Policy News - September 22, 2004

Are environmental exemptions for the U.S. military justified?

During the early 1990s, a fight began heating up in North Carolina. Environmentalists sued the U.S. Department of Defense (DOD) for failing to protect the habitat of the endangered red-cockaded woodpecker at Fort Bragg, home of the U.S. Army’s 82nd Airborne Division. Both sides were meeting to try to work out a compromise, when the post commander strode into the room and knocked the environmentalists right out of their seats.

In 1996, the U.S. Defense Department released this poster, the first in a series touting environmental awareness. Today, the military claims that measures to protect plover habitat threaten marine training and war readiness.

“I’ve been a warrior for all these years,” the general reportedly said, “and it’s my duty to protect this country and all its inhabitants, including its endangered species.”

This opening statement changed the whole debate, says Ray Clark, then the Assistant for Environment with the Army. With about 161,000 acres of mostly longleaf pine, Fort Bragg soon began partnering with local conservation groups to buy land along the edges of the post. These buffer zones helped protect both army training areas and the woodpecker habitat. The program quickly became a top priority as part of DOD’s press campaign to sell the military as a fighting force that not only protected America from threats abroad but also preserved the environment at home.

How times have changed. Since President George W. Bush came into office, DOD has won exemptions from sections of the laws that protect endangered species, migratory birds, and marine mammals. The department is now trying to win exemptions from laws covering toxic Superfund sites, solid-waste management, and clean air. According to notes from a 2002 DOD meeting leaked to the press, the fight for these exemptions will “require a multiyear campaign.” As a result, DOD is now battling environmentalists and other government officials on several fronts. Many critics of the administration say that the campaign is more about undermining environmental laws than protecting military readiness.

The stakes are huge and highly complex. Of the 158 federal facilities on Superfund’s National Priorities List, DOD is responsible for 129; the projected cleanup cost for these sites is more than $14 billion. On the other hand, DOD invests $4 billion annually in environmental protection and provides more funding for marine-mammal research than any other federal agency. And with 25 million acres of property, DOD houses the greatest concentration of endangered species on any federal land. So while critics complain about the military, they also tip their hats. The problem, they say, is that elements within the current Bush Administration and the Pentagon are leading an unfounded campaign against environmental laws.

“The armed services have a history they can be proud of,” says Clark. From the Nixon to Clinton administrations, military leaders were told they had a responsibility to balance military readiness with environmental protection, he tells ES&T. “This administration is a departure from that value set,” he adds.

However, others see it differently. In a Senate hearing in April 2003, Sen. James M. Inhofe (R-OK) said the exemptions are needed to protect the lives of service men and women. “Rather than seeking compromise, environmental groups file lawsuits, many of which could seriously undermine training and readiness…. But despite their unfortunate rhetoric, this proposal we are considering today is balanced, bipartisan, rooted in common sense, and good for the environment.”

Numerous current and former DOD officials and military leaders say that change began in the late 1990s when the Center for Biological Diversity, an environmental group, filed a lawsuit against the U.S. Navy under the Migratory Bird Treaty Act. The center cited the navy for killing migratory birds during bombing on Farallon de Medinilla, a small, uninhabited Pacific island. In an interview with ES&T, DOD General Counsel for the Environment, Ben Cohen, said that pilot skills degrade as aircraft carriers transit across the Pacific from the United States. “It was the last place in the region where carrier aircraft could train as they prepared to enter the theater of operation,” he says.

At the same time that the Navy feared losing the Farallon as a training site, other groups were suing the government to protect habitat for endangered species at another naval installation, California’s Camp Pendleton. Fearing more lawsuits, DOD sources tell ES&T that a group of naval lawyers began pushing for legislative protection against lawsuits when President Bush came into office; his political appointees saw a green light to roll back environmental oversight after September 11, 2001.

A former high-ranking DOD environmental official, who asked for anonymity, says there are real concerns with endangered species at Pendleton but that they could have been easily handled if the DOD focused on other problems, such as suburban growth around military bases. “That has not been the priority of this administration. They have focused on how to get relief from environmental laws because they believe they have a favorable political climate.”

The final straw for the Navy, say DOD officials, was lawsuits by environmental groups to curtail the use of certain types of sonar. Scientists are not exactly certain how sonar affects marine mammals, but since 1960, numerous stranding incidents have occurred, involving mostly beaked whales, when navy sonar was in the area. In March 2000, 17 whales beached themselves in the Bahamas at a time when navy sonar was being used. Six later died. “It appeared from all evidence that the whales attempted to get out of the sonar and then swam onto the beach,” says Dan Schregardus, the Deputy Assistant Secretary for Environment in the Navy.

In September 2002, 14 whales became stranded on the Canary Islands just 4 hours after the onset of a naval training exercise. Necropsies found tissue damage consistent with trauma due to in vivo gas bubble formation (Nature 2003, 425, 575).

“It’s not clear if the sound is so loud it damages the animals directly or if it triggers a behavioral response so that the animals surface too quickly and get something like the bends,” says Peter Tyack, a senior scientist at the Woods Hole Oceanographic Institution. “In the end, we know there is some correlation between these sounds and the animals ending up on the beach.”

While beachings of whales have captured headlines, there are other incidents where environmental laws and military training could be in conflict. Cohen cites Fort Richardson in Alaska as a prime example of a “potential train wreck.” In April 2002, a coalition of public-interest groups and Native American tribes sent a notice of intent to file a lawsuit against DOD for poisoning water with toxins leaching from unexploded munitions. Cohen says DOD lawyers fear such third-party lawsuits could force EPA to shut down live-fire ranges because the training harms the wildlife and endangers water supplies.

“It’s not responsible for us to wait until we’re actually shut down at a vital installation, before we go to Congress and tell them there are troubles,” says Cohen.

However, last year former EPA Administrator Christine Todd Whitman told Congress that there have been no incidents where the agency was forced to interfere with military readiness. “I’m not aware of any particular area where environmental protection regulations are preventing the desired training,” she testified.

This was made clear during a packed congressional hearing in April at which the DOD exemptions were strongly opposed by a host of groups, including a group of 39 state attorneys general, local water agencies, numerous state coalitions, and environmental groups. Under heated questioning by Rep. John Dingell (D-MI), DOD Deputy Under Secretary Ray DuBois admitted that there was not a single incident where Superfund, solid-waste, or clean-air legislation had interfered with military readiness.

There are other indications that the military has not been affected by environmental regulations. In the late 1990s, David Henkins, an Earthjustice lawyer who participated in the suit over bombing activity on the Farallon, succeeded in stopping training on the Makua military range on Hawaii’s Oahu Island for violations of environmental laws. For three years, the military was unable to use the range and regularly told judges and the press that lack of training was degrading readiness. Yet, when Henkins reviewed the military training records from the local commanders, they were pretty much the same: “ready to perform our wartime mission.”

Nevertheless, the military has been desperately seeking cases where environmental regulations conflict with military readiness. DOD Deputy Secretary Paul Wolfowitz sent a letter in 2003 to all the armed services asking for cases where environmental regulations were interfering with national security or military readiness. To date, Cohen tells ES&T, not a single instance has been found.

But military activities have affected the environment in numerous instances. Forty DOD sites have contaminated groundwater or surface water with perchlorate. In both Massachusetts and Maryland, DOD contamination of groundwater has forced the shutdown of local wells. The contamination in Maryland has resulted in numerous underground toxin plumes originating from two local military installations. Thousands of testing wells now dot the Cape Cod area, monitoring pollution underneath this famous Massachusetts vacation spot; the total cleanup cost is projected at about $1 billion.

“The question becomes what [DOD] would have done if they hadn’t been required to meet [environmental] statutes,” says Ed Eichner, a hydrologist with the Cape Cod Commission. “The main issue here, after stripping away all the details, is that the DOD wants to become self-regulating,” charges Sylvia Lowrance, former top administrator for enforcement at EPA.

Cohen tells ES&T that DOD plans to resubmit the exemptions during the next congressional session. An internal document leaked to the press states that exemptions to other environmental laws are also being considered. “There was a lot of expression of legislative support,” Cohen says. —PAUL D. THACKER