[CPEO-MEF] Military Exemptions

[Steve@miltoxproj.org]

Hello all:

I'm very glad that we're actually discussing the issue of federal and 
defense exemptions from environmental, worker protection, and public 
safety laws.  I agree wholeheartedly with James Werner's comments about 
how important it is that we can disagree and discuss on this list serve 
and in this country.

I am disappointed that one response to my posts descended into quite a 
bit of vitriol and insult, and would hope that most of us can maintain a 
higher level of discussion.  There's a big difference between an 
aggressive argument or opinion and statements bordering (or passing the 
border) on personal insult.  I've noticed this same problem in at least 
one other recent discussion on this list.  I've seen a lot of assuming 
recently about what posters know or don't know, or what people's 
motivations are, without any or much basis for those assumptions.  I 
don't think productive debates start from assuming that someone else 
doesn't know what they're talking about unless you've done your own 
homework.  I do appreciate that most of the responses to my posts (both 
public to the list and privately to me) have been polite and to the 
point.

I won't have time for a couple of weeks to address all the specific 
points that have been raised, but I will put down a few quick responses. 
 I will say that I welcome responses and more information.  The issue of 
federal and specifically military exemptions from these laws is a 
complex and critically important issue.  I keep learning more about it, 
and hope others will as well.

There is a report available on MTP's web site at www.miltoxproj.org 
called "Defend Our Health" which discusses several statutes in detail 
and provided the basis for my statement that the military is completely 
or partially exempt from most environmental laws.  Doubtless some will 
find the language and argument in the report offensive.  But there is a 
very detailed discussion of exemptions in the document as well as 
citations.  I would encourage anyone who has assumed that I am not 
familiar with the statutes, the attempts at sovereign immunity waivers 
in some of them, or the issue of Presidential exemptions to read the 
report.  I'm sure there is much experience from people on this list than 
can add to what's there, and again I would welcome more information.

Here are a few quick points:
  a.. Several environmental, worker protection, or public safety laws 
contain attempted waivers of sovereign immunity which are not specific 
or unequivocal enough to stand up in practice.  The fact that a statute 
contains language that seems on its face to make the federal government 
accountable to the law does not mean that in practice the waiver holds 
up completely.  This is true for CERCLA, for example.
  b.. Even if there is a clear and unequivocal wavier of sovereign 
immunity, there may also be specific exemptions for defense activities 
in the statute outside of the general waiver of sovereign immunity or in 
laws without a waiver.  This is an issue in the Noise Act, Oil Pollution 
Act,and statutes governing Naval nuclear reactors.
  c.. In several cases, federal agencies including the Department of 
Defense are required to comply with the provisions of a law but are 
exempt from enforcement actions.  As James pointed out, this is true for 
the Clean Water Act.
  d.. Some laws apply to federal/defense activities only through 
Presidential Executive Order (this is true for OSHA and EPCRA), which 
can be revoked at any time and cannot be enforced in the same manner as 
requirements by statute.
  e.. The "Unitary Executive" doctrine and Executive Orders 12088 and 
12146 inhibits enforcement of several laws against federal agencies in a 
manner not present in the private sector.
  f.. Over and above these issues, under most statutes the President 
always has the authority to exempt agencies from the provisions of the 
law for national security reasons on a temporary basis.
  g.. On CERCLA specifically, there are some key points.  As the 
National Association of Attorneys General has pointed out, the attempted 
sovereign immunity waiver in CERCLA is not clear and unequivocal enough 
and thus does not fully apply in practice.  In addition, DOD has primary 
authority at all their CERCLA sites not on the NPL.  There are other 
problems with CERCLA implementation which are noted in the report and 
have been thoroughly documented by others.  There is great evidence that 
in fact CERCLA cannot be applied to federal/defense sites in the same 
manner as private sector sites.
As noted above, I appreciate the debate as well as more information on 
this issue.  I hope we can keep it vibrant but respectful.

Steve

Steve Taylor
National Organizer
Military Toxics Project
(207) 783-5091 (phone)
(207) 783-5096 (fax)
P.O. Box 558
Lewiston, ME  04243-0558