Chapter 22

Environmental Law in Operations

I.  INTRODUCTION

A.   Environmental law is a complex body of federal and state statutes, regulations, and guidance that is a highly specialized discipline.  Since the typical environmental legal practitioner at a U.S. installation is a civilian, uniformed Judge Advocates (JAs) do not always have the opportunity to engage in this challenging field.  When a unit deploys, however, an understanding of environmental issues may make the difference between the success or failure of a mission.  Protecting the environment and instilling an environmental ethic across the operational spectrum is a major international, U.S., and Department of Defense (DoD) concern.  Failure to do so can jeopardize Soldiers’ health and welfare, impede current and future operations, generate criticism, and create other negative consequences.

B.    Domestic environmental laws generally do not apply to the practice of environmental law outside of the United States.  Nevertheless, U.S. policy imposes a structure that is similar to domestic environmental laws for overseas operations.  This chapter addresses legal environmental considerations during overseas military activities.  The approach can differ based on the location and phase of the operation.  One set of rules applies to established overseas installations, and another set applies to contingency operations.  As units deploy, it is important for the JA to understand the distinction between domestic and international environmental laws, how policy directives interact either in tandem with, or in lieu of, those laws, and how to apply them appropriately.  The source of environmental law at overseas installations is Department of Defense issuances, international agreements, and guidance from the Lead Environmental Component (LEC).

II.  ROLES AND RESPONSIBILITIES

A.   Several different players are involved in overseas environmental matters.  The staff engineer generally takes the lead in planning and executing environmental operations.[1]  The engineer usually chairs the Joint Environmental Management Board (JEMB), if established, to integrate the environmental protection efforts of all participating components under a single authority and to ensure unity of effort for environmental protection activities.[2]

B.    Most established theaters of operation will have a designated lead for environmental matters, known as the Lead Environmental Component (LEC).[3]  The LEC acts as the regulatory authority for DoD operations in the overseas area and is responsible for publishing, interpreting, revalidating, and updating the Final Governing Standards (FGS).[4]  Identifying the LEC, and establishing a communication link with the LEC are key elements to environmental operations.

C.    Judge Advocates.  While the engineer and LEC play leading roles in operational environmental issues, JAs also have critical responsibilities.

1.    Judge Advocates must ensure that leaders are aware of both the rules and the importance of environmental compliance and protection.  JAs can accomplish this through traditional legal counsel methods such as issue spotting, training, and contract formation and review.  A JA brings a unique ability to examine environmental issues across disciplines in a contingency operation.

2.    Judge Advocates are responsible for advising the command on environmental issues and assisting in the planning process.  This includes advising the commander and staff on all environmental legal matters such as identification and interpretation of applicable laws, regulations, treaties, and other requirements; completion of environmental baseline surveys (EBS), and; processing claims involving environmental damage.[5]

3.    Judge Advocates will assist commanders in ensuring compliance, as far as practicable within the confines of mission accomplishment, with all applicable environmental laws and authorities as outlined in the OPLAN and OPORD, specifically, Annex L (Environmental Considerations). Judge Advocates are responsible for legal support in the development of Annex L, and must ensure consideration of appropriate and applicable treaties, laws, policy and guidance.  During execution, JAs must know how to analyze environmental issues and be able to provide appropriate and credible solutions to commanders.  Judge Advocates also must be prepared to advise and train supported commanders and units regarding environmental aspects of overseas operations along the entire operational spectrum.

4.    Judge Advocates also should be involved in writing and interpreting contracts that implement Army environmental policy, particularly where there are legal and treaty issues involved with the international shipment of hazardous waste.[6]  Contractors play a significant role in this regard as they will likely perform many of the environmental missions during an operation, whether under a Logistics Civil Augmentation Program (LOGCAP) contract or another contract.  During both the planning and contracting processes, JAs must carefully determine whether the various environmental standards and authorities apply to the particular operation and work with logistical planners to establish appropriate contract support and specifically outline contractor responsibilities.

D.   JAs should also be aware of non-military organizations whose mission may involve environmental considerations.  Organizations such as the State Department; United States Agency for International Development (USAID); United Nations; and non-governmental organizations (NGO), such as the International Committee of the Red Cross, Doctors Without Borders, and World Wildlife Fund.  NGOs deal extensively with humanitarian and reconstruction activities, and may be integral players in the mission and information sources.

E.    Finally, considerations of host nation governments may be relevant.  While U.S. Forces generally do not have any obligation to follow host nation laws unless incorporated in a binding agreement, coordination regarding standards and expectations may be productive.

III.  APPLICABILITY OF U.S. DOMESTIC ENVIRONMENTAL LAWS

A.   Law.  What environmental laws apply to U.S. military activities overseas?  As a general rule, domestic environmental statutes have no extraterritorial application, unless language within a statute makes a clear expression of Congress’ intent for extraterritorial application.[7]  Courts have examined several of the major environmental statutes regarding extraterritorial application with conflicting results.[8]  One U.S. court found extraterritorial application of the Endangered Species Act (ESA) when U.S. federal actions outside of the country had significant environmental impacts within the United States, but the case was overturned for a lack of standing.[9]  Another court held that § 470a-2 of the National Historic Preservation Act (NHPA) had extraterritorial effect regarding the DoD’s effect upon the dugong, a mammal on the Japanese equivalent of the historic register.[10]  Practitioners must therefore be mindful that the general rule may be overcome by specific facts.

B.    Policy.  Despite the general rule against extraterritoriality, U.S. executive branch policy often requires adherence to U.S. environmental standards, if feasible.  Thus, many of the substantive concepts from our domestic environmental laws are adopted in various policy formats.  There are several policy references that apply, depending on the location and nature of the action. The remainder of this chapter discuss the differences in how policy is applied in those situations.

IV.  OVERSEAS ENVIRONMENTAL PLANNING PROCESS.

A.  Environmental operations planning should begin with the overarching U.S. policy.  Even though the National Environmental Policy Act (NEPA) does not generally have extraterritorial effect, Executive Order (E.O.) No. 12114 creates “NEPA-like” rules for overseas operations by requiring environmental impact analysis of major federal actions affecting the environment outside of the United States.[11]  In 1979, the DoD issued the Department of Defense Directive (DoDD) 6050.7 to implement E.O. 12114.[12]  [This reference has recently been removed in preparation for a new DoD Instruction, but that update has not yet been released.  As DoDD 6050.7 serves as the basis for service implementation of the NEPA-like rules, this chapter will continue to describe DoDD 6050.7 as if it were in effect.  Future iterations of this chapter will address any new DoD releases on this matter].   DoDD 6050.7 provides definitions, the review process, and document requirements for environmental analysis.  Each Service implements the directive with its own specific regulation.[13]  The policies require a “NEPA-like” process when a major Federal action would significantly affect the environment:

1.    in the global commons;[14]

2.    of a foreign nation that is not participating with the United States and not otherwise involved in the action;[15]

3.    of a foreign nation involving:

a.    a product, or involving a physical project that produces a principal product, emission, or effluent, that is prohibited or strictly regulated by Federal law in the United States because its toxic effects to the environment create a serious public health risk, or

b.    a physical project that is prohibited or strictly regulated in the United States by federal law to protect the environment against radioactive substances;[16] and

4.    outside the United States that significantly harms natural or ecological resources of global importance designated by the President or Secretary of State.[17]

B.    Participating Nation Exclusion.

1.    When considering the applicability of DoDD 6050.7, the least straightforward and most frequently problematic of the four triggering events is determining whether the action involves a “participating nation.”[18]  The Directive completely excludes and requires no review for federal actions that significantly affect only the environment of a foreign nation that is involved in the action, making it a frequently pursued exclusion.  Operational planners may determine whether a nation is participating by the foreign nation’s direct or indirect involvement with the United States, or by involvement through a third nation or international organization.[19]  There is no requirement for a SOFA or other agreement between the host nation and U.S. Forces in order to document participating nation status.  Participation and cooperation, however evidenced, are the only elements required under E.O. 12114 and its implementing directive.  The JA should look to the most logical and obvious places for evidence of such participation.  The United States and its host nation partners may have documented the requisite participation within agreements between the United States and the host nation.[20]

2.    One method for discerning participating nation status is to consider the nature of the entrance into the host nation.  There are generally three ways that military forces enter a foreign nation: forced entry, semi-permissive entry, or permissive entry.  A permissive entry typically involves a participating (cooperating) nation.  Conversely, U.S. Forces who execute a forced entry would rarely deal with a participating nation.  The analysis required for these two types of entries is fairly straightforward.  Semi-permissive entry presents a much more complex question.  In this case, the JA must look to the actual conduct of the host nation.  If the host nation has signed a stationing agreement or Status of Forces Agreement (SOFA), or has in a less formal way agreed to the terms of the U.S. deployment within the host nation’s borders, the host nation may be considered to be participating with the United States (at a minimum, in an indirect manner).  If the host nation expressly agrees to the entry and to cooperate with the U.S. military forces, the case for concluding that the nation is participating is even stronger.

C.    Exemptions.  Department of Defense Directive 6050.7 sets forth various exemptions resulting in no further need to perform a formal documented environmental review.

1.    Unlike the participating nation exclusion, exemptions often require that the military leader take an affirmative step to gain a variance from the formal documentation requirements.[21]  The action is shorter than most actions that involve the environment because it may be drafted and forwarded with little prior review of environmental impact.[22]

2.    Once an exemption is approved, then the exempted status should be integrated into the OPLAN.  If this event occurs after the OPLAN is approved, the exempted status should be added as a fragmentary order (FRAGO) to provide supplemental guidance to the environmental consideration section of the OPLAN.

3.    General Exemptions.  The E.O. exempts all federal agencies in the case of actions that do not do significant harm to the environment or a designated resource of global importance.[23]  Further, actions taken by the President, and actions taken by DoD in advising the President, are exempted.[24]  Other important general exemptions apply to actions taken by or pursuant to the direction of the President or cabinet officer in the course of armed conflict,[25] where national security implications are involved,[26] or in disaster or emergency relief actions.[27]

4.    Additional Exemptions.  The DoD is further authorized to establish additional exemptions on a case-by-case basis involving emergencies or other exceptional situations, and for class exemptions involving groups of related actions.[28]

F.    Documentation.  For actions that trigger the “NEPA-like” process, the command should direct the production of either a bilateral or multilateral environmental study (ES),[29]  or a concise environmental review (ER)[30] of the specific issues involved.  Documentation contents and specificity will depend upon the nature of the proposed action.

V.  AUTHORITIES AT ENDURING OVERSEAS LOCATIONS

A.   If domestic U.S. law does not apply overseas, the practitioner must determine what rules do apply.  The answer differs based on whether the action occurs at a fixed, permanent type setting or in a deployed context.  The answer is typically not found in the “law,” but by implementing applicable policy directives.  This section briefly addresses overseas management of the former settings, known as enduring locations.

B.    Compliance.

1.    DoDI 4715.05 is the authority for compliance matters, such as protection of air, water, natural resources and other environmental categories.[31]  The DoDI only applies to enduring locations[32] under DoD control in foreign countries.  It does not apply to off-installation operations and training, operations of military aircraft and vessels, off-installation operational and training deployments, or to contingency locations.

2.    The DoDI provides for the designation of a DoD Lead Environmental Component (LEC) for specific countries and overseas geographic locations, and designates which countries require Final Governing Standards (FGS).[33]

3.    Other than for remediation and environmental effects analysis, the DoDI establishes environmental compliance standards for protecting human health at overseas enduring locations published as the Overseas Environmental Baseline Guidance Document (OEBGD).[34]  The OEBGD is a generic document that establishes a set of objective criteria and management practices to protect human health and the environment.[35]  As a relationship is established in a particular country, the LEC develops country specific-standards known as Final Governing Standards (FGS), which is a comprehensive set of country-specific substantive provisions.  The LEC determines the FGS by using the OEBGD standard unless it is inconsistent with host-nation law and the host-nation law is more protective.  If the issue is not addressed in the OEBGD, the LEC must consider host-nation law.[36]

C.    Remediation of Contamination Outside the U.S.  Cleaning up environmental contamination attributable to our activities outside the territorial jurisdiction of the United States is controlled by DoDI 4715.08.[37]  Remediation is an action taken to clean up our past contamination – it is not a spill response activity which is addressed in DoDI 4715.05.[38]  The DoDI provides very narrow authority to remediate overseas.  The basic policy is that DoD shall take no action outside of a DoD installation to remediate environmental contamination caused by DoD actions or activities beyond that specifically required by applicable international agreement.[39] This rule is strictly applied, and has created some difficult situations with the host country. The DoDI clearly specifies when remediation is required, when it is authorized but not required, and when it is prohibited.

1.    Required remediation.  DoD components are required to:

a.    take prompt action to address a substantial impact to human health and safety (SIHS)[40] due to environmental contamination that is caused by DoD activities and is located on a DoD installation;[41]

b.    comply with the provisions of an applicable international agreement;[42]

c.    prevent immediate exposure of US forces and personnel to contamination that poses a SIHS at an enduring location that the SecDef has approved for realignment.[43]

2.    Authorized but not required remediation.  DoD may address contamination:

a.    from non-DoD activities on DoD installations if the contamination poses a SIHS of US Forces or personnel;[44]

b.    when needed to undertake an approved military construction project,[45] or;

c.    when not otherwise authorized by the DoDI if extraordinary circumstances exist.[46]

3.    Prohibited remediation.  DoD shall not remediate for any of the following:

a.    off-installation contamination from any source unless remediation is specifically required by applicable international agreement;[47]

b.    contamination at installations approved for realignment, except for measures needed to prevent immediate exposure of US forces and personnel to a SIHS;[48]

c.    contamination at returned installations unless required by international agreement;[49]

d.    activities of a DoD contractor outside an installation,[50] and;

e.    for symbolic purposes.[51]

VI.  NON-ENDURING OVERSEAS LOCATIONS.

A.   In some countries and in most contingency operations, enduring locations have not been established, and the DoDIs do not apply.[52]  Although environmental issues often have a significant impact on operations,[53] there is not always specific guidance available to the commander in a deployed contingency operation.

B.    The Department of Defense started to address these deficiencies as early as 2013 with the first issuance of DoD Directive 3000.10 (DoDD 3000.10).  In 2021, DoDD 3000.10 was revised to charge the Assistant Secretary of Defense for Sustainment to develop comprehensive environmental policies for contingency basing in accordance with DoD Directive 4715.01E and DoD Instruction 4715.22.[54]  DoD Instruction 4715.22 establishes policy, assigns responsibility, and provides direction for environmental management at contingency locations.[55]  The instruction directs that DoD establish and maintain contingency location environmental standards (CLES),[56] which are objective criteria and management practices intended to protect human health and the environment, much as the OEGBD does in DODI 4715.05.  The CLES are currently under development.  Until the CLES are released, the remainder of this section will discuss various other authorities that may assist practitioners.

C.    The Joint Operational Planning Execution System (JOPES) incorporates environmental considerations into operational planning, and devotes Annex L of the OPORD to these issues. [57] While complete protection of the environment will not always be possible due to its competition with other risks and mission objectives, planners should carefully and continuously address the full range of environmental considerations in joint operations.

D.   While the engineer has responsibility for development of Annex L, there is a shared responsibility with other staff elements, and the JA is a critical participant in this process.[58]  To begin this effort, the JA should gather all the relevant resources and authorities that might apply in that theater of operation.[59]  The JA should contact the combatant command’s legal advisor to determine DoD’s position relative to whether any host nation law applies, obtain copies of relevant treaties or international agreements, and have a firm understanding of the Law of Armed Conflict (LOAC).[60]  If the command wishes to contact foreign governments to discuss environmental agreements or issues, the command should obtain higher headquarter permission before engaging in “formal” communications, and must coordinate with the State Department.

E.    The goal of the OPORD planning process is to plan an operation that achieves mission objectives while minimizing the environmental effects and observing environmental requirements.[61]  Environmental considerations are relevant in all phases of an operation, and the considerations often shift during the lifecycle of a conflict, from the pre-conflict stage, through the conflict and post-conflict stages, ending with site closure.[62]  United States policy is to always conduct a good faith environmental audit to reduce potential adverse consequences to the host nation’s environment.[63]  Accordingly, from the planning to execution phase, the environment is an important aspect of U.S. operations.

1.    Pre-Conflict Stage.  During pre-deployment planning, environmental considerations are generally addressed as functions of risk, much like the application of safety considerations.  The operational planning model incorporates environmental issues into each stage of the military decision-making process.  The OPORD will want to reflect considerations regarding geology, hydrology, climate, environmentally sensitive ecosystems, waste management, environmental hazards, and other characteristics of the battlefield which can in turn shape the development of courses of action.  Once risks are identified, they can be balanced against mission accomplishment goals, and help the commander determine how to proceed.[64]

2.    Conflict Stage.  As the mission progresses towards operations, the level of environmental protection will vary depending on the focus of the operation.  Combat operations involve less environmental protection than humanitarian operations because commanders generally weigh strategic objectives and force protection more heavily than environmental concerns.[65]  All operations should implement strategies to prevent unnecessarily complicating the post-conflict phase by creating extreme environmental problems.  Probably the most important consideration of environmental factors during the conflict stage involves LOAC principles.[66]  While all phases of operations have LOAC concerns, this phase is perhaps the most relevant because of the targeting implications.  In general, it is lawful to cause collateral damage to the environment during an attack on a legitimate military target, but a commander has an affirmative obligation to avoid unnecessary damage to the environment to the extent that it is practical to do so consistent with mission accomplishment.[67]  Given this legal duty, mission planners should consider ways to prevent or mitigate adverse environmental effects.

3.    Post-Conflict Stage.  Once hostilities abate, the commander’s attention turns to base camp, force protection, and sustainment type issues.  While the U.S. domestic environmental laws and policy directives generally do not apply in this situation, they often provide valuable models for commands to follow.  This stage is full of environmental issues and considerations for the JA.  Mission aims and humanitarian goals may be aided by environmental improvements designed to convince the populace to support the host nation government, participate in securing their community, and contribute to reconstruction efforts.

a.    Base Camp Site Selection.  An early critical decision is selecting the base camp location.  Troops require a safe and hazard-free location.  The Environmental Condition Study (ECS), sometimes known as the Environmental Baseline Survey (EBS)[68] is an important tool in this selection process.  The primary purpose of an ECS is to identify environmental, health, and safety conditions that pose a potential health threat to military personnel and civilians who occupy properties used by the United States.  The secondary purpose is to document environmental conditions at the initial occupancy of property to prevent the United States from receiving unfounded claims for past environmental damages.  Judge Advocates must also integrate a directive for documentation of initial environmental conditions into the OPLAN.[69]

b.    Environmental protection strategies apply in four broad areas of base operations (BASOPS), and should be incorporated into planning:[70]

(1)  Hazardous substance control.

(i)   This area applies to such issues as the management of hazardous materials and oil products, disposal of hazardous waste (including pesticides, medical and infectious waste, etc.), spill prevention, containment, and response, and air emissions (e.g., burning).[71]

(ii)  The Basel Convention of 1989, which the United States has signed but not ratified, imposes strict rules on signatory countries with respect to the movement of hazardous waste across international boundaries.[72]  The lead agency for DoD with respect to the Basel Convention is the Defense Logistics Agency (DLA).  Should an operation involve potential Basel Convention issues, contact DLA.

(2)  Natural habitat and wildlife protection.  This can include issues regarding forests, croplands, waterways, fisheries, and endangered or threatened species.

(3)  Resource conservation.  This includes issues such as water certification and wastewater management; pollution prevention and recycling efforts to reduce waste generation and logistic efforts; energy efficiency considerations, and noise abatement.

(4)  Cultural resource protection.  United States Forces should respect and preserve cultural and religious resources such as buildings, religious structures, monuments, and archaeological sites whenever possible.[73]

4.    Base/Site Closure.  Annex L of relevant OPLANs should contain guidance on environmental remediation required prior to closure or turnover of U.S.-used facilities in a deployed environment.[74]  A closure survey will provide a measurement of change of the environmental conditions against an ECS, if one was completed.  This process will assist in the potential adjudication of claims.[75] Remember though that remediation efforts must be consistent with DODI 4715.08, para 3c.

VII.  TRADITIONAL LAW OF ARMED CONFLICT (LOAC) APPLICATION

A.   During all phases of conflict and planning efforts, the JA must consider a number of LOAC treaties that impact operations and their effect upon the environment. 

1.    Hague Convention No. IV (Hague IV).[76]  Hague IV and the regulations attached to it represent the first time that environmental principles were codified into treaty law. Hague IV restated the customary principle that methods of warfare are not unlimited (serving as the baseline statement for environmental war principles).[77]  Hague IV environmental protections enjoy the widest spectrum of application of any of the LOAC conventions; they apply to all property, wherever located, and by whomever owned.

a.    Article 23e forbids the use or release of force calculated to cause unnecessary suffering or destruction.[78]  Judge Advocates should analyze the application of these principles to environmental issues in the same manner they would address the possible destruction or suffering associated with any other weapon use or targeting decision.

b.    Article 23g prohibits destruction or damage of property in the absence of military necessity.[79]  When performing the analysis required for the foregoing test, the JA should pay particular attention to the geographical extent (i.e., how widespread the damage will be), longevity, and severity of the damage upon the target area’s environment.

2.    The 1925 Geneva Gas Protocol.[80]  The Geneva Gas Protocol bans the use of “asphyxiating, poisonous, or other gases, and all analogous liquids, materials, and devices . . .” during war.[81]  During the ratification of the Geneva Gas Protocol, the United States reserved its right to use both herbicides and riot control agents (RCA) in certain circumstances.[82]

3.    The 1993 Chemical Weapons Convention (CWC).[83]  The CWC complements the Geneva Gas Protocol.  Executive Order 11850[84] specifies U.S. policy relative to the use of chemicals, herbicides, and RCA, and sets out several clear rules regarding the CWC.[85]  As a general rule, the United States follows the CWC’s restrictions on the use of both herbicides and RCA against combatants, for example, the prohibition on use in offensive operations “in war,” and requires national command authority (NCA) authorization for most other uses by armed forces.[86]  In regard to herbicides, the E.O. sets out two uses that are expressly permitted, even without NCA authorization: domestic use and control of vegetation within and around the “immediate defensive perimeters” of U.S. installations.[87]

4.    1980 Certain Conventional Weapons Treaty (CCW).[88]  Only Amended Protocol II has environmental significance because it places restrictions on the use of mines, booby traps, and other devices. The significance of this treaty lies in the fundamental right to a safe human environment as the CCW bans the indiscriminate use of these devices.[89]

5.    The Fourth Geneva Convention (GC IV).[90]  The GC IV is a powerful environmental convention, but it does not have the wide application enjoyed by Hague IV.  Article 53 protects the environment of an occupied territory by prohibiting the destruction or damage of property (including the environment) in the absence of “absolute military necessity.”[91]  Article 147 provides the enforcement mechanism; under its provisions, “extensive” damage or destruction of property, not justified by military necessity, is a “grave breach” of the conventions.[92]  All other violations that do not rise to this level are lesser breaches (sometimes referred to as “simple breaches”).  The distinction between these two types of breaches is important.  A grave breach requires parties to the conventions to search out and either prosecute or extradite persons suspected of committing a grave breach.[93]  A simple breach only requires parties to take measures necessary for the suppression of the type of conduct that caused the breach.[94]  United States policy requires the prompt reporting and investigation of all alleged war crimes (including environmental violations), as well as taking appropriate corrective action as a remedy when necessary.[95]  These obligations potentially subject Soldiers to adverse actions if they are not well-trained relative to their responsibilities under environmental operational provisions.

6.    Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD).[96]  Unlike all the other LOAC treaties, which ban the effect of various weapon systems upon the environment, ENMOD bans the manipulation or use of the environment itself as a weapon.  Any use or manipulation of the environment that is widespread, long-lasting or severe violates ENMOD (a single element requirement).[97]  Another distinction between ENMOD and other treaties is that ENMOD only prohibits environmental modifications that cause damage to another party to ENMOD.[98]

a.    The application of ENMOD is limited, as it only bans efforts to manipulate the environment with extremely advanced technology.  It is likely that simple diversion of a river, destruction of a dam, or even the release of millions of barrels of oil do not constitute “manipulation” as contemplated under the provisions of ENMOD.  Instead, the technology must alter the “natural processes, dynamics, composition or structure of the earth . . . .”[99]  Examples of this type of manipulation are: alteration of atmospheric conditions to alter weather patterns, earthquake modification, and ocean current modification (tidal waves, etc.).

b.    The drafters incorporated the distinction between high versus low technological modification into ENMOD to prevent its unrealistic extension. For example, if ENMOD reached low technological activities, then actions such as cutting down trees to build a defensive position or an airfield, diverting water to create a barrier, or bulldozing earth might all be violations. Judge Advocates should understand that none of these activities or similar low technological activities is controlled by ENMOD.

c.    The treaty does not regulate the use of chemicals to destroy water supplies or poison the atmosphere.[100]  As before, ENMOD probably does not reach this application of a relatively low technology.[101]  Although the relevance of ENMOD appears to be minimal given the current state of military technology, JAs should become familiar with the basic tenets of ENMOD.  This degree of expertise is important because some nations argue for a more pervasive application of this treaty.  Judge Advocates serving as part of a multinational force must be ready to provide advice relative to ENMOD, even if this advice amounts only to an explanation as to why ENMOD has no application, despite the position of other coalition states.[102]

7.    The 1977 Protocols Additional to the Geneva Conventions (AP I & AP II).[103]  The United States has not ratified AP I or AP II; accordingly, the United States is ostensibly bound only by the provisions that reflect customary international law.  To some extent, AP I, Articles 35(3), 54, 55, and 56 (the environmental protection provisions within AP I) merely restate Hague IV and GC IV environmental protections, and are therefore enforceable.  However, the main focus of AP I protections go far beyond the previous baseline protections.  AP I is much more specific relative to the declaration of these environmental protections. In fact, AP I is the first LOAC treaty that specifically provides protections for the environment by name.

a.    The primary difference between AP I and the protections found with the Hague IV or GC IV is that once the degree of damage to the environment reaches a certain level, AP I does not employ the traditional balancing of military necessity against the quantum of expected destruction.  Instead, it establishes this level as an absolute ceiling of permissible destruction.  Any act that exceeds that ceiling, despite the importance of the military mission or objective, is a violation of the LOAC.  This absolute standard is laid out in Articles 35 and 55 as any “method of warfare which is intended, or may be expected, to cause widespread, long-term and severe damage to the environment.”[104]  The individual meanings of the terms “widespread,” “long-term” and “severe” damage have been debated at length.  The ceiling is only reached when all three elements are satisfied (unlike the single-element requirement of ENMOD).  The United States does not accept an absolute ceiling except as contemplated by ENMOD, instead preferring to employ traditional proportionality analysis.

b.    Most experts, and the Commentary to AP I, state that “long-term” should be measured in decades (twenty to thirty years).  Although the other two terms remain largely subject to interpretation, a number of credible interpretations have been forwarded.[105]  Within AP I, the term “widespread” probably means several hundred square kilometers, as it does in ENMOD.  “Severe” can be explained by Article 55’s reference to any act that “prejudices the health or survival of the population.”[106]  Because the general protections found in Articles 35 and 55 require the presence of all three of these elements, the threshold is set very high.[107]  For instance, there is little doubt that the majority of carnage caused during World Wars I and II (with the possible exception of the two nuclear devices exploded over Japan) would not have met this threshold requirement.[108]

c.    Specific AP I protections include Article 55’s absolute ban on reprisals against the environment; Article 54’s absolute prohibition on the destruction of agricultural areas and other areas that are indispensable to the survival of the civilian population, and Article 56’s absolute ban on targeting works on installations containing dangerous forces (dams, dikes, nuclear plants, etc.), if such targeting would result in substantial harm to civilian persons or property.[109]  The United States opposes the absolute bans contemplated by each of these articles, but recognizes that many coalition allies are party to AP I and must observe their interpretations of this standard, and continues to prosecute conflicts in a way sensitive to the humanitarian an environmental concerns behind these articles—in many cases, well beyond any others’ efforts.[110]

d.    Although the foregoing protections are typically described as “absolute,” the protections do not apply in a number of circumstances.  For instance, agricultural areas or other food production centers used solely to supply the enemy fighting force are not protected.[111] 

e.    A knowing violation of Article 56 is a grave breach.  Additionally, with respect to the three-element threshold set out in Articles 35 and 55, the standard is so high that a violation of these provisions may also be a grave breach, because the amount of damage required would seem to satisfy the “extensive” damage test set out by GC IV, Article 147.[112]

8.    Convention for the Protection of Cultural Property in the Event of Armed Conflict.[113]  Cultural property falls within the broad spectrum of environmental law, and the United States ratified this 1954 Convention in September 2008.  The Convention protects both movable and immovable objects, to include: monuments, art, archaeological sites, manuscripts, books, and scientific collections from theft, pillage, misappropriation, vandalism, requisitioning, and the export of such objects as an occupying power.[114]  The Convention also requires contracting States to import protected objects, and return them upon cessation of the armed conflict, to affect the intent of the Convention.[115]  Occupying powers also assume the obligations of protection just as the party State had prior to the armed conflict.[116]  Judge Advocates should be aware that parties to the Convention must develop inventories of protected items and have emergency plans in place in the event of an armed conflict, and also be able to recognize the symbol of the International Register indicating such protected status.[117]

VIII.  CONCLUSION. 

Environmental planning and stewardship must integrate into all phases of overseas operations.  Environmental law comprises a part of our core legal disciplines and must play a role in the planning and execution of operations.[118]  In addition, environmental law issues span many other core legal disciplines, particularly in a deployed setting.  Judge Advocates must be aware of changes in doctrine, law, and policy in this area.  Due to the specialized nature of this discipline, JAs should not hesitate to establish “reach-back” capabilities with subject matter experts (e.g., the Army’s Environmental Law Division and Environmental Command).  In the end, legal advice should be based upon a complete understanding of the applicable law and policy, the client’s mission, and common sense.