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Department of State to rationalize its negotiation of the proposed treaty. Recommended environmental studies have not been completed. Important environmental questions remain unanswered, and are likely to remain unanswered despite the hurried efforts of the White House and the Department of State to prepare the environmental information which should have been prepared and considered years ago. All aspects of the Panama Canal Treaty agreements have only recently been made public, and the detailed agreements pursuant to the proposed treaties are difficult to obtain. Consequently, a deadline of late September for the filing of views is insufficient.
Mr. Speaker, since its enactment in 1969, the National Environmental Policy Act has served our Nation well. The act's requirements, which call for careful environmental analysis before important decisions are made, have been supported and endorsed by the Department of State in numerous international negotiations. As a result, provisions calling for environmental assessments have been incorporated into several international agreements. It is ironic that the Department of State, which has advocated the benefits of the act to other nations, has chosen to ignore the act in negotiating a treaty with such environment at the new Panama Canal Treaty.
I urge the President and my colleagues to consider the environmental concerns which have been expressed concerning the proposed treaty and to refuse to take further action on it until the requirements of the National Environmental Policy Act are properly and fully satisfied.
The failure of the Department of State to prepare and consider an environmental impact statement in a timely manner is evidenced by a letter from Mr. Douglas J. Bennet, Jr., to Mr. Gene Snyder dated July 22, 1977. The legal and factual sufficiency of the draft environmental impact statement was analyzed in a memorandum prepared by the staff of the Subcommittee on Fisheries and Wildlife Conservation and the Environment. The views of conservationists concerning the Canal Zone are expressed in a telegram 11 conservation organizations sent to President Carter on September 6, 1977, and in excerpts from “A Guide to the Birds of Panama," by Robert S. Ridgely-Princeton University Press 1976-and the March 1977 issue of the Toucan published by the Panama Audubon Society.
Mr. Speaker, I submit for the RECORD a copy of these documents to which I have just referred:
DEPARTMENT OF STATE, Washington, D.C., July 22, 1977.
Hon. GENE SNYDER,
House of Representatives,
DEAR MR. SNYDER: This is in response to your letter of June 9 to the Office of Environmental Affairs requesting certain information with respect to any environmental assessment being prepared in connection with the proposed treaty between the United States and the Republic of Panama.
The Department has not as yet made a determination as to whether the action in question will significantly affect the quality of the human environment within the meaning of the National Environmental Impact Statement. We are, however, preparing an assessment of the environmental implications of a treaty and when it becomes available, we would be happy to provide you with a copy. We appreciate your interest and concern in this matter. Sincerely,
DOUGLAS J. BENNET, Jr.
Assistant Secretary for
MEMORANDUM: THE DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR THE NEW PANAMA CANAL TREATY
This memorandum discusses the legal and factual sufficiency of the draft environmental impact statement (EIS) for the new Panama Canal Treaty. My conclusions are:
1. a draft EIS should have been filed in 1973 upon the initiation of negotiations;
2. a final EIS should have been filed before the Department or State recommended that the Treaty be signed;
3. the draft EIS is inadequate because it fails to :
a. adequately describe the proposal;
b. assess the impact of the Treaty upon the environment of Panama;
c. adequately assess the impact of the Treaty upon the Canal Zone.
TIMING OF THE EIS
Section 102 (2) (C) of NEPA provides in pertinent part as follows: ". . . all agencies of the Federal Government shall . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement...
This section does not apply to the action of the President since he is not an agency of the Federal Government. It does, however, apply to the Department of State. EIS's for example have been prepared by the Department of State in connection with the negotiation of several treaties; e.g. Law of the Sea.
The State Department violated its regulations and NEPA when it negotiated the Treaty. The series of negotiations leading to the Treaty began in 1973 when NEPA was in effect (draft EIS, p. 1). Under regulations promulgated by the Department of State for preparation of EIS's a draft EIS should have been prepared at the time negotiations were begun (37 Fed. Reg. 19168). This was done, for example, with the Law of the Sea negotiations.
Preparation of a draft EIS at the time negotiations are initiated is consistent with the CEQ guidelines for NEPA which require preparation of statements at the earliest possible time. (40 CFR § 1500.1(a)). It is also consistent with the case law. See, e.g. Calvert Cliffs' Coordinating Comm. v. A.E.C., 449 F.2d 1118 (1971).
A final EIS should have been filed with CEQ at least 30 days prior to the signing of the Treaty. Section 102(2)(c) of NEPA requires that a final EIS be prepared and considered before final action is taken. The NEPA guidelines of the Council on Environmental Quality (CEQ) provide that no final action can be taken until 30 days after a final EIS is filed with CEQ. (40 CFR § 1500.11 (b)). The State Department regulations provide that "where advice and consent to a proposed treaty will be sought or where substantial delay bewteen negotiation and signature of a proposed executive agreement is envisioned, the final statement should be made available as soon as possible after the conclusion of an agreed text." These regulations also state that "Every attempt will be made to comply with the 30-day CEQ review period between submission of statements and final actions." Presumably the final action of the State Department with respect to the new Panama Canal Treaty was its submission of the Treaty to the President for signature. A final EIS should have been prepared and considered at this time.
CONTENTS OF THE DRAFT EIS
The judicial test for the adequacy of final EIS's was described by the U.S. Supreme Court in New York v. Kleppe, 9 ERC 1795 (U.S. Sup. Ct. 1976), as follows:
the essential requirement of NEPA is that before an agency takes major action, it must have taken a ‘hard look” at the
the essential requirement of NEPA is required to furnish only such information as appears to be reasonably necessary under the circumstances for evaluation of the project rather than be so all-encompassing in scope that the task of preparing it would become either fruitless or well nigh impossible." (9 ERC at 1797)
It is premature for a court to judge the adequacy of the EIS for the Treaty since it is only a draft. Nevertheless, judged against this standard in the Kleppe case the draft EIS for the new Panama Canal Treaty is inadequate in a number of respects.
1. The description of the proposed action may be inadequate.
First the Treaty is not attached to the draft EIS and is not available for public inspection. While it is described generally in the draft EIS, this description may be inadequate. Without an adequate description of the Treaty, the draft EIS would be inadequate.
Second, the draft EIS is prepared with respect to the Panama Canal Treaty alone. The draft EIS, however, makes reference to a series of other agreements
connected with this Treaty (draft EIS, p. 2-4). To the extent these other treaties are not adequately described, the draft EIS may be inadequate.
2. The draft EIS fails to adequately describe the impacts of the proposed treaty upon the environment of Panama.
The draft EIS does not discuss the impact of the Treaty upon the environment of Panama as opposed to the Canal Zone. By memorandum to the heads of all Federal agencies dated September 24, 1976, CEQ stated that ". . . the impact statement requirement . . . applies to all significant effects of proposed Federal actions on the quality of the human environment-in the United States, in other countries, and in areas outside the jurisdiction of any country." CEQ's position is supported by legal commentators and Sierra Club v. Coleman, 9 ERC 1314 (D.C. Cir. Ct. 1976). The draft EIS, therefore, improperly fails to discuss the impact of the Treaty upon the environment of Panama. These impacts (which include changes in the water table) might have a significant effect upon the environment. 3. The draft EIS fails to adequately describe the impacts of the proposed Treaty upon the environment of the Canal Zone.
At several points the draft EIS refers to future treaties or agreements which will have their own EIS's. Much discussion of the environmental impacts is thus avoided in the draft EIS. Such a piecemeal approach to writing an EIS is improper. As stated by the District of Columbia Circuit Court "... one of the purposes of NEPA was to break the cycle of such incremental decision making." National Wildlife Federation v. Andrus, 7 ELR 20526, 20529 (1977). See also NRDC v. Nuclear Regulatory Commission 547 F.2d 633, 640 (D.C. Cir. Ct. 1976). The discussion of the impact upon archeological sites may be inadequate. The draft EIS states that "No comprehensive professional survey of pre-Colombian archeological sites has been made in the territory of the Canal Zone (draft EIS, p. 14). Section 2(b) of Executive Order 11593 requires that all Federal agencies survey their land and nominate sites for listing in the National Register of Historic Places. Until then all sites which qualify for listing are subject to the consulaton requirement of section 106 of the National Historic Preservation Act of 1966. Such consultation apparently has not occurred. Lack of adequate information and consultation has also been a basis for court rulings that NEPA has been violated. In EDF v. Hardin, 325 F. Supp. at 14013 (D.C.D.C. 1971), for example, the court stated:
"Section 102(2)(A)... makes the completion of an adequate research program a prerequisite to agency action. The adequacy of the research should be judged in light of the scope of the proposed program and the extent to which existing knowledge raises the possibility of potential adverse environmental effects."
The discussion of the impact upon tropical forests and wildlife may be inadequate. The most important environmental impacts of the Treaty are those on forest areas and wildlife. The draft EIS states:
"Continued preservation of the forests and their wildlife is important because there has been extensive deforestation in the areas adjacent to the Canal Zone and there are population and economic pressures for further exploitation of the forest areas. By contrast, because of restrictions on public access to the Canal Zone watershed and defense areas, much of the Canal Zone is now an island of forest in the midst of a generally cleared countryside-probably the most extensive, readily accessible lowland forest area in Middle America. Hunting restrictions have also helped preserve a wide variety of birds and animals in the Zone. For these reasons, the future of these forests is of primary interest to environmental groups" (draft EIS p. 4).
The draft EIS states that there "will probably be some deforestation in Canal Zone areas turned back to Panama" but fails to indicate where these areas are located or the extent of the deforestation (draft EIS, p. 17). Moreover, the draft EIS fails to discuss the impact of this deforestation upon the wildlife although at various points in the draft EIS it is stated that one of the forest areas "contains some 216 species of birds which do not occur outside the New World Tropics" (draft EIS p. 9) and that "5 percent of all the endangered mammals in the world and 20 percent of those in the Americas occur in these areas" (draft EIS, p. 8).
The Department of State has acted in gross violation of NEPA in failing to prepare and consider an adequate EIS in a timely fashion. Steps which might be taken to remedy this include:
1. urge CEQ and the Department of State to recommend to the President that no further action be taken until an adequate EIS prepared and considered (Immediately Hold Oversight Hearings.);
2. urge the President to take no further action until an adequate EIS is prepared and considered;
3. urge the Senate to refuse consideration of the Treaty until an adequate EIS is prepared; and
4. refuse to consider any implementing legislation until an adequate EIS is prepared.
SEPTEMBER 6, 1977.
The White House,
Mr. PRESIDENT: Recent reports on the State Dpartment's ngotiations with Panama concerning the interoceanic canal indicate that a serious environmental issue is involved. The negotiators for the United States have included a provision in the Panama treaty that would grant the United States a long-term option to build a new inter-oceanic Sea-Level Canal and require a report be made on the feasibility of building such a canal,
Conservation and environmental organizations voiced their opposition to a Panama Seal-Level Canal to President Ford in 1975. We regard a treaty provision of this kind as prejudicial to the thorough, rational consideration of the issue. Neither the Congress nor the several relevant agencies in the Executive Branch have approved it or even seriously considered the matter. The State Department has never been authorized to negotiate for a treaty provision on the Sea-Level Canal. Their environmental Impact Statement on the Treaty comes far too late for us to make any meaningful response before the Treaty signing ceremony tomorrow.
There are important reasons for our concern. Marine scientists have repeatedly warned against a Panama Sea-Level Canal (as well as salinization of the current canal system), on grounds that a canal of this design would eliminate the present freshwater barrier to intermixture of the two distinct ecosystems on either side of the Isthmus of Panama. Should this freshwater barrier be eliminated, by pumping sea water into the existing canal, for example, the result could be tremendous damage to the fish and other marine organisms of both the Atlantic and Pacific Oceans, with consequent impact on the large human populations that depend on the seas in this part of the world.
A National Academy of Sciences Panel on the Sea-Level Canal in 1970 warned of "grave potential dangers" that could result from such a project. The panel said:
"Joining two oceans with a sea-level canal is a gigantic natural experiment. Its consequences are unforeseeable. To forgo the relevant biological research prior to and during the construction of a new canal would be like preparing to put a man on the moon and neglecting to ask him to make scientific observations and collect samples. A new canal will affect the animal and plant life of the two oceans, but what these effects are cannot be determined unless the nature of the differences between the biota and ecosystems of the two oceans are first carefully established through years of intensive research."
The results of the National Academy of Sciences current attempt to quickly pull together all new information on the issues concerning a Sea-Level Canal merely document the fact that the biological studies recommended in 1970 have never been carried out.
Advocates of the Sea-Level Canal claim there is a technological solution to the problem of biological exchange, but no solution has yet been proposed in sufficient detail to allow evaluation of its effectiveness. All the proponents have to offer is vague promises.
The undersigned organizations believe the State Department should not inject the Sea-Level Canal issue into the current treaty negotiations with Panama, centering as they do on questions of sovereignty and administration of the present canal. A Sea-Level Canal provision in a treaty would not only prejudice later consideration of the merits of the project, but it would also lead Panama to expect the United States to build a new canal, even though no decision has yet been made on it by this country.
Dr. Stephen R. Gibbs, an economist for the University of Washington's Institute for Marine Studies, said in testimony before a House Panama Canal subcommittee that a new canal "would be a net economic loser for whoever undertook it." The Sea-Level Canal represents not only an economic loss but a likely environmental disaster as well. We strongly urge you to instruct the Secretary of State to cease negotiating for a Sea-Level Canal provision as part of any treaty with Panama.
John W. Grandy IV, Executive Vice President, Defenders of Wildlife.
Brent Blackwelder, Washington Representative, Environmental Policy Center. Douglas W. Scott, Northwest Representative, Federation of Western Outdoor Clubs.
David R. Brower, President, Friends of the Earth.
Lewis Regenstein, Executive Vice President, The Funds for Animals, Inc. Sir John G. Ward, President, International Society for the Protection of Animals.
Jack Lorenz, Ex. Director, Izaak Walton League of America.
T. Destry Jarvis, Administrative Assistant, National Parks and Conservation Assn.
Godfrey A. Rockefeller, Ex. Director, World Wildlife Fund.
EXCERPTS FROM "A GUIDE TO THE BIRDS OF PANAMA”
(By Robert S. Ridgely)
There is perhaps no better area in Latin America where one can easily see within a rather short distance a variety of relatively unspoiled and accessible tropical habitats, each with corresponding abundant bird, mammal, and plant life. For the traveler this situation is made even better by the excellent accommodations available at a number of strategically placed localities (see Appendix II). But as in the rest of Latin America—and throughout the tropics—there are serious and increasing conservation problems in Panama that merit discussion here.
Of pre-eminent concern is the unnecessary and often wanton destruction of the forest that at one time covered the greater part, if not all of Panama. The extent of forest cover has varied over the millennia, influenced in part by climatic fluctuations (dry periods favoring the spread of savannas, rainy periods the spread of forest) and in part by human population. Though it comes as a surprise to most people, some evidence indicates that at the time of the Spaniard's arrival around 1500 A.D., the Indian population was so large that less of Panama was forested than was the case until very recently (see Bennet, 1968). It is likely, thus, that Balboa passed through planted fields and not through solid forest in crossing the isthmus to "discover" the Pacific. Much of the forest, in eastern Panama especially (where the Indian population was apparently very large), appears to be essentially a regrowth from that period, when for a variety of reasons the Indian population was substantially reduced. But given the techology of Indian society at that time, and the shifting slash-burn type of agriculture then employed (far less damaging to the soil or to potential regrowth than present methods), forest clearing was surely not as total as it usually is today.
Unquestionably forest pockets would have remained from which reforestation could take place. The Pacific slope of much of the more humid parts of western Panama was, until the early decades of the present century, covered with extensive forest. Today almost all has been removed from the lowlands except along some watercourses and on some steep hillsides, and the only area where much forest remains is the still roadless western side of the Azuero Peninsula. The usual pattern, often repeated in Panama and elsewhere in Latin America, is for a road to be cut through a formerly "virgin" area. The land near the road is soon cleared, usually by squatters, and within a few years virtually no forest remains except on the far-off slopes or sometimes along the water courses. A striking example of this destruction can be seen along the Trans-Isthmian Highway between Panama City and Colón; cut through largely uninhabited, forested