Introduction
Since its enactment, the Council on Environmental Quality (CEQ) has amended, expanded, and clarified the National Environmental Policy Act’s (NEPA) scope in regard to its applicability to transboundary and international projects. However, certain questions remain unresolved. This article examines several considerations related to how NEPA applies to border projects, land ports of entry, and extraterritorial actions with domestic or foreign effects. First, presidential permits to approve, deny, or modify projects to construct facilities at transboundary border stations are not subject to NEPA’s environmental impact statement (EIS) or environmental assessment review requirements, as the Trump Administration clarified through an executive order. Second, recent promulgated amendments to NEPA indicate that agency permit applications for transboundary projects are still subject to the NEPA review process. Third, NEPA and its accompanying guidance lack sufficient certainty on how NEPA applies to federal extraterritorial actions with potential domestic impacts on the environment. In the face of accelerating climate change and globalism, NEPA needs congressional amendments to expand its purview and solidify its application to border projects and extraterritorial projects with domestic climate change impacts.
Background
In its original enactment, NEPA failed to address concepts of transboundary harm or international environmental impacts. Early NEPA cases proved that international application was difficult and often hindered by other policy goals. For example, in Weinberger v. Catholic Action of Hawaii, the Supreme Court found that although nuclear storage facilities were generally subject to NEPA compliance, the classified nature of the project left plaintiffs unable to definitively prove that the project even existed or evaluate the sufficiency of the NEPA review. While this case dealt with the domestic effects of the project, it signaled that future classified agency actions—many of which take place abroad—may only be subject to an internal EIS with no opportunity for public scrutiny or judicial review. This insulates agency actions that pertain to national security from public accountability and eliminates transparency which could potentially allow agency actions to circumvent NEPA’s requirements.
In 1979, Executive Order 12114 directed federal agencies to include and document the extraterritorial impacts of proposed projects on the environment. That same year, the CEQ published a memorandum with implementation instructions for the executive order, explaining, among other things, the need to prevent desertification on the southern border and “promote international cooperation in environmental protection.” The memorandum also clarified the executive order’s applicability, stating that it covered all major federal actions that significantly affect the environment of the global commons, the environment of another country that is not participating in the activity, ecological resources of global importance, and the environment of any country where a project involves a product or effluent that is strictly regulated by U.S. law due to its environmental toxicity. While Executive Order 12114 gave plaintiffs increased standing to challenge the foreign effects of the United States’ actions abroad, competing priorities of national security, international reputation, and diplomacy have often given agencies an exception to fulfilling NEPA requirements. The D.C. Circuit court in Environmental Defense Fund v. Massey reinforced a general presumption against the exterritorial applicability of NEPA. Specifically, the court held that NEPA did not apply to extraterritorial actions where United States projects take place wholly within another country or jurisdiction, and these types of activities were only subject to the laws of the governing country and its international agreements.
In 1997, the CEQ published a second memorandum on NEPA’s transboundary applicability. Consistent with the recently signed Espoo Convention and the North American Free Trade Agreement, the CEQ’s guidance clarified that NEPA EIS analyses for domestic projects should consider any possible significant impacts on the environment of a foreign country, regardless of the presence of an international agreement. 
The presidential permit system developed prior to NEPA required executive permission to construct and operate land ports of entry and border crossings on the Canadian and Mexican borders. Subsequent executive orders amended and expanded the presidential permit process, requiring agencies to provide detailed information on a proposed project, seek input from other specified agencies, and determine whether additional input is needed from local, state, tribal, or other public stakeholders. After consideration of all stakeholder input and project information, agencies were required to issue a presidential permit if the project either served foreign policy interests or was consistent with public interests. Once issued, the permitting agency was required to comply with all applicable statutes and regulations, including NEPA.
In 2019, the Trump Administration issued Executive Order 13867, which revoked previous executive orders and designated the Secretary of State to receive all applications for presidential permits. Citing a need to simplify the “unnecessarily complicated” presidential permitting process and promote economic development and goodwill with other countries, this executive order effectively asserted complete presidential authority to issue presidential permits without being subject to regulatory statutes like the Administrative Procedure Act or NEPA. A subsequent rule from the Department of State clearly conveyed that because decisions to issue presidential permits are made solely by the President in an executive capacity, NEPA does not apply to the action of issuing, amending, or denying a presidential permit. The Department of State recommended amendments to NEPA to clarify this.
Analysis
1. Approval, denial, or modification of presidential permits do not automatically trigger NEPA requirements because NEPA does not apply to executive actions.
NEPA’s statutory text makes it clear that its EIS requirements only apply to major federal actions, defined as an “action that the agency carrying out such action determines is subject to substantial federal control and responsibility.” Because presidential permit decisions are made solely by the President, there is little room for argument that such decisions could be made by a federal agency. Even if the President consults other agency heads or receives substantial information or persuasive evidence from other agencies involved in a potential border-crossing project, the final decision to issue a presidential permit ultimately resides solely with the President.1 While Executive Order 13867 grants the Secretary of State the authority to make recommendations on whether a permit should be granted, this authority is not a “final agency action” as defined by the Administrative Procedure Act. Consequentially, NEPA does not apply to the actual act of granting, modifying, or denying a permit.
2. Transboundary land port of entry construction projects may still trigger NEPA.
While the act of approval or denial of a border crossing project may not be subject to NEPA, the application that a federal agency submits to the Secretary of State still triggers NEPA review. This is particularly evident in recent amendments to NEPA that incorporated a definition of “major federal action” as any action that “[t]he agency carrying out such action determines is subject to substantial federal control and responsibility.” This differs significantly from the CEQ’s 2020 NEPA regulations, which defined “major federal action” plainly as an activity that is “subject to federal control and responsibility.”
This amendment alters NEPA’s applicability in several ways. First, it offers more interpretive latitude to the federal agency conducting a NEPA analysis by explicitly specifying that agencies must determine whether an action is a major federal action. Challenging this determination in court would likely prove difficult because plaintiffs would have to satisfy the steep burden of proving that an agency’s interpretation and categorization of an activity as a major federal action was arbitrary and capricious. Second, it simultaneously narrows NEPA’s applicability by qualifying that actions must involve substantial federal control and responsibility, implying that some actions with minimal or unsubstantial federal control and responsibility will not trigger NEPA. Third and lastly, the amendment alters the list of activities that are specifically exempted from the definition of major federal action by removing “[a]ctivities or decisions that do not result in final agency action under the Administrative Procedure Act . . .” This change indirectly suggests that non-final agency actions could be subject to NEPA if an agency determines that they otherwise still involve substantial federal control and responsibility. This potentially broadens the scope of NEPA, although it is too soon to determine how courts will interpret these amendments.
Regarding transboundary land port of entry projects, this amendment potentially limits NEPA applicability for projects that are primarily under the control of a bordering country, where a federal agency does not have “substantial” control over factors such as design, build, or size. At the same time, because NEPA may now apply to non-final agency actions, an application submitted to the Secretary of State for a presidential permit is unambiguously subject to NEPA, despite not yet constituting a definitive final action or appealable decision. Past interpretation of NEPA supports the applicability of NEPA to a land port of entry project at the time an agency submits a presidential permit application to the Secretary of State, and some agencies require NEPA analysis before submission of applications for presidential permits.
These amendments to NEPA also aim to clarify whether an activity is a final action by providing factors to consider, namely whether an activity or decision is non-discretionary. While this helps define the scope of EIS applicability to transboundary NEPA projects, agencies involved in transboundary projects and decisions will likely need to refine their own statutory authority to clarify how the new rule impacts their projects.
3. More guidance is needed on federal actions that take place abroad but have domestic impacts.
With the Biden administration’s focus on infrastructure and redevelopment, the General Services Administration has committed to modernize and expand over twenty federal land ports of entry, many of which are currently under EIS review. With these efforts in mind, NEPA’s scope for transboundary impacts beyond land ports of entry and border activities leaves much to be clarified. NEPA specifically notes that extraterritorial agency activities whose effects are located entirely outside of United States jurisdiction are not considered major federal actions subject to NEPA. However, NEPA fails to provide the guidance necessary to evaluate how federal actions that take place abroad could have domestic impacts (i.e., through climate change). Environmental Defense Fund v. Massey is a leading case on extraterritorial NEPA review but provides little authority beyond the scope of 
Antarctica. The CEQ’s 1997 guidance provides that agencies should consider the extraterritorial impacts of domestic actions, and Executive Order 12114 directs agencies to develop procedures to consider the extraterritorial impacts of actions taking place outside the United States (although this conflicts with NEPA’s current text that specifically exempts such actions from NEPA’s purview). However, in Friends of Earth v. Mosbacher, the U.S. District Court for the Northern District of California recognized that NEPA could apply to federal financing of foreign projects that were likely to significantly impact the environment within the U.S. through associated greenhouse gas emissions and subsequent rising sea levels. NEPA’s current text would benefit by explicitly incorporating this holding and expanding its applicability to projects that significantly affect other global environments.
While other conventions and statutes provide some direction on how extraterritorial projects with domestic impacts can be broadly considered by an EIS in a global context, some lack sufficient specificity to be effectively enforceable. For example, the Espoo Convention provides little guidance on the scope or reach of a transboundary EIS. While it does obligate its parties to conduct an EIS to analyze transboundary environmental harm when such harm is significantly likely to occur, it is silent on major scoping issues. The Espoo Convention fails to define “significant,” or whether a supplemental EIS is required if circumstances change before a project is completed. However, the International Court of Justice has interpreted the Espoo Convention as only mandating an EIS scope as far as a country’s national laws provide. Therefore, a country funding a project with transboundary international harm may be required to complete an EIS to analyze those effects under the Espoo Convention, but all other details are subject to national law, however flexible that may be.
Some commenters to the CEQ’s Phase 2 Notice of Proposed Rulemaking justifiably urged the CEQ to require broader consideration of transboundary impacts, including analysis of the impact of greenhouse gas emissions and global warming on foreign ecosystems, communities, and infrastructure. Others asserted that the proposed rule should revise NEPA to make it consistent with established judicial precedent—namely Environmental Defense Fund v. Massey—by explicitly requiring analysis of reasonably foreseeable transboundary effects and establishing that this analysis applies to other sovereign nations as well, rather than just global commons. While the CEQ’s final rule does not specifically mention transboundary impacts, it indirectly offers some guidance by adding climate change-related impacts to the list of common types of effects that arise during NEPA review. The rule also restores provisions from an older version of NEPA surrounding how to identify potential project alternatives to avoid adverse environmental effects while also adding alternatives that reduce the impact of climate change as an example. Broader consideration of transboundary impacts and the restoration of provisions for previous NEPA versions could help address the ambiguity around extraterritorial projects. However, these considerations may encourage further assertion of executive power over projects concerning national security and foreign diplomacy, as was seen with Executive Order 13867.
Conclusion
With Executive Order 13867 and its accompanying Department of State final rule, the executive branch has firmly delineated the presidential permitting process from NEPA and left agencies wholly responsible for NEPA compliance prior to applying for presidential permits for transboundary border projects. Recent amendments alter the definition of “major federal action,” which simultaneously narrows and broadens NEPA’s applicable scope and offers more interpretive leeway to agencies to determine whether a particular project triggers NEPA at all. Ultimately, NEPA needs updated guidance to specify how it applies to border projects requiring presidential permits and extraterritorial projects with domestic environmental impacts through climate change.