[CPEO-MEF] House Proposal, National Security Amendment to NEPA.

[Aimee Houghton <aimeeh@cpeo.org>]

[Following is an analysis we received of Section 312 of the House Defense
Authorization Act.
--Aimee]

The House version of the '02 Def Authorization bill (see below) contains
a
proposal to amend NEPA by requiring SecDef to include a detailed
evaluation
of the impacts on national security in any EIS or EA where SecDef or
the
Department is the preparer or a cooperating agency. The authors of
this
legislation should be complimented for crafting such a broad waiver of
the
sovereign immunity of the United States for national security
matters.
Without this legislation, efforts to obtain judicial review of the
national
security implications of DoD activities would be difficult. The
foreign
affairs and national defense authority committed to the President and
the
Executive Branch by the Constitution create strong separation of powers
and
deference arguments in favor of judicial restraint in considering
such
cases. But of equal value in the defense of a judicial attack on
national
security activities is the lack of a waiver of the sovereign immunity of
the
United States , a position frequently and successfully asserted by DoJ
on
behalf of SecDef.

This legislative proposal, however, will open the door to judicial
challenges, because the SecDef , if this passes, will have the
affirmative
obligation to address, in detail, the impact on readiness, training,
testing
and operations of the proposed action and each alternative. A failure to
do
so or an allegation that it was not performed in sufficient detail ,
under
well established interpretations of the Administrative Procedures Act
(APA),
will be reviewable in a federal court. The APA is a waiver of the
sovereign
immunity of the United States. By attaching this provision to the
requirements of NEPA, Congress will give courts more authority to
review
national security activities than presently exists. While I would expect
the
deference argument to dictate the results of most challenges, the
mere
spectre of judicial consideration of the adequacy of the 
Secretary's
"detailed evaluation" should cause the national defense
establishment to
hesitate giving support to this initiative. The time and expense to
perform
the evaluation, the risk of exposure of classified information and
the
potential for mischief by those who would disrupt our military's
capabilities are too great to allow this legislation to be given
serious
consideration. Kill it and let's get on with the important business
facing
our nation.

Barry Steinberg
********************************************************************************************

SEC. 312. NATIONAL SECURITY IMPACT STATEMENTS. 
(a) EVALUATION OF NATIONAL SECURITY IMPACTS REQUIRED.--(1) Chapter 160
of
title 10, United States Code, is amended by inserting after section 2710,
as
added by section 311, the following new section:``§2711.
Environmental
impact statements and environmental assessments: evaluation of
national
security impacts of proposed action and alternatives 
``(a) AGENCY ACTION.--Whenever an environmental impact statement or
environmental assessment is required under section 102 of the
National
Environmental Policy Act of 1969 (42 U.S.C. 4332) to be prepared in
connection with a proposed Department of Defense action, the Secretary
of
Defense shall include as a part of the environmental impact statement
or
environmental assessment a detailed evaluation of the impact of the
proposed
action, and each alternative to the proposed action considered in
the
statement or assessment, on national security, including the
readiness,
training, testing, and operations of the armed forces. 
``(b) AGENCY INPUT.--The Secretary of Defense shall also include 
the
evaluation required by subsection (a) in any input provided by the
Department of Defense as a cooperating agency to a lead agency preparing
an
environmental impact statement or environmental assessment.''. 
(2) The table of sections at the beginning of such chapter is amended
by
adding at the end the following new item: 
``2711. Environmental impact statements and environmental
assessments:
evaluation of national security impacts of proposed action and
alternatives.''. 
(b) EFFECTIVE DATE.--Section 2711 of title 10, United States Code, as
added
by subsection (a), shall take effect on the date of the enactment of
this
Act and apply with respect to any environmental impact statement or
environmental assessment prepared by the Secretary of Defense that has
not
been released in final form as of that date.

Please note new phone number and address below.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Aimee R. Houghton                                 

Associate Director, CPEO

1101 Connecticut Avenue, NW, Suite 1000

Washington, DC  20036

tel: 202-452-8039; fax: 202-452-8095

Email: aimeeh@cpeo.org

www.cpeo.org

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