WILKEY, Circuit Judge:

This appeal raises the issue of whether and to what extent "effective control" of nuclear exports requires the Nuclear Regulatory Commission (NRC or Commission) to consider projected health and safety impacts associated with an exported reactor in the recipient foreign country. To answer this question it is necessary to look closely at the complex statutory mandate for atomic energy.

OUTLINE

In furtherance of these objectives Congress has created a regulatory and foreign policy regime designed to ensure "effective controls by the United States over its exports of nuclear materials and equipment and of nuclear technology." The Commission decided in the case before us to license a nuclear export without evaluating health, safety and environmental impacts within the recipient nation. We must judge the conformity of that decision with the Atomic Energy Act of 1954 (the Act), as amended by the Nuclear Non-Proliferation Act of 1978 (NNPA). My review of the two acts leads me to conclude that the Commission acted lawfully in declining to consider foreign impacts. Its deference to the evaluation and foreign policy judgment made by the executive appears to me fully consistent with the objectives set by Congress.

Furthermore, I cannot find that the National Environmental Policy Act of 1969 (NEPA) imposes an environmental impact statement (EIS) requirement on nuclear export decisions with respect to impacts falling exclusively within foreign jurisdictions. Within the language of the statute, solicitude for the President's prerogative in foreign relations dictates that NEPA's putative extra-territorial reach be curbed in the case of nuclear exports. Here, nonproliferation and foreign policy objectives superimpose a special perspective on the singular goal NEPA serves in the wholly domestic context. For international nuclear transactions, it appears to be the will of Congress that bilateral or multilateral cooperation respecting the environment take precedence over unilateral American efforts.

The Commission, on 6 May 1980, authorized the export by Westinghouse Electric Corporation (Westinghouse) to the Philippines of (a) a nuclear reactor, and (b) complementary nuclear materials. On 10 December 1980 this court denied petitioners' motion for a stay enjoining shipments of some of those materials. Today we uphold the Commission's two orders of 6 May 1980.

I. BACKGROUND

A. Export License Proceedings

The Commission concluded, in the first order here under review, that Westinghouse's export license applications met all applicable licensing criteria required by the Atomic Energy Act as amended by NNPA. The exports, the Commission believed, "would not create unacceptable health, safety or environmental risks to U.S. territory or the global commons." In the second order the Commission declared that it would "only consider those health, safety and environmental impacts arising from exports of nuclear reactors that affect the territory of the United States or the global commons." Petitioners, various organizations representing environmental interests, have challenged the Commission's decision to grant the export licenses. Westinghouse, the prospective exporter, has intervened. The Republic of the Philippines, as amicus curiae, has also appeared before us.

The procedural framework applicable to applications for nuclear export licenses is established in section 126 of the amended Atomic Energy Act. The process is quite detailed and entails both administrative and executive participation. A brief outline of the regulatory scheme is as follows:

A prospective nuclear exporter files with the NRC an application for an export license. The NRC forwards the application to the Department of State, thereby triggering executive branch review by the Departments of State, Defense, Commerce, and Energy, as well as the Arms Control and Disarmament Agency. The NRC considers the application concurrently with the review undertaken within the executive. The executive branch must then forward to the Commission its recommendation concerning the issuance of the license. Having received the executive's views, the Commission must then act within sixty days, or alternatively, inform the applicant of the reasons for the delay, and provide follow-up reports. Sixty days after that, the President may withdraw the license application from the Commission if it has not yet acted, and authorize the export by executive order. Presidential authorization would be contingent upon a determination that "further delay would be excessive" and that " withholding the proposed export would be seriously prejudicial to the achievement of United States non-proliferation objectives, or would otherwise jeopardize the common defense and security."

On the other hand, if the Commission does not issue a license because it finds itself unable to make the required statutory determinations, then the Commission may refer the pending license back to the President. The President may then rule on the license application subject to no statutory time limits. A presidential decision, however, in either the "withdrawal" or "referral" context, may be reviewed within sixty days by Congress. By a resolution of disapproval Congress may block a nuclear export authorized by the President (as opposed to one authorized by the NRC pursuant to the prerequisite executive recommendation). Finally, the Commission may also order public proceedings. In such event, the statutory time constraint on NRC action is extended until another sixty days after the termination of the proceeding.

Sections 127 and 128 of the Act stipulate several licensing criteria whose satisfaction must be determined by the Commission before it can issue the export license. Those criteria are set out in full in the margin. But most importantly for the legal issue in dispute in this case, the Commission must determine under section 103(d) of the Act that the proposed reactor export "would [not] be inimical to the common defense and security or to the health and safety of the public" of the United States.

B. The Philippines' Application

On 17 June 1974 the government of the Philippines, acting through its wholly owned National Power Corporation, undertook to acquire from Westinghouse the country's first nuclear generator. The 620 megawatt nuclear power plant was to be constructed at Napot Point, Municipality of Morong, Province of Bataan, on the island of Luzon in the Philippines, and was designated Philippines Nuclear Power Project # 1 (PNPP-1). The Export-Import Bank of the United States in January 1976 authorized loans and loan guarantees upwards of $600 million to finance PNPP-1.

On 18 November 1976 Westinghouse filed an export license application for the Philippines reactor with the NRC. The Commission submitted the application to the executive branch which recommended issuance on 12 December 1977. However, on 25 January 1978 the Department of State, wishing to make its own further studies, requested that the NRC defer action on Westinghouse's application. The Napot Point site is about twelve miles from the Subic Bay Naval Base and forty miles from Clark Air Force Base where a total of 32,000 American armed service members are stationed. This area is also seismically active. These considerations motivated the Department to think further about the suitability of the reactor site, along with certain alleged contractual improprieties, and a few other concerns. Construction at Napot Point continued with materials not subject to NRC licensing requirements.

Department of State concerns were evidently assuaged by the response of the Philippine Atomic Energy Commission. The regulatory body of the Philippines called, in turn, upon the International Atomic Energy Agency as well as its own specially convened "Puno Commission." So on 3 November 1978 the executive branch advised the NRC that it recommended the issuance of an export license for the proposed reactor's component parts. On 28 September 1979 the executive informed the Commission of its view that the proposed reactor itself met all export licensing requirements and recommended the issuance of the license. At this time the executive branch submitted to the NRC a "Concise Environmental Review" discussing siting and environmental considerations, and the Philippines nuclear regulatory process. On 19 October 1979 the Commission ordered public proceedings to address the statutory licensing determinations. The next NRC order on 8 February 1980 solicited public comment on the effects that the proposed export might have on the global commons, United States territory, and the common defense and security of the United States. On 6 May 1980 the Commission issued the two orders here under review.

C. The Commission's Decision 1. Atomic Energy Act.

The Commission issued the export license to Westinghouse on 6 May 1980, having determined by a split vote that the statutory criteria were all satisfied. The Commission simultaneously decided that its consideration of health, safety and environmental impacts was properly confined to those that affect the territory of the United States or the global commons. The Commission held that it was without jurisdiction to consider "impacts upon the citizens of the recipient nation," the Philippines. This conclusion was based on the Commission's understanding that federal statutes apply only to conduct within, or having effect within, the territorial United States, unless the contrary is manifest in the statute itself. As to United States interests abroad, such as potential impacts on American armed service members based in the Philippines, the Commission held that its "legislative mandate neither compels nor precludes examination of such impacts. The decision whether to examine such effects is thus a question of policy to be decided as a matter of agency discretion."

The Commission concluded that prevailing considerations of policy did not call for consideration by the agency itself of foreign impacts on American interests. The Commission pointed out that the effect of foreign impacts would be assimilated in the export licensing process in any event. Whatever judgment the agency might reach, the executive branch, pursuant to Executive Order No. 12,114, will assess these foreign impacts in making its recommendation to the Commission.

With regard to impacts on the global commons, the Commission adopted a median position. It eschewed a comprehensive review citing the absence of legislative or judicial guidance, but determined on policy grounds that NRC review of these impacts could be "based upon generally available literature, such as generic environmental impact statements prepared by the Commission and other federal agencies, information contained in environmental assessments prepared by the Executive Branch pursuant to E.O. 12114, and calculations prepared by the NRC staff based on analytical models. . . ."

All of the above considerations were factored into the Commission's finding that issuing the Philippines export license would not be "inimical to the common defense and security or to the health and safety of the public." This finding of "non-inimicality," of course, is required by section 103(d) of the Atomic Energy Act. Petitioners contend, as one of their principal arguments, that the Commission, by so narrowly confining its environmental review, violated its obligation to make the section 103(d) finding of "non-inimicality." Before such a finding can be made, petitioners urge, the Commission is bound to consider the adequacy of the reactor design, the site location, operation requirements, and environmental effects. Conversely, the Commission reasoned "that more comprehensive reviews could intrude upon foreign sovereignty and that the responsibility for protecting the health and safety of U.S. citizens residing abroad resides with the recipient nation."

2. National Environmental Policy Act of 1969 (NEPA).

An environmental impact statement evaluating the environmental consequences of the nuclear export to the Philippines was not prepared. The Commission interpreted NEPA to require consideration of environmental impacts on the United States, and to permit consideration of impacts on the global commons. Relying on public comments and generic environmental analyses, the Commission stated its view "that the impacts on the global commons and U.S. territory that would result from the reactor export do not rise to a level of magnitude that would require us to vote to deny the export licenses." It was the Commission's judgment that even in the worst case, such as a meltdown of the exported reactor's core, the impact on the global commons and United States territory would be "extremely small" and "insignificant." Regarding storage of spent fuel and nuclear waste, the Commission also decided that "storage on site would not have adverse impacts upon the global commons or U.S. territory."

The Commission explained its decision not to evaluate site-specific impacts on the global commons by emphasizing that United States regulatory officials are constrained by principles of national sovereignty from insisting on visits to sites within foreign territory. Absent such visits, reliance on generic analyses, extrapolation from domestic environmental impact statements, and information gathered and submitted to the NRC by the executive branch in its concise environmental review (prepared pursuant to Executive Order No. 12,114), is sufficient. The Commission noted as well that it had undertaken several specific cooperative programs with the Philippines to implement NEPA's section 102(2)(F) requirement that agencies "maximize international cooperation" to prevent deterioration of the worldwide environment. A regulatory information exchange agreement reached with the Philippines on 28 April 1980 ensures that the Philippines Atomic Energy Commission will regularly receive NRC regulatory guidelines, safety information, including Three Mile Island-related documentation and staff reports, and any information it requests.

3. Separate Opinions.

The foregoing synopsis of the NRC decision in this case refers to the plurality opinion of Commissioners Kennedy and Hendrie. Commissioner Gilinsky concurred "in the result reached by the Commission . . . that . . . favorable findings on the health, safety and environmental impacts of U.S. nuclear exports abroad should not be a condition of export authorization by the NRC." Commissioner Gilinsky underscored the importance of reactor operation and training of plant managers and operators as primary safety features. He stated that the Commission was simply not in a position to "go to the heart of the safety issue" of exported reactors.

Commission Chairman Ahearne and Commissioner Bradford each dissented separately from the decision to grant the export licenses. The Chairman agreed that the Commission was without jurisdiction to evaluate effects on the citizens and interests of the recipient nation. He dissented, however, because of his view that some limited review of available information on impacts affecting United States interests in the recipient country should be undertaken by the Commission. He wrote:

The Commission did not fully articulate its position on the question of jurisdictional reach until this decision. I find it not possible to simultaneously evaluate the appropriate jurisdictional reach and whether the Commission position warrants granting the export in this case (although I suspect that it does). Therefore, I abstain from the Commission's determination on the pending application.

Only Commissioner Bradford's dissent represents a substantive disagreement about the scope of the NRC's statutory obligations. "Thus," he wrote,

our legal responsibility to consider the common defense and security, our legal responsibility to consider the health and safety of American populations living overseas, and a policy determination to take some effective responsibility for the safe use of our exports all merge in the direction of a more comprehensive review than the Commission has chosen to undertake.

Furthermore, Commissioner Bradford adduced the following considerations in response to Commissioner Gilinsky's point:

The conclusion should not be that no review is in order because the review cannot guarantee safe operation. It should be that, because the U.S. has little control over the operating practices or quality assurance and control programs, we should at least do what we reasonably can to advise at the outset on the safety of the site, the design, and the regulatory program.

The Commissioner did not feel, however, "that such a review could be a basis for the denial of an export in any but the most extraordinary case." He did feel, though, that a foreign accident as severe as Three Mile Island would be inimical to the common defense and security and, perhaps, the health and safety of local Americans. Finally, the dissent suggests that NRC review of local impacts around the Philippines reactor would not necessarily be any more intrusive than the nonproliferation reviews required by international treaties. Commissioner Bradford voted against issuing the licenses. He did not address the NEPA issue.

II. PRELIMINARY DISCUSSION

A. The Issues

The Commission's decision in this case, as we have seen, was a determination that it could not, or should not, evaluate health, safety and environmental impacts associated with the Westinghouse export applications (a) on the Philippines, or (b) on the American bases and personnel located nearby the Philippines reactor site.

Petitioners first contend that the Commission's review of these matters, so circumscribed, resulted in a meaningless NRC finding that the export of the Westinghouse reactor to the Philippines would not be inimical to the "common defense and security" of the United States or to the "health and safety of the public." This hollow finding of non-inimicality, petitioners allege, violates the Commission's legal obligations under the amended Atomic Energy Act. A nuclear accident befalling a United States reactor in the Philippines, say the petitioners, would undermine national defense interests generally by shaking world confidence in the United States and the confidence of our allies, and more specifically, by jeopardizing the viability of the military forces near the reactor site. Thus petitioners would claim the Commission is obligated to demonstrate wholly independently from the executive's statutory submissions and representations that operation of the reactor in the light of hypothetical events in the Philippines will not be "inimical" to this country's strategic interests.

Respondents counter that "common defense and security" is a congressional construct relating to nonproliferation, and that "[w]hile health and safety impacts might, in extraordinary cases, affect the common defense and security, the Commission may defer to the determination of the Executive Branch that such impacts do not warrant denial of the license."

The second major issue on appeal here is the Commission's decision not to prepare a site-specific environmental impact statement because of its understanding that NEPA does not apply to impacts in a foreign country as occasioned by the federally licensed export of a nuclear reactor to the Philippines. Subsidiary environmental questions involve the Commission's reliance on programmatic and generic environmental analyses with respect to impacts on the global commons as well as the territory of the United States. The parties argue, on the one hand, that NEPA applies to the foreign effects of a domestic licensing decision, and on the other, that the NEPA prescription — the procedural requirement of an environmental impact statement "to the fullest extent possible" — is limited more narrowly to major federal actions occurring within, or having effects upon, the United States itself. This dispute, of course, is a legal question entirely. Construing the equivocal reach of NEPA abroad, however, is a judicial endeavor oft-encountered, but not yet fully realized by any court. We, too, will face this issue tentatively.

The two issues invoke the separate standards of two different statutes. Nevertheless, there is plainly some analogy between the statutory issues — each questions whether there is the duty that an independent agency of the United States explore consequences in a foreign land, consequences in which the foreign government is also interested, and, moreover, whether that agency then must be influenced in its own decision-making by the results of the exploration of foreign consequences. I shall attempt a concise synthesis of the overlapping problems before moving on to analyze what is required of the Commission under each statute separately.

B. Examining Foreign Impacts in General

The export licensing of nuclear reactors takes place, of course, at NRC headquarters inside the United States. One must therefore examine the following proposed characterization: that the Commission's extension of health, safety and environmental review to the foreign impacts of nuclear exports (a) constitutes an extraterritorial application of United States law, and/or (b) implicates the foreign relations of the United States and impairs its conduct by the President.

1. How could consideration by the NRC, in a domestic decisionmaking context, of health, safety and environmental impacts in the Philippines "constitute an exercise of American sovereign power within the area of the foreign country's territorial sovereignty"?

The export of any commodity across national boundaries calls into play, and sometimes into conflict, the national interests of the exporter-country and the importer-country. Where nuclear power programs and the sale or purchase of nuclear reactors are involved, the public policy of each country, the exporting jurisdiction and the importing jurisdiction, is scrupulously engaged. One country wants both to promote its own nuclear industry and to effect its plan for restraining the proliferation of nuclear weapons and weapons potential. The other country wants to plan the national development of an electric power network. Neither country wants the plant to blow up — but each for its own different reasons. The distant United States has its "common defense and security" and international reputation on the line. Generalized humanitarian concerns are also prominent. But the Philippines is interested in actually providing power, and safety. Thus the legitimate regulatory jurisdictions of the two countries overlap, but are not the same. In fact, the Philippines, as amicus curiae, portends the danger in transnational regulatory conflict:

If the United States followed a policy of imposing its own regulatory procedures and standards on all host countries involved in advanced technology trade with the United States, such a policy would undoubtedly bode ill for the ability of the United States to maintain military facilities in as many locations around the world as it now does.

Most importantly, the Republic believes that an examination of impacts on United States citizens residing in the Philippines should not be used as a disguised way of substituting United States regulatory standards for the Republic's own.

This is not a case of the United States imperiously imposing its will on the Philippines. Nevertheless, conditioning export licenses on the satisfaction of standards fashioned in the United States may unnecessarily displace domestic regulation by the government of the Philippines.

I do not disagree with petitioners' note that "the extraterritoriality principle governs the construction of statutes which are sought to be applied in a manner which proscribes or prescribes activity in the sovereign territory of a foreign country," and would therefore be inapposite where "the regulated conduct occurs within the United States." That note, however, conveys only half the story. Conditioning an export license on the health, safety and environmental standards we think sound for the foreign nation's regulation directs that nation's choices just about as effectively as a law whose explicit purpose is to compel foreign behavior. In short, failure to perceive extraterritorial consequence in the course petitioners propose for the NRC would be naive.

Regulatory coercion across national borders is plainly a possibility for the United States when we hold the cards. But when a foreign development program — the public provision of electricity — is at stake, we should not assign an insignificant place to the foreign political interest. Some balancing, or recognition of latent conflict of laws, would seem judicious to reconcile the separate but not inconsistent national interests to regulate reactors with an eye to health, safety and the environment. As this court said in a recent case about the Federal Trade Commission's authority to serve investigatory subpoenas in France,

[t]he exercise of jurisdiction by any governmental body in the United States is subject to limitations reflecting principles of international and constitutional law, as well as the strictures of the particular statute governing that body's conduct.

But whatever the wisdom of restraining the extraterritorial grasp of this country in order to align ourselves with principles of international law, it would shrink before an unequivocal mandate from Congress. Where a statute directs an agency of the United States to consider foreign environmental impacts no court of the United States will contravene the will of Congress. The only exception would be if the legislature were wholly without jurisdiction to prescribe the relevant conduct: this would occur only if that conduct occurred outside the territory of the United States, had — or was intended to have — no effects within the United States, or involved no conduct of nationals of the United States. This is not such a case. The Congress most assuredly may prescribe conduct relating to the grant or denial of a license authorizing the export of a nuclear reactor from the United States.

Here, however, the Congressional mandate is vague. We ought somehow to accommodate the two separate national regulatory interests with the "extraterritoriality principle." We do honor to the sovereignty of national governments, our own included, when we respect foreign public policy by not automatically displacing theirs with ours. This calls for a thorough understanding of our interests as defined by Congress — we can then reasonably balance the scope of our own regulation alongside the rightful regulatory jurisdiction of the Philippines. I will undertake this specific investigation in Parts III and IV below.

2. Do the actions of the NRC affect the foreign relations of the United States?

After the immediately preceding discussion, it cannot be gainsaid that NRC decisionmaking touches on matters germane to foreign public policymakers. Technical NRC decisions will confront equally technical, but also political, decisions of the President (and executive branch), and foreign leaders. If the Commission's health, safety and environmental review of foreign impacts were to impede or challenge the development of foreign nuclear energy programs, it would, in turn, inhibit the conduct of United States foreign relations.

Under the Atomic Energy Act the Commission must make judgments that the future behavior of foreign governments will not be inimical to this country's "common defense and security," and also, that proposed exports fall under applicable bilateral or multilateral agreements for cooperation. It is difficult to imagine how the licensing acts of NRC affecting the United States role as a nuclear supplier could escape association with our foreign relations goals. This is true a fortiori in the NNPA context of suppressing the international spread of nuclear weapons potential by replacing it with predictable, formalized export licensing. The Senate Committee Report on NNPA declared the bill's purpose as one of "promot[ing] our nonproliferation policies by establishing a more effective framework for international cooperation to meet the energy needs of all nations and ensure that the worldwide development of peaceful nuclear activities — including nuclear commerce — does not contribute to proliferation. . . ."

Plainly, the Commission simply by deliberating on nuclear export questions will influence the denouement of United States foreign relations in a particularly sensitive arena: that of controlling proliferation of nuclear materials among nations. It is equally plain, however, that the Commission's statutory role requires the agency's entry into the field of foreign affairs, within certain limits. Those limits are principally defined in the amended Atomic Energy Act (and, broadly speaking, in the Constitution, of course) by the President's dominion over foreign affairs. NNPA specifically provides that the President may overrule an NRC decision, and order authorization of the nuclear export license. Responsibility thus rests finally in the executive branch to ensure achievement of the nation's foreign policy goal to defeat nuclear proliferation. The Commission's task is complementary. I will explore below whether or to what extent, extraterritorial health, safety and environmental review by the Commission comports with the statutory framework, or whether, it risks unduly impeding the conduct of United States foreign relations.

C. Legal Standard of Review

The issues on appeal before this court are questions of law. This court must interpret statutory terms like "common defense and security" and "health and safety of the public," among others. Likewise, the extension of NEPA to foreign impacts requires traditional (albeit somewhat problematic) statutory construction and analysis. The Administrative Procedure Act requires the reviewing court to "decide all relevant questions of law." Though a court will grant some deference to the Commission's interpretations of the statute it must administer, the expertise of the judiciary is in statutory analysis and must be applied when appropriate. We do not face here any factual or technical determinations reached by the Commission. Rather, issues of agency jurisdiction and legal obligation are at stake. We should reject respondents' proposition that this case is governed by the "arbitrary and capricious" standard. The term "substantial evidence" is also immaterial where the issues turn on the legal basis, not the factual underpinning, of the agency's action.

III. THE ATOMIC ENERGY ACT AS AMENDED BY NNPA

We have seen earlier that Congress was competent to impose such restrictions or conditions as it pleased on our trade in nuclear exports. Nuances of foreign sovereignty and foreign policy will color our statutory analysis where there are interstices in the Act, but the Act's criteria for nuclear export licensing must be directly confronted and construed. The question, simply put, is whether Congress required the NRC to consider health and safety impacts in the foreign environment around the site of the exported reactor. In this regard the Act stipulates only that the Commission may not grant an export license should it find that the export would be inimical to the "common defense and security" of the United States, or inimical to the "health and safety of the public."

I find that this statutory language and legislative history are inconclusive and do not obligate the Commission to evaluate foreign health, safety and environmental impacts to find "non-inimicality." The Commission may defer to the executive on these matters. I also find that the Commission is not precluded from considering foreign health, safety and environmental impacts, and under "unusual circumstances" may deny an export license on that basis. The Commission, moreover, has the discretion to consider possible effects exported nuclear reactors may have on United States interests located near the site of the exported reactor. However, where the Commission may act on a discretionary basis, it must take care to avoid ad hoc decisionmaking that could jeopardize the administrative consistency contemplated by Congress.

A. Congressional Purpose

By adding NNPA on top of the existing Atomic Energy Act Congress confirmed its intention that assurances of nonproliferation and maintenance of the military balance be the indispensable conditions of United States nuclear exporting. Congress established mechanisms of export control designed to constrain nuclear importers from acquiring nuclear weapons capability. NNPA amendments added rigorous, more comprehensive substantive and procedural criteria for nuclear exports; under the unamended Atomic Energy Act the standard for granting an export license had been no more elaborate than the criterion of "common defense and security." The NNPA nonproliferation standards introduced safeguards providing that nuclear exports be used only for peaceful (nonexplosive) purposes.

But apart from specific safeguards, Congress recognized that its hopes for worldwide forbearance from nuclear weapons capability depended on the satisfaction of (seemingly irrepressible) world demand for nuclear generating capability. The United States, by virtue of its leading position in nuclear technology, can satisfy prospective foreign consumers of nuclear power. A predictable, reliable supplier might obviate the nascent urges of non-nuclear-weapons countries to develop their own unchecked channel of nuclear supply. This was the "carrot" approach towards influence with other nations. In the words of the House Committee Report:

This legislation recognizes that the best way to control proliferation, however, is not through unilateral strictures, but rather through policies that provide incentives strong enough to attract the adherence of other countries to our anti-proliferation aims. . . .

The legislation would assure nations which share our antiproliferation goals a reliable source of fuel for nuclear light water reactor[s]. . . . These provisions have the effect of diminishing the need for technologies, such as conventional reprocessing, that lead to quick weapons capability.

The bill seeks to provide a clear and understandable set of standards and export criteria to replace the loose and inconsistent [past] policies . . . .

The floor manager of the bill in the House, Congressman Bingham, said that NNPA was intended in part to remedy prior "uncertainty as to what the U.S. nuclear export standards are" by "establish[ing] consistent and effective criteria for the licensing of all U.S. exports and . . . procedures for prompt consideration of export applications [to] enhance our position as a reliable supplier of nuclear fuel to nations which share our antiproliferation policies." It is apparent that Congress wished the creation of a relatively formal and finite system for regulating exports rather than a more tentative ad hoc approach. To this end, Congress outlined strict statutory time limits in NNPA to standardize and expedite the administrative licensing process.

The congressional focus on systematic criteria undercuts the suggestion that Congress intended NRC decisionmaking to reach out to inscrutable, or remote considerations. Evidently, Congress insisted on categorical, but yet modest export controls whose application could be accepted not unenthusiastically by likeminded foreign nations. The desire to see opportunities for proliferation quashed resulted in a mitigation of "unilateral strictures." NNPA was intended to win fellow adherents to our philosophy of nonproliferation. NNPA promises cooperation, not confrontation, so long as the principle of peaceful exploitation of nuclear power is vindicated by the recipient nation. This understanding of the statute discourages inviting an administrative review likely to trench on foreign sensibilities. The foreigners' conviction that they themselves are competent to regulate their own environment is not to be lightly rejected. To do so could thwart the overall purpose of the legislation.

B. Environmental Protection Standards 1. Statutes.

The provisions of the Atomic Energy Act and NNPA do not stipulate environmental criteria or guidelines. Rather, after extended debate on the Senate floor, a compromise provision was inserted — the compromise agreement would reflect some concern for environmental protection, but was not to affect interpretation of NEPA one way or another.

The terms of the amendment called on the President to "endeavor to provide," in any new or modified bi- or multilateral agreement "for cooperation between the parties in protecting the international environment from radioactive, chemical or thermal contamination arising from peaceful nuclear activities." Existing agreements for cooperation, including those with the Philippines, do not contain such environmental provisions. Thus, there is no explicit mandate in NNPA, or pursuant to NNPA, which requires administrative review of environmental factors in the recipient country.

2. Precedents.

The Commission has consistently declined to number foreign environmental, health or safety impacts among its export licensing considerations. Similarly, in this case the Commission has concluded that it should not engage in an examination of such impacts.

The Commission's consistent legal interpretation is relevant here, because Congress has required that the agency keep that body fully and currently informed of nuclear export licensing practices. This court has earlier noted the sensitive relationship between the Atomic Energy Commission (predecessor to the NRC) and the Congress. If anything, the extensive congressional oversight of nuclear export activities in force prior to NNPA has been increased under NNPA. Given Congress' special efforts to scrutinize nuclear export actions, the failure of Congress to correct consistent NRC interpretation is probative of likely congressional approval. Also, Congress has plainly cast consistency in NRC licensing as an independent virtue in itself. For these reasons, and since we know that Congress in other contexts has provided explicitly for administrative review of health and safety factors encompassing foreign impacts, some weight to the Commission's historic view that NNPA is without plenary reference to foreign environmental factors is in order.

C. "Non-Inimicality"

The conclusions of the preceding section necessarily suggest that the Commission has appropriately declined to consider foreign impacts. We need to determine more precisely, however, the meaning of section 103(d) of the Atomic Energy Act, the Act's general holdover criterion which survived the NNPA's addition of specific nonproliferation criteria. The relevant provision reads: "[N]o license may be issued . . . if, in the opinion of the Commission, the issuance of a license . . . would be inimical to the common defense and security or to the health and safety of the public."

1. Not inimical to the "common defense and security."

[I]n the absence of unusual circumstances, the committee believes that any proposed export meeting the [nonproliferation safeguards] criteria set forth in subsection 127a. and, . . . subsection 128a., would also satisfy the common defense and security standard.

I read the statement by the House Committee quoted above as establishing that, as a general rule, the Commission need not look beyond the nonproliferation safeguards in determining whether the common defense and security standard is met. "Unusual circumstances" requiring inquiry beyond the nonproliferation criteria cannot have reference to the American bases in the Philippines. That is hardly an unusual circumstance. We also have bases — and reactors — of which we can suppose Congress was not unaware, in Spain, Germany, etc. And seismic activity, like American troops, tourists and business interests, is also ubiquitous about the globe. The seismological attributes of Napot Point have not escaped the Commission, the executive, or the Philippines — I am prepared to defer to the NRC's finding that long extant volcanoes and past and future earthquakes in the Philippines do not rise to the level of "unusual circumstance" as far as our own nation's "common defense and security" is concerned.

a. Policy considerations. I have already discussed the congressional purpose and viewpoints at some length. It was evident that Congress eschewed unilateral measures in favor of a provision stating that "[t]he President shall endeavor" to negotiate bilateral or multilateral agreements "for cooperation between the parties in protecting the international environment." The best inference I can draw from these manifestations of congressional purpose (like the availability of nuclear equipment and supplies from the United States to make nonproliferation attractive, and the reliance on cooperative efforts ministering to shared environmental concerns) is that Congress would not have obligated the NRC to study foreign impacts ultimately within foreign control. NRC consideration of these impacts conceivably might mire nuclear export licensing in plain contravention of the NNPA objectives: expedition and predictability. Prolonged consideration by NRC would challenge the very administrative implementation of NNPA.

Moreover, safety and local environmental impact would turn substantially on the ongoing operation and management of the foreign reactor (albeit one imported from the United States) — factors beyond the Commission's ken. Surely, by tendering comprehensive safety data and assistance as it is solicited, the Commission would satisfy whatever are its statutory duties beyond the nonproliferation criteria. Congress has clearly intended that the Commission not make nuclear export licensing so arduous that we lose our foreign customers to other suppliers, and hence lose our chance to export the built-in nuclear standards of our products.

b. Reliance on the executive. The President has the last word on nuclear exports. The President is also responsible for the conduct of foreign relations as well as being the Commander-in-Chief. These considerations militate against the hypothesis that the NRC is obliged to decide whether impacts on the Philippines, or on American armed service members stationed there, are inimical to the "common defense and security." Prejudicial impacts on that country or our armed forces would without doubt jeopardize our country's strategic or tactical military posture. However, these are judgments the executive — the President, and Departments of State and Defense — is best equipped to make. These actors are all closely involved in the export licensing process. Their representations to the NRC on matters of national security are entitled to deference. Furthermore, among the representations and submissions prepared by the executive is a concise environmental review of local, site-specific impacts. Given the manifold bilateral treaties and agreements between the two governments, it would be presumptious for the Commission to weigh the safety of the Philippines and the soldiers there on a "common defense and security" scale without expert sensitivity to foreign policy repercussions.

The executive has fully reviewed and determined that the export to the Philippines is not inimical to our "common defense and security." I find that the Commission has properly and sufficiently relied on the executive's foreign policy, extraterritorial and national security conclusions. To be sure, in deliberating over nuclear export licensing the Commission serves well as an independent, expert check on the executive's parallel technical findings. But should the Commission duplicate the executive's strategic judgments, it risks impairing them.

2. Not inimical to the "health and safety of the public."

The current of the logical analysis brought to bear on "common defense and security" above flows in the same direction now for the "health and safety of the public." In addition, I turn finally to the "presumption against extraterritoriality" to uphold the Commission's decision that the public health and safety standard obligates it to consider only the American public within the United States.

I have discussed above how United States laws will not be applied extraterritorially unless the mandate to do so is unequivocal. This proposition is most sound here, where the legislative perception expressly incorporated notions of blending the national interests of other countries with our own. There is a problem in achieving the American ideal of nonproliferation which is unattainable without likeminded decisions by the rest of the world. Congress' solution is to encourage foreign decisionmaking in one particular direction. Thus the NNPA theme is to gain global influence in a world-wide struggle to constrain the spread of nuclear weapons. To gain converts to the nonproliferation ideal, rather than antagonize our sovereign equals, Congress made the United States into a nuclear supplier at the world's disposal, to the extent that reciprocal acceptance of our ideal is promised. Simply put, the congressional commitment to nuclear reliability entailed a diminished capacity of the United States to be quirky or exclusive with its exports.

So, then, the rule against extraterritoriality is applied here to justify the Commission's refusal to assimilate the American public in America to American armed forces in the Philippines (or in the many other places around the globe where the United States has military personnel). The premise that the Philippines is sensitive to foreign regulatory forays inside its borders seems fair, as does the postulate that on balance the Philippines sovereign interest. may prevail over and displace the NRC administrative interest.

IV. NEPA REQUIREMENT AS TO EXTRATERRITORIAL IMPACTS

The Commission evaluated possible health, safety and environmental effects of the Philippines reactor upon United States territory and the global commons before deciding to grant the export application. After evaluating the concise environmental review provided by the executive and other environmental documents, the Commission concluded the domestic and global effects were not significant. I do not find this assessment unreasonable, or in violation of NEPA, which requires:

that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall —

* * * * * *

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official . . . .

The material NEPA issue on appeal is whether the federal decision to export a reactor, causing no significant American or global impacts, nevertheless triggers the requirement of a site-specific environmental impact statement, solely because of effects occurring in a foreign jurisdiction. In other words, must the NRC take cognizance of Philippine impacts in an environmental impact statement (EIS)?

Since the Commission prepared no EIS, one must go beyond the issue of strict compliance to decide whether NEPA applies at all in this situation. My reluctance to apply NEPA extraterritorially is animated by the same anti-extraterritorial policy arguments and understandings adumbrated in the NNPA analysis. I also note that the NEPA jurisprudence indicates that exclusively foreign impacts do not automatically invoke the statute's environmental obligations. I find only that NEPA does not apply to NRC nuclear export licensing decisions — and not necessarily that the EIS requirement is inapplicable to some other kind of major federal action abroad.

Here, the foreign policy qualification provided by Congress in NEPA itself engages the policy rationales so critical to NNPA. Given the agenda for transnational order implicit in the nonproliferation statutes, one must give force to the NEPA imperative to

(F) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment . . . .

This NEPA prescription, I find, looks toward cooperation, not unilateral action, in a manner consistent with our foreign policy. Moreover, if an EIS requirement attached to nuclear exports, there would be the spectre of litigation over the adequacy of the EIS, with delay the inevitable result. Unilateral EIS review thus appears incongruous in the nuclear exports/nuclear nonproliferation context.

A. Legislative History

The United States Congress can outline national goals for Americans only. NEPA thus reflects the perception of a global problem from the American perspective, and offers a procedural remedy to assist in a solution for Americans. There is, of course, the likelihood that other cultures, other countries at diverse stages of development, will react in their own way to the same global problem. Did Congress mean for NEPA to address environmental concerns for those countries too?

In an earlier section we have seen that, when the NNPA Congress turned to environmental protection, it focused on international cooperation and left open the issue of extraterritorial application of NEPA. The intention of the NEPA Congress, however, is obscure. All we can know for sure is that the earlier Congress also recognized the merits of cooperation and foreign policy temperance. The parties refer us to various pre- and post-enactment hearings held before congressional subcommittees pondering NEPA issues. They are inconclusive; I must conclude that NEPA's legislative history illuminates nothing in regard to extraterritorial application.

B. Judicial Precedents

A district court for the District of Columbia has recently stated that "[t]he extraterritoriality of NEPA remains an open question in this Circuit." It was correct. There are a number of cases, however, which do address the application of NEPA beyond United States borders. These cases are both factually distinguishable and missing the foreign policy element. To be assured that NEPA has not been de jure extended "overseas," I examine a number of those cases.

In Wilderness Society v. Morton our court considered whether nonresident Canadian citizens could intervene in an action challenging the adequacy of an EIS prepared for the proposed TransAlaska pipeline. The court permitted the Canadian intervention, noting briefly (in a two page per curiam opinion) that possible oil spills in or around Canada distinguished the intervenors' environmental advocacy from that of the existing parties coming from adjacent America. The court based its ratio decidendi on a "mere recitation of appellants' contentions, plus a look at the map," which made "it quite clear that the interests of the United States and Canadian environmental groups are sufficiently antagonistic in this litigation to require granting of the application for intervention."

The case at bar is of course not an intervention case dealing only with a procedural question. The petitioners here advocate environmental concerns expressing Philippine interests. If anything, the direction of the foreign antagonism runs against the petitioners themselves, who from non-adjacent America presume that they can represent the Philippine environment. Another difference is that Wilderness Society posed "no problem with regard to separation of powers or interference with the conduct of foreign relations in the narrow questions presented here." Wilderness does not address at all the substantive issue whether NEPA extends to a foreign environment. It is entirely silent on the question before us, whether an EIS must be prepared for a project with no environmental impact within the United States. A significant substantive difference between our case and Wilderness Society was the ongoing control exercised by the United States with respect to the pipeline. In the Philippines nuclear export, on the other hand, United States responsibility is limited within the confines of a licensing decision.

In People of Enewetak v. Laird the district court for Hawaii found NEPA applicable to the United States trust territories in the Pacific. The court noted the foreign policy caveat in section 102(2)(F) and said: "In areas like the Trust Territories there is little, if any, need for concern about conflicts with United States foreign policy or the balance of world power." In our case the Commission has conceded that trust territories fall under its obligatory jurisdiction. This decision declining to apply NEPA to an independent country is completely consistent with People of Enewetak.

After a district court decision requiring an EIS for federal highway construction in Panama and Colombia, this court in Sierra Club v. Adams reversed the trial court's finding that the EIS was inadequate. The Sierra Club court did not decide the NEPA extraterritoriality issue, because the government in that case "never questioned the applicability of NEPA to the construction of this highway in Panama." The facts in Sierra Club reveal that the United States had two-thirds of the ongoing financial responsibility and control over the South American highway construction. Moreover, the EIS requirement had been originally triggered by health effects on United States livestock herds. The highway was viewed as significantly threatening to open a potential line of transmission of "foot-and-mouth" disease from Colombia, where it is epidemic, to cattle in this country. Road construction was feared as possibly disrupting the existing effective natural land barrier to the disease. Plainly, Sierra Club environmental considerations were of a different nature from those we face in this case with respect to the Philippines.

V. CONCLUSION

For the foregoing reasons I would uphold the Commission's grant of nuclear export license applications XR-120 and XCOM-0013 to Westinghouse for shipment to the Philippines.

So ordered.

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