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Environmental Protection, Exemptions And The Military

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Kurt Smith
October 15, 2019

Much of the public and environmental community remain aware of the Paris Peace Accords, or the Trump Administration’s recent repeal of the Clean Water Rule, which leaves vulnerable nearly 110 million acres of critical land for water quality. Less widely known is the military impact on the environment, being exempt from many environmental regulations, rules and laws. While a number of significant laws and regulations have been put in place through the Clean Water Act, The Clean Air Act, the Resource Conservation Recovery Act, the Endangered Species Act and a host of others, concerns remain. According to Stockholm International Peace research Institute in a report from April of 2017, The United States Department of Defense spends more than six-hundred billion dollars on defense. In terms of spending, only 24 countries in the world would have a higher GDP then the United States military spends. Along with the expenditure of that money comes a major source of anthropogenic pollution in the environment—some of it serious and containing high costs for remediation.

According to a CRS report authored by David Beardon in 2006 entitled, U.S. Disposal of Chemical Weapons in the Ocean: Background Issues for Congress, the military would need 34.4 billion dollars to clean up active land-based military instillations and closed bases. Recent history has shown that the act of living on or near a military base has resulted in exposure to dangerous toxins that pose a threat to military service members, their families and adjacent communities. Pollution at military bases is so widespread that according to an EPA report more than two-thirds of all Superfund sites listed by the Environmental Protection Agency, (nearly nine hundred sites in all), are military affiliated. Further concern is raised by the fact that for United States bases overseas, many of the normative environmental review processes do not exist. Department of Defense’s current clean-up program includes nearly 28,000 currently or formerly contaminated sites in the United States and other countries. According to the Center for Progressive Regulation in a white paper authored by Glicksman and McGaritty in 2011, California alone has 3,912 contaminated sites on 441 current and former DOD properties.

The military cites at least 72 instances of dumping catalogued, 32 in United States Waters and 42 off of foreign shores. Cleaning up of our ocean dumping sites would add significantly to this financial cost, and there are significant questions about extracting and transporting these substances safely from the ocean floor. If the military were to be shielded from laws like the Resource Conservation Recovery Act (RCRA), they could be shielded from cleaning up live firing ranges full of hazardous waste. If they could circumvent the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), they may not be relied upon to clean contaminated soil and hazardous substances seeping into groundwater. If they can be granted a waiver from the Clean Air Act (CAA) during troop build ups, they have the potential to become major polluters while states’ implementation plans are usurped. Citizens of the state would then have the additional burden for air pollution reductions that do not meet the required goals and standards required by their Clean Air Act mandated State Implementation Plans.

According to Robert Meltz, in a CRS report to Congress from 2002, most of our major environmental legislation provides for exemptions that may not exceed one year (two years in the case of hazardous-emissions exemptions), but may be extended for up to one year at a time (two years at a time for hazardous-emissions exceptions) upon the President’s making a new determination. While few would argue the reasonableness of these temporary and extraordinary exemptions invoked by the President of the United States, and subject to judicial review, the military since 2011 has pursued a path of expansion of these exemptions. The Bob Stump National Defense Authorization Act for Fiscal Year 2003 brought increased flexibility in dealing with migratory birds and marine mammals and created easier standards for air quality and cleanup of toxic waste sites.

The military has pursued a legislative agenda to attach riders to the Defense Appropriations Act of 2004 and 2005 to include exemptions from the Migratory Bird Act (MTBA), the Marine Mammals Protection Act (MMPA), and some provisions of the Endangered Species Act (ESA). According to an article printed in the Virginia Environmental Law Journal in 2007, authored by Hope Babcock, the new law allows the Secretary of Defense to grant 2-year non-renewable waivers in the interest of national defense. Previously this would have been granted only by the President of the United States.

Added to this, there is no provision for the public to challenge these decisions. Serious and legitimate questions arise about the cost and benefit of perceived military preparedness in peacetime and the cost of environmental exemptions being practiced by the military. Research efforts should focus on developing empirical evidence as to if regulations actually impact readiness, and if so, begin to research alternatives in training. Efforts should rely on improved technology, sound science and weighing concerns of both the environmental community and the military. Over time the goal should be to move policymakers and the DOD to a more environmentally sustainable model and culture which also provides for a strong national defense.

Author: Kurt Smith is a visiting faculty member at Sam Houston State University. He has had an extensive career in government working primarily in the area of natural resources management and environmental regulation. He holds a Master’s Degree in Public Administration from NC State University, and a Ph.D. in Forestry and Environmental Resources also from NC State University.

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