Above the Law? The Pentagon is Taking Aim at America's Public Health and Environmental Protections

As part of the Bush administration's ongoing campaign to roll back the nation's environmental protections, the Pentagon is exploiting the impending war with Iraq and ongoing war on terrorism to take aim at an array of public health and environmental laws.

Although defeated in the last Congress, the Department of Defense (DoD) has unveiled its latest legislative proposal, the "Readiness and Range Preservation Initiative," which seeks immunity from five fundamental federal laws: the Resource Conservation & Recovery Act; Comprehensive Environmental Response, Compensation and Liability Act (Superfund law); Clean Air Act; Marine Mammal Protection Act; and Endangered Species Act. Despite contrary evidence, the Pentagon claims that the laws regulating hazardous waste, toxic cleanup and air quality -- as well as those protecting wildlife habitat, migratory birds, whales and other marine mammals -- hinder military readiness.

That certainly wasn't the case under the first Bush administration during the Persian Gulf War. Shortly after Iraq invaded Kuwait, then-Secretary of Defense Dick Cheney told an assembly of military planners and environmentalists, "Defense and the environment is not an either-or proposition. To choose between them is impossible in this real world of serious defense threats and genuine environmental concerns. The real choice is whether we are going to build a new environmental ethic into the daily business of defense."1

A decade later, the Pentagon's proposed legislation begs the question: Should national defense come at the expense of what the military is supposed to be defending? And if so, wouldn't other federal agencies -- not to mention industries -- argue for their own exemptions too? Our answer: No government agency should be above the law -- especially the laws that protect America's air and water, public health, and endangered wildlife.

Why We Fight
We do not question the importance of training and readiness for our fighting forces, but sweeping exemptions from environmental laws are not necessary to ensure America's military might. Success stories abound to show how the military has found reasonable solutions and pursued training in compliance with environmental laws. Moreover, the statutes now under fire already provide the flexibility needed to balance environmental protection and military readiness by allowing exemptions on a case-by-case basis in the interest of national security.

According to a briefing presented to the deputy secretary of defense by the department's Senior Readiness Oversight Council last December: "National security clauses exist in many of this nation's environmental statutes that would allow senior officials…to exclude DoD from certain provisions…under certain conditions. To date DoD has not used such exemptions to any extent to address encroachment concerns...."2

The Pentagon now wants to abandon its commitment to environmental stewardship even though it has yet to show that environmental laws hamper military readiness. Last June, the General Accounting Office (GAO) said the DoD has failed to produce any evidence showing that environmental laws or other "encroachments" have significantly affected military readiness.3 And Christie Todd Whitman, head of the U.S. Environmental Protection Agency, recently testified before the Senate that she has "been working very closely with the Department of Defense and I don't believe that there is a training mission anywhere in the county that is being held up or not taking place because of environmental protection regulation."4

The National Park Service recently warned that the changes being sought "would cause substantial degradation of natural resources."5 It's also worth noting that the Pentagon's proposal contradicts the principle of the Federal Facilities Compliance Act -- passed nearly unanimously in 1992 -- by unnecessarily exempting the DoD from federal laws at the expense of public health, public lands, air, water and wildlife. Moreover, if the exemptions were granted, taxpayers and state governments would bear the burden of cleanup costs and face public health risks from toxic contamination resulting from military operations. It's no wonder that state-level opposition was fierce when DoD proposed similar legislation in Congress last year.6

What follows is a brief overview of the laws at risk from the Pentagon's proposal.

Resource Conservation and Recovery Act
The Resources Conservation and Recovery Act (RCRA), the nation's premier law for regulating hazardous wastes, established a cradle-to-grave management system designed to prevent toxic pollution and ensure that responsible parties pay to clean it up. DoD has a long history of flouting RCRA requirements. The number of EPA RCRA enforcement actions against DoD facilities outnumbers those for other agencies by a three-to-one margin. The Pentagon's proposal would largely remove hazardous wastes on military ranges from RCRA regulation by:

• changing the definition of "solid waste" to exclude explosives, munitions, munitions fragments and other toxic material;
• allowing toxic substances to be left lying exposed on the range, where they could leach into groundwater, surface waters or the air;
• weakening the authority of the EPA and state officials to protect communities from toxic waste; and
• preventing state authorities from collecting damages from DoD when its contamination injures sensitive public resources, including wildlife, fisheries and recreational areas.

Superfund Law (CERCLA)
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) enables cleanups at the nation's worst toxic waste sites by holding polluters responsible for the release of hazardous materials and by requiring polluters to pay into a trust fund that pays for cleanup when no responsible party can be identified. The Superfund's cleanup provisions are triggered by a "release" of a toxic substance. The Pentagon's proposal would exempt the military from cleaning up toxic substances by:

• exempting from the term "release" any explosives, munitions, munitions fragments or other toxic material (unless the military closed the range or if the substances migrated off the range and required a clean up); and
• delaying Superfund clean up until contamination has spread beyond range boundaries, thereby adding years and potentially billions of dollars to clean up efforts.

DoD is the nation's biggest polluter; its cleanup program includes nearly 28,000 currently or formerly contaminated sites in every state and territory, and even in other countries. California alone has 3,912 contaminated sites on 441 current and former DOD properties. Many of DOD's facilities have groundwater contamination plumes that threaten drinking water sources. For example, Otis Air Base on Cape Cod is a notorious Superfund site where contaminants have leached into the groundwater aquifer that is the area's sole source of drinking water. The estimated cost to clean up pollution at active and former military installations around the country exceeds $90 million.

Given these problems, it's surprising that DoD is seeking a $400 million decrease in its FY 2004 request for environmental cleanup. DoD's request for $3.8 billion is significantly less than the $4.1 billion it requested last year -- and the $4.2 billion Congress approved in the FY 2003 defense spending bill. When senators questioned Raymond Dubois Jr., a deputy undersecretary of defense, about the discrepancy, Dubois said that the military has "less environmental remediation to do." He also claimed that the Pentagon proposal would "combine military readiness with environmental stewardship."7

Clean Air Act
Under the Clean Air Act, all federal agencies, including DoD, must conform to any applicable federal or state implementation plan for attaining public health air quality standards -- otherwise known as National Ambient Air Quality Standards (NAAQS). This means that DoD activities cannot cause or contribute to a violation of NAAQS, increase the frequency or severity of NAAQS violations, or delay attainment of a particular standard. The Pentagon's proposal would permit the military to pollute our air by:

• broadening the definition of "training" to exclude even non-military activities from NAAQS, such as driving vehicles on military bases or from one training site to another, or even spraying pesticides on a right-of-way;
• eliminating timelines for the military to estimate the quantity of military emissions in non-attainment areas; and
• lifting the requirement that military activities do not worsen air quality.

The Clean Air Act already provides ample mechanisms for exempting DoD activities when there is a national security need. Last year, two organizations representing state air pollution control administrators opposed DoD's proposed changes to federal air protections on the grounds that they would exclude routine non-emergency activities from basic environmental requirements.8

The case of Fort Wainwright in Alaska illustrates the folly of exempting DoD from Clean Air Act regulations. The EPA has fined the out-dated coal-fired plant at Fort Wainwright $16 million over 10 years for clean air violations. The state of Alaska cited the Army base for more than 450 environmental violations in one month alone. The DoD has proved that it is not an effective environmental steward even under existing law. Further exemptions would result in unacceptable public health and environmental risks to neighboring communities and would require states to obtain deeper emissions cuts from other in-state sources to meet clean air standards.

Marine Mammal Protection Act

The heart of the Marine Mammal Protection Act (MMPA) -- the nation's leading instrument for protecting whales, dolphins, sea otters, manatees and other marine mammals -- is its general moratorium on the "taking" of these species. Under the MMPA, federal agencies that oversee wildlife management are required to review government activities that have the potential to harass or kill these animals in the wild. The Pentagon's proposal would allow the military to harm marine mammals by:

• creating broad exemptions allowing the DoD to bypass the MMPA review process of wildlife agencies entirely. Unlike military exemptions written into other statutes, the ones proposed for the MMPA are not triggered by war or national emergencies and are not conditioned on completion of an initial stage of environmental review, but could be applied to virtually any military activity or technology at any time;
• weakening the statutory definition of "harassment," thereby allowing a range of Pentagon activities that potentially harm marine mammals -- including ones that cause physical injury or impair their ability to breed, nurse, feed or migrate -- to escape review; and
• eliminating the requirement that takings be limited to "small numbers" of animals in a "specified geographic region," opening the door to activities that could harm hundreds of thousands of marine mammals across the world's oceans, without any additional analysis.

The likely result of these dramatic changes would be far less protection for marine mammals, less mitigation and monitoring of the harm caused by military activities, and less public information about these activities, which would trigger even more public controversy and debate. The DoD has not made the case that such steps are warranted. Under the MMPA, the Pentagon may receive authorization to "harass" marine mammals through a streamlined process that, by law, can take no longer than 120 days. Furthermore, under the Armed Forces Code, it can obtain special accommodations to meet the needs of military readiness and can appeal adverse decisions to the president. This last provision has never been invoked with regard to the MMPA presumably because -- as the director of the National Marine Fisheries Service testified last year -- not one of the Pentagon's requests for authorization under the law has ever been denied.

Endangered Species Act
The Endangered Species Act (ESA) is the country's chief vehicle for conserving our endangered wildlife. The ESA is a critically important law because it requires the government, developers, politicians, biologists, industrialists -- all citizens -- to consider how their actions affect imperiled species and the habitat on which they depend. The Pentagon proposal would eliminate protections for endangered species by:

• exempting the military from the ESA's "critical habitat" designations on all military lands that have an Integrated Natural Resources Management Plan.9 Existing examples of these management plans have failed to provide adequate protection for endangered species and therefore are not a substitute for critical habitat designations. Moreover, Section 7(j) of the ESA already provides the secretary of defense with ample authority to automatically exempt training operations from the critical habitat protections (or any other provision of ESA) whenever necessary for reasons of national security. Section 4(b)(2) also enables military installations to be excluded entirely from critical habitat designations based on impacts to readiness; and
• using such broad language in provisions that they might be interpreted to apply not only to military readiness activities but to "any lands ... owned or controlled by the department, or designated for its use." For some of the more than 300 endangered species in the United States, military lands provide the last chance for survival because of significant habitat loss in surrounding lands.

Exempting the DoD from the Endangered Species Act would unjustifiably undermine federal efforts to protect and recover endangered species. Already, the Navy is using the Pentagon proposal to scuttle efforts to develop local solutions to ESA issues. Last November, Secretary of the Navy Gordon England issued a memo advising that "personnel in the field not make local accommodations to introduce new species, habitats, etc., on our bases" because these "concessions could run counter to the legislative relief we are continuing to pursue with Congress."10

Defending Our Homeland
This land is our land; it belongs to all Americans. Even at this time of great uncertainty and world tension, Americans must guard against the Pentagon's unwarranted attempt to sacrifice an integral component of America's national character -- our natural heritage -- under the guise of national security.

The fact is, our military's high level of readiness has been and can continue to be achieved while maintaining existing protections for public health and the environment. And if necessary, our laws already allow case-by-case exemptions.

Ironically, the Pentagon is now pushing to roll back environmental protections here at home, while President Bush recently pledged to ensure "that Iraq's natural resources are protected" during war. "Iraq's natural resources belong to all the Iraqi people and…will finally be used for their benefit, not Hussein's," Bush said.11

The Natural Resources Defense Council is a national, non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 550,000 members nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.

The following environmental organizations published this document: Center for Biological Diversity, Center for Public Environmental Oversight, Defenders of Wildlife, Earthjustice, Endangered Species Coalition, Oceana, Military Toxics Project, National Environmental Trust, National Wildlife Federation, Natural Resources Defense Council, Public Employees for Environmental Responsibility, U.S. Public Interest Research Group

Issue Experts

RCRA/CERCLA:
Geoffrey Fettus, NRDC, (202) 289-2371
Lenny Siegel, CPEO, (650) 961-8918

CAA:
John Walke, NRDC, (202) 289-2406

MMPA:
Gerry Leape, NET, (202) 887-8800
Michael Jasny, NRDC, (323) 934-6900
Andrew Wetzler, NRDC, (323) 934-6900

ESA:
Brock Evans, ESC, (202) 789-2844 x132
Susan Holmes, Earthjustice, (202) 667-4500 x204
John Kostyack, NWF, (202) 797-6879
Daniel R. Patterson, Center for Biological Diversity, (520) 623-5252 x306

Notes

1. "Pentagon takes first steps toward tackling pollution," Boston Globe, September 9, 1990.

2. From "Memorandum for Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Under Secretaries of Defense, Service Chiefs. Subject: Senior Readiness Oversight Council Approval of 2003 Sustainable Ranges Action Agenda" at p. 9 (December 10, 2002).

3. See GAO, Military Training: DOD Lacks a Comprehensive Plan To Manage Encroachment on Training Ranges, GAO-02-614 (June 2, 2002). The GAO report further points out that each major branch of the armed forces -- Army, Navy, Air Force, Marines -- conducts training exercises separately and without collaboration, thereby unnecessarily duplicating costs and environmental impacts. In the case of Camp Pendleton in California, habitat conflicts could be minimized if the Marines would conduct their desert training at nearby Edwards Air Force Base.

4. See Whitman's testimony regarding DOD exemptions from environmental laws, U.S. Senate Environment & Public Works Committee Hearing, February 26, 2003.

5. Suzanne Stuglinski, "DOD environmental exemption requests headed for review," Environment & Energy Daily, March 10, 2003.

6. The Environmental Council of States and the Association of State and Territorial Solid Waste Management Officials opposed exempting the DoD from RCRA and Superfund laws. The State and Territorial Air Pollution Program Administrators (STAPPA) and the Association of Local Air Pollution Control Officers (ALAPCO) sent a letter opposing the CAA exemption. The National Association of Attorneys General (NAAG) has opposed exemptions for federal agencies in the past, and last year joined the National Governors' Association (NGA) and the National Conference of State Legislatures in sending a letter complaining about not being able to testify at congressional hearings on the issue. And Colorado Attorney General Ken Salazar sent a letter raising concerns that "statutory exemptions from environmental laws would have adverse impacts on human health and the environment."

7. Struglinski, "Low funding request shows DOD environmental progress, official says," Environment & Energy Daily, March 5, 2003.

8. The State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials.

9. Section 4 of the ESA requires the Department of Interior and Commerce to designate "critical habitat" for every species it lists as endangered or threatened. 16 U.S.C. § 1533(a)(3). Once critical habitat is designated for a species, federal agencies may not take any actions that may result in the "adverse modification" of those lands. 16 U.S.C. § 1536(a)(2). Critical habitat designations do not restrict private landowners from modifying habitat unless they propose to carry out an action that requires a federal permit or depends on federal funding.

10. Memorandum on "policy guidance for endangered species actions" to Chief of Naval Operations and Commandant of the Marine Corps, November 24, 2002.

11. Extracted from speech by President Bush on February 27, 2003.