In 2006, the 9th Circuit, in Ilio’ulaokalani Coalition v. Rumsfeld, ruled that the U.S. Army’s plans to stand up a Stryker Brigade Combat Team (SBCT) at a Hawaiian base violated the National Environmental Policy Act (NEPA) because the Army failed to consider other Army locations to station the team.
The Court’s injunction prohibited fielding equipment and training, notwithstanding the Secretary of the Army’s judgment that the immediate fielding of the SBCT was critical to the war.
As Ilio’ulaokalani demonstrated, NEPA can be a powerful environmental law with great potential to impact Army readiness. Installations and unit legal advisors must be vigilant regarding the applicability of NEPA in planning.
Under NEPA, decision-makers—often commanders—are required to consider the environmental effects of their proposed actions before making decisions. This sometimes requires solicitation of public comments. With respect to the Army’s readiness focus, a NEPA analysis may be necessary when considering new training ranges or alterations to training areas. A failure to adhere to NEPA requirements may invite litigation that could delay the activity sought to be accomplished and could result in degraded training opportunities.
Under NEPA, the level of analysis required depends on the likely environmental impacts of a proposed activity. In accordance with the criteria found at 32 CFR part 651, it may also be necessary to prepare one of the following documents before a decision is made: (1) a brief Record of Environmental Consideration, (2) a more robust Environmental Assessment, or (3) an intensive Environmental Impact Statement. Regarding each, early involvement by legal advisors will ensure completeness and legal compliance. Of particular importance, legal advisors must ensure that the administrative record is well-documented and complete, and provides a basis for the decision. National Environmental Policy Act litigation is fought on whether the Army complied with NEPA’s requirements as evidenced in the administrative record. By contributing early in the planning process and by communicating NEPA’s importance to other staff sections, legal advisors can either prevent litigation or pave the way to the successful resolution of unavoidable litigation.
Although ensuring legal sufficiency is the primary duty of the legal advisor, attorneys should also be mindful of how they explain NEPA’s purpose and process to commanders and decision-makers. One useful tactic is to analogize NEPA to the Military Decision Making Process. Under both processes, mission success is achieved by collecting relevant information, developing various alternatives (or COAs), comparing the environmental impacts of these COAs, and selecting the best alternative. National Environmental Policy Act documents also identify mitigation measures for adverse effects. However, NEPA does not require decision makers to choose the alternative with the least environmental impact. Rather, decision-makers must be aware of how each alternative considered would affect the environment. Legal advisors should embed themselves in the planning process and identify other issues as they arise. Ultimately, the resulting end-state is a more-ready and better-trained Army through compliance with NEPA. TAL