## Facts

- Puerto Rico environmental and fishing organizations sought to stop a foreign-flag ship from transporting vitrified high-level nuclear waste near Puerto Rico through the Mona Passage.
- The shipment involved an international nuclear-fuel cycle in which spent fuel was reprocessed abroad, with residual high-level waste vitrified and sealed in specialized casks.
- A British-flagged freighter, the *Pacific Swan*, carried vitrified high-level nuclear waste from France to Japan and passed through the Mona Passage, within the U.S. exclusive economic zone (EEZ), en route to the Panama Canal.
- Plaintiffs filed suit seeking injunctive relief requiring preparation of an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) before the transit occurred.
- Plaintiffs also invoked the Atomic Energy Act and Nuclear Non-Proliferation Act, but the appellate analysis centered on NEPA’s threshold requirement of a “major Federal action.”
- Under an international treaty framework, a non-U.S. authority determined the waste was “irrecoverable,” and the United States did not exercise treaty-based control over this shipment.
- The private shippers selected the route, including passage through the Mona Passage; the United States did not issue a permit, license, route approval, or other specific authorization for the transit.
- The district court granted summary judgment to the federal defendants and dismissed the action; plaintiffs appealed.

## Issues

1. Whether federal defendants’ alleged failure to regulate or stop a foreign ship’s nuclear-waste transit through the U.S. EEZ constituted “major Federal action” triggering NEPA’s EIS requirement.
2. Whether any discrete federal agency action existed where the United States lacked meaningful regulatory control or specific authorization over the shipment.

## Decision

- The First Circuit affirmed dismissal of the action, though on different reasoning than the district court.
- The court held there was no “major Federal action” (and essentially no federal action) to trigger NEPA because the shipment was not subject to U.S. regulatory control or specific federal authorization.
- The court rejected the theory that non-regulation of the transit, by itself, constitutes a reviewable federal action requiring an EIS.
- Injunctive relief was denied.

## Legal Principles

- NEPA’s EIS obligation applies only to “major Federal actions”; it presupposes a discrete, identifiable federal action (e.g., a project, approval, permit, license, or comparable authorization).
- Federal inaction or a general policy choice not to regulate does not become “major Federal action” merely because regulation might be conceivable in the abstract.
- Where an international framework and the nature of EEZ navigation leave the United States without meaningful control over a particular foreign-flag transit, NEPA is not triggered.
- Foreign vessels generally may pass through the U.S. EEZ without U.S. permission; limited EEZ authorities do not, without concrete federal decisionmaking, create NEPA-triggering action.

## Conclusion

Because the United States did not authorize, control, or take a discrete agency action regarding the *Pacific Swan*’s nuclear-waste transit through the Mona Passage, NEPA’s “major Federal action” threshold was not met and no EIS was required; the dismissal of plaintiffs’ claims and denial of injunctive relief were affirmed.


Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d 297 (1st Cir. 1999)