Pentagon Is Pressing to Bypass Environmental Laws for War Games and Arms Testing

By FELICITY BARRINGER

New York Times

December 28, 2004

WASHINGTON, Dec. 27 - The Defense Department, which controls 28 million acres of land across the nation that it uses for combat exercises and weapons testing, has been moving on a variety of fronts to reduce requirements that it safeguard the environment on that land.

In Congress, the Pentagon has won exemptions in the last two years from parts of the Endangered Species Act and the Marine Mammal Protection Act. It has sought in recent years to exempt military activities, for three years, from compliance with parts of the Clean Air Act.

Also, the Pentagon, which controls about 140 of the 1,240 toxic Superfund sites around the country, is seeking partial exemptions from two laws governing toxic waste. And two months ago, it drafted revisions to a 1996 directive built on a pledge "to display environmental security leadership within Department of Defense activities worldwide."

The draft revisions eliminate the reference to environmental security, and emphasize instead that it is the Pentagon's role to sustain the national defense mission. Potential risks to the environment and worker safety, it says, should be addressed as part of a larger effort to manage risks, save money and preserve readiness.

The Pentagon's enthusiasm for the environmental ethos has waxed and waned over the past 15 years, as it has grappled with its roles as one of the country's longest-standing industrial polluters and conservator of some of the nation's most ecologically sensitive land.

It has spent more than $25 billion since 1985 on a program to clean up active and closed military bases, but at the same time has continued to generate pollution. Toxic residues like perchlorate, a component of rocket fuel, have been found in the Colorado River and in ground water in some states.

In addition, the Congressional appropriations for cleanups under the department's environmental restoration program, which usually hew to the department's budget requests, have been largely unchanged in recent years but slightly lower overall than in the Clinton administration, even as estimates for cleanups at closed military bases have far exceeded current spending.

The 1996 directive was produced under the Clinton administration, at a time of heightened concern over environmental issues. It was unclear when the revised draft directive might go into effect.

But the copy made available on the Web site of an environmental group made it clear that it represented a fundamentally different philosophy. Kyla Bennett, leader of the New England chapter of Public Employees for Environmental Responsibility, which released the directive, said the draft policy "says, 'We'll do whatever we have to do under the cloak of readiness and national security.' " Ms. Bennett added, "It's discouraging to me that the Department of Defense uses the terrorist attacks as a cloak to excuse themselves from environmental laws."

In a telephone interview last week, Pentagon officials would not comment on the draft directive nor predict whether the department would renew its push for legislation exempting the agency from some Clean Air Act and toxic waste disposal requirements.

But these officials said that without changes in the laws, they feared that if they tried to redeploy fighter jets, they might find themselves required to adopt burdensome environmental controls. This could happen if the areas where the jet squadrons were being sent were already in violation of Clean Air Act standards, and locating the squadrons there would add to the pollution.

The officials, including two of the department's senior environmental officials, said that they feared a wave of lawsuits to block munitions testing that could rely on the Superfund law or a second law on toxic materials, the Resource Conservation and Recovery Act, to argue that live-fire training was a waste management activity subject to environmental controls.

Benedict S. Cohen, a deputy general counsel at the Pentagon, said in an interview on Thursday, "The department felt it was appropriate, rather than to wait for a range to be shut down by a court injunction, to warn Congress that this problem is looming" and seek exemptions from the laws.

Two lawsuits, one seeking to prevent live-fire exercises at a Navy bombing range at Vieques Island, off Puerto Rico, and the other seeking protections from artillery for a marsh - home to migratory birds - bordering on Fort Richardson, Alaska, have relied on the two toxic waste laws.

The Army settled the lawsuit involving Fort Richardson in October, promising to restrict firing during twice-yearly bird migrations and while cleanup activities were under way in the marsh. It also agreed to monitoring to determine if toxic constituents of explosives were seeping into water beyond the base.

The Vieques lawsuit was rendered moot when the Navy closed the bombing range.

"Our concern was that there is no distinction in principle between activities taking place at Vieques and Richardson and efforts taking place all over the country at our installations," Mr. Cohen said. "There's nothing unique about military tests and training."

If, he said, a precedent had been set that these activities were subject to control under the two toxic waste laws, "it would have been extraordinarily difficult to defeat such litigation anywhere in the United States."

But the opposition of Democrats in Congress, along with some moderate Republicans, has thus far bottled up the legislation providing the Pentagon exemptions from the toxic waste laws and extending by three years the requirement to comply with some Clean Air Act provisions. If the legislative effort is renewed, two House Democratic staff members said, the opposition will remain intense.

"These exemptions are part of a much broader pattern going on from D.O.D., a huge retrograde pattern," said a Democratic staff member who requested anonymity because the ranking Democratic member, Representative John D. Dingell of Michigan, had instructed the staff to do so. Among other things, he said, the Pentagon has, in the past four years, added almost no sites to the Superfund list of toxic waste areas that must be cleaned up, reversing the trend established during three previous administrations.

"The whole thrust of these exemptions," the staff member added, "is to remove any kind of independent authority from the states, Environmental Protection Agency, water authority or from a citizen suit that would get them to sample, identify and clean up the contamination."

A former Pentagon official who served in a Democratic administration and requested anonymity because of current job concerns said that the department's actions had sent a signal "that the Defense Department is less interested in environmental leadership and isn't working as hard as I think it could" to engage states, local communities and others with a stake in environmental compliance and cleanup. The laws from which the department seeks exemption, the former official said, already contain waivers for national emergencies.

In response, Glenn Flood, a department spokesman, said in an e-mail message, "Asking the president to grant an exemption every time the military needs to train is not practical."