(Credit: Zerbor - stock.adobe.com)
News & Notes
Thirty-Five Years of the Environmental Law Division
By Lieutenant Colonel Josiah T. Griffin
I think we can look forward to some efforts to make the Army a little more immediately and apparently useful to the country, in a role other than just national defense. For example, I think we can look for bigger [roles] in the environmental area.1
On 5 August 2023,the Environmental Law Division (ELD) commemorated its thirty-fifth anniversary as part of the U.S. Army Legal Services Agency.2
For more than three decades, ELD has advised Army leadership on
environmental matters, litigated both defensive and affirmative
environmental cases, and provided guidance to the Army’s field of
environmental practitioners.3 In these matters, ELD occupies a niche, but exceptionally significant, role in the Judge Advocate General’s (JAG) Corps and the Army. More than 150 uniformed and Civilian attorneys have served in ELD since its founding. The history of ELD includes both the routine and the remarkable—everything from ordinary staff work to the creation of significant case law.4 From humble beginnings as a sub-branch of the Army’s Litigation Division, ELD has grown to fill an important role in both environmental litigation and policy matters of significant concern to the Army and the public. This article will discuss the events that necessitated an organization specifically focused on environmental law.
The Environmental Law Division’s Origin Story
The impetus for creating ELD was more than just realigning resources to fit demands; it followed a dramatic increase in the Federal Government’s involvement in environmental matters, groundbreaking environmental litigation for the Army, and a notorious criminal prosecution of Army employees for improper hazardous waste disposal. Suffice it to say, the story of ELD’s creation is more compelling than a typical organizational origin story. It started with the rapid advance of the environmental movement in America while the Cold War loomed in the background.
Environmental Awareness in America
The 1960s marked a collective opening of the American public’s consciousness to concerns about human contamination of the environment.5 Among other things, Rachel Carson’s widely-read book, Silent Spring, spread “the idea that if humankind poisoned nature, nature would in turn poison humankind.”6 As concern for the natural environment grew in the ensuing years, the U.S. Government began to grapple with the difficult task of balancing industrial production and environmental protection. The stakes could not have been higher on both sides of the scale—the industrial needs of the Cold War era continued to grow, even while communities began to see the unintended consequences of unrestrained production.7 Carson described this issue starkly: “Along with the possibility of the extinction of mankind by nuclear war, a central problem of our age is the contamination of man’s total environment with substances of incredible potential for harm.”8
The impact of Silent Spring on the direction of public sentiment and public policy simply cannot be overstated;9 the book played a substantial role in subsequent Federal activity with respect to the environment.10 President Kennedy addressed the issue directly in response to a press question about possible negative effects of pesticides on humans, stating that public health service officials were “examining the matter” in response to “Ms. Carson’s book.”11 Remarkably, according to the U.S. Environmental Protection Agency (EPA), the “EPA today may be said without exaggeration to be the extended shadow of Rachel Carson.”12 This groundswell of support for environmental protection launched a massive legislative response, spearheaded by President Richard Nixon, who referred to the 1970s as the “Environmental Decade.”13
The Environmental Decade
Against this backdrop of increased concern about the effects of industrial substances on the natural world came a rapid expansion of Federal environmental legislation.14
Between 1970 and 1980, over a dozen new Federal environmental statutes
or major rewrites of existing statutes became law, beginning
auspiciously on the very first day of the decade. “On 1 January 1970,
President Richard Nixon signed the National Environmental Policy Act (or
NEPA), beginning the 1970s as the environmental decade.”15
The Act boldly declares policy meant to:
encourage productive and enjoyable harmony between man and his
environment; to promote efforts which will prevent or eliminate damage
to the environment and biosphere and stimulate the health and welfare of
man; to enrich the understanding of the ecological systems and natural
resources important to the Nation; and to establish a Council on
Environmental Quality.16
The Code of Federal Regulations probably best summed up NEPA as “our basic national charter for protection of the environment.”17 The Act attempts to accomplish this objective not by setting any substantive standards, but by requiring Government agencies to engage in informed decision-making with public participation.18 Essentially, it requires agencies to take a “hard look” at (and engage in a thorough analysis of) possible environmental impacts resulting from major Federal actions.19
The National Environmental Policy Act represented a significant change to the status quo of agency decision-making, ripples of which have continued into the present. Along with the rest of the Federal Government, the Army strained to adjust to this new obligation. The Army Lawyer issues from the early seventies include references to various environmental law courses and seminars designed to help judge advocates advise on these new environmental law requirements.20 The JAG Corps’s 1972 Worldwide Continuing Legal Education course included a lecture by John A. Busterud, Deputy Assistant Secretary of Defense for Environmental Quality, and a Presidential appointee to the recently established Council on Environmental Quality (CEQ). Mr. Busterud pointed out the drastic changes NEPA was implementing, the significant role of the CEQ in defining a major Federal action, and what he described as the courts’ aggressive and liberal interpretations of NEPA.21
Indeed, the effects of NEPA and the other nascent environmental statutes fully materialized in the Federal court system, particularly, in the Federal Government’s response to these new requirements. Notable environmental law professor, Richard Lazarus, stated, “[Federal circuit court opinions] prompted a major transformation within the vast hallways of the [F]ederal [G]overnment. NEPA changed the nature of those who worked for the [F]ederal [G]overnment. As environmental factors became relevant to [F]ederal agency decision making, those same agencies frequently needed to hire in-house experts.”22 The Army would begin hiring those in-house experts, but not before other significant events demanded more concerted efforts to deepen institutional expertise, including the tricky issue of developing and producing chemical munitions.
In 1972, the Army designated a program manager to oversee the destruction of its chemical weapons stockpile. This organization would eventually become the U.S. Army Environmental Command, presently responsible for environmental cleanup, conservation, compliance, and pollution prevention across the Service. (Credit: aec.army.mil)
The Case of “the Aberdeen Three”
On 14 March 1968, sheep ranchers in Utah’s Skull Valley region began reporting large numbers of dead or very ill sheep.23 In the days that followed, it became increasingly evident that the affected sheep, which ultimately numbered over 6,000, died because of exposure to chemical agents from nearby Dugway Proving Ground.24 What became known as “the Dugway Incident” caused local and national outrage.25 While the Army did not immediately accept responsibility for the incident, it reluctantly acknowledged that Dugway Proving Ground conducted a weapons test involving VX nerve agent at high altitude the day before the ranchers discovered their sheep.26 This incident revived the national conversation about the practical utility of chemical weapons and, ultimately, influenced President Nixon’s decision to halt chemical weapons production in the United States in 1969.27
In 1972, the Army designated a program manager to oversee the destruction of its chemical weapons stockpile.28 This organization would eventually become the U.S. Army Environmental Command, presently responsible for environmental cleanup, conservation, compliance, and pollution prevention across the Service.29 Eighteen years after the pause on U.S. chemical weapons production, due to a changing political climate and stalled negotiations on a chemical weapons treaty, the United States lifted its moratorium on chemical weapons manufacture in 1987 and began production “of a new generation of American ‘binary’ chemical weapons designed to kill with invisible, odorless mists.”30 The Army developed this new generation of weapons as an alternative to so-called “unitary” chemical weapons, which contain a single lethal chemical produced and stored in bulk.31 The U.S. Army produced these unitary munitions in facilities such as the Rocky Mountain Arsenal (RMA), a site on the northeast outskirts of Denver, which the Army selected to develop chemical weapons during World War II.32
In contrast to the older unitary design, “binary munitions contain two separated non-lethal chemicals that react to produce a lethal chemical when mixed during battlefield delivery.”33
The Pilot Plant at Aberdeen Proving Ground was one of the primary
development sites for binary chemical weapons in the early 1980s; it was
also the locus of an infamous contamination incident that brought the
Army further scrutiny and condemnation.34
The project was headed by three civilian chemical engineers.35
Robert Lentz designed the binary nerve gas production process, William
Dee led the team, and Carl Gepp managed Pilot Plant operations.36
The case of the “Aberdeen Three” achieved notoriety as the first ever
criminal prosecution for violations of the Resource Conservation and
Recovery Act,37 which is “is the principal Federal law . . . governing the disposal of solid waste and hazardous waste.”38 On 29 June 1988, the United States criminally charged Carl Gepp, Robert Lentz, and William Dee with “knowingly ignor[ing] the law from 1983 to 1986 at the Pilot Plant, keeping dozens of lethal and carcinogenic chemicals in unauthorized storage areas, dumping some directly down drains without authorization and discharging acid into a creek without a permit, leading to a fish kill.”39 Gepp, Lentz, and Dee disputed the allegations, but following trial in 1989, they were ultimately sentenced to probation and community service.40
The case against the “Aberdeen Three” was not without controversy. Despite the gravity of a criminal prosecution, these three engineers were not solely responsible for the multiple decades of contamination caused by the development and production of munitions at Aberdeen Proving Ground. Washington Post reporter, Michael Weisskopf, described Carl Gepp, Robert Lentz, and William Dee as “three men caught up in the sea change that occurred between D-Day and Earth Day, when society’s passion for bigger and better bombs was superseded by its desire for a cleaner and safer world.”41
Beyond serving as a cautionary tale, the case of the Aberdeen Three also served as a strong impetus for greater action from the institutional Army. The Aberdeen Pilot Plant was shut down on 26 March 1986.42 In May 1986, the Army opened an administrative investigation under Army Regulation 15-6, which concluded in April 1987. Lieutenant Colonel Lawrence Ward sent a memorandum to The Judge Advocate General (TJAG) on 23 February 1988, outlining multiple issues discovered at Aberdeen through the investigation and charging the institution to commit greater resources to these issues. Ward stated, “[U]ntil environmental compliance is adequately resourced and funded and becomes a priority command concern, environmental compliance will never be achieved.”43 Part of that resourcing and funding would soon materialize in the form of ELD.
Former Chemical Warfare Production Facilities – Completed December 2006 (four months ahead of the deadline): These included government facilities and equipment that produced chemical agents, precursors, and components for chemical weapons. The Army’s Non-Stockpile Chemical Materiel Project completed the facilities’ destruction, located at Newport Chemical Depot, Indiana; Pine Bluff Arsenal, Arkansas; Rocky Mountain Arsenal, Colorado; Aberdeen Proving Ground, Maryland; and Muscle Shoals, Alabama. (Credit: Bethani Crouch)
The Environmental Law Division
While the Aberdeen case percolated in the background, the Army continued planning changes to environmental support. An increasing number of large and complex cases began to place a toll on the Army’s support capability, specifically, the emerging RMA case. Rocky Mountain Arsenal continued chemical munitions production and development on and off until 1982, when production ceased and environmental cleanup and restoration began.44 The most contaminated part of RMA is a 93-acre area containing an Army-constructed basin designed to hold liquid manufacturing wastes, and which has been dubbed the “most toxic square mile” on earth.45
When the EPA designated RMA a superfund site in 1987, the Litigation Division at the U.S. Army Legal Services Agency assumed much greater responsibility than it could adequately support while continuing work on other non-environmental cases. Colonel Barry Steinberg, the Chief of Litigation Division at the time, described the RMA case as “one of the biggest cases we ever faced at [the Litigation Division].”46 Colonel Steinberg suggested convening a study to match resources to these emerging issues and new requirements, an idea that then-TJAG, Major General Fugh, ultimately approved.47
After studying the issues presented by Aberdeen, RMA, and other sites,
and after soliciting comments from stakeholders, including the Army
Corps of Engineers and the JAG Corps, it was evident that the Army would
need to increase the number of environmental law practitioners to meet
the increasing demand for expertise. Colonel Steinberg briefed the
Secretary of the Army, John O. Marsh, who then formally established ELD
on 5 August 1988.48
Prior to that time, environmental law responsibilities were officially dispersed between TJAG, the general counsel, and the Army Corps of Engineers. The new Division would handle all the JAG Corps’s environmental law practice, including both policy and litigation matters. This structure provided the needed resources to tackle RMA and future cases of similar complexity, as well the necessary expertise to advise the field on environmental law matters outside of litigation.49 Colonel Steinberg became ELD’s first chief.50
Professor Richard Lazarus plainly articulated the manifest truth: “It takes great judges and great advocates to make and to keep great law. And environmental law is no exception.”51
In that sense, ELD has greatly benefitted from many gifted practitioners
in the nearly thirty-five years since its founding.52
Although service in ELD carries a certain gravity commensurate with the
seriousness of the subject matter, that service has not been humorless.
Under the tenure of Colonel Calvin M. Lederer in the late 1990s, the ELD
team referred to itself as “Gang Green.”53
Although that moniker has since fallen to the wayside, the ELD team and
the Army continue to benefit from the contributions of many talented
military and Civilian practitioners. The ELD team currently consists of
twenty-four billets in two branches: litigation and installation
readiness.
Environmental Law Division Logo, designed by Mr. David Howlett and
generated by the author in 2019.
The Environmental Law Division Today
Today, ELD provides premier environmental legal support to enable Army
readiness. The division accomplishes this mission by advising Army
leadership on environmental matters, defending the Army in environmental
litigation, recovering restoration costs and natural resource damages,
negotiating with state and Federal administrative agencies and
commissions, and by guiding the Army’s field of environmental law
practitioners.54 The division currently handles a defensive litigation caseload with potential liability of more than $500 billion, spanning the entire alphabet soup of environmental statutes.55 Since 1988, ELD has grown to fill an important role in both environmental litigation and policy matters of significant concern to the Army and the public. TAL
LTC Griffin is the Deputy Staff Judge Advocate at the Office of Staff Judge Advocate, U.S. Army Intelligence Center of Excellence at Fort Huachuca, Arizona.
Notes
1. Major General George S. Prugh, A Shift in Focus, Army Law., Dec. 1972, at 1, 1.
2. See Memorandum from Secretary of the Army to Dir. of Army Staff, subject: Establishment of the Environmental Law Division (5 Aug. 1988), reprinted in Army Law., Oct. 1988, at 3.
3. See U.S. Dep’t of Army, Reg. 27-40, Litigation, ch. 6 (19 Sept. 1994). Pursuant to this regulation, the Environmental
Law Division (ELD) serves as the Army’s lead on environmental litigation
matters. Id.
4. See David B. Howlett, Readiness and the National Environmental Policy Act, Army Law., no. 2, 2019, at 22.
5. Richard J. Lazarus, The Greening of America and the Graying of United States
Environmental Law: Reflections on Environmental Law’s First Three
Decades in the United States, 20 Va. Env’t L.J. 75, 79 (2001) (“Many citizens were ready for an issue about which there could be a national consensus rather than further polarization. To a large extent, the environmental movement satisfied that need.”).
6. Eliza Griswold, How ‘Silent Spring’ Ignited the Environmental Movement, N.Y. Times Mag. (Sept. 21, 2012), https://www.nytimes.com/2012/09/23/magazine/how-silent-spring-ignited-the-environmental-movement.html. Rachel Carson is widely recognized for launching the modern environmental movement. See, e.g., id.
7. The archetypal example of unintended consequences is the tragic case of the Love Canal, which involved a chemical company near Niagara Falls dumping toxic waste products by the barrel into an abandoned canal. See Michael H. Brown, LOVE CANAL, U.S.A., N.Y. Times, Jan. 21, 1979, at 23. The canal was later filled in and sold for development, which included a neighborhood of single-family homes along with an elementary school. Id. In 1978, many of the homes were discovered to be permeated with toxic chemicals. Id. New York state noted a spike in health problems in the area and the entire neighborhood had to be evacuated and abandoned. See id.
8. Rachel Carson, Silent Spring 8 (First Mariner Books 2002) (1962).
9. See Joshua Rothman, Rachel Carson’s Natural Histories, New Yorker (Sept. 27, 2012), https://www.newyorker.com/books/page-turner/rachel-carsons-natural-histories.
10. Griswold, supra note 6 (“The early activists of the new environmental movement had several successes attributed to Carson—from the Clean Air and Water Acts to the establishment of Earth Day to President Nixon’s founding of the Environmental Protection Agency, in 1970.”).
11. Sound Recording of President John F. Kennedy’s August 29, 1962, Press Conference, John F. Kennedy Presidential Lib. and Museum, at 26:45,
https://www.jfklibrary.org/asset-viewer/archives/JFKWHA/1962/JFKWHA-124/JFKWHA-124
(last visited June 14, 2023).
12. Jack Lewis, The Birth of EPA, EPA J. (Nov. 1985), https://archive.epa.gov/epa/aboutepa/birth-epa.html; see also Rothman, supra note 9.
13. Gladwin Hill, Midpoint of ‘Environmental Decade’: Impact of National Policy Act
Assessed, N.Y. Times, Feb. 18, 1975, at 14.
14. Robinson Meyer, How the U.S. Protects the Environment, From Nixon to Trump, The Atlantic (Mar. 29, 2017), https://www.theatlantic.com/science/archive/2017/03/how-the-epa-and-us-environmental-law-works-a-civics-guide-pruitt-trump/521001.
A little less than 50 years ago, President Richard Nixon united with a Democratic Congress to pass laws that altered the everyday experience of almost everyone living in the United States. These laws arose from a flurry of legislating—nearly all emerged in the same two-year period—and they had astonishingly large goals.
Id.
15. EPA and a Brief History of Environmental Law in the United
States, U.S. Env’t Prot. Agency (June 15, 2016), https://cfpub.epa.gov/si/si_public_record_report.cfm?Lab=NERL&dirEntryId=319430.
16. 42 U.S.C. § 4321.
17. 40 C.F.R. § 1500.1(a) (2019).
18. Ms. Alison Polchek, Environmental Law Presentation in Montgomery, Alabama (30 July 2018) (unpublished course materials) (on file with author). See Vermont Yankee Nuclear Power Corp. v. Natural Resources Deense Council, Inc., 435 U.S. 519, 558 (1978) (“NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural.”).
19. Polchek, supra note 18.
20. See, e.g., Environmental Law Seminar, Army Law., Dec. 1971, at 25.
21. 1972 JAG Conference, Army Law., Nov. 1972, at 1, 3.
Mr. Busterud stressed to the judge advocates present that the major impact that they were going to face in the future was the result of the National Environmental Policy Act of 1970 . . . . Finally, Mr. Busterud stressed the role of the courts in the National Environmental Policy Act interpretation process. He noted that the courts are becoming increasingly more aggressive in their interpretations of the statute and are reading the statute in a very, very liberal fashion. Thus, the scope of [the National Environmental Policy Act] may be said to be expanding through the courts’ actions . . . . In effect, with respect to all of these areas, Mr. Busterud pointed out to the judge advocates present that their role in environmental law was an increasing one and that the area was one of dynamic change.
Id.
Memorandum signed by the Secretary of the Army, establishing ELD on 5 August 1988.
22. Richard J. Lazarus, Judging Environmental Law, 18 Tul. Env’t L.J. 209 (2004) “Any fair judgment of environmental law’s record during the past several decades would have to rate it as one of the [N]ation’s great success stories of the second half of the twentieth century.” Id. at 211.
23. Lorraine Boissoneault, How the Death of 6,000 Sheep Spurred the American Debate of Chemical
Weapons, Smithsonian Mag. (Apr. 9, 2018), https://www.smithsonianmag.com/history/how-death-6000-sheep-spurred-american-debate-chemical-weapons-cold-war-180968717.
24. Id.
25. Id.
26. Id.
27. R. Jeffrey Smith, U.S. Ushers in New Era of Chemical Weapons, Wash. Post (Jan. 15, 1989), https://www.washingtonpost.com/archive/politics/1989/01/15/us-ushers-in-new-era-of-chemical-weapons/a75ea06e-fa96-4bec-b713-0a384ac07469/?utm_term=.53d733c2ca05 (“President Richard M. Nixon, declaring use of the munitions ‘repugnant to the conscience of mankind,’ halted the U.S. poison gas program in 1969 and pressed for an international ban on chemical weapons production.”).
28. About USAEC, U.S. Army Env’t Command (June 6, 2022), https://aec.army.mil/index.php/about-aec.
29. Id.
30. Smith, supra note 27.
31. Introduction to Chemical and Biological Weapons,
Carnegie Endowment for Int’l Peace (Jan. 18, 2001), https://carnegieendowment.org/2001/01/18/introduction-to-chemical-and-biological-weapons-pub-630 [hereinafter Carnegie].
32. See Rocky Mountain Arsenal (USARMY): Adams County, CO, U.S. Env’t Prot. Agency, https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0800357 (last visited June 15, 2023).
33. Carnegie, supra note 31.
34. Michael Weisskopf, The Aberdeen Mess, Wash. Post (Jan. 15, 1989), https://www.washingtonpost.com/archive/lifestyle/magazine/1989/01/15/the-aberdeen-mess/247cede1-62dc-46c9-8387-0ac343a81673.
35. Id.
36. Id.
37. “The three engineers are the first [F]ederal officials to be criminally prosecuted on charges that they routinely violated environmental laws.” Id.
38. Resource Conservation and Recovery Act (RCRA), Fed. Reg., https://www.federalregister.gov/resource-conservation-and-recovery-act-rcra- (last visited June 15, 2023).
39. Weisskopf, supra note 34.
40. The Aberdeen Three: Environmental Issues,
Wash. State Univ. Biological Sys. Eng’g, http://sites.bsyse.wsu.edu/pitts/be120/Handouts/cases/case70.htm
(last visited June 15, 2023) [hereinafter
The Aberdeen Three].
41. Weisskopf, supra note 34.
42. The Aberdeen Three, supra note 40.
43. Memorandum from Lieutenant Colonel Lawrence Ward to Major General Hugh R. Overhold, Judge Advocate General, U.S. Army (23 Feb. 1988).
44. See Rocky Mountain Arsenal, Colo. Dep’t of Pub. Health & Env’t, https://cdphe.colorado.gov/hm/rocky-mountain-arsenal
(last visited June 27, 2023).
45.
Seth Shulman, The Threat at Home: Confronting the Toxic Legacy of the
U.S. Military, at xi (1992).
46. Oral History, Colonel (Retired) Barry Steinberg 158 (Nov. 18, 2022)
(transcript available in the Judge Advocate General’s Legal Center &
School, Charlottesville, VA) [hereinafter Steinberg Oral History]. In
November 2022, Colonel Steinberg sat for an oral history interview as
part of The Judge Advocate General’s Legal Center and School Oral
History Program, where he recounted these events in complete detail,
including an accounting of the many pioneering individuals who played a
role in creating and staffing ELD. An upcoming episode of The Quill and
Sword Podcast will feature excerpts from this interview.
47. Id. at 162.
48. See Memorandum from Sec’y of Army to Dir. of Army Staff, subject: Establishment of the Environmental Law Division (5 Aug. 1988); Steinberg Oral History, supra note 46, at 164-66.
49. It is also ironic that ELD lawyers spent much of the 1990s handling litigation related to the destruction of the Nation’s chemical weapons stockpile, as required by law. See Department of Defense Authorization Act, 1986, Pub. L. No 99-145, § 1412, 99 Stat. 583, 747 (1985) (codified at 50 U.S.C. § 1521).
50. Steinberg Oral History, supra note 46, at 166.
51. Lazarus, supra note 22, at 218.
52. The list of past ELD chiefs alone includes many notable leaders in the JAG Corps: Colonel (COL) Barry P. Steinberg (Oct. 1988–Nov. 1989); Lieutenant Colonel (LTC) Scott P. Isaacson (Dec. 1989–June 1990); COL Joseph W. Cornelison (July 1990–Feb. 1991); COL William J. McGowan (Mar. 1991–Dec. 1994); LTC James S. Currie (Jan. 1995–June 1995); COL Calvin M. Lederer (July 1995–July 1997); COL Lawrence E. Rouse (Aug. 1997–June 2000); COL Nolan J. Benson, Jr. (July 2000–June 2002); COL Craig E. Teller (Jan. 2002–Dec. 2003); COL Jacqueline R. Little (Jan. 2004–July 2004); COL Allison A. Polchek (July 2004–June 2008); COL Sharon E. Riley (July 2008–Mar. 2011); COL Kenneth J. Tozzi (July 2011–June 2014); COL Gregory Woods (July 2014– June 2018); COL Leslie Rowley (July 2018– June 2021); COL Lance Hamilton (July 2021– July 2023), and COL Leslie Rowley for the second time (July 2023– Present).
53. U.S. Dep’t of Army, Env’t L. Div., Standard Operating Procedure (10 Jan. 1997) (on file with the author).
54. Environmental Law Division, JAGCNet, https://www.jagcnet2.army.mil/Sites/environmentallaw.nsf/homeContent.xsp?documentId=0F1817F738B3930C852582D0006C55CB (last visited June 15, 2023).
55. U.S. Judge Advoc. Gen.’s Corps, Env’t L. Div., Litigation Presentation (2023) (unpublished PowerPoint presentation) (on file with author).