but not necessary, inference from this reasoning is that if the United States had discretion to act, that would suffice to constitute a major federal action. We reject any such reasoning and doubt that this was what the district court intended. We also note that the CEQ definition of major federal action refers to activities that are “potentially subject to Federal control” and that a similar, but also not necessary, inference could be drawn from this. We also reject this inference. We understand the phrase to refer to situations in which the government inaction is subject to review under the APA or other laws, as set forth in 40 C.F.R. § 1508.18.

11 According to Frederick F. McGoldrick, the Principal Deputy Director of the State Department's Office of Nuclear Energy Affairs, paragraph 4.3 of the Administrative Arrangement provides that determinations under article 5.2 “shall be made by the appropriate authority of the party holding the item subject to the Agreement before the removal[.]” The appropriate authority here was the EURATOM Safeguards Directorate, which made the determination that the waste at issue was practically irrecoverable and not subject to the Agreement.

12 The materials are not unregulated, however. The ship's flag nation has responsibility to take measures necessary to control pollution of the marine environment and to ensure the safety of the ships at sea. See Restatement (Third) of the Foreign Relations Law of the United States § 502(l)(b). The United Kingdom is the flag nation here.

13 The Eighth Circuit has said the “major federal action” inquiry involves the separate components of legal control and factual control. See Goos v. Interstate Commerce Comm'n, 911 F.2d 1283, 1294 (8th Cir. 1990). Without ruling on the correctness of this test, we conclude that the United States has neither legal nor factual control.

14 Mayagüezanos refers to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The Convention has been signed by the President, but it has not yet been ratified by the Senate. Consequently, we refer to UNCLOS only to the extent that it incorporates customary international law, though we also note that the United States “is obliged to refrain from acts that would defeat the object and purpose of the agreement.” Restatement (Third) of Foreign Relations Law § 312(3); see also Vienna Convention on the Law of Treaties, art. 18 (1969) (reflecting customary international law). Since the United States is not a party to the Vienna Convention, it is not appropriate to rely directly on it, as suggested by the district court, see Mayagüezanos, 38 F. Supp. 2d at 175 n.3 (citing United States v. Royal Caribbean Cruises, 24 F. Supp. 2d 155, 159 (D.P.R. 1997), except insofar as the Convention reflects customary international law. See Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 638 n.9 (5th Cir. 1994); Restatement (Third) of Foreign Relations Law, pt. Ill, introductory note, at 145. The United States has taken the position that the twelve-mile territorial sea and the two-hundred-mile EEZ are declarative of customary international law. See Proclamation No. 5928, 54 Fed. Reg. 777 (1988); Proclamation No. 5030, 48 Fed. Reg. 10,605 (1983); Statement on United States Oceans Policy, 1983 Pub. Papers 378, 379 (Mar. 10, 1983).

15 The district court broadly concluded that the “right of innocent passage,” a recognized right under customary international law, meant that the United States could not exercise power over transport of nuclear waste even through its territorial waters. See Mayagüezanos, 38 F. Supp. 2d at 179. Such a broad analysis is unnecessary to decide this case and we disavow it.

16 In 1992, a number of states prohibited the entry into their territorial and EEZ seas of a Japanese-flag ship carrying COGEMA- reprocessed plutonium for use at a Japanese nuclear energy plant. See Rothwell, , Navigational Rights and Freedoms in the Asia Pacific Following Entry into Force of the Law of the Sea Convention, 35 Va. J. Int'l L. 587, 614-15 (1995).Google Scholar The same was true for another shipment in 1995. Other states have requested that the freighters stay out of their territorial and EEZ waters. This case requires no analysis of whether international law is consonant with such actions.