A Soldier stationed in Hawaii fills a bulk water container at the Navy Exchange Moanalua Terrace water distribution station. The U.S. Navy is working closely with the Hawaii Department of Health, U.S. Environmental Protection Agency, and the U.S. Army to restore safe drinking water to Joint Base Pearl Harbor-Hickam housing communities through sampling and flushing, and the recovery of the Red Hill Well. (Credit: Mass Communication Specialist 2d Class Chelsea D. Meiller)
Practice Notes
Army Green
Environmental Law and Readiness
By Major Michael T. Davis
Besides being admonished by their leadership not to bother the wildlife and to ensure drip pans are correctly placed in the motor pool, most Soldiers do not concern themselves too much with the environment or the laws governing its protection. However, as the Army prepares for Multi-Domain Operations, environmental stewardship has become a matter of strategic importance.1 Furthermore, environmental law can directly impact readiness—it can result in fines which deplete limited operations and maintenance (O&M) budgets, loss of range access, and delays in training and plans. Judge advocates in the field can help by spotting issues before they impact readiness.
Readiness requires access to realistic training environments; non-compliance with environmental laws jeopardizes that access. To meet its enduring mission to provide “military forces needed to deter war and ensure our nation’s security,”2 the Department of Defense (DoD) manages approximately 26.9 million acres of real property worldwide; of this, the Army controls 51 percent, or 13.7 million acres.3 The Army uses these lands to conduct the training, testing, and basing needed to build and maintain operational readiness. This is especially critical to train the large-scale Multi-Domain Operations necessary to prepare for the threats posed by near-peer competitors such as China and Russia. In addition to the vital role these lands play in support of operational readiness, they also represent a significant part of our national natural heritage. These lands are home to “500 federally-listed plant and animal species, over 550 species at-risk of needing listing protections, including 60 listed species and 74 species at-risk that occur only on DoD lands.”4 A panoply of federal laws requires all federal agencies, including the DoD and the Army, to preserve and protect this natural heritage.
Judge advocates may be called on to advise commanders on matters involving environmental law where non-compliance can result in consequences that threaten readiness.5
This article draws the connection between environmental law and
readiness, describes basic categories of environmental laws, provides
examples of common friction points, outlines reporting requirements, and
identifies resources available to assist practitioners in the field.
Basic Categories of Environmental Law and Common Friction Points
The sheer array of environmental laws applicable to the Army can be
overwhelming; therefore, it is helpful to group them according to their
function—planning, prospective, and retrospective:
[P]lanning statutes such as the National Environmental Policy Act
(“NEPA”) and the Endangered Species Act (“ESA”) . . . require government
agencies to consider the environmental consequences of their
actions . . . . [P]rospective statutes such as the
Clean Water Act (“CWA”), the Clean Air Act (“CAA”), the Resource
Conservation and Recovery Act (“RCRA”), and the Toxic Substances Control
Act (“TSCA”) . . . seek to minimize or eliminate pollution before it is
created . . . . [R]etrospective statutes such as the
Comprehensive Environmental Response, Compensation and Liability Act
(“CERCLA”) . . . seek to clean up and restore the environment after the
damage has been done.6
These functional areas apply to the full range of Army activities and, in the case of retrospective statutes, remain a concern even after the activity ends. Regardless of function, non-compliance and the resulting enforcement can adversely affect readiness through substantial fines payable from O&M funds, criminal or civil penalties, or injunctions that result in denial or restriction of access to training areas.7 Legal advisors can help their command avoid these adverse outcomes through the judicious application of common sense and basic knowledge of the common friction points between Army activities and environmental law.
While installations can inadvertently violate environmental laws in many ways, most environmental law violations fall within a sufficiently narrow set of circumstances so as to be foreseeable and, therefore, avoidable. Unfortunately, many practitioners do not know what these potential violations look like. Common friction points involve construction; encroachment; hazardous wastes; site contamination and clean up; operations that “kill, threaten, harm, or harass an endangered species or destroy its habitat” or “destroy wetlands or floodplains”; and “commencing a major project without first doing a NEPA analysis.”8 To mitigate these friction points, practitioners should work to identify installation-specific issues before they flare up.
Installation Department of Public Works (DPW) environmental personnel can help in this process by assisting practitioners to quickly learn and remain abreast of the installation’s ever-evolving environmental features and practices. For example, does the installation have any endangered or threatened species, critical habitats, migratory birds nesting sites, or wetlands? Does it contain historical properties or cultural sites? The DPW environmental personnel likely have a list or an overlay that includes this information.
Likewise, DPW can help practitioners examine environmental practices, such as waste disposal. Are motor pool and medical facility personnel who handle, store, and dispose of waste trained, certified, and doing so as required by law? These examples, while common, are not exhaustive. This is why it is critical to develop and maintain a good relationship with the DPW environmental personnel. Armed with the knowledge gained from this relationship, practitioners should attend planning meetings where they will be able to spot environmental law issues early in the process. Practitioners should not wait for friction to arise; rather, they should actively seek to identify and resolve environmental law issues early. To this end, from coordinating with DPW environmental personnel to attending planning meetings, practitioners must proactively engage key stakeholders so they can ask the hard questions before a good idea becomes an enforcement action.
Enforcement Mechanisms
Enforcement of environmental laws occurs through a combination of executive branch oversight, cooperative federalism, and civil enforcement. Department of Defense Instruction (DoDI) 4715.06 defines enforcement action (ENF) as “[a] formal, written notification by the EPA [Environmental Protection Agency] or other authorized federal, State, tribal, or local environmental regulatory agency of violation of any applicable statutory or regulatory requirement.”9 Executive branch oversight is provided by the EPA. When the EPA becomes aware of an infraction, it generally sends a “notice of violation” (NOV). An NOV addresses the facts of the alleged violation addresses the applicable requirements, and commonly requests the agency enter into negotiations to achieve full compliance.10
Other federal, state, or local environmental regulatory agencies
generally provide similar notice. The result of an enforcement action
can be a fine, penalty, or, in egregious circumstances, criminal
prosecution. Notice of civil enforcement occurs when a party files a
civil complaint. Civil enforcement can result in injunctions that
disrupt operations and sizeable judgments against the government. While
waiver of sovereign immunity and citizen suit notice provisions differ
for each environmental law, the receipt of an ENF, NOV, or civil
complaint triggers reporting requirements through both command and
technical legal channels.
Reporting Requirements
Garrison commanders must report ENFs that involve “(1) [c]riminal
enforcement; (2) [a] fine, penalty, fee, or tax; (3) [i]nstallation-wide
(show stopper or major mission restriction), Army-wide, or DOD-wide
impact, media attention, or community (on/off post) impact; or (4) third
party fault . . . .” in the Army Environmental Quality Reporting System
within “48 hours (2 business days).”11
Commanders must report all other ENFs within “seven business days.”12
The 48 hours (2 business days) reporting requirement also includes
notification to the Environmental Law Division (ELD).13
Additionally, Installation Management Command has its own separate
reporting requirements for environmental incidents or actions.14
Timely reporting is vital, as “[d]elays or failure to respond in
accordance with DoD/Army policy can increase or compound the potential
for military training delays or prohibitions, fines and criminal or
civil penalties.”15 Fortunately, there are significant resources available to assist practitioners who encounter this sometimes byzantine area of the law.
Resources
Navigating the complex web of statutes and regulations that make up the body of environmental law can be challenging. Fortunately, the Army’s environmental law team includes a robust bench of skilled environmental law practitioners standing by to help. At the installation level, environmental law specialists possess both subject matter and regional expertise. These experienced attorneys can assist practitioners in identifying local environmental law issues and introduce critical stakeholders. They are also an excellent resource for learning environmental law as it affects the installation. In addition to installation environmental law attorneys, the attorneys at the ELD are another excellent resource. Environmental Law Division attorneys advise the Army on environmental law matters and, in conjunction with the Department of Justice, represent the United States in environmental litigation. Both installation environmental law specialists and ELD attorneys are available to assist as questions or issues arise. The contact information for these resources is in the Judge Advocate General’s Corps personnel directory.16
Conclusion
Stewardship and compliance with environmental law are matters of
readiness and strategic importance.17
Non-compliance harms our national natural heritage and can result in
legal actions that delay or deny access to training areas, deplete
funding, and, in extreme cases, result in criminal prosecution.
Judge advocates must be ready to help commanders avoid these pitfalls.
Awareness of common friction points, common sense informed by legal
training, and proactive engagement with stakeholders can help avoid
non-compliance. In the event of non-compliance, the timely reporting of
potential enforcement actions is vital to mitigate the impact of
enforcement actions on operations.
When questions and issues arise, installation-level environmental law
specialists and ELD attorneys are ready to assist judge advocates in the
field and, if necessary, to defend Army interests. “Now [you] know. And
knowing is half the battle!”18 TAL
MAJ Davis is the brigade judge advocate for 17th Field Artillery Brigade, I Corps, Joint Base Lewis-McChord, Washington. He previously served as a litigation attorney at the Environmental Law Division for the U.S. Army Legal Services Agency at Fort Belvoir, Virginia.
Notes
1. See U.S. Dep’t of Army,
Army Installations Strategy (2020) [hereinafter Army Installations Strategy].
2. U.S. Dep’t of Def.,
Summary of the 2018 National Defense Strategy of the United States of
America
1 (2018).
3. U.S. Dep’t of Def., Base Structure Report—Fiscal Year 2018 Baseline: A
Summary of the Real Property Inventory Data,
at DoD-15–16 (2018).
4. U.S. Dep’t of Def., DoD
Natural Resources Program 1 (Feb. 2021).
5. See U.S. Dep’t of Army, Reg. 200-1, Environmental Protection and Enhancement para. 2-3 (13 Dec. 2007) [hereinafter AR 200-1].
6. Bridget Dorfman, Comment, Permission to Pollute: The United States Military, Environmental
Damage, and Citizens’ Constitutional Claims, 6 U. Pa. J. Const. L. 604, 606–07 (2004) (footnotes omitted).
7. See 40 C.F.R. § 19.4 (2021) (civil penalties administered by the EPA). See also Ilio’ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083 (9th Cir. 2006) (transformation of the 2d Infantry Brigade Combat Team, 25th Infantry Division, to a Stryker Brigade Combat Team (SBCT) was delayed because the Army violated National Environmental Policy Act. This delayed the Army’s ability to deploy 2-25 SBCT in support of combat operations.). See also Malama Makua v. Rumsfeld, 163 F.Supp. 2d 1202 (D. Haw. 2001) (enjoining the Army from conducting live-fire military training at the Makua Military Reservation pending final disposition). See also United States v. Dee, 912 F.2d 741 (4th Cir. 1990) (Army employees were prosecuted for violations of Resource Conservation and Recovery Act).
8. Env’t Law Div., U.S. Army Legal Servs. Agency,
Environmental Criminal and Civil Liability Handbook
4 (2015).
9. U.S. Dep’t of Def., Instr. 4715.06, Environmental Compliance in the United States
27 (4 May 2015) (C2, 31 Aug. 2018).
10. Overview of the Enforcement Process for Federal Facilities, U.S. Env’t Prot. Agency, https://www.epa.gov/enforcement/overview-enforcement-process-federal-facilities
(last visited Apr. 3, 2021).
11. AR 200-1, supra note 5, para. 16-4a.
12. Id. para. 16-4b.
13. Id. para. 16-4c. See also U.S. Dep’t of Army, Reg. 27-40, Litigation para. 3-1c(4) (19 Sept. 1994).
14.
U.S. Army Installation Mgmt. Command, Reg.
190-45-1,
Serious Incident Reports (SIRs) and (Commander’s Critical Information
Reports (CCIRs))
[sic] para. 8.g (2016).
15. Env’t Command, U.S. Army, Commander’s Guide to Environmental
Requirements
18 (2017) (provides a reporting requirements flow chart on page 19).
16. See The Judge Advoc. Gen.’s Corps, U.S. Army, JAGC Personnel
Directory
(2021).
17. See Army Installations Strategy, supra note 1.
18. G.I. Joe PSA: What to Do If You Catch on Fire (Marvel/Sunbow 1986), https://www.youtube.com/watch?v=R41W9anu4i8.