United States Military and Environmental Law

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:

Battery recycling

Paint stripping and coating removal

Emergency Planning and Community Right-to-Know Act (EPCRA) reporting

Fluorescent light recycling

Fuel filter and reuse

Green Procurement

Natural gas conversion of boilers

Recycling non-hazardous waste

Solvent recycling

Waste reduction

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 spill management, and toxics management) and compliance auditing

Working with the Office of the Director of Environmental Programs (ODEP), Installation Management Command (IMCOM), Army Materiel Command (AMC), and Army National Guard (ARNG) to develop compliance and P2 strategies Integrating P2 into installation EMS planning and execution

Documenting and evaluating performance of P2 initiatives by collecting and sharing success stories and lessons learned

Tracking the Army's progress in meeting DoD and Army environmental goals

Reviewing all P2-related presidential orders and local, state and federal requirements

Preparing programmatic and media-specific guidance documents, including P2 options

Developing tools to assist installations in complying with P2 requirements

Supporting installations when requested

Maintaining contact with the EPA to stay abreast of current and future initiatives

Representing the Army on DoD committees, along with ODEP

How big is the problem? "The world's military forces are responsible for the release of more than two thirds of CFC-113 into the ozone layer" ("sustainable development," 2002, p. 3). Actually, "pollution from aircraft is currently less than 3% of the total environmental pollution" ("online guide," 2006). The Pentagon has been accused of creating five times more toxins that produced by the five major chemical companies in the U.S. ("sustainable development," 2002, p.3). The U.S. Military has been described s the largest single source of environmental pollution in the United States. In the decade following the publication of these statements, climate change has become a prominent issue with the potential to impact military operations. The armed forces have all released energy and environmental statements, established Websites, and participated in summits focused on the environment. Yet, as recently as 2008, as the Readiness and Range Preservation Initiative FY 2008 Defense Authorization proposal was released, the stance of the DOD was clearly one of protecting and extending existing exemptions to environmental laws.

The types of waste produced by military are various, as are the methods of disposal. A great many of the military installations closed by DOD and transferred out of their jurisdiction are part of the Superfund cleanup efforts. Not all Base Realignment and Closure (BRAC) installations are subject to Superfund cleanup. There are currently 34 BRAC installations listed on the Superfund National Priority List (NPL) where extensive site cleanup is occurring. "Many areas of contamination at these installations are the result of decades of Department of Defense (DoD) use and operation. Principle types of contaminants includes: heavy metals, solvents, volatile organic compounds, and military munitions" ("FAQ about BRAC," 2006).

The immediate and long-term environmental effects of a military base in the surrounding area are dependent on the presence and degree of contamination. When a military BRAC property is closed and transferred by a DOD service, any remaining solid waste or groundwater contaminant fall under the EPA's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). According to the CERCLA, solid waste left on military property after is has been designated as not operational, and assuming the use of the property has been duly restricted, a review must be conducted. Every five years, the cleanup review will be carried out to determine if the cleanup remedy has been adequate to protect the environment and human health ("FAQ about BRAC," 2006).

Once a BRAC installation has been cleaned up, the property may remain restricted with regard to future use. The ultimate goal of the cleanup of an installation includes the possibility of reasonable future reuse and development of the BRAC property. However, there may be restrictions regarding specific activities or kinds of purpose-built structures due to the potential for remaining contamination. The term for these restrictions of property use is institutional. The environmental indicators for BRAC properties listed on the NPL are human exposures or ground water migration pathways ("FAQ about BRAC," 2006).

The issue of future reuse or development hinges on these environmental indicators being under control and not posing a hazard to surrounding areas outside the BRAC designations. When a BRAC installation has been added to the NPL, it is an indicator that all immediate hazards and threats to human health and ground water migration pathways have been addressed. In fact, the environmental indicator that refers to human exposure includes both actual, current pathways for human exposure and potential, future pathways for human exposure. This same standard holds true for ground water migration pathway measures. Until every potential exposure pathway has been addressed, a BRAC property will carry the designation "not under control." This means that the "not under control" designation does not necessarily indicate that an actual, current exposure is exists on the BRAC facility. Rather, it means that there may still be potential exposure pathways that have not yet been addressed or are in the process of being addressed, but the process is not yet complete. An example of this situation would be "a ground water treatment or containment system is being installed, but it is not yet operational" ("FAQ about BRAC," 2006).

Why War is a Special Case

References made to the Persian Gulf War of 1991, use the term environmental warfare as though something new was being declared, but environmental warfare is not new (Dutch, 2010). There is a certain mutuality about war and environment that is often pushed to the background. However, the environment in which war is carried out strongly influences -- and often dictates -- how impactful military activity will be within that environment. Dutch (2010) suggests reference to "mountain warfare, jungle warfare, winter warfare," all of which identify the unit of analysis. The discussion that follows will utilize the conceptual framework developed by Dutch (2010) to describe both the intent and the impact of military action. The categories outlining the discussion below are Duke's.

Collateral damage. There is no direct intention to affect the environment in collateral damage. The environment is impacted indirectly, but the effects can be widespread and enduring. Collateral damage includes emissions and physical damage through vehicle usage, cratering (bombturbation) of the ground, vandalism, injury to animals, plants, and ecosystems, chemical contamination and nuclear accidents (Dutch, 2010). The war in Iraq and Afghanistan contemporizes this collateral damage section by adding the issue of burning pits that are common down range. The burning pits certainly contribute to air, surface, and ground water migration pathway pollution, and their use poses a direct hazard to warriors in Iraq and Afghanistan (Kurera, 2010).

Collateral protection. The environment is sometimes protected by the military. Most commonly, this occurs on military installations that include large tracts of land to be used in realistic training exercises, and land designated as operational by the military, for which the encroachment of human and development is not desirable. Camp Pendleton, for instance, is unique in its status as a large protected area of open land in the otherwise densely settled areas of California. Other examples include the World War II Siegfried Line and former East European frontiers where tracts of land have been preserved undisturbed for decade after decade.

Recently, the Army has pursued the establishment and development of Army Compatible Use Buffers, which effectively create the equivalent of green belts around military bases for improved training effectiveness, less interaction between military and civilian communications systems, and less impact on civilian neighborhoods and wildlife (USAEC, 2011).

Operational modifications. Nearly all military construction can be included in this category, from foxholes to strategic highways to dams. Most environmental modifications that are made to facilitate military operations are small in scale. Quickly changing conditions and resource constraints generally impede large efforts. The Maginot Line is one notable exception as it extended from Switzerland to Luxembourg. Canal cutting was common in the U.S. Civil War. Road building is somewhat more common with two notable extensive projects occurring during World War II. The Burma Road connected China -- where the Japanese were occupying the coast -- and Burma across the rugged mountains, permitting supplies to reach China without flying the dangerous route over the Himalayas. In Vietnam, defoliation operations using Agent Orange were used to eliminate the foliage that provided cover to the Vietnamese Communist forces.

Modifications to impede the enemy. As Duke points out in his taxonomy, it is easier to destroy or disturb environmental features during time of war, so changes to the environment designed to impede enemy forces are common. These modifications include trenches and fortifications, destruction of food supplies and growing fields, diversion of waterways, and chemical warfare.

Strategic modifications. Massive projects all into this category, most of which involve engineering, are intended to serve both military and civilian purposes over the long-term, and are constructed on domestic, friendly, or secure territory. The many attempts to clear the Red River would be placed here, as would the construction of strategic highway systems and canals. Since railway systems in the U.S. could not meet the logistical needs of the Army in World War I, truck convoys were employed to move soldiers, supplies, and munitions. In 1919, the first truck convey slowly made its way across the continental United States. Eventually, President Eisenhower signed the Act that created the Interstate and Defense Highway System. The Suez Canal and the Panama Canal are waterway examples of this strategic use of the environment.

Use of the environment as a weapon. Until recently, the technology to effectively use the environment as a weapon was not available to armed forces. That said, in ancient times, disease was used as an environmental weapon. Contamination of enemy forces required creating proximity between enemy forces and agents of disease. Dead animals and human corpses known to be infected with diseases were catapulted over the walls of enemy fortresses, and placed in water supplies upon which the enemy depended.

Environmental terrorism. This is a thoroughly modern construct as the means to create environmental catastrophe involve modern technology and because the notion of environmental protection is a relatively modern one. That is, at least indignation -- rather than an expectation based on standard operating procedures -- over environmental harm as an intentional result of war is modern. The primary reasons for eco-terrorism include a lowered quality of life for the enemy, intimidation or deterrence, and depriving the enemy of the fruits of victory. The Sea Island oil spill and the burning of the Kuwait oil wells in the Persian Gulf War of 1991 are unique in that they are examples of pure eco-terrorism.

International Rules of Due Regard

The San Remo Manual on International Law Applicable to Armed Conflicts as Sea was adopted by the International Institute of Humanitarian Law in 1994 following round table discussions by legal and naval experts. The manual has relevance here as it addresses "the use of widespread, long-term, and severe damage to the environment which would be clearly excessive in relation to the concrete and overall direct military advantage anticipated," which, when intentionally rendered, would constitute a war crime. The manual contains several rules that refer specifically to the effects of international conflict on the environment. The Rules are not enforceable, but they are written against a background of The Geneva Conventions of 1949 and the Additional Protocols, and are part of the Customary International Humanitarian Law (CIHL). The CIHL is a "general practice accepted as law" and it exists independent of treaty law. The CIHL Rules that pertain to environmental protection are detailed here.

Rule 43. The general principles on the conduct of hostilities apply to the natural environment:

A. No part of the natural environment may be attacked, unless it is a military objective.

B. Destruction of any part of the natural environment is prohibited, unless required by imperative military necessity.

C. Launching an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.

Rule 44. Methods and means of warfare must be employed with due regard to the protection and preservation of the natural environment. In the conduct of military operations, all feasible precautions must be taken to avoid, and in any event to minimize, incidental damage to the environment. Lack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions.

Rule 45. The use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited. Destruction of the natural environment may not be used as a weapon.

A comparison of the military actions that are environmentally harmful from the section above and the explicit prohibitions of CIHL Rules 43, 44, and 45, illustrates the changes that have come about through humanitarian and environmental activism in the current century. The tension between traditional military practice and modern sensibilities is stark.

In fact, situation may be exacerbated by the fact that the United States does not consider international treaties to be applicable to the actions of the United States in foreign countries, nor does it consider such treaties applicable to the U.S. military. The U.S. military, however, does compel compliance of with Status of Forces Agreements (SOFA). A more detailed explanation follows below:

Agreements ("SOFAs"), U.S. domestic laws and regulations, and DoD instructions, directives, and technical manuals govern DoD actions overseas. Although international treaties create standards for protocol at the highest level, the United States does not participate in many relevant treaties and often does not recognize international law at all. This practice complicates matters and creates ambiguity regarding applicable standards. DoD regularly enters into SOFAs, which seek to establish a legal framework for applying foreign laws to U.S. military personnel operating in a foreign country.34 SOFAs, however, are generally only peacetime agreements that allow the U.S. military forces to operate within the host country and are rarely applied in wartime scenarios.

The current environmental policies of the DoD for overseas installations and actions are not necessarily adequate from a developed world perspective. There are discrete policies for the assessment of environments, compliance regulation, the prevention of pollution and contamination, and remediation of identified environmental issues and problems. But critics say the policies are not coherent and, worse, that overseas commanders are afforded "a tremendous amount of discretion in the implementation of these policies: and that a considerable number of exemptions are permitted "through which commanders may avoid compliance" (Laporte, 2010). Further, many international agreements release the U.S. military from any remediation or compensation for environmental damages. In fact, unless the provisions for compliance are specifically addressed in a host-nation's agreement with the U.S. military, the DoD has no legal obligation to comply with the environmental regulations of the host-nation.

Mandatory protection of the environments of foreign countries may not be sufficiently protected by international agreements. Historically, this has been the case. And if the international agreements are insufficient to protect the environment in overseas installations and in foreign countries where military action occurs, then it is doubtful that domestic regulations will be able to do so. The most relevant environmental regulations of the United States are the National Environmental Policy Act (NEPA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under some circumstances, neither of these laws may "be applied extraterritorially to overseas military bases" (Laporte, 2010).

Although a comprehensive set of environmental protection policies exist, they may not be configured or resources in such a way as to compel compliance by commanders and may not be sufficient to ensure that environmental regulations are enforced. The problems with the current overseas military environmental protection policy have been delineated by Laporte (2010) as follows:

The DoD policies are not drafted in as a "coherent environmental regime," instead appear as parallel and separate standards. The overall effect of this arrangement may be confusing to commanders, such that, the effectiveness of the standards is diminished.

There are no incentives for commanding officers to implement to a higher or more rigid standard that the bare minimums described in the DoD policies.

DoD oversight is insufficient to ensure compliance with its environmental policies by overseas installations and operations. Base commanders may delegate oversight of the regulations to another office or to another person, regardless of whether the staffing was adequate to the task or whether environmental protection was seen as a low priority to those who ultimately were charged with the environmental management and oversight responsibilities.

No specific sanctions are contained in the policy for failure to comply with DoD environmental policies.

Numerous loopholes, ambiguous terminology, incomplete guidelines and procedures for implementation, and outright exemptions permit commanders to avoid or ignore environmental laws and requirements

Because the funds tied to environmental cleanup and regulations are provided by Congress as part of the military installations' operations and maintenance accounts, the DoD and Congress do not have sufficient oversight of the expenditure of the designated funds, and cannot discern if the funding is adequate or how funds are explicitly being spent.

Exemptions from Environmental Law for the Department of Defense

The general attitude and implementation trends of the U.S. military in regards to the environment may best be exemplified through discussion of the Department of Defense's pursuit and use of exemptions to environmental law. This section will detail some of the most recent exemptions permitted the DOD, give an accounting of the DOD's efforts to sustain or extend exemptions, and touch on the rationale -- that of Congress and that of the DOD -- behind the exemptions.

The U.S. Military has requested of Congress exemptions to a number of environmental laws on the basis of a need to maintain military readiness and the unavoidable impact of armed conflict. Congress has granted exemptions which permit compliance regulations to be suspended on a case-by-case basis for certain activities occurring at federal facilities and military installations (Bearden, 2007). Exemption is granted by the President of the United States when it is in the paramount interest of the nation to do so, or when it is an issue of national security.

Exempted environmental. The following is a list of environmental laws for which Congress has granted authority to suspend compliance regulations on military bases and federal facilities for activities in the "paramount interest of the United States" Bearden, 2007).

Clean Air Act 942 U.S.C, 7418(b)

Clean Water Act (33 U.S.C. 1323(a)

Noise Control Act (42 U.S.C. 4903)

Solid Waste Disposal Act (42 U.S.C. 6961(a)

Safe Drinking Water Act (42 U.S.C. 300(j)(6)

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

The Endangered Species Act (16 U.S.C. 153(j)

A "national security" exemption is provided in CERCLA (42 U.S.C.9620(j). Should the Secretary of Defense deem it necessary for national security, a special committee would be authorized to grant an exemption of the following law. Most environmental law exemptions are limited to just one year, however, two laws do not impose or require time limits on exemptions. The Endangered Species Act does not require a time limit to be imposed on an exemption, but the law does allow it. No time limits are imposed on The Safe Drinking Water Act.