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There are two situations that generally will not constitute major federal actions under the National Environmental Policy Act, 42 U.S.C.S. § 4321 et seq. The first situation is governmental inaction, where that failure to act is not otherwise subject to review by the courts or administrative agencies under the Administrative Procedure Act or other laws. 40 C.F.R. § 1508.18. The second situation is mere approval by the federal government of action by a private party where that approval is not required for the private party to go forward.
On February 3, 1998, the Pacific Swan, a British-flag freighter carrying a cargo of vitrified high-level nuclear waste, passed through the Mona Passage, a stretch of seas between the islands of Puerto Rico and Hispaniola. It was bound for Japan, by way of the Panama Canal, from France. A day earlier, a group of fishermen and environmental organizations from western Puerto Rico, fearing an accident or maritime disaster, brought the present action for an injunction to stop the shipment until the United States filed an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. After the parties filed cross-motions for summary judgment, the district court denied the claim for injunctive relief and dismissed the action. Plaintiffs appealed.
Under the circumstances, could plaintiffs enjoin the shipment on the strength of the National Environmental Policy Act (NEPA)?
The Court held that the international agreement which safeguarded against the improper use of nuclear material did not grant defendant any control over the shipment since its material was designated as irrecoverable and thus beyond the scope of the agreement. Defendant's interest in its exclusive economic zone, outside its territorial waters, was limited under customary international law and did not extend to regulation of shipments of nuclear waste. Since no federal approval was required for the shipment and there was no federal authority over the shipment, plaintiffs failed to show the required major federal action to require application of NEPA.