2018 SWCS International Annual Conference July 29-August 1, 2018 Albuquerque Convention Center

1. MILITARY EXEMPTIONS
FROM ENVIRONMENTAL
LAW AND PERMITS
DR. KURT W. SMITH
METHODIST UNIVERSITY
2018

2. A MODERN DAY CONFLICT
▸ Increase in environmental legislation since the 1970’s
▸ Increase in national security since events of 9/11
▸ Conflict between DOD and need for environmental regulation
▸ DOD’s current clean-up program includes nearly 28,000 currently or
formerly contaminated sites in the U.S. and even other countries
▸ California alone has 3,912 contaminated sites on 441 current and
former DOD properties
▸ When in International Waters, or operating overseas, US
Environmental Laws are not in force.

3. PERMITS PERMITS PERMITS
Our society, economy, and our environmental resources
are now inextricably linked together in a system of permits
designed to balance the interests and need of man, society,
and the economy.
How did we get here?
Everything we do involves laws, permits, regulation, all
designed to help up live better, smarter, more sustainably
Rivers and Harbors Act 1899- First permit system, and
radical environmental law.

4. HOW BIG IS OUR MILITARY?

5. HOW BIG IS THAT?
▸Only 24 countries out of 188 have a higher
GDP then the US Military
▸His makes them a huge player on the world
stage and their use and impact on the
environment

6. CLEAN WATER
ACT
‣ What is the purpose?
‣ The stated objective of the Clean Water Act is to restore
and maintain the chemical, physical, and biological
integrity of the Nation’s waters.
‣ What is the scope?
‣ All point sources that discharge any pollutants into the
waters of the United States must first obtain a permit
under the Act.
‣ Who implements the program?
‣ the EPA
‣ With EPA approval, states can issue NPDES permits
within the state. The EPA can revoke a state’s permitting
authority if the program is not as stringent as the federal
program.
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7. CLEAN AIR
ACTGENERAL AND INDIVIDUAL PERMIT
SYSTEM TIED TO THIS LAW (SIP’S)
• What is the purpose?
– To control air pollution by instituting point source controls and
establishing maximum pollutant levels for the ambient air.
• Who implements the program?
– The EPA must establish national ambient air quality
standards (NAAQS) for criteria pollutants: total suspended
particulates, sulfur dioxide, nitrogen oxides, carbon
monoxide, ozone, and lead.
MILITARY EXEMPTIONS:
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8. EXEMPTIONS
▸President may exempt any executive branch emission source if he
determines it to be “in the paramount interest of the United States”
▸Exemption may not exceed one year (2 years for hazardous-
emissions exemptions), but may be extended for up to one year at a
time (2 years at a time for hazardous-emissions exceptions) upon the
President’s making a new determination
▸CAA: exemption from the hazardous emissions section of the act
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”
▸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 from the CAA or CWA

9. EXEPTIONS CONT.
▸“Military tactical vehicles” do not need to comply with vehicle
emission inspection and maintenance programs
▸Passenger vehicles and heavy-duty trucks are the main
sources of ozone, particulate matter, and other smog-
forming emissions
▸In 2013, transportation contributed to more than half of the
carbon monoxide and nitrogen oxides, and almost a
quarter of the hydrocarbons emitted into our air.

10. ENDANGERED SPECIES ACT- 1973
CAN STOP A PERMITTED ACTION
FROM HAPPENING
• The ESA forbids federal agencies from authorizing,
funding or carrying out actions which may
"jeopardize the continued existence of" an
endangered or threatened species. Once a species is
listed as threatened or endangered, the ESA prohibits
carrying out any action which "destroys or adversely
modifies" critical habitat.
MILITARY EXEMPTIONS

11. ENDANGERED SPECIES ACT (ESA)
▸Two exemption processes
▸If, after consultation with the Secretary of Interior or Commerce, the Secretary
concludes that the taking of an endangered or threatened species will not violate
section the 7(a)(2) strictures against jeopardizing listed species, the action may
proceed
▸If the Secretary decides action would violate section 7(a)(2), federal agency may
apply to appropriate Secretary to exempt its proposed action
▸Secretary submits a report to an “Endangered Species Committee” discussing
“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.”
▸Committee will grant an exemption for any agency action if the Secretary of
Defense finds that the exemption is necessary for national security

12. WINTER VS. NRDC: NAVY SONAR AND
WHALES
▸Navy conducting series of training using mid-frequency active sonar (MFA) to detect
near-silent diesel-electric submarines off coast of southern California
▸Plaintiff sought action under ESA, NEPA and CZMA
▸Use of waters off the coast of southern California by a large number of marine
mammals
▸ Stranding of whales in other parts of the world, such as the Bahamas, that were
linked to MFA sonar use
▸Navy’s prediction in its environmental analysis that 170,000 instances of varying
degrees of harm may occur to marine mammals during the planned training
exercises
▸Waters off southern California have unique training for its sailors
▸diesel-electric submarines operated by hostile countries are the biggest threat to
naval forces, and training with MFA sonar to detect these threats is essential
▸Planned exercises provide the only opportunity for naval forces to train as an
integrated team prior to deployment

13. RESULTS OF LITIGATION
▸ The federal district court in California found that the plaintiffs had a
probability of success on their NEPA and CZMA claims, that there
was a possibility of irreparable harm to marine mammals, and that
this harm outweighed the benefit of further training. On this basis,
the district court issued a preliminary injunction that prohibited the
Navy from engaging in the challenged exercises.
▸ The Navy filed an emergency appeal with the Ninth Circuit Court of
Appeals, which held that the district court’s total injunction against
the use of MFA sonar was not narrowly tailored and failed to take
into account the public’s interest in national security.
▸ While the case was being appealed to the Ninth Circuit, Present
George W. Bush exempted the training exercises from the
requirements of the CZMA pursuant to statutory authority, finding
that it “is in the paramount interest of the United States” that these
exercises occur unimpeded

14. SUPREME COURT DECISION
▸In a majority opinion written by Chief Justice Roberts, the
Supreme Court held that the lower courts had both
misapplied the law and improperly weighed the costs and
benefits of the naval training exercises in issuing a
preliminary injunction and imposing conditions on the
challenged training exercises.
▸ The US Supreme Court held that the lower courts abused
their discretion in imposing conditions on the Navy’s training,
and it vacated the preliminary injunction to allow exercises to
proceed.

15. MORE EXEMPTIONS FOR MILITARY?
▸DOD insists on expanding exemptions from environmental legislation for
military
▸DOD has cited instances of training restrictions or delays at certain
installations, but does not comprehensively track cases and assess impact
on readiness
▸GAO found that DOD’s readiness reports did not indicate the extent to
which environmental requirements restrict training activities
▸GAO found in another report that environmental restrictions are one of
several factors, including urban growth, that can affect DOD’s ability to
carry out training activities

16. National Environmental
Policy Act of 1969
Forces Compliance with a host of Environmental Permits
governing air, water, wildlife, cultural and historic concerns.
 Declare a NATIONAL POLICY which will
encourage productive and enjoyable harmony
between man and his environment to…
prevent or eliminate damage to the environment
stimulate the health and welfare of man
enrich the understanding of ecological systems
and the natural resources important to the nation
CATEGORICAL EXCLUSIONS: MILITARY

17. NATIONAL ENVIRONMENTAL POLICY ACT
(NEPA)
▸Does not contain a specific national security exemption for
its requirement to prepare an EIS for "major federal actions
significantly affecting the quality of the human environment”
▸Government shall "use all practicable means, consistent with
other essential considerations of national policy" to comply
with NEPA
▸Only requires that federal agencies conduct environmental
reviews "to the fullest extent possible”

18. CATEGORICAL EXCLUSIONS NEPA
▸Categorical Exclusion’s: The CEQ and NEPA give federal
agencies some authority and discretion to determine which
of there activities should be excluded form NEPA. The courts
generally have accepted agency list of activities eligible for
categorical exclusion.
▸National Defense Authorization Act (certain programs)
▸Defense Production Act (synthetic fuels production)

19. CHECKS AND BALANCES
▸Exemptions emplaced by the President may only be granted for a specific
activity, specified length of time, and are subject to judicial review
▸Includes President Bush’s Executive Order 13,235.57 on November
16, 2001: If the President declares that there is a national emergency,
or if there is a declaration of war, the Secretary of Defense, "without
regard to any other provision of law," can undertake military
construction projects required to support the use of the armed forces
▸Most require that the President inform Congress in some way about the
exemptions he has granted

20. REFERENCES
▸Babcock, Hope M. “National Security and Environmental Laws: A Clear and
Present Danger?” Virginia Environmental Law Journal, vol. 25, no. 105, ser.
150-156, 2007, pp. 106–155. 150-156.
▸Bearden, David M. “Exemptions from Environmental Law for the Department
of Defense: Background and Issues for Congress.” CRS Report for
Congress, 15 May 2007.
▸Meltz, Robert. “Exemptions for Military Activities in Federal Environmental
Laws.” CRS Report for Congress.
▸“Vehicles, Air Pollution, and Human Health.” Union of Concerned Scientists
▸“Winter v. NRDC: Navy Sonar and Whales.” Justice.gov, The United States
Department of Justice, 15 May 2015.