A fundamental principle of international law and U.S. foreign policy is that nations have a basic right to conduct their internal affairs free from interference by other nations. The U.S. Supreme Court, foreign courts, international tribunals, and the United Nations have affirmed this principle. E.g., The Schooner Exchange v. McFadden, 11 U.S. 97 (Cranch), 116 (1812) (U.S. Supreme Court); The S.S. Lotus (France v. Turkey), P.C.I.J. Reports, Series A, No. 10 (1927) (Permanent Court of International Justice); Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance With The United Nations Charter, G.A. Res. 2625 (XXV) (October 24, 1970) (United Nations). In determining whether NRC should assess foreign impacts, it is important that the preparation of an impact statement not be perceived as an intrusion by the United States into the domestic affairs of a foreign state.

The Department of State, in the May 31 letter [of Louis V. Nosenzo, Deputy Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs] to Mr. [James J.] Shea [of the NPC] took the ... view:

... that any U.S. attempt to make site-specific assessments of environmental impacts within the territory of another country would have major, adverse political consequences. A majority, if not all, governments would be expected to take the position that, among other things:

-decisions affecting primarily their national environments are a matter of sovereign responsibility;

-relatedly, the degree and means of public participation in the national environmental decisionmaking process, which involves a relationship between the government and its citizens, should not be substantially influenced by the actions of other governments; and

-they have full competence to make the necessary analyses and judgments.

In resolving the differing agency views on NEPA's proper interpretation in the foreign context, the Commission is inclined to weigh heavily the views of the State Department, as the chief foreign policy agency of the U.S. Government. This is particularly so when the language of NEPA, itself, recognizes that foreign policy considerations must be kept in mind by agencies in fulfilling their responsibilities under the Act.

In assessing this question, we are also mindful that NEPA requires environmental statements to assess the environmental impact of the proposed action, delineate irreversible and irretrievable commitments of resources, and balance the costs and benefits of the proposed activity. Section 102(2)(C); Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109 (D.C. Cir. 1971). These requirements cannot be met in the foreign context in a manner equivalent to domestic practice without seriously intruding on a foreign state's sovereignty. Complete assessment of the impacts of the proposed export on the recipient state would require the collection of detailed information on local conditions (including population patterns, ecology, meteorology, and the like), examination of a facility's design and site, and numerous other assessments traditionally conducted by the recipient government. This information would not be obtained without the full cooperation of the foreign state. U.S. officials seeking such information could not enter the jurisdiction of a foreign state for the purpose of obtaining this information without the permission of the concerned foreign government. This degree of cooperation can not be guaranteed in all cases, a factor which seriously undermines petitioner's arguments.

In light of these practical realities, we believe our conclusion also draws support from the firmly established principle that

Rules of United States statutory law, whether prescribed by Federal or State authority, apply only to conduct occurring within, or having effect within, the territory of the United States, unless the contrary is clearly indicated by the statute.

Restatement (Second) of the Foreign Relations Law of the United States, Section 38. The Federal courts have frequently affirmed this presumption. American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909); Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949); Reyes v. Secretary of HEW, 476 F.2d 910

(D.C. Cir. 1973). A responsibility on the part of the U.S. Government to assess impacts in nuclear export licensing would arise only if the principles militating against such an application of U.S. law were rebutted by clear statutory evidence, or modified by an agreement with the recipient country. The legislative history of NEPA fails to supply that clear evidence and the Additional U.S. Agreement for Cooperation with EURATOM does not provide for such a review. Our earlier examination of this issue in In the Matter of Edlow International led us to conclude that

. . [T]he focus of NEPA is the assessment of the domestic impacts of domestic activities. When the environmental impact claimed consists of radiation hazards to Bombay and its environs, the same principles which forbid application of the Atomic Energy Act to regulate foreign health and safety, foreclose consideration of the environmental balance. It is not for us to make policy decisions for another sovereign nation on the social balance to be struck between energy needs and environmental impacts. . . . [T]he terms and history of the Act are most consistent with an interpretation which avoids speculation regarding another nation's internal affairs. Even if it were assumed that international impacts must be considered impacts internal to a foreign nation need not be. Edlow International, [3 NRC 563], at 585 [1976] (footnote omitted).

Revisiting the issue has strengthened that conclusion. By enacting NEPA, Congress imposed on us no obligation to conduct the environmental impact analysis demanded in this case.

III. STANDING TO INTERVENE AS MATTER OF RIGHT Petitioner has requested leave to intervene and a hearing, claiming solely an interest in having the Commission perform NEPA analyses of the stated issues. Under section 189 (a) of the Atomic Energy Act, 42 U.S.C. 2239 (a), a party is entitled to a hearing as a matter of right if he can establish an interest which "may be affected by the proceeding."

Each of petitioner's contentions are based upon the claim that the NRC must assess the impact of the proposed export on the environment in the Federal Republic of Germany before acting on Application No. XR-118. We have established above that NEPA imposes no requirement that the Commission assess such impacts. It has been the Commission's longstanding practice that if a petition sets forth only contentions on which no hearing or action is required, it shall be denied. . . .

IV. INTERVENTON AND PUBLIC HEARINGS AS A MATTER OF DISCRETION

Although petitioner has no right to intervene or to demand a public hearing, the Commission may in its discretion direct a hearing if we determine that such a hearing would be warranted in the public interest. In the Matter of Edlow International, 3 NRC 563 at 580.

Another significant factor in our judgment is that in the view of the Department of State, undue delay in considering the present export license application could have serious adverse foreign policy implications. In his letter of May 31, 1977, Deputy Assistant Secretary Louis V. Nosenzo notes that the Mulheim-Karlich matter has already received protracted consideration by responsible agencies of the F.R.G. Government, as well as the German courts. He asserts that "receipt of reactor components from the U.S. are within the 'critical path' for reactor completion and that delay in their delivery will result in a day-for-day delay in plant operations." Mr. Nosenzo expresses the further view that "any deferral in issuance of the Mulheim-Karlich reactor export license on environmental grounds specific to the territory of another country would appear to run counter to . . . important U.S. policy objectives." The Federal judiciary has often expressed the view that expressions of the executive branch on matters affecting the conduct of United States foreign policy are entitled to great weight in evaluating the claims of litigants. The Supreme Court stated in Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1944) “. . . it is a guiding principle . . . that the courts should not so

act as to embarrass the executive arm in its conduct of foreign affairs." In like measure here, the Commission must pay due regard to the potential damage to the conduct of foreign relations which the Department of State believes could result from delaying action on the instant license application. Having weighed the nature of the interests asserted by petitioner, the legal and practical difficulties with conducting a foreign environmental review, and the likely damage to foreign policy and national security interests which could flow from further delay, the Commission determines that a discretionary hearing will not be held.

V. COMMISSION DETERMINATION ON THE MERITS

2. Common Defense and Security

Under section 103 of the Atomic Energy Act, no export license for a production or utilization facility may be granted if this Commission is of the opinion that such an export would be inimical to the common defense and security. Under section 11g. of that Act, the term "common defense and security" means the "common defense and security of the United States." In the judgment of the Department of State (reflecting its own view, and that of other concerned executive branch agencies) and the NRC staff, export of the Mulheim-Karlich reactor to the Federal Republic of Germany would not be inimical to the security interests of the United States. Our own independent analysis leads us to agree with that assessment; and we affirmatively find that the proposed export would not be inimical to the common defense and security of the United States.

This type of civilian use of nuclear power is not inimical to the common defense and security of the United States, and is consistent with formal undertakings by the United States Government in the Treaty on the NonProliferation of Nuclear Weapons (NPT) done at Washington, London and Moscow on July 1, 1968, 21 U.S.T. 483, TIAS 6839.

The United States is also committed to peaceful nuclear cooperation by its membership in the International Atomic Energy Agency. Article II of the Statute of that organization announces the objectives of seeking "to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world." Although as an independent regulatory body this Commission must eschew developmental and promotional concerns in the field of nuclear energy, it is obligated to take notice that the United States has committed itself to assisting other nations in the peaceful uses of nuclear energy. Therefore, civilian activities such as construction of reactors using low-enriched fuel to provide electrical power, do not, in themselves, raise questions of inimicality with the common defense and security of the United States. Inimicality must arise, if at all, from other circumstances surrounding such activities.

3. Health and Safety

The Commission sees no circumstances in which the operation of the Mulheim-Karlich Nuclear Power Station would affect the health and safety of the U.S. population. As we have explained in Part II of this opinion, this Commission takes the view that the health and safety impact in foreign nations of exported nuclear facilities and materials is outside the jurisdiction of the Commission.

U.S. Nuclear Regulatory Commission License No. XR-118, Docket No. 50-571 (footnotes omitted).

For further information concerning the Sept. 24, 1976, Memorandum to Heads of Agencies on Applying the Environmental Impact Statement Requirement to Environmental Impacts Abroad, issued by the Council on Environmental Quality, see the 1976 Digest, Ch. 11, § 1, pp. 586-589.

Whaling

Domestic Law and Regulation

On October 18, 1977, President Carter approved Public Law 95-136, authorizing appropriations for fiscal year 1978 to carry out the Marine Mammal Protection Act of 1972. The Act also amended the Marine Mammal Protection Act of 1972 (16 U.S.C. 1372) by adding the following new subsection prohibiting the taking of whales in waters subject to U.S. jurisdiction:

(f) It is unlawful for any person or vessel or other conveyance to take any species of whale incident to commercial whaling in waters subject to the jurisdiction of the United States.

91 Stat. 1167.

8 2 Health Affairs

World Health Assembly

Presidential Message

On May 9, 1977, Dr. Peter G. Bourne, Special Assistant to the President for Health Issues, delivered a message dated May 5, 1977, from President Carter to Dr. Sione Tapa, President of the World Health Assembly in Geneva, Switzerland. In this message President Carter noted the impact of disease on the two billion people living in the developing countries, emphasized his commitment to the human right of every human being to be free from unnecessary disease, expressed the willingness of the United States to engage in a global effort to give early warning of impending disease outbreaks, and gave his personal commitment to find ways for the U.S. Government and the private sector to better cooperate on health, population, and nutritional needs. Portions of President Carter's message follow:

In my speech to the United Nations General Assembly several weeks ago, I emphasized our commitment to basic human rights. These include the right of every human being to be free from unnecessary disease.

To work toward that right, we will offer to share our medical know-how with all nations, regardless of politics or ideology. We will work together to control disease, improve nutrition, and raise the quality and productivity of life throughout the world.

The United States is ready to help develop a truly international program to identify and report epidemic and endemic diseases. We

will work with the World Health Organization, as well as with individual countries, in a global effort to give early warning of impending disease outbreaks.

The gap in health and productivity between developed and developing nations is bound to increase political and social instability in the world.

In some measure this gap is due to unequal distribution and consumption of food, energy, and water. We know the economic and social consequences to other nations of our own waste of nonrenewable energy resources, and we are determined to correct the situation. We also know that health and economic development are closely linked. The child with malaria often misses school. The anemic worker, with a parasitic infection, is less productive than he should be. We need to pursue programs which break this cycle of poverty, disease and hunger.

When I return to the United States I will strive personally to find ways in which our government and the private sector can better cooperate with other nations on health, population and nutritional needs.

The United States supports the World Health Organization's expanded immunization program. My country has pioneered in the development of polio and measles vaccine, and will continue to support vaccine research.

My country also supports the bold and innovative new program of research in tropical diseases being developed in cooperation with the World Health Organization. These efforts will bring us closer to our goal: a world in which all people can live free from fear of crippling and debilitating diseases.

13 Weekly Comp. of Pres. Doc. 686 (May 16, 1977).

Drug Control

International Cooperation

On August 2, 1977, President Carter transmitted a message to Congress concerning the problem of drug abuse. In his announcement of the transmission of his message, President Carter gave some remarks in which he emphasized the importance of international cooperation in dealing with this global problem:

The estimated cost of drug abuse in this country is more than $15 billion per year. I'm ordering the Attorney General to concentrate on breaking the links between organized crime and drug traffic, to enhance cooperation among all law enforcement agencies, and to ensure more certain conviction and quick punishment for those who traffic in drugs.

We will not have an effective and united Federal effort against drugs unless we reorganize the current Federal effort now divided