Exemptions from Environmental Law for the Department of Defense (DOD)

Congressional research reportMay 1, 2008

Ask Donna

What actually matters in this document.

Text

¡ȱȱȱ ȱȱȱ

ȱȱȱǻǼȱ

ȱǯȱȱ

ȱȱȱ¢ȱ

¢ȱŗǰȱŘŖŖŞȱ

ȱȱȱ

ŝȬśŝŖŖȱ

ǯǯȱ

ŘŘŗŚşȱ

ȱȱȱ

Prepared for Members and Committees of Congress

¡ȱȱȱ ȱȱȱȱȱȱǻǼȱ

¢ȱ

Whether broader exemptions from federal environmental laws are needed to preserve military

readiness has been an issue. Questions have been raised as to whether environmental

requirements have limited military training activities to the point that readiness would be

compromised. The potential impacts of broader exemptions on environmental quality have raised

additional questions. Although certain exemptions the Department of Defense (DOD) first

requested in FY2003 have been enacted into law, Congress has opposed others. The 107th

Congress enacted an exemption from the Migratory Bird Treaty Act, and the 108th Congress

enacted exemptions from the Marine Mammal Protection Act and from designation of military

lands as critical habitat under the Endangered Species Act, if certain conditions are satisfied. In

Administration defense authorization proposals from FY2003 through FY2008, DOD also

requested exemptions from the Clean Air Act, Solid Waste Disposal Act, and Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA). To date, Congress has not

enacted these three latter exemptions. Some Members have noted their concern about the

potential impacts of these exemptions on human health and the environment. The

Administration’s FY2009 defense authorization bill (H.R. 5658 and S. 2787, introduced by

request) does not include these exemptions.

ȱȱȱ

¡ȱȱȱ ȱȱȱȱȱȱǻǼȱ

Introduction ..................................................................................................................................... 1

Impact of Environmental Requirements on Readiness.................................................................... 2

Exemptions Enacted in the 107th and 108th Congresses .................................................................. 3

Migratory Bird Treaty Act......................................................................................................... 3

Endangered Species Act............................................................................................................ 3

Marine Mammal Protection Act................................................................................................ 4

Past Administration Proposals......................................................................................................... 5

Solid Waste Disposal Act and CERCLA................................................................................... 5

Clean Air Act............................................................................................................................. 5

Author Contact Information ............................................................................................................ 6

ȱȱȱ

¡ȱȱȱ ȱȱȱȱȱȱǻǼȱ

Over time, Congress has included exemptions in many federal environmental laws to ensure that

requirements of those statutes would not restrict military training to the point that national

security would be compromised. These exemptions provide authority for suspending compliance

requirements for actions at federal facilities on a case-by-case basis. Some exemptions are

specific to military installations, rather than all federal facilities. Most of the exemptions only can

be granted by the President, rather than by the head of the department or agency that administers

the activity in question. Further, most of the exemptions are authorized for activities that are in

the “paramount interest of the United States,” whereas some are specifically for national security

or national defense. None of the statutory authorities for these exemptions provide criteria for

determining whether an activity meets these thresholds. Depending on the statute, the President,

or other authorized decision-maker, has the discretion to make this determination. Most of the

exemptions are limited to one or two years, but can be renewed.1

Whether broader exemptions are needed to ensure military readiness has been subject to much

debate. The Department of Defense (DOD) argues that obtaining exemptions on a case-by-case

basis is onerous because of the vast number of training exercises it routinely conducts on

hundreds of military installations. DOD also argues that the time limits placed on most

exemptions are not compatible with ongoing or recurring training activities. Instead, DOD has

sought broader exemptions from certain requirements that it argues could restrict or delay

training. In FY2003, DOD issued a Readiness and Range Preservation Initiative, requesting

certain exemptions from six environmental laws: Migratory Bird Treaty Act, Endangered Species

Act, Marine Mammal Protection Act, Clean Air Act, Solid Waste Disposal Act, and CERCLA.

DOD’s request for broader exemptions has been contentious in Congress. Some Members have

asserted that such exemptions are necessary to provide greater flexibility for combat training and

other readiness activities. Other Members, states, environmental organizations, and communities

have opposed broader exemptions, raising questions about the degree to which environmental

requirements have compromised readiness overall. They have argued that expanding exemption

authority without a clear national security need could unnecessarily weaken environmental

protection.

In response to DOD’s request, the 107th Congress enacted an exemption from the Migratory Bird

Treaty Act, and the 108th Congress enacted exemptions from the Marine Mammal Protection Act

and from designation of military lands as critical habitat under the Endangered Species Act, if

certain conditions are satisfied. These exemptions were contentious among those concerned about

protections for animal and plant species. There has been greater opposition to exemptions DOD

requested from the Clean Air Act, Solid Waste Disposal Act, and CERCLA. Opponents to

exemptions from these latter statutes have expressed concern about human health risks from

Authorities for the President to exempt activities of federal facilities in the paramount interest of the United States are

provided in Coastal Zone Management Act (16 U.S.C. 1456(c)(1)(B)), Clean Air Act (42 U.S.C. 7418(b)), Clean Water

Act (33 U.S.C. 1323(a)), Noise Control Act (42 U.S.C. 4903(b)), Safe Drinking Water Act (42 U.S.C. 300j-6), and

Solid Waste Disposal Act (42 U.S.C. 6961(a)). CERCLA authorizes the President to exempt Department of Defense

(DOD) and Department of Energy (DOE) facilities for purposes of national security (42 U.S.C. 9620(j)). The Marine

Mammal Protection Act authorizes the Secretary of Defense to exempt military actions if the Secretary determines that

such actions are necessary for national defense (16 U.S.C. 1371(f)). The Endangered Species Act (16 U.S.C. 1536(j))

authorizes a special committee to grant an exemption if the Secretary of Defense finds it necessary for national

security.

ȱȱȱ

ŗȱ

¡ȱȱȱ ȱȱȱȱȱȱǻǼȱ

potential exposure to air pollution and hazardous substances. Congress has not enacted these

exemptions to date. DOD requested them in the Administration’s defense authorization proposals

from FY2003 through FY2008. The Administration’s FY2009 defense authorization bill (H.R.

5658 and S. 2787, introduced by request) does not include these exemptions.

Apart from defense authorization legislation, at least one stand-alone bill has been introduced in

the 110th Congress to clarify the degree to which military activities must comply with

environmental requirements. Introduced in the first session, the Military Environmental

Responsibility Act (H.R. 3366) would specify the substantive and procedural requirements to

which DOD and other defense-related agencies are subject. However, the effect of certain

provisions is unclear. Although one provision would appear to prohibit exemptions from

environmental requirements, another provision acknowledges the possibility of future exemptions

and would limit their duration to six months, unless extended by an act of Congress.

The following sections discuss the impact of environmental requirements on military readiness,

broader exemptions Congress has enacted in recent years, and Administration proposals for

additional exemptions from air quality and cleanup requirements.

ȱȱȱȱȱ

Assessing the military need for broader exemptions has been challenging because of the lack of

data confirming whether environmental requirements have impaired military readiness overall. In

its report on the National Defense Authorization Act for FY2008 (H.R. 1585, H.Rept. 110-146),

the House Armed Services Committee noted the “often competing requirements for maintaining

military readiness and protecting the environment.” The committee directed the Government

Accountability Office (GAO) to study the extent to which environmental requirements have

affected military readiness. GAO issued its findings in March 2008, stating that environmental

requirements caused some training activities to be cancelled, delayed, or altered, but GAO noted

that readiness data did not indicate those actions had hampered military readiness overall.2 GAO

issued similar findings in prior work on this issue in 20023 and 2003.4

The committee also directed GAO to examine the effect of military exemptions on the

environment. Based on information from regulatory officials, GAO’s March 2008 report did not

identify any instances in which the use of recent exemptions from the Migratory Bird Treaty Act

and Endangered Species had adversely affected the environment but stated that the effects of

exemptions from the Marine Mammal Protection Act were yet to be determined. GAO also

concluded DOD had not presented a “sound” case for the additional exemptions it has requested

from the Clean Air Act, Solid Waste Disposal Act, and CERCLA. In a July 2007 report to

GAO, Military Training: Compliance with Environmental Laws Affects Some Training Activities, but DOD Has Not

Made a Sound Business Case for Additional Environmental Exemptions, GAO-08-407, March 2008.

GAO, Military Training: DOD Lacks a Comprehensive Plan to Manage Encroachment on Training Ranges, GAO02-614, June 2002.

GAO, Military Training: DOD Approach to Managing Encroachment on Training Ranges Still Evolving, GAO-03621T, April 2003.

ȱȱȱ

Řȱ

¡ȱȱȱ ȱȱȱȱȱȱǻǼȱ

Congress,5 DOD had reiterated its position that additional exemptions from these statutes are

needed but did not demonstrate how requirements of these statutes had affected readiness.

¡ȱȱȱȱŗŖŝȱȱŗŖŞȱ

The 107th Congress enacted an exemption for military readiness activities from the Migratory

Bird Treaty Act. The 108th Congress enacted a broad exemption from the Marine Mammal

Protection Act for national defense, and a narrower exemption from designation of military lands

as critical habitat under the Endangered Species Act if certain conditions are satisfied. In the

debate over these exemptions, there was disagreement about the military need for them in light of

the lack of data on the effect of these statutes on readiness overall, and the potential impact of the

exemptions on animal and plant species. These exemptions and their use to date are discussed

below.

¢ȱȱ¢ȱȱ

Section 315 of the National Defense Authorization Act for FY2003 (P.L. 107-314) directed the

Secretary of the Interior to develop regulations to authorize “incidental takings” of migratory

birds during military readiness activities, and authorized a blanket exemption from the Migratory

Bird Treaty Act while these regulations were drafted. Prior to enactment, a U.S. district court had

ruled in 2002 that federal agencies, including DOD, must obtain permits for incidental takings.6

Subsequently, DOD requested an exemption from Congress, arguing that critical training could be

delayed or constrained otherwise. With the authority provided in P.L. 107-314, the Fish and

Wildlife Service finalized regulations on February 28, 2007, broadly authorizing incidental

takings of migratory birds during military readiness activities.7 These regulations allow incidental

takings if DOD implements conservation measures to minimize or mitigate “significant adverse

effects” on migratory bird species. The regulations allow the Secretary of the Interior to suspend

or withdraw the takings authorization for individual activities, if these conditions are not satisfied.

ȱȱȱ

Section 318(a) of the National Defense Authorization Act for FY2004 (P.L. 108-136) authorized

the Secretary of the Interior to exempt military lands from designation as critical habitat under the

Endangered Species Act, if the Secretary determines “in writing” that an Integrated Natural

Resource Management Plan (INRMP) for such lands provides a “benefit” to the species for which

critical habitat is proposed for designation. In many instances, the Fish and Wildlife Service had

allowed these plans to substitute for critical habitat designation. DOD argued that clarification of

the authority for this practice was needed to avoid future designations that in its view could

restrict the use of military lands for training. Section 318(b) also directed the Secretary of the

DOD, Office of the Secretary of Defense, Under Secretary of Defense for Personnel and Readiness, Report to

Congress on Sustainable Ranges, July 2007.

191 F. Supp. 2d 161 (D. D.C. 2002).

72 Federal Register 8931.

ȱȱȱ

řȱ

¡ȱȱȱ ȱȱȱȱȱȱǻǼȱ

Interior to consider impacts on national security when deciding whether to designate critical

habitat. Since the enactment of these provisions, the Fish and Wildlife Service has routinely

excluded military lands from critical habitat designations either because an INRMP was deemed

to offer adequate protection, or because of potential impacts on national security. DOD remains

subject to all other Endangered Species Act protections on its lands, such as the takings

prohibition in Section 9, and consultation requirements in Section 7.

ȱȱȱȱ

Section 319 of P.L. 108-136 authorized a broad exemption from the Marine Mammal Protection

Act for “national defense” that the Secretary of Defense may invoke in consultation with the

Secretary of Commerce, the Secretary of the Interior, or both as appropriate. Section 319 also

amended the definition of “harassment” of marine mammals, as it applies to military readiness

activities, to require greater scientific evidence of harm, and required the consideration of impacts

on military readiness in the issuance of permits for incidental takings. At the time, DOD argued

that these amendments were needed to allow the use of the Navy’s low-frequency active sonar.

Environmental advocates had challenged the use of this type of sonar, arguing that it harmed

marine mammals and thus violated the Marine Mammal Protection Act and other environmental

statutes.8

The Navy’s use of mid-frequency active sonar also has been an issue. Since 2006, the Secretary of

Defense twice has invoked the authority in P.L. 108-136 to exempt the use of mid-frequency

active sonar from the Marine Mammal Protection Act during certain training exercises and

operations. The Secretary invoked the first exemption in June 2006 for six months, and the

second one in January 2007 for two years. The Navy stated that the longer two-year exemption

would allow it to continue critical training while preparing a comprehensive environmental

compliance plan for its ranges and operating areas. In its report on the National Defense

Authorization Act for FY2008 (H.R. 1585, H.Rept. 110-146), the House Armed Services

Committee expressed concern about the exemption. The committee directed the Navy to assess

the increase in military readiness over the two-year period as a result of the exemption, estimate

the number and species of marine mammals injured and killed, and report on its efforts to comply

fully with the Marine Mammal Protection Act upon the expiration of the exemption.

Although the Secretary of Defense has invoked exemptions from the Marine Mammal Protection

Act, environmental organizations have challenged the Navy’s use of mid-frequency active sonar

based on potential violations of other federal statutes, including the Endangered Species Act,

Coastal Zone Management Act, and National Environmental Policy Act (NEPA). In January

2008, President Bush exempted the Navy’s training exercises from the Coastal Zone Management

Act with authorities under that statute to exempt federal actions that are in the “paramount

interest of the United States.” The Council on Environmental Quality (CEQ) also used its

“emergency” regulatory authorities under NEPA to identify alternative arrangements that the

Navy could pursue to allow its training exercises to continue. These actions have been subject to

further legal review and challenge to determine under what conditions the Navy could continue

its training exercises while ensuring adequate protections for marine mammals.

NRDC v. Evans, 232 F.Supp. 2d. 1003, 1055 (N.D. Cal. 2002).

ȱȱȱ

Śȱ

¡ȱȱȱ ȱȱȱȱȱȱǻǼȱ

ȱȱȱ

Although Congress has enacted the above statutory authorities for exemptions from the Migratory

Bird Treaty Act, Endangered Species Act, and the Marine Mammal Protection Act, Congress has

not acted on the exemptions from the Solid Waste Disposal Act, CERCLA, and the Clean Air Act

that DOD has requested. DOD included these three latter exemptions in the Administration’s

defense authorization proposals from FY2003 through FY2008. The Administration’s FY2009

defense authorization bill (H.R. 5658 and S. 2787, introduced by request) does not include these

exemptions. The following sections discuss past Administration proposals and related issues.

ȱȱȱȱȱȱ

DOD had proposed to amend the definition of “solid waste” in the Solid Waste Disposal Act and

“release” (or threatened release) in CERCLA, to exclude military munitions on an operational

range. Opponents asserted that this exemption would have placed military munitions on such

ranges beyond the reach of these two statutes, allowing munitions and resulting contamination to

remain and present potential health risks. As the exemption would no longer have applied once a

range ceased to be operational, it presumably would not have extended to ranges on closed bases

after the land is transferred out of military jurisdiction.

DOD asserted its proposal would have clarified existing regulations that the Environmental

Protection Agency finalized in 1997 with authorities under the Solid Waste Disposal Act.9 For

regulatory purposes, “used or fired” munitions on a range are considered solid waste only when

they are removed from their landing spot. Until DOD removes them and they “become” solid

waste, they are not subject to disposal or cleanup requirements under the Solid Waste Disposal

Act. DOD stated that this clarification was needed in statute to eliminate the possibility of legal

challenges that could require cleanup of a range each time a munition is deposited, which could

make training impractical.

Some Members of Congress, states, and environmental organizations expressed concern that the

proposed amendments could have had broader implications. First, amending the definition of

release would exceed the scope of the above regulations and place military ranges beyond

CERCLA’s reach. Second, such an exemption could result in removing state authority under both

statutes to monitor military ranges to determine whether contamination may migrate off-site and

present a health risk to nearby populations. Further, the proposed language could have

circumvented the authority under both statutes to file citizen suits to compel cleanup of military

ranges.

ȱȱȱ

DOD also had proposed to exempt military readiness activities from air quality “conformity”

requirements for three years. Under current law, emissions must conform to limits in State

Implementation Plans (SIPs) to achieve federal air quality standards, unless offsetting reductions

from other sources are made. DOD asserted that its proposed exemption was needed to allow

more time for military operations transferred to areas with poor air quality to conform to

40 C.F.R. Part 266, Subpart M, Military Munitions Rule.

ȱȱȱ

śȱ

¡ȱȱȱ ȱȱȱȱȱȱǻǼȱ

emissions limits. Although DOD stated that these operations would have had a small, short-term

impact on air quality, some Members of Congress, states, and environmental organizations

questioned whether the emissions would be great enough to present a health risk.

Past proposals also included provisions that would have altered Clean Air Act requirements for

“nonattainment” areas in violation of federal air quality standards. States would have been

required to exclude emissions from military readiness activities in these areas when determining

whether they are in compliance. In effect, states could not have imposed more stringent pollution

control requirements in these areas if the failure to meet air quality standards would have been the

result of emissions from military readiness activities. Some questioned whether these provisions

consequently would have weakened public health protections that federal air quality standards are

intended to provide.

ȱȱ ȱ

(name redacted)

Specialist in Environmental Policy

-redacted-@crs.loc.gov, 7-....

ȱȱȱ

Ŝȱ

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.