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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 99-1412 <br> <br> <br>        MAYAGUEZANOS POR LA SALUD Y EL AMBIENTE, ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                UNITED STATES OF AMERICA, ET AL., <br> <br>                      Defendants, Appellees. <br>                                  <br> <br>                       ____________________ <br> <br>                 <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>         [Hon. Salvador E. Casellas, U.S. District Judge] <br> <br>                       ____________________ <br>                      <br>                              Before <br> <br>                     Lynch, Circuit Judge, <br>                Campbell, Senior Circuit Judge, <br>                  and O'Toole, District Judge. <br>                                 <br>                       ____________________ <br> <br> <br>  Juan A. Giusti-Cordero, with whom Pedro J. Varela- <br>Fernandez was on brief, for appellants. <br>  Sean H. Donahue, Attorney, Environmental and Natural <br>Resources Division, U.S. Department of Justice, with whom Janet <br>Masters, Trial Attorney, Office of General Counsel, U.S. Department <br>of Energy; Horst Greczmiel, Office of Environmental Law, United <br>States Coast Guard; James F. Simon, Acting Assistant Attorney <br>General, Environmental and Natural Resources Division, U.S. <br>Department of Justice; Guillermo Gil, United States Attorney, <br>Isabel Munoz Acosta, Assistant United States Attorney; Ellen <br>Durkee, John T. Stahr, and Stephen G. Bartell, Attorneys, U.S. <br>Department of Justice, were on brief, for appellees. <br> <br>                       ____________________ <br>                      <br>                        December 20, 1999 <br>                       ____________________

  LYNCH, Circuit Judge. On February 3, 1998, the Pacific <br>Swan, a British-flag freighter carrying a cargo of vitrified high- <br>level nuclear waste, passed through the Mona Passage, a stretch of <br>seas between the islands of Puerto Rico and Hispaniola. It was <br>bound for Japan, by way of the Panama Canal, from France. A day <br>earlier, a group of fishermen and environmental organizations from <br>western Puerto Rico, fearing an accident or maritime disaster, <br>brought this action for an injunction to stop the shipment until <br>the United States filed an Environmental Impact Statement (EIS) in <br>accordance with the National Environmental Policy Act (NEPA), 42 <br>U.S.C.  4321 et seq. After the parties filed cross-motions for <br>summary judgment, the district court denied the claim for <br>injunctive relief and dismissed the action. See Mayagezanos por la <br>Salud y el Ambiente v. United States, 38 F. Supp. 2d 168, 178 <br>(D.P.R. 1999). We affirm on different reasoning. <br> <br>                               I <br>  The voyage of the Pacific Swan is part of a modern <br>circumferential trade. Uranium from the United States is sent to <br>Japan to fuel nuclear energy reactors. Japan ships the reactors' <br>spent fuel to COGEMA, a French nuclear power company, for recycling <br>at its La Hague plant. This process recovers a substantial portion <br>of reusable fissionable material, which is turned into nuclear fuel <br>(either RepU fuel, comprising uranium, or MOX fuel, comprising <br>plutonium and uranium). It also generates high-level nuclear waste, <br>which includes trace amounts of uranium and plutonium. The waste is <br>vitrified according to specifications that have been approved by <br>French and Japanese governments and placed in casks that meet <br>criteria set forth by the International Atomic Energy Agency in its <br>Regulations for the Safe Transport of Radioactive Material. Both <br>the waste and the fuel are returned to Japan on board specially <br>designed ships that meet the standards of the International <br>Maritime Organization's Code for the Safe Carriage of Irradiated <br>Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks <br>on Board Ships, IMO Resolution A 18/Res. 748, Annex (1993). The <br>private shippers choose the return route to Japan from three <br>options: the Cape of Good Hope, Cape Horn, or the Panama Canal. <br>  The U.S. connection to this trade occurs in two ways. <br>First, the United States supplies the uranium to Japan under a 1988 <br>agreement between the two countries. See Agreement for Cooperation <br>Between the Government of the United States and the Government of <br>Japan Concerning Peaceful Uses of Nuclear Energy, Nov. 4, 1987, <br>H.R. Doc. No. 100-128 (1987) (entered into force July 17, 1988), <br>available at 1988 WL 582501 at *3 ("U.S.-Japan Agreement"). Second, <br>the transport of the nuclear waste shipments through the Mona <br>Passage means that the ship traverses waters in which the United <br>States has some interest, even if they are not territorial waters. <br> <br>                                II <br>  Because these waste-laden voyages through the Mona <br>Passage continue, the case is not moot, which the United States <br>appropriately concedes. See Lewis v. Continental Bank Corp., 494 <br>U.S. 472, 481 (1990). Review of entry of summary judgment is de <br>novo; further, the issues presented are ones of law and our review <br>is plenary. See National Foreign Trade Council v. Natsios, 181 F.3d <br>38, 49 (1st Cir. 1999), cert. granted, 68 U.S.L.W. 3178 (U.S. Nov. <br>29, 1999) (No. 99-474). <br>  On appeal, Mayagezanos has refined its argument to a <br>single attack: the federal courts have jurisdiction to consider <br>this action under NEPA and the United States's failure to regulate <br>the passage of such nuclear waste through its Exclusive Economic <br>Zone (EEZ) waters is a "major federal action" within the meaning of <br>NEPA. Mayagezanos argues that there is a major federal action <br>because the United States is required to play some role in the <br>transport of this waste under various international agreements and <br>customary international law. This complex of interests and <br>responsibilities, they contend, suffices to establish "major <br>federal action" under NEPA. The United States rejoins that the <br>shipment of waste is the "action," it is not being carried out by <br>a federal agency but by private parties, and the facts do not meet <br>the tests to determine if there is federal action where the primary <br>action is carried out by private players.  <br>  Under NEPA, all U.S. agencies are required to "include in <br>every recommendation or report on proposals for legislation and <br>other major Federal actions significantly affecting the quality of <br>the human environment" a "detailed statement." 42 U.S.C.  4332(2). <br>This detailed statement, known as an EIS, must address the <br>environmental impact of proposed actions and alternatives. NEPA <br> 102(2)(C) provides, in pertinent part, that <br>    all agencies of the Federal Government shall -- . . . (C) <br>  include in every recommendation or report on proposals <br>  for legislation and other major Federal actions <br>  significantly affecting the quality of the human <br>  environment, a detailed statement by the responsible <br>  official on (i) the environmental impact of the proposed <br>  action, (ii) any adverse environmental effects which <br>  cannot be avoided should the proposal be implemented, <br>  (iii) alternatives to the proposed action . . . . <br> <br>42 U.S.C.  4332(2)(C). NEPA's aims are two-fold: to "place[] upon <br>an agency the obligation to consider every significant aspect of <br>the environmental impact of a proposed action" and to "ensure[] <br>that the agency will inform the public that it has indeed <br>considered environmental concerns in its decisionmaking process." <br>Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, <br>Inc., 462 U.S. 87, 97 (1983) (internal quotation marks and <br>citations omitted); see also Robertson v. Methow Valley Citizens <br>Council, 490 U.S. 332, 349 (1989). <br>  Mayagezanos has described the significance of a maritime <br>accident or incident involving this waste and the government has <br>responded that all safety precautions have been taken. Arguments <br>about the safety of such shipments may be made to a variety of <br>bodies, both in the United States and internationally. Before, <br>however, U.S. courts may speak to the safety matter, they must <br>first decide whether they have any authority to address such <br>issues, a question that turns on whether NEPA applies at all. <br>  The arguments seem to contain two implicit assumptions: <br>that NEPA applies to actions outside territorial U.S. lands and <br>waters and that NEPA's "major federal action" requirement would <br>work in the same fashion in the domestic and the international <br>contexts. We are skeptical. See, e.g., United States v. Nippon <br>Paper Indus. Co., 109 F.3d 1, 12 n.10 (1st Cir. 1997) (Lynch, J., <br>concurring). These are difficult problems, but because <br>Mayagezanos's claims fail even under the "major federal action" <br>tests used in domestic cases, we need not inquire into the validity <br>of these assumptions. Consequently, we turn to the domestic case <br>law. <br>  This circuit has not recently addressed the criteria to <br>be used in domestic cases to determine when private activities may <br>be deemed to be major federal actions under NEPA. In Citizens for <br>Responsible Area Growth v. Adams, 680 F.2d 835 (1st Cir. 1982), <br>this court held that construction of an airport hangar by private <br>parties with private monies was not federal action for NEPA <br>purposes and that the mere appearance of the proposed construction <br>on a federally approved Airport Layout Plan did not create <br>sufficient federal involvement to require an EIS. See id. at 839- <br>40. The court acknowledged that the need for a federal license or <br>approval could sometimes trigger NEPA, but not where the approval <br>did not involve close scrutiny of the action or anything more than <br>notice for safety purposes. See id. at 840. <br>  Additional guidance comes from the definition articulated <br>by the Council on Environmental Quality (CEQ). The regulations of <br>the CEQ suggest that actions by non-federal actors "with effects <br>that may be major and which are potentially subject to Federal <br>control and responsibility" can be major federal actions. 40 C.F.R. <br> 1508.18. Under CEQ regulations, "actions" include "projects and <br>programs entirely or partly financed, assisted, conducted, <br>regulated, or approved by federal agencies." 40 C.F.R. <br> 1508.18(a). The "CEQ's interpretation of NEPA is entitled to <br>substantial deference." Andrus v. Sierra Club, 442 U.S. 347, 358 <br>(1979). <br>  There are two situations that generally will not <br>constitute major federal actions under NEPA. The first situation is <br>governmental inaction, where that failure to act is not otherwise <br>subject to review by the courts or administrative agencies under <br>the Administrative Procedure Act or other laws. See 40 C.F.R. <br> 1508.18. The second situation is mere approval by the federal <br>government of action by a private party where that approval is not <br>required for the private party to go forward. See New Jersey Dep't <br>of Envtl. Protection & Energy v. Long Island Power Auth., 30 F.3d <br>403, 415-16 (3d Cir. 1994); Sierra Club v. Penfold, 857 F.2d 1307, <br>1314 (9th Cir. 1988); Named Individual Members of San Antonio <br>Conservation Soc'y v. Texas Highway Dep't, 496 F.2d 1017, 1023-24 <br>(5th Cir. 1974). This latter category encompasses, and disposes of, <br>the portion of Mayagezanos's argument that is based on the <br>shippers having voluntarily notified the Coast Guard of the Pacific <br>Swan's transit through the Mona Passage. <br>  There are various situations that may constitute major <br>federal action under NEPA. In cases, such as this one, where there <br>is no claim that the non-federal project is being federally funded, <br>the circuits have articulated different formulations of "major <br>federal action," but the focus has been on the indicia of control <br>over the private actors by the federal agency. For example, this <br>circuit found "major federal action" where a federal agency <br>approved the release of funds from a trust held by the agency that <br>were necessary for a project to go forward. See Citizens Awareness <br>Network, Inc. v. United States Nuclear Regulatory Comm'n, 59 F.3d <br>284, 292-93 (1st Cir. 1995). The effect of this action was <br>explicitly to permit the private actor to decommission a nuclear <br>facility. See id. at 292.  <br>  The Fourth Circuit has held that "a non-federal project <br>is considered a 'federal action' if it cannot begin or continue <br>without prior approval by a federal agency and the agency possesses <br>authority to exercise discretion over the outcome." Sugarloaf <br>Citizens Ass'n v. Federal Energy Regulatory Comm'n, 959 F.2d 508, <br>513-14 (4th Cir. 1992) (internal quotation marks and citations <br>omitted). The Tenth Circuit found that there is a major federal <br>action when "the federal government has actual power to control the <br>project." Ross v. Federal Highway Admin., 162 F.3d 1046, 1051 (10th <br>Cir. 1998) (internal quotation marks and citation omitted). The <br>Eighth Circuit held in Ringsred v. City of Duluth, 828 F.2d 1305, <br>1308 (8th Cir. 1987) that "federal action [must be] a legal <br>condition precedent to the [private event]." The Third Circuit has <br>said that the federal agency's action must be a legal pre-condition <br>that authorizes the other party to proceed with action. See NAACP <br>v. Medical Ctr., Inc., 584 F.2d 619, 628 n.15 (3d Cir. 1978). See <br>generally Rodgers, Jr., Environmental Law  9.5(C)(1) (2d ed. 1994 <br>& Supp. 1998). <br>  Like the Fourth Circuit, we look to whether federal <br>approval is the prerequisite to the action taken by the private <br>actors and whether the federal agency possesses some form of <br>authority over the outcome. Mayagezanos make two arguments that <br>the United States has effectively authorized the shipments. First, <br>the United States has implicitly consented to such shipments, they <br>say, under the U.S.-EURATOM Agreement and generally has acted under <br>the Atomic Energy Act and the Nuclear Non-Proliferation Act. <br>Secondly, they contend that the United States has the power to stop <br>such shipments through its EEZ waters, has chosen not to do so, and <br>so has implicitly authorized the shipments. We evaluate each <br>argument in turn. <br> <br>                              III <br>The Treaties <br>  Mayagezanos's core argument is that the United States <br>granted or was required to grant specific authorization for the <br>shipments of this nuclear waste from France to Japan under the <br>provisions of the U.S.-EURATOM Agreement. <br>  Under  123 of the Atomic Energy Act of 1954 (AEA), 42 <br>U.S.C.  2153, certain foreign commerce in nuclear materials must <br>be governed by "agreement[s] for cooperation" that contain <br>particular safeguards. See id.  2153(a)(1). This framework was <br>enhanced with the 1978 enactment of the Nuclear Non-Proliferation <br>Act (NNPA), 22 U.S.C.  3201 et seq., which intended to ensure <br>"effective controls by the United States over its exports of <br>nuclear materials and equipment and of nuclear technology." 22 <br>U.S.C.  3202(d). Acting under this authority, the United States in <br>1988 entered the U.S.-Japan Agreement. Pursuant to this agreement, <br>the United States has sold uranium to Japan; the nuclear waste at <br>issue in this case derived from one of these sales. <br>  Once the irradiated material leaves Japan for <br>reprocessing it is governed by another  123 agreement, commonly <br>called the U.S.-EURATOM Agreement. See Agreement for Cooperation in <br>the Peaceful Uses of Nuclear Energy Between the United States of <br>America and the European Atomic Energy Community, H.R. Doc. No. <br>104-138, at 5 (1995) (entered into force Apr. 12, 1996), available <br>at 1996 WL 361511. The EURATOM signatories are fifteen European <br>countries, including France and the United Kingdom. That agreement <br>includes certain "safeguards," a term of art for systems to verify <br>that the nuclear material will not be diverted to weaponry or <br>illicit uses. See International Atomic Energy Agency, The Structure <br>and Content of Agreements Between the Agency and States Required in <br>Connection with the Treaty on the Non-Proliferation of Nuclear <br>Weapons,  28, IAEA Doc. No. INFCIRC/153 (corr.) (1972), available <br>at www.iaea.org/worldatom/infcircs/inf153.html. <br>  Article 5.2 of the U.S.-EURATOM Agreement provides that <br>certain nuclear materials may be removed from the governance of the <br>Agreement through procedures set out in an Administrative <br>Arrangement. Once the material in question has been determined, <br>under agreed-upon procedures, to be "no longer usable for any <br>nuclear activity relevant from the point of view of international <br>safeguards or [has] become practically irrecoverable," then the <br>material is no longer governed by the Agreement. U.S.-EURATOM <br>Agreement art. 5.2. <br>  Here, the appropriate authority, which was not the United <br>States, made the determination that the waste at issue was <br>"practically irrecoverable," and, as a result, no longer governed <br>by the Agreement. In addition, the International Atomic Energy <br>Agency terminated its safeguards because the reprocessed waste was <br>"practically irrecoverable." As such, the Agreement does not cover <br>such waste materials and so there is no U.S. federal action <br>involved. <br>  Mayagezanos makes three assertions in response. First, <br>it relies on a provision of the Agreement that provides that <br>certain material subject thereto may be transferred only on a case- <br>by-case consent basis. See U.S.-EURATOM Agreement, Agreed Minute, <br> B.4 ("Retransfers to third countries not included on the lists <br>may be considered on a case by case basis."). That is no response <br>as to materials not covered by the Agreement, such as those <br>involved here. <br>  The second argument suffers from the same flaw. The <br>provisions of Article 8.1(C)(ii) or (iii), concerning the transfer <br>of irradiated nuclear material, simply do not apply to material <br>removed from the Agreement, such as the nuclear waste at issue <br>here. <br>  Mayagezanos's third argument is that article 5.2 of the <br>Agreement should not be honored because it is inconsistent with <br> 123 of the Atomic Energy Act, the enabling legislation under <br>which the United States entered the EURATOM Agreement. There are at <br>least three responses. First, there is no conflict. Article 5.2 <br>serves the purpose of the AEA/NNPA to "ensure that the worldwide <br>development of peaceful nuclear activities . . . does not <br>contribute to proliferation." S. Rep. No. 95-467, at 3 (1977), <br>reprinted in 1978 U.S.C.C.A.N. 326, 328. Second, even if there were <br>ambiguity, we would be guided by the interpretation of the <br>Executive Branch that removing materials that are practically <br>irrecoverable from the operation of the Agreement is consistent <br>with the AEA/NNPA. See El Al Israel Airlines, Ltd. v. Tsui Yuan <br>Tseng, 119 S. Ct. 662, 671 (1999) ("Respect is ordinarily due the <br>reasonable views of the Executive Branch concerning the meaning of <br>an international treaty."); Sumitomo Shoji Am., Inc. v. Avagliano, <br>457 U.S. 176, 184-85 (1982); Kolovrat v. Oregon, 366 U.S. 187, 194 <br>(1961); United States v. Lui Kin-Hong, 110 F.3d 103, 110 (1st Cir. <br>1997) ("[T]he executive branch's construction of a treaty, although <br>not binding upon the courts, is entitled to great weight."). <br>Finally, even if Article 5.2 of the Agreement did conflict with the <br>AEA, this leaves us far from establishing the degree of U.S. <br>control over these shipments necessary to constitute a "major <br>federal action." Neither the treaties nor the AEA/NNPA assign the <br>United States a role, much less control, over this shipment of <br>nuclear waste, and thus there is no "major federal action" under <br>NEPA. <br> <br>The Waters <br>  Mayagezanos maintains as well that the Pacific Swan's <br>passage through U.S. EEZ waters in the Mona Passage activates <br>NEPA's major federal action requirement. The boundaries of the <br>United States extend, by a 1989 Presidential Proclamation, to <br>twelve nautical miles offshore, an area called the territorial sea. <br>See United States v. Ramirez-Ferrer, 82 F.3d 1131, 1133 (1st Cir. <br>1996) (en banc). Since the distance between Mona Island and the <br>island of Puerto Rico is about thirty-nine miles, there are at <br>least fifteen miles of international waters and twenty-four miles <br>of territorial sea in that part of the Mona Passage that runs <br>between the two islands. See id. Under customary international law, <br>the United States has sovereignty and jurisdiction over its <br>territorial seas, subject to the right of innocent passage. See <br>United States v. Louisiana, 363 U.S. 1, 34 (1960). <br>  In addition to the territorial seas, the United States <br>has an interest in the two-hundred-mile EEZ. See 1 Schoenbaum, <br>Admiralty and Maritime Law  2-16, at 33-36 (2d ed. 1994). This <br>case concerns the EEZ, as it is undisputed that the Pacific Swan <br>did not enter U.S. territorial waters. The interests of a coastal <br>state in its EEZ largely have to do with development of natural <br>resources and the availability of scientific research. A coastal <br>state has limited powers in the EEZ under customary international <br>law. As set forth in the Restatement (Third) of the Foreign <br>Relations Law of the United States: <br>    If the coastal state has clear grounds for believing that <br>  a foreign ship has violated applicable international <br>  rules, or the supplementary laws or regulations of the <br>  coastal state, in the exclusive economic zone, and the <br>  ship is not in port but is navigating in the exclusive <br>  economic zone or territorial sea of the coastal state, <br>  that state may require the ship to give information <br>  regarding its identity and its port of registry, its last <br>  and next port of call, and other relevant information <br>  required to establish whether a violation has occurred. <br>  If a violation has resulted in a substantial discharge <br>  causing significant pollution of the marine environment, <br>  and the ship has refused to give information or the <br>  information supplied is manifestly at variance with the <br>  evident factual situation, the coastal state may <br>  undertake physical inspection of the ship for matters <br>  relating to the violation. If the discharge causes or <br>  threatens to cause major damage to the coastline or <br>  related interests of the coastal state, or to any <br>  resources of its territorial sea or exclusive economic <br>  zone, the coastal state may, if the evidence warrants it, <br>  institute proceedings including detention of the ship in <br>  accordance with its laws. <br> <br>Restatement (Third) of the Foreign Relations Law  514, cmt. i. <br>None of the circumstances described in the Restatement is present <br>here, so there is no platform from which to begin to construct an <br>argument that such circumstances could give rise to federal action. <br>Foreign ships do not require the permission of the United States to <br>pass through its EEZ. <br>  Whatever the scope of the United States's potential <br>powers, either multilaterally or unilaterally, over the EEZ, it is <br>clear that the United States has not exercised any such powers with <br>respect to the transport of nuclear waste. Simply stated, the <br>United States has chosen not to regulate shipments of nuclear waste <br>through its EEZ -- there is no requirement that it do so, nor is it <br>immediately evident that it would have that authority if it so <br>chose. Under these circumstances, there is no major federal <br>action. <br> <br>                                IV <br>  Where this country's multilateral relationships are <br>involved there is a particularly heavy burden on Mayagezanos to <br>demonstrate a "major federal action" for NEPA purposes, and thus to <br>involve the courts. It has not come close. That is not to say that <br>Mayagezanos's concerns about the safety of the shipments are <br>frivolous, a matter that we do not judge, only that such concerns <br>should be presented elsewhere. <br>  The grant of summary judgment for defendants is affirmed. <br>No costs are awarded.</pre>

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