As the administration’s ratification initiative ramped up late in 1977, perceptions intensified that environmental organizations might mount a court challenge to demand a more thorough treaty EIS.45 Although the State Department did not produce the comprehensive impact study environmentalists sought, officials agreed to develop a formal statement to accompany the release of the final EIS in December. The document, developed with input from environmental lobbyists,
would clarify U.S. intentions regarding key points of diplomatic concern and thereby facilitate “support for ratification of the treaties by the environmental community,” as a confidential memo by several of the major environmental play-ers spelled out on December 14, 1977.46
A major figure who took credit for pushing this process along was David Ort-man, who had received George Alderson’s files when he took over as the research associate of the Washington office of Friends of the Earth. As he later asserted,
“In the FOE D.C. files on the Panama sea- level canal are State Department memos expressing concern after calls I would make to the State Department, that the environmental community might scuttle the treaty efforts.”47 In the aforementioned November 1977 issue of Not Man Apart, Ortman wrote a long critique titled “Mingling the Two Oceans” that evinced considerable insider knowledge, which spoke to the close relationship between FOE personnel and CEQ member Edey. He also recognized the irony that “the biggest opponents”
to the sea- level canal since the 1960s “were not the biologists or the environmen-talists, but rather those people who are convinced that we should not give up the Canal Zone,” a reference to Representative Dan Flood, Senator Strom Thur-mond, and other adversaries of treaty reform.48 On the other hand, Ortman did not seem to fear aiding such antienvironmental politicians; all that mattered was preventing the terrible seaway scheme from coming to fruition.
Ortman’s analysis recapitulated the important point that “the possible eco-logical effects extend far beyond the sea snakes.” Such threats included larger oil spills by the massive tankers that would use a sea- level channel, the need to deepen U.S. ports to accommodate these vessels, and the effects on the urban ports of Panama City and Colón of reducing traffic through the existing canal.
Better solutions for reducing reliance on foreign oil existed than spending
$10–20 billion on a huge public works project in Panama: “How much insu-lation and solar space and water heaters would the money spent on a sea- level canal buy? How many homes could be retrofitted to burn less oil?”49 Ortman also challenged Gravel for ignoring the project’s secondary environmental ef-fects, overstating its military rationale, and underestimating its cost. His final theme echoed an argument Congressman Flood had made long before: “Besides Senator Gravel, President Carter, and Secretary of State Vance, who advocates for the colossal construction project? Well, engineering- industrial groups for one, manufacturers of heavy earthmoving machinery, dredging combines, and contractors.”50
Ortman and fellow FOE staff were not the only ones who pressured the State Department. The Sierra Club, one of the oldest conservation groups in
the United States, also played a big role. It had only begun expanding its in-ternational presence since 1970, yet had achieved great success using NEPA to challenge foreign megaprojects slated to be built with U.S. funds.51 In particu-lar, the club and three other organizations sued the U.S. Department of Trans-portation and Federal Highway Administration in 1975 to demand a better EIS for the proposed completion of the Pan- American Highway through the Panama- Colombia border. The plaintiffs sought a greater focus on preventing the spread of hoof- and- mouth disease (aftosa) from South American livestock across what had long functioned as a biogeographical barrier—the dense rain-forests of the Darién. Because the disease threatened to kill off a quarter of the North American cattle herd—a $10 billion loss—it gained a lot of traction. A U.S. district court agreed that both the draft and final impact statements failed to adequately address aftosa, as well as the cultural survival of the affected Guna and Chocó tribes.52 The rulings precluded construction of the 250- mile- long route for over two decades, and the Darién still remains the only incomplete stretch of the road from Alaska to Tierra del Fuego.53
Top representatives of the Sierra Club, FOE, and the Center for Law and Policy met with State Department officials three times in 1977 to address the treaties’ environmental protection measures and the agency’s compliance with NEPA (on August 5, November 18, and December 20).54 “While we believe we have been able to allay their concerns,” wrote Deputy for Panama Canal Treaty Affairs David Popper to Deputy Secretary of State Warren Christopher on December 21, “they would like a statement of assurances from you which they could use with their directors and members to win their support for the Trea-ties.”55 Actually, the environmentalists wanted Carter’s secretary of state, Cyrus Vance, to deliver the message via a major speech.56 Vance had a deep knowledge of U.S.- Panama affairs, having served as the Panama Canal’s sole shareholder (as secretary of the army) and Lyndon Johnson’s deputy secretary of defense during the 1964 Flag Riots. Instead of a high- profile speech by the nation’s top foreign policy official, however, the environmental community had to settle for a glori-fied cover letter by the second- ranking foreign affairs leader, which was still not too shabby.
Christopher issued the “Statement on the Panama Canal Treaties and En-vironmental Protection” on January 12, 1978. The document declared that Ar-ticle XII provided only “for a study of the feasibility of such a canal without making a decision or commitment that a sea- level canal will be built,” which would include a full EIS addressing the reports of the National Academy. The text also downplayed the likelihood of nuclear excavation techniques ever being
used, “both for environmental reasons and because of the terms of the nuclear test ban treaty.”57
The language in Christopher’s statement regarding Article VI, the section committing the two nations to respect environmental goals, was more question-able. He identified Article VI “as an integral part of the Panama Canal Treaty,”
a dubious claim given the pact’s overriding focus on the operation, defense, and transfer of the waterway and associated lands and property. The statement also conveyed the State Department’s intention that the Joint Commission on the Environment “shall have the staff and financial support it needs to be effective”
and include among its U.S. members “leading science and environmental figures as well as others from the private and public sectors.”58 But because the treaty did not include such specific language, Congress would likely have to approve legislation to implement the plan.59
Regardless of what might happen in the future, Christopher’s statement performed an important function for the antiseaway environmental commu-nity: it validated the 1960s- era sea- level canal authors and the political activists who took them seriously. Recalling the scientific demands for natural- history inventories of the isthmus, the document asserted that the U.S. and Panama-nian governments would cooperate to collect baseline data “showing the current state of Canal Zone ecosystems, including air and water quality, marine life in the adjacent oceans, and flora and fauna.” Another nod to the debate of the previous decade cited two older treaties as a legal precedent for U.S.- Panama environmental cooperation, including the one that established Barro Colorado Island, the original home of the Smithsonian Tropical Research Institute, as a nature monument in 1940.60
The Sierra Club was relatively pleased with the outcome, as articulated by its international committee chairperson, Nicholas Robinson.61 The lawyer had a history of pressuring the State Department and other U.S. foreign affairs agen-cies to comply with NEPA; as he argued in 1974, Congress intended the law to extend beyond the territorial boundaries of the United States. That was not to say that NEPA permitted interference in the internal affairs of other nations.
“Rather, the aim is to assure that the United States itself is never responsible for unanticipated environmental injury anywhere. NEPA provides a restraint on U.S. action, not on the actions of other countries.” The law required all federal agencies, no matter their scope, to act “with as full an awareness as possible of their impact on the systems of the biosphere.”62
Robinson criticized the State Department for waiting too long to initi-ate the Panama Canal Treaty EIS—it should have started during the Nixon
administration, but at least senators could consult it prior to the ratification vote. While the agency had under previous leadership “flouted NEPA more than it followed the act’s mandate,” the Carter administration’s actions represented
“a solid step toward reversing that pattern.” Robinson lamented the public lack of attention to the treaties’ environmental dimensions, while making the ironic admission that the sea- level canal provision committed the United States “to so little” that the failure of environmentalists to achieve their desired language was “of little importance.” As for the joint commission outlined by Article VI, environmental groups would have to ensure that the enabling legislation met the State Department’s ambitious objectives. But first, of course, the pacts had to be ratified.63
By late January 1978, as the ratification campaign approached fever pitch, the sea- level canal option was becoming a white elephant. Despite strong support among some of their colleagues for it, the leading protreaty senators, Robert Byrd of West Virginia and Howard Baker of Tennessee, expressed to Christo-pher their willingness to delete it in order to “pick up votes,” especially that of one senator, Robert Griffin of Michigan. Christopher cautioned them against this maneuver on the grounds that the article was in the national interest, and that any deletions would put the treaty at risk of further revision. Because Grif-fin appeared to be turning against the treaties anyway, Baker agreed to shelve the plan for the time being. When informed of these developments by Secretary of State Vance, Carter reiterated his support for the sea- level canal article: “It’s important, I believe, to hold this in the treaty.”64
As Carter wished, the sea- level canal clause remained, but it became an anti-climactic nonissue during the final months prior to the ratification votes in the spring of 1978. By early February, sixty- two senators had committed to support the treaties, twenty- eight opposed them, and ten remained undecided. To ob-tain the requisite sixty- seven votes, the administration made many last- minute concessions, including one that infuriated the Panamanians and almost derailed the whole process—a reservation introduced by Arizona senator Dennis DeC-oncini allowing the United States to use military force in Panama to keep the canal open, if necessary, after the year 2000. The Senate approved each of the pacts with one vote to spare; the Neutrality Treaty passed on March 16 and the Panama Canal Treaty on April 18 with identical roll calls.65 It had been a bruising fight, requiring Carter officials to provide statements of reassurance not only to environmentalists fearing a future sea- level canal but also to reluctant treaty supporters fearing the loss of the perpetual unilateral right to defend the waterway.66