Exemptions for Military Activities in Federal Environmental Laws

Order Code RS21217

Updated June 18, 2002

CRS Report for Congress

Received through the CRS Web

Exemptions for Military Activities in Federal

Environmental Laws

name redacted

Legislative Attorney

American Law Division

Summary

Under several federal pollution-control statutes, activities of the U.S. military are

subject to federal, state, and local environmental requirements, both substantive and

procedural, along with activities of federal agencies generally. Each of these statutes.

however, authorizes the President to grant exemptions (generally, up to one year and

extendable by one year at a time) when he determines it to be in the “paramount

interest” or “national security interest” of the United States. In addition, the Clean Air

Act and Clean Water Act provide the President with further exemption authority for

property of the military of a “uniquely military” nature.

Among other federal environmental statutes relevant to military operations, the

National Environmental Policy Act has been construed to contain no general exemption

for federal actions in the interest of national defense or security, but such purposes may

affect the judicial remedy and the need for public disclosure of the environmental impact

statement. Also, Council on Environmental Quality regulations relax NEPA

requirements for “emergency circumstances.” Under the Endangered Species Act,

exemptions from the Act’s species protections are authorized by opinion of the

appropriate Secretary and by action of an “Endangered Species Committee.” That

Committee must grant an exemption if the Secretary of Defense finds it necessary for

reasons of national security.

Under several federal pollution-control statutes, the military branches (along with

other federal agencies) must comply with federal, state, and local environmental

requirements to the same extent as non-federal entities. These mandates include

requirements both substantive and procedural. Of special relevance to the military,

however, each of these pollution-control statutes contains a provision authorizing the

President to exempt executive-branch sites from pertinent environmental requirements

when in the “paramount interest” or “national security interest”of the United States.

Certain federal environmental statutes not specially directed toward pollution control

– for example, the National Environmental Policy Act and the Endangered Species Act

– also apply to the military along with other federal agencies, and also allow militaryrelevant exemptions.

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The scope of these exemptions from otherwise applicable environmental mandates

is currently of congressional interest due to pending legislation that would expand certain

of the exemptions for Department of Defense functions. This report briefly summarizes

(1) the statutory provisions making the military subject to the foregoing laws, and (2) the

provisions authorizing exemptions. Note that the provisions in the pollution-control

statutes, of which those in the Clean Air Act were the first enacted, are highly similar and

obviously patterned after one another. In contrast, the approaches taken in the nonpollution-control statutes are quite different, both from the pollution control statutes and

from each other.

Clean Air Act

Section 118 of this statute (42 U.S.C. § 7418) says that each federal agency shall

comply with “all Federal, State, interstate, and local requirements, administrative

authority, and process and sanctions respecting the control and abatement of air pollution

in the same manner, and to the same extent, as any nongovernmental entity.” This

mandate is made applicable to “any requirement whether substantive or procedural,”

including any requirement respecting permits.

The President may exempt any executive-branch emission source if he determines

it to be “in the paramount interest of the United States,” except that no exemption may

be granted from the standards for new stationary sources (section 111). Also, an

exemption from the hazardous emissions section of the act (section 112) may be granted

only if the President determines that the technology to implement the standard is not

available and that it is “in the national security interest of the United States.” An

exemption 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.

In addition, the President may, if he determines it to be in the “paramount interest

of the United States,” exempt any weaponry, equipment, aircraft, vehicles or other classes

or categories of property of the military that are uniquely military in nature. He shall

reconsider the need for such regulations at three-year intervals.

“Military tactical vehicles” need not comply with vehicle emission inspection and

maintenance programs.

Clean Water Act

Section 313 of this statute (33 U.S.C. § 1323) says that each federal agency shall

comply with “all Federal, State, interstate, and local requirements, administrative

authority, and process and sanctions respecting the control and abatement of water

pollution in the same manner, and to the same extent, as any nongovernmental entity ....”

This mandate is made applicable to “any requirement whether substantive or procedural,”

including any requirement respecting permits.

The President may exempt any executive-branch effluent source if he determines it

to be “in the paramount interest of the United States,” except that no exemption may be

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granted from the national standards for new sources (section 306) and toxic and

pretreatment effluent standards (section 307). An exemption may not exceed one year,

but may be extended for up to one year at a time upon the President’s making a new

determination.

In addition, the President may, if he determines it to be “in the paramount interest

of the United States,” exempt any weaponry, equipment, aircraft, vessels, vehicles, or

other classes or categories of property of the military that are uniquely military in nature.

He shall reconsider the need for such regulations at three-year intervals.

Safe Drinking Water Act

Section 1447 of this statute (42 U.S.C. § 300j-6) says that each federal agency shall

comply with “all Federal, State, interstate, and local requirements, both substantive and

procedural ... , respecting the protection of ... wellhead areas, ... public water systems, and

... underground injection in the same manner and to the same extent as any person is

subject to such requirements ....”

The President may exempt any executive-branch facility if he determines it to be “in

the paramount interest of the United States.” An exemption may not exceed one year, but

may be extended for up to one year at a time upon the President’s making a new

determination.

Resource Conservation and Recovery Act

Section 6001 of this statute (42 U.S.C. § 6961) says that each federal agency shall

comply with “all Federal, State, interstate, and local requirements, both substantive and

procedural (including any requirement for permits ... ) respecting control and abatement

of solid waste or hazardous waste disposal and management in the same manner, and to

the same extent, as any person is subject to such requirements ....” This mandate is made

applicable to all administrative orders “any requirement whether substantive or

procedural,” including any requirement respecting permits.

The President may exempt any executive-branch solid waste management facility

if he determines it to be “in the paramount interest of the United States.” An exemption

may not exceed one year, but may be extended for up to one year at a time upon the

President’s making a new determination.

Section 9008 of this statute (42 U.S.C. § 6991f) says that every federal agency shall

comply with “all Federal, State, interstate, and local requirements, applicable to

[underground storage tanks], both substantive and procedural in the same manner, and to

the same extent, as any other person is subject to such requirements ....”

The President may exempt any executive-branch underground storage tank if he

determines it to be “in the paramount interest of the United States.” An exemption may

not exceed one year, but may be extended for up to one year at a time upon the President’s

making a new determination.

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Comprehensive Environmental Response, Compensation and

Liability Act

Section 120(a) of this act (42 U.S.C. § 9620(a)) says that each federal agency shall

comply with “this Act in the same manner and to the same extent, both procedurally and

substantively, as any nongovernmental entity, including liability under section 107 of this

Act.”

The President may issue such orders regarding response actions at any specified site

or facility of the Department of Energy or the Department of Defense “as may be

necessary to protect the national security interests of the United States ....” CERCLA §

120(j), 42 U.S.C. § 9620(j). An exemption may not exceed one year, but may be

extended for up to one year at a time upon the President’s issuance of a new order. “It is

the intention of Congress that whenever an exemption is issued under this paragraph the

response action shall proceed as expeditiously as practicable.” Id.

Noise Control Act

Section 4 of this act (42 U.S.C. § 4903) says that each federal agency shall comply

with “all Federal, State, interstate, and local requirements respecting control and

abatement of environmental noise to the same extent that any person is subject to such

requirements.”

The President may exempt any single activity or facility, including noise emission

sources or classes thereof, of any executive-branch agency if he determines it to be “in the

paramount interest of the United States.” No exemption may be granted from noise

emission standards mandated under specified sections of the act, but this does not apply

to aircraft and “any military weapons or equipment which are designed for combat use.”

An exemption may not exceed one year, but additional exemptions may be granted for not

to exceed one year upon the President’s making a new determination.

Other, Non-pollution Control Statutes

Non-pollution-control statutes often mentioned in the debate over broadening the

available military exemptions in environmental statutes include the National

Environmental Policy Act and the Endangered Species Act. The Migratory Bird Treaty

Act, addressed in several pending military-exemption bills, is not listed here because it

neither explicitly addresses its applicability to federal activities, nor has generated a

consistent body of case law on the issue.1

The National Environmental Policy Act (NEPA) requires each federal agency to,

among other things, prepare an environmental impact statement (EIS) on “major Federal

actions significantly affecting the quality of the human environment.” NEPA §

102(2)(C); 42 U.S.C. § 4332(2)(C). The case law rejects any broad, general exemption

1

For more extended discussion of the military applicability of certain non-pollution-control

statutes, see (name redacted), The Endangered Species Act, Migratory Bird Treaty Act, and

Department of Defense Readiness Activities: Current Law and Legislative Proposals, CRS

Report RL31415 (updated May 17, 2002).

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from this or other NEPA requirement simply because an action is taken in the interest of

national defense or security. See, e.g., Concerned About Trident v. Rumsfeld, 555 F.2d

817 (D.C. Cir. 1977); Weinberger v. Catholic Action of Hawaii, 454 U.S. 139 (1981)

(rejected implicitly).

Case law does recognize, however, that the importance of national defense and

security needs may affect the remedy granted by a court should a NEPA violation be

found. Thus, while holding that a proposed underground nuclear test was subject to

NEPA, the D.C. Circuit declined in the interest of national security and foreign policy to

grant an injunction despite serious questions as to the adequacy of the EIS. Committee

for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 796 (D.C. Cir. 1971).

Case law also recognizes that the Freedom of Information Act (FOIA, 5 U.S.C. §

552), stated by NEPA to govern the public disclosure of EISs, may in some instances

shield national defense activities from judicial review for NEPA compliance when

FOIA’s national security exemption applies. Weinberger v. Catholic Action of Hawaii,

454 U.S. 139 (1981). (FOIA’s national security exemption, 5 U.S.C. § 552(b)(1), makes

the Act’s public disclosure mandate inapplicable to “matters that are ... specifically

authorized under criteria established by an Executive order to be kept secret in the interest

of national defense or foreign policy and ... are in fact properly classified pursuant to such

Executive order ....”).

Of similar import are regulations of the Council on

Environmental Quality stating that environmental assessments and EISs addressing

classified proposals (defined as in the FOIA national security exemption) may be

restricted from public dissemination. 40 C.F.R. § 1507.3(c).

Finally, Council on Environmental Quality regulations relax NEPA requirements for

“emergency circumstances.” Where such circumstances necessitate taking a federal

agency action having significant environmental impact without following the Council’s

regulations, the agency “should consult with the Council about alternative arrangements.”

40 C.F.R. § 1506.11.

The Endangered Species Act makes it unlawful for any “person” – defined to

include federal agencies – to “take” any fish or wildlife species listed as endangered. ESA

§ 9(a)(1), 16 U.S.C. § 1538(a)(1) (prohibition); ESA § 3(13), 16 U.S.C. § 1532(13)

(definition of “person”). “Take,” says the Act, means to harass, harm, wound, kill, or the

like. ESA § 3(19), 16 U.S.C. § 1532(19).

In addition, each federal agency must insure that its actions are “not likely to

jeopardize the continued existence of any endangered species or threatened species or

result in the destruction or adverse modification of [designated critical] habitat ....” ESA

§ 7(a)(2), 16 U.S.C. § 1536(a)(2).

Two exemption processes are set out in the Act. First, if, after consultation with the

Secretary of Interior or Commerce (as appropriate), that Secretary concludes that the

taking of an endangered or threatened species incidental to the agency action will not

violate section the 7(a)(2) strictures against jeopardizing listed species, the action may

proceed. (The Secretary’s favorable opinion constitutes as well compliance by the

agency with the “incidental take” exception to the ESA section 9 prohibitions above.)

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If, however, the Secretary’s opinion indicates that the proposed agency action would

violate section 7(a)(2), then a second exemption process comes into play. In this

circumstance, the federal agency may apply to the appropriate Secretary to exempt its

proposed action. ESA § 7(g), 16 U.S.C. § 1536(g). The Secretary then must submit a

report to an “Endangered Species Committee” (popularly known as the “God Squad”)

discussing the availability of alternatives to the agency action, its benefits compared with

alternative courses of action consistent with section 7(a)(2), whether the action is in the

public interest and of regional or national significance, etc. Within 30 days after receiving

the report, the Committee must decide whether to grant the exemption. Important here,

“the Committee shall grant an exemption for any agency action if the Secretary of

Defense finds that such exemption is necessary for reasons of national security.” ESA §

7(j), 16 U.S.C. § 1536(j) (emphasis added).

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