Pentagon Seeks "National Security" Exemptions From Enviromental Laws

by J.R. Pegg

The proposal, which has been tucked into the 2004 military budget, would give the military broad exemptions from federal laws governing hazardous waste, clean air, marine mammal protection and endangered species.

Environmentalists are outraged and say the administration is taking advantage of the war on terrorism and the impending war against Iraq to excuse the military from complying with laws enacted to protect public health and the nation's environment.

"This is not about military readiness," former U.S. Marine Brock Evans told reporters on a teleconference Wednesday that included 11 environmental groups.

Each of the laws in question already has a provision to allow exemptions on a case by case basis in the interest of national security, environmentalists say, but the military has declined to use them.

The military has "other alternatives" to exempt its training exercises from environmental laws, said Evans, currently the executive director with the Endangered Species Coalition.

Pentagon officials will testify on the proposal, called the "Readiness and Range Preservation Initiative" on Thursday in front of the Senate Armed Services committee and the House Armed Services Subcommittee on Readiness.

The proposed exemptions "have environmental consequences that are severe and complicated," said Michael Jasny of the Natural Resources Defense Council. "The Armed Services Committees are not the place to consider any of this material."

"To ram this legislation through Congress at this time and this way is cynical even by the standards of this administration and it shows absolutely no concern for public's health and the environment."

A similar proposal was voted down by the Democratically controlled Senate and drew sharp criticism from state officials throughout the country, who worry such exemptions would shift undue burdens onto state governments and private industry.

With the Republicans now in the majority, environmentalists fear the provision could slide through Congress.

"It could go either way," said John Kostyack, senior counsel for the National Wildlife Federation. "But we believe we are making significant progress in educating members of Congress about how serious this attack is and why it needs to be opposed."

Pentagon officials are expected to testify these laws are impeding its ability to properly train and prepare American troops and that the current exemption provisions in each statute take too long to enact and can be subjected to lawsuits.

But this stance contradicts a report from the General Accounting Office released in June 2002 that found the Pentagon had failed to show any evidence that environmental laws had compromised military readiness. The report detailed that although there were additional costs from compliance, some of this is because the four branches of the military seldom collaborate on training exercises.

In addition, there are some incidents when specific training exercises have been curtailed due to environmental laws, but the report finds readiness has not been affected.

And Environmental Protection Agency Administrator Christie Whitman, in testimony before the Senate Environment and Public Works Committee last month, said she was unaware of "a training mission anywhere in the country" that had been delayed or cancelled because of environmental regulations.

"The military wants exemption from these environmental laws for reasons other than readiness," said Bruce Eilerts, a former natural resources manager at Luke Air Force Base in Arizona.

The argument that readiness is being affected to the point of "hurting national security is not true," said Eilerts, who won a settlement against the military after he was dismissed for reporting environmental violations.

The proposal seeks exemption from the Resource Conservation and Recovery Act (RCRA), which regulates hazardous waste, and from the Comprehensive Environmental Response, Compensation, and Liability Act, often referred to as the Superfund statute.

Granting exemptions from RCRA and Superfund is likely not just to affect future activities, said Aimee Houghton, associate director of the Center for Public Environmental Oversight.

It could jeopardize the military's long list of existing responsibilities for cleaning up contaminated sites, Houghton explained.

"Legal experts believe that these exemptions will carry over to the nation's former ranges," Houghton said.

This could have serious implications because the military is a leading producer of hazardous waste and is the nation's biggest polluter. Its cleanup program includes some 28,000 currently or formerly contaminated sites in the United States and abroad, with 3,912 contaminated sites in California alone.

State officials have voiced concerns that broad exemption from these hazardous waste laws would shift clean up and disposal costs to state governments, who are currently in their worst fiscal crisis in U.S. history.

Similar complaints are cited by critics of the provision's exemptions from the Clean Air Act, the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA).

Exemptions from the Clean Air Act would require states to obtain increased emissions cuts from other sources within their borders to meet clean air standards.

The exemption would remove the military from complying with clean air standards by broadening the definition of training to include activities such as driving vehicles on military bases and spraying pesticides. It lifts the requirement that military activities do not worsen air quality.

The Clean Air Act has an existing provision in it for case by case exemptions, explained John Walke, NRDC director of clean air programs, but the military has never sought to use this.

"The Clean Air Act is a critical public health statute and there is no concrete exemption needed," Walke said.

The proposal seeks exemption from the critical habitat provision of the ESA on all military lands that have an Integrated Natural Resources Management Plan, which environmentalists contend does not provide adequate protection for endangered species.

"Those endangered species problems are not going to go away," said Kostyack. "The real question is who is going to share the responsibility.

"If you are a private property owner near Department of Defense bases and you find they are giving up their responsibilities, you are going to be legitimately concerned as to whether you are going to have additional responsibilities."

The MMPA currently requires that wildlife agencies review government activities that have the potential to harass or kill marine mammals. The provision would exempt the military from this review process, weaken the definition of harassment and eliminate the requirement that only small numbers of animals are potentially killed as a byproduct of government activity.

Such an exemption from the MMPA would be "disastrous for marine conservation," said Gerry Leap, vice president for marine conservation for the National Environmental Trust.

It would remove restrictions on the use of naval sonar, which has been linked to deaths of beaked whales and other marine species.

Although environmentalists believe the effort to defeat this provision will be successful, Leap warned that even if the provision is stripped from the budget bill, it is likely to resurface.

The Pentagon has made it clear "they are going to put it on whatever vehicle is moving," Leap told reporters.