Exemptions from Environmental Law for the Department of Defense: Background and Issues for Congress
Exemptions from Environmental Law for the
Department of Defense (DOD)
David M. Bearden
Specialist in Environmental Policy
Resources, Science, and Industry Division
Summary
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 theth
Migratory Bird Treaty Act, and the 108 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.
Introduction
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 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
1 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.
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.
Impact of Environmental Requirements on Readiness
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 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.
2 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.
3 GAO, Military Training: DOD Lacks a Comprehensive Plan to Manage Encroachment on
Training Ranges, GAO-02-614, June 2002.
4 GAO, Military Training: DOD Approach to Managing Encroachment on Training Ranges Still
Evolving, GAO-03-621T, April 2003.
5 DOD, Office of the Secretary of Defense, Under Secretary of Defense for Personnel and
Readiness, Report to Congress on Sustainable Ranges, July 2007.
Exemptions Enacted in the 107th and 108th Congresses
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.
Migratory Bird Treaty Act. 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.
Endangered Species Act. 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 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.
Marine Mammal Protection Act. Section 319 of P.L. 108-136 authorized a
broad exemption from the Marine Mammal Protection Act for “national defense” that the
6 191 F. Supp. 2d 161 (D. D.C. 2002).
7 72 Federal Register 8931.
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.
Past Administration Proposals
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.
8 NRDC v. Evans, 232 F.Supp. 2d. 1003, 1055 (N.D. Cal. 2002).
Solid Waste Disposal Act and CERCLA. 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.
Clean Air Act. 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 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.
9 40 C.F.R. Part 266, Subpart M, Military Munitions Rule.