Environmental impact assessment under the National Environmental Policy Act and the Protocol on Environmental Protection to the Antarctic Treaty

Antarctica has been set aside by the international community for protection as a natural reserve and a place for scientific research. Through the Anta rctic Treaty of 1961, the signing nations ag reed to cooperate in protectin g the antarctic environment, in conducting scientific studies, and in absta ining from the exercise of territorial claims. The 1991 signing of the Prot ocol on Environmental Protection to the Antarctic Treaty (Protocol) by repr esentatives of the 26 nations comprising the Antarctic Treaty Consultative Parties (Parties) significantly strengthened environmental protection measu res for the continent. The Protocol required ratification by each of the go vernments individually prior to official implementation. The US government ratified the Protocol by passage of the Antarctic Science, Tourism, and Con servation Act of 1997. Japan completed the process by ratifying the Protoco l on December 15, 1997. US government actions undertaken in Antarctica are subject to the requireme nts of both the Protocol and the US National Environmental Policy Act (NEPA ). There are differences in the scope and intent of the Protocol and NEPA; however, both require environmental impact assessment (EIA) as part of the planning process for proposed actions that have the potential for environme ntal impacts. In this paper we describe the two instruments and highlight k ey similarities and differences with particular attention to EIA. Through t his comparison of the EIA requirements of NEPA and the Protocol, we show ho w the requirements of each can be used in concert to provide enhanced envir onmental protection for the antarctic environment. NEPA applies only to act ions of the US government; therefore, because NEPA includes certain desirab le attributes that have been refined and clarified through numerous court c ases, and because the Protocol is just entering implementation internationa lly some recommendations are made for strengthening the procedural requirem ents of the Protocol for activities undertaken by all Parties in Antarctica . The Protocol gives clear and strong guidance for protection of specific, Va lued antarctic environmental resources including intrinsic wilderness and a esthetic values, and the value of Antarctica as an area for scientific rese arch. That guidance requires a higher standard of environmental protection for Antarctica than is required in other parts of the world. This paper sho ws that taken together NEPA and the Protocol call for closer examination of proposed actions and a more rigorous consideration of environmental impact s than either would alone. Three areas are identified where the EIA provisi ons of the Protocol could be strengthened to improve its effectiveness. Fir st, the thresholds defined by the Protocol need to be clarified. Specifical ly, the meanings of the terms "minor" and "transitory" are not clear in the context of the Protocol. The use of "or" in the phrase "minor or transitor y" further confuses the meaning. Second, cumulative impact assessment is ca lled for by the Protocol but is not defined. A clear definition could reduc e the chance that cumulative impacts would be given inadequate consideratio n. Finally, the public has limited opportunities to comment on or influence the preparation of initial or comprehensive environmental evaluations. Exp erience has shown that public input to environmental documents has a consid erable influence on agency decision making and the quality of EIA that agen cies perform.