In Juliana v. United States, a group of plaintiffs sued the U.S. Government and several of its agencies—specifically including the Department of Defense (DoD)—asserting that it has continued to “permit, authorize, and subsidize” activities that produce greenhouse gases and cause climate change.1 Then, in 2016, after much pretrial litigation, a federal district judge in Oregon denied the government’s motion to dismiss and set the case for trial.2 A three-judge panel of the Ninth Circuit Court of Appeals dismissed the case in January 2020, but the litigation continued until February 2021 when the Ninth Circuit denied the plaintiff’s request for a rehearing en banc.3
The Army should take notice of the potential trend illustrated by Juliana and proposed domestic legislation in the Green New Deal.4 At least ninety-nine members in the House of Representatives already support Green New Deal legislation, which would push the U.S. Government and its agencies hard in the direction of carbon neutrality.5 The litigation against the Government could be substantial if a Green New Deal that was actually enacted into law allowed citizen suits or otherwise waived the Federal Government’s sovereign immunity.
All this provides at least anecdotal evidence that the U.S. Government is likely going to come under increasing pressure to reduce or offset its carbon emissions—and, of all the government agencies, the DoD is by far the biggest user of fossils fuels.6 To get ahead of the emerging threat of carbon-use litigation illustrated by Juliana and the Green New Deal, the Army should use the Army Compatible Use Buffer (ACUB) program to create carbon offsets and move toward carbon neutrality.
What is the ACUB Program?
The ACUB program is a land management strategy that allows the Army to partner with states and non-federal entities to limit encroachment on military training areas by creating environmental buffer zones around the installation.7 The ACUB program enables non-federal conservation entities, often with financial help from the Army, to acquire the rights to the land surrounding the installation.8 The land then provides a barrier to protect the installation’s training areas from suburban development and provides alternate habitat for threatened or endangered species.9
The Army currently uses ACUBs on a relatively routine basis to prevent environmental litigation by protecting endangered species and their habitats.10 The Army also uses ACUBs to avoid environmental nuisance litigation by creating a buffer between the noise pollution caused by military training and civilian communities.11 Although not currently in practice, the statutory authority for the ACUB program may also allow for novel uses—such as carbon offsets through land management projects.
Statutory Authority Includes Anticipated Environmental Restrictions
The ACUB program dates to the Private Lands Initiative between Fort Bragg, North Carolina, and the Nature Conservancy.12 Soldiers at Fort Bragg were having difficulty training because the base’s training areas also happened to be some of the last remaining habitat for an endangered species—the red-cockaded woodpecker.13 The partnership proved successful, and Congress codified the ACUB in the Fiscal Year 2003 National Defense Authorization Act.14
The statute, now found at 10 U.S.C. § 2684a, allows the military departments to enter into agreements concerning land in the vicinity of military installations for two primary purposes.15 The first is to prevent any development or use of land that would be incompatible with the mission of the installation.16 The second is to preserve habitats in a manner that would, “eliminate or relieve current or anticipated environmental restrictions that would or might otherwise restrict, impede, or otherwise interfere, whether directly or indirectly, with current or anticipated military training, testing, or operations on the installation.”17
The second purpose—to preserve habitats to relieve anticipated environmental restrictions—would allow the Army to use this statutory authority to create carbon offsets in response to anticipated laws, regulations, or international agreements requiring carbon neutrality.
Forest Management Projects Can Provide Carbon Offsets
Carbon offsets are a credit that an individual or organization can claim when it takes one action that cancels out the carbon emissions created by a different action.18 Land managers can leverage forests to provide carbon offsets.19 Forests can trap—or sequester—large amounts of carbon dioxide (CO2)—a greenhouse gas—through photosynthesis.20
Types of Forest Management Projects that Provide Carbon Offsets
There are two types of forest management projects that may be useful to create carbon offsets around military installations: avoided conversion and improved forest management. Reforestation is another common type of carbon offset project and involves planting forests from seeds and saplings, but it may not be the most efficient for the Army because large, mature forests often already exist in the areas surrounding military installations.21 Avoided conversion projects prevent the conversion of forested land into non-forested land, such as single-family housing developments.22 Improved forest management projects use land management practices to maintain a forest’s ability to sequester carbon while still allowing for some selective timbering, ranching, and farming.23
Current Applications in the Private Sector
The private sector is already partnering with private landowners to provide carbon offsets.24 Companies that produce large amounts of greenhouse gases, such as some major airlines, pay private landowners to maintain their forest to sequester carbon and, therefore, offset their airplanes’ carbon emissions.25 The airline industry may enter into carbon offset contracts and cite their “corporate responsibility” to help sell their products; however, more than likely, their actions may also be motivated by the fear of litigation originating from international agreements—such as the Carbon Offsetting and Reduction Scheme for International Aviation.26
Using the ACUB to Acquire Conservation Easements to Prevent Deforestation
Army installations often tend to be in remote, sparsely populated parts of the country.27 Historically, many of these locations were selected as optimal for training and testing because the surrounding population was sparse, and the risk of encroachment was low.28 The Army can continue to take advantage of these remote locations to protect the undeveloped land around its installations to create carbon offsets.
What Is a Conservation Easement?
A conservation easement is an agreement where a landowner partners with a private organization or public agency to convey away certain rights to their land to preserve it for specific conservation values.29 The landowner may grant the easement voluntarily, or they may receive compensation from the partner or certain tax advantages.30 Organizations such as the Nature Conservatory and private or public land trusts commonly obtain conservation easements to protect endangered or threatened species and their habitats.
ACUBs to Prevent Deforestation
The Army can create carbon offsets using ACUBs as avoided conversion forestry projects. This could be as simple as maintaining the existing forested land around its installations. The Army would be able to claim these projects as carbon offsets because the forested land would sequester CO2. The more acreage the Army can protect, the more it can claim offsets for its training and operational activities.
To take advantage of these opportunities, Army installations would need to work with non-government entities and non-Federal Government agencies to pursue the mutually beneficial goal of protecting the land around installations. There are multiple non-government organizations who already focus on managing and protecting forested land—such as the Georgia-Alabama Land Trust, which is already working to preserve the longleaf pine ecosystems around Fort Stewart and Fort Benning in Georgia.31
The amount of CO2 and other greenhouse gases in the atmosphere are rising and gaining the attention of the scientific community and policy makers around the world.32 Juliana arguably displays a trend that the Army cannot ignore. Furthermore, members of Congress are already trying to push the Green New Deal legislation into law.33 The Army can reduce its risk from a likely increase in carbon-use litigation by using land management strategies, such as the ACUB program, to use the forested land already existing around military installations to offset the carbon emissions from military training and operations. TAL
1. Plaintiff’s Complaint for Declaratory and Injunctive Relief at 1-5, Juliana v. United States (D. Or. Aug. 12, 2015) (No. 6:15-cv-01517-TC), 2015 WL 4747094. Ashton Carter was named as a defendant in his official capacity as then-Secretary of Defense.
2. Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016).
3. Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020); Petition for Rehearing En Banc of Plaintiffs-Appellees, Juliana v. United States (9th Cir. Mar. 2, 2020) (No. 18-36082), reh’g denied, 2021 U.S. App. LEXIS 3688 (9th Cir. Feb. 10, 2021).
4. The Green New Deal, Green Party US, https://www.gp.org/green_new_deal (last visited Sept. 28, 2021). Notably, the Green New Deal’s policy platform already targets the military and its budget. Id.
5. Recognizing the Duty of the Federal Government to Create a Green New Deal, H.R. Res. 109, 116th Cong. (2019).
6. Neta C. Crawford, The Pentagon Emits More Greenhouse Gases than Any Other Part of the US Gov’t., Live Sci. (June 12, 2019), https://www.livescience.com/65698-defense-department-climate-change.html.
7. Army Compatible Use Buffer (ACUB) Program, U.S. Army Env’t Command, https://aec.army.mil/index.php/conserve/ACUB (July 1, 2020) [hereinafter ACUB Program].
8. Id. Landowners will agree to maintain the land consistent with the purpose of the buffer zone; and, in exchange, they will often receive lucrative tax benefits. How We Work: Private Lands Conservation, Nature Conservatory, https://www.nature.org/en-us/about-us/who-we-are/how-we-work/private-lands-conservation/?tab_q=tab_container-tab_element_670 (last visited July 19, 2021) [hereinafter How We Work].
9. ACUB Program, supra note 7.
10. The Army uses Army Compatible Use Buffer (ACUB) zones at Joint Base Lewis-McChord to protect the Streaked Horned Lark, Taylor’s Checkerspot Butterfly, and the Mazama Pocket Gopher. See, e.g., Jeffrey R. Foster, Presentation at the Cascadia Prairie-Oak Conference, Army Compatible Use Buffer: Cooperative Recovery of ESA–Listed Species in the Vicinity of a Military Installation (Oct. 28, 2015), https://cascadiaprairieoak.org/wp-content/uploads/2015/12/Foster_ArmyCompatibleUseBuffer_CPOP2015Conf.pdf.
11. See, e.g., Compatible Use Planning Makes for Good Neighbors, Knox Reg’l Developmental All., https://growknox.org/good-neighbors/ (last visited Oct. 5, 2021).
12. Graci Bozarth, Winning on All Fronts: A Case Study for the Army’s Compatible Use Buffer Program at Fort Riley, Kansas, 48 Urban Law. 143, 145–46 (2016).
15. Agreements to Limit Encroachments and Other Constraints on Military Training, Testing, and Operations, 10 U.S.C. § 2684a (2008).
18. Peter Miller, Carbon Offsets 101, Nat’l Res. Def. Council (Sept. 30, 2019), https://www.nrdc.org/experts/peter-miller/carbon-offsets-101.
19. Christine Yankel, FAQ: Forest Carbon Projects, Climate Trust, https://climatetrust.org/forest-carbon-projects-faq/?gclid=CjwKCAjwvZv0BRA8EiwAD9T2VZOax5CY9smMmXLNGIz7_ru4BjjZBcl_fg-tYFgmkpVDmL1zV6SfFxoCf7MQAvD_BwE (Feb. 8, 2018).
20. Rajan Parajuli et al., An Introduction to Forest Carbon Offset Markets, N.C. State Extension Publ’ns, https://content.ces.ncsu.edu/an-introduction-to-forest-carbon-offset-markets (July 15, 2019).
24. See, e.g., Parajuli et al., supra note 20.
25. See, e.g., CarbonChoice Carbon Offset Program, United, https://www.united.com/ual/en/us/fly/company/global-citizenship/environment/carbon-offset-program.html (last visited July 20, 2021). United Airlines advertises that it will “purchase carbon offsets on behalf of [their] customers so all their corporate air travel with [them will be] 100% carbon neutral. Through [their] partnership with Conservation International, these carbon offsets support projects designed to help reduce greenhouse gases and provide social and economic benefits to communities around the world.” Id.
26. Parajuli et al., supra note 20. The Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) is a United Nations-brokered international agreement that aims to make international air travel carbon neutral. Agreements like CORSIA symbolize an increasing emphasis on carbon neutrality, and civil cases like Juliana show how easily carbon-use issues can lead to litigation for the U.S. Government.
27. See, e.g., White Sands Missile Range, Nat’l Park Serv., https://www.nps.gov/whsa/learn/historyculture/white-sands-missile-range.htm (Sept. 12, 2016).
28. Id. As perhaps the best example of this point, White Sands Missile Range in New Mexico was chosen for the world’s first atomic weapon test largely for its isolated location. White Sands Missile Range, U.S. Army, https://www.wsmr.army.mil/Trinity/Pages/TrinityHistory.aspx (May 20, 2021, 7:23 AM).
29. How We Work, supra note 8.
31. Georgia-Alabama Land Trust Partnership (ACUB), Ga.-Ala. Land Trust, https://www.galandtrust.org/acub (last visited Sept. 30, 2021).
32. Press Release, General Assembly, Only 11 Years Left to Prevent Irreversible Damage from Climate Change, Speakers Warn during General Assembly High-Level Meeting, U.N. Press Release GA/12131 (Mar. 28, 2019).
33. Recognizing the Duty of the Federal Government to Create a Green New Deal, H.R. Res. (2019).