Re: [CPEO-MEF] Section 1041 "Defense Impact Review"

[Lenny Siegel <lsiegel@cpeo.org>]

[from Robert taylor: <RST195005@aol.com>]

Lenny -- I would like to provide a bit of context to your posting on the
Defense Impact Review, and the substitute created as a drafting service
for the House to replace the provision passed by the House (which, as
you correctly note, would have hampered DoD rather than help it).  The
substitute would have required agencies taking actions that fit into
categories of actions listed by DoD as likely to affect national
defense, or actions that DoD informed the agencies would affect national
defense, to consider the national defense impacts in the agency's
decision-making.  The provision would have created a procedural
requirement -- specifically calling out the agency's obligation to
consider the national defense impacts -- but it would NOT have changed
any substantive provision of law.  Thus, if the underlying environmental
statute required a certain regulatory outcome, the provision the House
argued for in conference would not have changed that outcome, no matter
what the consequences to national defense.  Moreover, even if the agency
action was not required by the underlying statute, but it was
permissible under that statute, the agency would be free to select that
option -- even if it was bad for national defense -- as long as the
agency considered the national defense impacts.  Under existing law and
existing executive orders, the agencies today must consider at least the following:

-- whether the action would have a "significant" regulatory impact,
defined as having an effect on the  national economy of $100 million per
year, and if so to perform a regulatory impact analysis;

-- whether the action would affect environmental justice;

-- whether the action concerns a health or safety risk that has a
disproportionate impact on children;

-- whether the action has federalism implications, in which case early
consultation with state and local officials is required, and the action
generally is not to impose direct compliance costs on State or local
governments unless funded by the Federal Government;

-- whether the action has "tribal implications" in which event
consultation and coordination with Indian Tribal Governments is required;

-- whether the action would significantly affect energy supply,
distribution, or use, in which event those impacts must be carefully considered;

-- whether the action would create an "unfunded mandate" on State and
local governments, in which event an "Unfounded Mandates Analysis" would
be required;

-- whether the action would have a significant economic impact on a
substantial number of small entities, in which event the agency would
have to perform a "Regulatory Flexibility Analysis";

-- whether the action would create an added paperwork burden on the
public; and

-- whether the action is subject to the National Technology Transfer and
Advancement Act.

In this lengthy list -- required for every rule today -- there is no
mention of national defense.  Treating national defense impacts the same
as impacts on the national economy, impacts on Indian Tribes, impacts on
small business, and impacts on State and local governments does not seem
over the top to me.

The reaction from opponents to the proposal was a curious mixture of
"the agencies have to consider all comments already and the proposal
adds nothing," and "singling out national defense would lead to the end
of all life on earth." Which is it -- would the proposal do too much or
nothing at all?  In fact, I believe that the proposal was a modest call
to the agencies to pay attention to the consequences of their actions on
national defense, just as they are specifically called on to pay
attention to the consequences on a host of other national interests.

The best argument against the provision, and the basis for the
Administration's decision not to support the provision, was that the
President already has more than adequate authority to ensure that
executive branch agencies take impact on national defense into account. 
The President should issue an executive order requiring that
consideration -- just as Presidents have done with respect to most of
the requirements I have ticked off above that are applicable to
rulemakings today.

As you know (but others on this listserv might not), I served as the
Deputy General Counsel (Environment and Installations), DoD, for 6 and
1/2 years, ending this past January.

// Robert Taylor



  

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/96I-8918
<lsiegel@cpeo.org>
http://www.cpeo.org