The Extraterritorial Application of Antitrust Law and the National Environmental Policy Act: A Comparative Study

By Gabriela Burghelea

This note provides a comparative history of the juridical and policy based reasons behind extraterritorial application of these two classes of law. The main contrast between the two laws is the extreme judicial positions regarding enforcement of extraterritorial jurisdiction. While courts are generally willing to enforce antitrust law as means for regulating the private market, courts have generally declined to apply environmental law outside of US territory. When the Supreme Court has heard NEPA issues relating to United States action abroad, it specifically declined to rule on its extraterritorial application.

The note analyzes the trend of growing international cooperation and comity as a foundation for future application of NEPA in foreign countries. Several examples are given which demonstrate Courts willingness to apply market based regulations abroad, even when in conflict with foreign law. The author highlights the increase in increase trade agreements, sound policy basis, and the need for United States leadership as arguments in favor of extraterritorial application of environmental laws.