U.S. Law’s Scope at Issue in Antarctica Case : Environment: A court of appeals overturns doctrine, finds that waste cannot be incinerated at McMurdo Sound without an impact statement.

A U.S. Court of Appeals ruling, triggered by the National Science Foundation’s incineration of waste at its McMurdo Sound research station in Antarctica, has reignited a debate over the overseas application of the United States’ most sweeping environmental law.

The dispute over the 23-year-old National Environmental Policy Act, which established the environmental impact statement review process, is to be put before the National Security Council within the next few days, sources said Tuesday. Environmental activists are looking at the outcome as perhaps the first test of what they contend was a Bill Clinton campaign promise about the environment.

The three-week-old court ruling overturned a long-standing doctrine that U.S. laws do not apply outside the United States. The decision applies only to so-called “global commons,” the Antarctic, the oceans and space.

But government officials and environmental lawyers said the decision opens the door to the interpretation that the law applies to U.S. government projects in any foreign country as well. Critics contend that such a requirement would be expensive and invite prolonged delays and litigation.

But environmental activists argue that Congress intended to require international application of the National Environmental Policy Act when it was written in 1970. That interpretation has been resisted by many federal agencies.

The issue flared again after a three-judge panel of the federal Court of Appeals for the District of Columbia ruled in a suit filed against the National Science Foundation by the Environmental Defense Fund.

The case arose after the National Science Foundation began using incinerators to dispose of its waste at McMurdo Sound. The Environmental Defense Fund had threatened to sue the foundation, which had been burning waste in open pits, alleging a violation of the Resources Conservation and Recovery Act.

But when the incinerators were installed, the Environmental Defense Fund filed suit on grounds that no environmental impact statement had been prepared, as required by the National Environmental Policy Act.

Sources said the only strong government support for the court’s opinion comes from the Environmental Protection Agency, the National Oceanic and Atmospheric Administration and the White House Council on Environmental Quality.

Environmentalists contend that President Clinton endorsed international application of the law when the issue was raised by the League of Conservation Voters during the 1992 election campaign.

Clinton’s answer seems ambiguous, however, because it came in the context of a question about the Endangered Species Act, not the National Environmental Policy Act. Asked whether he favored extending the protection of the Endangered Species Act to U.S. projects overseas, he replied:

“I support legislation to apply the National Environmental Policy Act to federal actions overseas. As President, I would issue new regulations restoring protection for all listed species from sanctions by U.S. agencies. The protection of species, particularly those listed as endangered or threatened, is a responsibility of citizens and government. U.S. agencies should be required to protect listed species overseas, just as they are required to do so in this country.”

Environmentalists believe that his reference to the National Environmental Policy Act in that context was not a slip of the tongue.