[CPEO-MEF] Group Letter to the House

[CPEO Moderator <cpeo@cpeo.org>]

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American Lung Association * American Oceans Campaign
American Rivers * Center for Biological Diversity
Center for Public Environmental Oversight * Defenders of Wildlife 
Earthjustice * Endangered Species Coalition 
Environmental Defense * Friends of the Earth * Military Toxics Project 
National Audubon Society * National Environmental Trust 
Natural Resources Defense Council * National Wildlife Federation
The Ocean Conservancy * Physicians for Social Responsibility 
Public Employees for Environmental Responsibility * Sierra Club 
* US Public Interest Research Group * The Wilderness Society
World Wildlife Fund   


April 24, 2002

Re:  Environmental Law Exemptions in the Defense Authorization Bill

Dear Representative:

We strongly urge you to oppose any provisions in the Defense 
Authorization Bill that are designed to exempt the Department of Defense 
(DOD) from the Clean Air Act, the Resource Conservation and Recovery 
Act, Superfund (CERCLA), the Endangered Species Act, the Migratory Bird 
Treaty Act, or the Marine Mammal Protection Act.  The American people 
have long supported these important environmental and public health laws 
that already include exemptions to address national security interests.  
Additional exemptions are not necessary.  They would undermine the role 
of states that administer pollution control laws, and local communities 
that are directly impacted by DOD operations.  No federal agency should 
be granted special reprieve from the laws which individuals and 
businesses are required to adhere. 

While we understand the Department of Defense?s need to prepare for 
military action, such as efforts to protect national security, 
additional exemptions are not necessary to accomplish this goal.  Many 
of these laws already have specific provisions that allow requests by 
the Department of Defense for waivers in the interest of national 
security.  For example, section 7(j) of the Endangered Species Act gives 
the Secretary of Defense the authority to secure an exemption from the 
ESA?s provisions whenever the Secretary finds that such an exemption is 
necessary for reasons of national security.  Moreover, Title 10 U.S.C. 
2014 specifically empowers the President to resolve any conflicts 
between the DOD and other executive agencies that effect training or 
readiness.  These waivers should be invoked on a case-by-case basis 
rather than giving the Department of Defense a blanket exemption to 
ignore our laws.  In addition, some of the armed services have already 
shown that much can be done through cooperative efforts with federal 
agencies that protect the environment and public health, to accommodate 
the missions and mandates of both.  

We firmly believe no government agency should be above the law ? 
including the laws that protect the air and water in and around our 
military facilities, the health of the people who live on and nearby 
bases, and America?s wildlife and public lands.  This principle was 
endorsed by the Congress in 1992 when it passed the Federal Facilities 
Compliance Act.  Eliminating environmental and public health protections 
would grant special protections for an agency which contributes 
significantly to the nation?s pollution problems.

The Department of Defense has taken the approach of proposing this 
language in the Defense Authorization bill at the last minute without 
sufficient input from all concerned.  The National Governors? 
Association, the National Association of Attorneys General, the National 
Conference of State Legislatures, community groups and environmental 
organizations were all denied an opportunity to testify at the only 
House Armed Services subcommittee hearing on these broad environmental 
and public health issues.  In addition, these important laws are under 
the jurisdiction of other House committees, including Resources, Energy 
and Commerce, and Transportation and Infrastructure. Any amendments 
should be thoroughly examined by these committees before any changes to 
environmental laws are considered.  

These landmark laws made history by changing the way America cares for 
its environment?dramatic alterations and exemptions must be examined 
thoroughly in a public process where all stakeholders, including 
community groups, environmental organizations, and state interests are 
represented.  We support a process where all stakeholders can work 
together on these issues to develop creative and collaborative 
solutions.

The language proposed by the Defense Department would:

?	Exempt the Department of Defense from government regulation of 
hazardous wastes such as explosives and munitions under the Resources 
Conservation and Recovery Act (RCRA).  This allows DOD to leave toxic 
substances lying on the range where they can leach into groundwater, 
surface waters, or air, posing a risk to public health and environmental 
quality.  With such exemptions the Department of Defense would provide 
its own oversight, taking away virtually all the states? and EPA?s 
authority to oversee clean up of munitions and explosions under RCRA.  
While this language appears to be intentionally broad and vague it could 
potentially block the use of RCRA to issue binding administrative orders 
for investigation and clean up both on and off the range, even if there 
was an imminent and substantial endangerment to human health. 
?	Exempt the Department of Defense from oversight and regulation under 
CERCLA (Superfund) of munitions contamination of groundwater, air, and 
soil at its operational ranges until the contamination migrates 
off-range or the range is permanently closed.  The language would allow 
the DOD to contaminate groundwater to any extent without any independent 
oversight or regulation until the contamination leaves DOD land.  This 
would dramatically increase cleanup costs and needlessly endanger public 
health and safety by postponing any investigation or response until the 
contamination is already significant.
?	Permit the Department of Defense to pollute our air by exempting DOD 
from conforming to federal or state implementation plans for attaining 
public health air quality standards (the National Ambient Air Quality 
Standards, or NAAQS) for any activities.  This means that those living 
in areas with military bases could breathe dirtier air, which could 
result in more premature deaths, asthma attacks, and other adverse 
health and environmental effects.
?	Exempt the Department of Defense from critical habitat designations 
for which an Integrated Natural Resources Management Plan (INRMP) has 
been developed.  Although the US Fish and Wildlife Service (USFWS) has 
excluded some bases from critical habitat designation based on their 
INRMPs, in numerous other critical habitat decisions, USFWS has 
expressly found that INRMPs would not provide adequate protection to 
justify reliance on these plans in lieu of critical habitat designation. 
 With over 300 federally listed species living on DOD lands where in 
many cases these lands are crucial to their survival and recovery, the 
proposed exemption would automatically eliminate a vital protection for 
these species on all military lands. 
?	Allow the Department of Defense to kill migratory birds and destroy 
their nesting areas with a blanket exemption from the Migratory Bird 
Treaty Act as long as DOD characterizes its activities as ?military 
readiness activities.?   DOD could completely eradicate unlimited 
numbers of migratory birds and destroy their nesting areas without any 
assessment of biological impacts, oversight or accountability as long as 
those impacts are not the purpose of the activity.  
?	Allow the Department of Defense to harm marine mammals without review 
by the Fish and Wildlife Service and the National Oceanic and 
Atmospheric Administration by changing the definition of ?harassment,? 
one of the underpinnings of the Marine Mammal Protection Act, to a vague 
and subjective definition.  The proposed change, by increasing the 
threshold necessary to seek a permit for activities that harass a marine 
mammal, is a significant departure from the existing precautionary 
premise of the Act.   The result is likely to ensure more debate, less 
enforcement, less mitigation and monitoring of impacts and less 
transparency.

Our existing laws already provide the proper balance between military 
readiness and environmental protection.  These issues need to be 
addressed under our current laws that already allow consultation and 
involvement from state and local interests.  Broad sweeping exemptions, 
as proposed by the Defense Department, would likely result in 
irreparable harm to public health and the environment.  We urge you to 
contact House Armed Services Committee members and voice your opposition 
to such language, and to oppose any language that grants broad, new 
exemptions to the DOD to avoid complying with environmental and public 
health laws when the bill reaches the House floor.

Sincerely,

Paul G. Billings
Assistant Vice President, Government Relations
American Lung Association
	Barbara Jean Polo
Executive Director
American Oceans Campaign
S. Elizabeth Birnbaum
Director of Government Affairs
American Rivers
	Tryg Sletteland
President
Center for Biological Diversity
Aimee Houghton
Associate Director
Center for Environmental Oversight
	Rodger Schlickeisen
President
Defenders of Wildlife
Vawter Parker
Executive Director
Earthjustice 
	Brock Evans
Executive Director
Endangered Species Coalition
Fred Krupp
Executive Director
Environmental Defense
	Brent Blackwelder
President
Friends of the Earth
Tara Thornton
Executive Director
Military Toxics Project
	Lois Schiffer
Senior Vice President, Public Policy
National Audubon Society
Philip E. Clapp
President
National Environmental Trust	Mark Van Putten
President and CEO
National Wildlife Federation

John H. Adams
President
Natural Resources Defense Council
	Roger T. Rufe, Jr.
Vice Admiral US Coast Guard (RET.)
President, The Ocean Conservancy

Jeff Ruch
Executive Director
Public Employees for Environmental Responsibility	Robert K. Musil
CEO & Executive Director
Physicians for Social Responsibility

Carl Pope
Executive Director
Sierra Club	Gene Karpinski
Executive Director
US Public Interest Research Group

William H. Meadows
President
The Wilderness Society	Randall D. Snodgrass
Director, Government Relations
World Wildlife Fund

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