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U.S. MILITARY AND ENVIRONMENTAL LAW
Military & Environmental Law
Environmental Analysis and Impact of the United States Military
Military activity affects the environment in direct and indirect ways. The purpose of this paper is to examine the impact of military training and readiness activities and the impact of armed conflict and war on the environment. Most environmental impact that results from armed conflict and war occurs in foreign and not domestic environments. However, military training and readiness activities have the potential to impact both domestic and international environments. Different standards apply to the regulation of military activity based on the geographic, national, and political arenas in which military activity occurs. Another dimension that affects the environmental impact standards to which the military is held accountable is based on the perceptions and attitudes of lawmakers, citizens, and warriors toward peacetime and readiness operations vs. armed conflict and war. This paper will explore the nexus of policy, compliance, attitude, and resource utilization.
Several frameworks will be used to explore the ways in which the military impacts the environment. One of the most commonly used models reviews environmental impact legislation and examines the interchange between the military forces and the law. This model permits the reader to explore a military point-of-view and rationale for attempting to establish exceptions to environmental law. In this paper, the discussion will explore the history and nature of interactions between Congress and military leaders with regard to application of environmental protection laws to the actions of military forces. In this framework, the military is considered to be an industry, and the focus is on perceiving how the military deals with the legal and regulatory pressures that are part of doing business.
A second framework will focus on the impact of the military during war time or armed conflict. The perspective gained from this framework is useful because it illustrates how the exigencies of making war shape both the physical environment and the mental paradigms of people. To give structure to this discussion, the four categories of environmental effects by the military will be used. These categories are: Collateral effects, use of environment as a weapon, environmental modification to aid own operations or impede the enemy, and eco-terrorism" (Duke, 2010).
Environmental Impact of the U.S. Military.
The physical environment is affected by the military in a number of direct and indirect ways. In peacetime, through the military's efforts to train the forces, maintain readiness, and protect national security, air, land, and water pollution occurs. Land is converted to military use or transferred out of military jurisdiction after having been altered by military use. Armed conflict has immediate and long-term effects that include air, land, and water pollution, harm to animals, and destruction of habitat.
Overseas environmental law. The environmental laws that govern DOD installations and facilities overseas are conceptually similar to those in the United States. Some nations have well-developed regulatory systems with clear structure and comprehensive, integrated laws; others do not. "A fine balance of sovereignty is inherent in the basing of foreign forces within a host nation," and this balance is reflected in the interpretation and implementation of environmental laws and requirements for installations overseas. A "unique synthesis" of domestic and foreign viewpoints and standards are melded into a set of requirements that encompass DoD policy, audits by the General Accounting Office, international treaties and agreements, Presidential Executive Orders, host-nation environmental regulations, and U.S. domestic standards and laws. The implementation of regulations and the perceived obligations of the DoD overseas may be "self-imposed as a matter of policy rather than as a matter of law." Regardless, compliance of DoD installations with environmental regulations in overseas host-nations is critically important. Non-compliance can result in significant consequences. At stake are the long-term relations with the host-nation and sanctions or penalties for DoD employees. It is within the right of the host-nations to impose their local criminal sanctions on DoD employees who do not comply with the environmental regulations of the host-nation. Further, under circumstances where non-compliance is severe, continued access to the military installation and a continuation of international agreements could be jeopardized. In fact, the overseas application of the principle of "environmental security" calls for "sound environmental stewardship as a means to ensure our continued access to installations and facilities vital to U.S. national security" (Phelps, 1996).
Army green is not a color. The Army's initiative to reduce and prevent pollution at its source is called P2 for "pollution prevention. The goals of P2 are to effectively use resources to decrease the generation of pollutants through avoidance, prevention, and reduction. The areas of emphasis for the P2 program are conservation of resources, waste reduction, recycling, and replacing toxic or hazardous materials with less hazardous materials. The following federal, state, and local regulations and requirements, in addition to Presidential Executive Orders guide and direct the P2 initiative.
The Pollution Prevention Act of 1990
Executive Order (EO) 12856, Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements
EO 13101, Greening the Government Through Waste Prevention, Recycling and Federal Acquisition
EO 13123, Greening the Government Through Efficient Energy Management
EO 13148, Greening the Government Through Leadership in Environmental Management
EO 13149, Greening the Government Through Federal Fleet and Transportation Efficiency
Emergency Planning and Community Right-to-Know Act (EPCRA)
Resource Conservation and Recovery Act (RCRA)
Clean Water Act (CWA)
Safe Drinking Water Act (SDWA)
Clean Air Act (CAA)
The U.S. Code of Federal Regulations
The provisions of P2 impact the Army in three important ways. By reducing pollution on military installations at the source, the initiative can reduce the Army's burden of complying with environmental regulations because the conditions that would cause the environmental laws to be applied to the installations will have been minimized or eliminated. There is simply less to police and less to remedy. Also, when a P2 initiative is successfully implemented, operational costs are reduced. The reduction of waste and the reduction of the generation of pollution save resources across the board and over time. "The Army P2 program focuses on implementing changes in chemicals, equipment, and processes in order to achieve a meaningful cost-effective reduction in the generation of pollution without adversely impacting mission readiness" (USAEC, 2010).
The Army's implementation of the Environmental Management System (EMS) is enhanced by the P2 (USAEC, 2010). The significant aspects of an installation and their impacts, which are to be addressed through EMS may first be impacted by the P2 initiative, which works at the origin or potential source of environmental impact. Through efforts to address sustainability, installations can employ the fundamental tools provided by P2 to help meet long-term goal and near-term objectives (USAEC, 2010). Some examples provided by USAEC of P2 projects follow:
Paint stripping and coating removal
Emergency Planning and Community Right-to-Know Act (EPCRA) reporting
Fluorescent light recycling
Fuel filter and reuse
Natural gas conversion of boilers
Recycling non-hazardous waste
Weapons cleaning systems
The Navy gets greener. Pentagon expert Jackalyne Pfannenstiel, Assistant Secretary of the Navy for energy, installations, and environment stated that a "great green fleet" will be tested on a trial basis by 2012. The fleet is to include a group of aircraft carriers powered by nuclear and green fuels. In concert with concern for the environment, strategic and tactical concerns are contributing to the Navy's reduction in power usage at installations and the use of smart meters to help gauge future energy use. The Navy is also making changes down range. When motor fuel is moved around on the battlefield, it "incredibly vulnerable" and generates high risk for warriors. Portable solar installations are being deployed down range. Imported oil is being replaced with lower polluting biofuels. In fact, F/A-18 Hornets and helicopters in the Great Green Fleet flying on mixtures of jet fuel and biofuels are anticipated to be fully operational by 2016.
To begin to understand the depth and complexity of meeting the ever changing environmental regulatory and environmental laws to which the DoD must respond, it is worthwhile to examine the news mentions in one issue of the Navy's environmental impact and protection periodical, Currents (2010). The following changes reflect only items of interest from April 9, 2010 through June 25, 2010.
Minimizing Use of Hexavalent Chromium in DoD Systems (DFARS Case 2009-D004) -- Proposed Rule (08-April-10) http://edocket.access.gpo.gov/2010/2010-7262.htm
Clean Air Act Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule -- Final Rule (03-June-10) http://edocket.access.gpo.gov/2010/2010-11974.htm
Primary NAAQS for Sulfur Dioxide -- Final Rule (22-June-10) http://edocket.access.gpo.gov/2010/2010-13947.htm
Standards of Performance for Stationary Compression Ignition and Spark Ignition Internal Combustion Engines between 10 and 30 Liters per Cylinder (08-June-10) http://edocket.access.gpo.gov/2010/2010-12911.htm
Emission Standards for Commercial and Industrial Solid Waste Incineration -- Proposed Rule (04-June-10) http://edocket.access.gpo.gov/2010/2010-10821.htm
The U.S. Army Environmental Command and the P2 initiative work together to achieve compliance with environmental regulations. The quotidian interactions are listed below exactly as written on the USAEC Website.
Integrating P2 into all compliance programs (air management, drinking water management, EPCRA implementation, hazardous waste management, integrated solid waste management, storage tank and…[continue]
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