[CPEO-MEF] The Need for Debate over "RRPI"

[Lenny Siegel <lsiegel@cpeo.org>]

The Defense Department's proposed Readiness and Range Preservation
Initiative (RRPI), as transmitted to Congress on April 19, 2002, raises
provocative questions. I believe that two of the specific proposals are
mature enough to merit passage this year after careful, detailed review.
But the others should be subject to open, substantive debate, which
means that they should not be enacted as part of this year's Defense
Authorization Act, if ever in their present form.

In support of its legislative package, the Pentagon is trumpeting its
environmental success stories. And those success stories deserve
recognition. But there have also been horror stories, in which the
natural environment or surrounding communities have suffered due to
neglect or mismanagement. In my opinion, the military's environmental
performance is best when it is subject to external regulation. In fact,
some of those success stories, such as the creation of buffer zones at
Ft. Bragg, North Carolina, followed directly from litigation and regulation.

The Defense Department is repeating its need to train as it fights.
That's a reasonable goal, in the absence of other reasonable
requirements. In reality, economics, troop safety, the environment, and
international law all have long constrained training and other readiness activities.

The Defense Department warns that the unconventional wars we now expect
will require new tactics, capabilities, and ways of thinking. I agree.
One likely need will be to exercise military force while minimizing the
impact on civilian populations and structures, agricultural production,
and natural resources. That is, in future conflicts, it may serve
national security to for troops to "leave only footprints" as they
prepare for battle. Training as we will have to fight may actually
require learning better how to protect the environment and to avoid
impacts on nearby populations.

Both sections 2020 and 2021 of the proposed Readiness and Range
Preservation Initiative would provide authority to the Defense
Department to create buffer zones or conservation zones. The first would
encourage agreements with private organizations; the second would
promote property conveyance for resource conservation purposes. In
concept, these are no-brainers: win-win situations. The military would
benefit. Surrounding communities, including private landowners, would
benefit. Natural habitat would benefit. Still, I don't suggest simply
rubber-stamping the language. These areas of law, particularly surplus
property disposal, are notoriously complicated. Experts from local
government, environmental organizations, tribes, and states need the
time to conduct careful reviews - so it won't be necessary to revise the
language next year to achieve common objectives.

I am less enthused about Section 2019, which would create new
definitions to limit the applicability of RCRA (the Resource
Conservation and Recovery Act) and CERCLA (the Comprehensive
Environmental Response, Compensation, and Liability Act to "operational
ranges." Unfortunately, I'm not sure I've ever seen a statutory
definition of "operational range." More important, within the last
several months I've visited ranges, such as the Makua Military
Reservation (Hawai'i) and the Jefferson Proving Ground (Indiana), both
of which contain operational ranges, where the military has not
adequately characterized likely toxic contamination. This new proposal
would eliminate any external requirement to conduct such studies. Yet I
don't know of a location where the military has been prevented from
conducting live-fire training or testing because of these two statutes.

Section 2018 deals with air quality issues, but as far as I can tell
it's designed primarily to ease the realignment - that is the transfer -
of military units into areas with air quality problems. It appears
written to reduce the states' ability to govern such realignments, and
that makes me nervous. Recent history shows that even the most "hawkish"
communities and states don't want the military to have a blank check
when it comes to locating noisy, polluting aircraft and other vehicles.
I'm not necessarily against changing these laws, but  I don't see the
urgency. These issues should be addressed in a review of the Clean Air
Act or even laws designed to promote Base Realignment and Closure.

Finally, Section 2017 would amend three laws designed to protect species
and habitat: The Endangered Species Act, the Migratory Bird Treaty Act,
and the Marine Mammal Protection Act. In some ways, this is the most
difficult set of issues to resolve, because there are clear instances
where habitat protection interferes significantly with training. While
it is sometimes possible to "work around" restrictions to achieve
readiness objectives, the Defense Department argues that the process is
difficult, costly, and time-consuming.

Unfortunately, the Pentagon's solution goes too far. In many cases, the
Defense Department would no longer be subject to serious external
regulation, universally, under these statutes. Third parties - such as
environmental organizations - would no longer be able to turn to the
courts to insist that habitat be preserved. The proposed changes would
set a precedent for unraveling similar protections at private sites.

Something needs to be done to balance better habitat protection and
national security, but I fear that the currently proposed changes would
give the Defense Department the unilateral authority to harm the
environment. For example, the military points out that current
environmental litigation is likely, without a change in law, to prevent
the Navy from bombing Farallon de Medellina, a migratory-bird-occupied
rock in the Northern Marianas. But the proposed change in law would
allow the military to decide that it's necessary to destroy otherwise
protected migratory bird habitat, anywhere.

As I've been saying for more than a year, the tension between readiness
and environmental protection raises complex questions. But thus far
there has been no informed public debate. There have been Congressional
hearings, in which all those testifying represented the Defense
Department, or most recently, other federal agencies. Within the
executive branch, the Defense Department has had intensive discussions
with EPA, the Interior Department, and other federal agencies.

But debate within the Executive Branch - under our Constitution - is no
substitute for debate within the Legislative Branch. Controversial
proposals of this significance - and thus far I have seen no suggestion
that sections 2020 and 2021 are controversial - should not move forward
as last minute submissions to the Defense Authorization Act. Congress
should not only hold balanced hearings on these subjects, but - as we
have proposed many times - it should direct the Executive Branch to
organize and support a far-reaching dialogue to come up with
constructive solutions to the very real problems that our nation's
military is having with both encroachment and environmental protection laws.


-- 


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: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

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