Defense Environmental Exemptions

The 25 million acres of land owned and operated by the Defense Department provide important habitat for hundreds of endangered and threatened species. However, military officials contend that protecting these species and complying with environmental laws hampers military readiness activities.

According to a May 2003 national poll, taken after the Iraq war had begun, more than four out of five likely voters believe government agencies, including the Defense Department, should have to follow the same environmental and public health laws as everyone else. Nevertheless, in 2003 the Department proposed that Congress grant it sweeping exemptions from some of the nation’s most important environmental and public health laws, including the Endangered Species Act, the Marine Mammal Protection Act, the Clean Air Act, the Resource Conservation and Recovery Act, and Superfund.

During consideration of H.R. 1588, the national defense authorization bill, the House Armed Services Committee rejected many of these requests but inserted provisions exempting the military from the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA). These exemptions would eliminate vital protection for more than 300 federally listed threatened and endangered species living on Defense Department lands and would severely impair protections for marine mammals by altering one of the MMPA’s core provisions, writing loopholes into the permit process, and allowing for broad, categorical exemptions to all of the MMPA’s requirements. The exemptions are not only harmful but unnecessary. For example, under the ESA, the Secretary of Defense already has the authority to waive regulations on a case-by-case basis in the interest of national security.

The House bill also included a provision not requested by the military that sought to undermine conservation efforts along Arizona’s San Pedro River by exempting Fort Huachuca from responsibility for off-base groundwater pumping related to its operations. Escalating groundwater use poses a serious threat to the San Pedro–the last free-flowing river in the desert southwest.

To make matters worse, the proposed rule for debating the bill prevented House environmental leaders such as Representatives Nick Rahall (D-WV) and John Dingell (D-MI) from offering amendments on the House floor to strike the environmental exemptions. As a result, the vote on the rule for the bill became a de facto vote on the bill’s anti-environment provisions. On May 21, 2003, the House approved the rule by a vote of 224-200 (House roll call vote 202). NO is the pro-environment vote. The House then approved the authorizing bill by a 361-68 vote.

The Senate defense authorization bill did not include exemptions from the Marine Mammal Protection Act or provisions related to the San Pedro and contained a more limited Endangered Species Act exemption requiring specific oversight by the Secretary of the Interior (Senate vote 6). However, when the bill went to House-Senate conference, Republican leaders, including Senator John Warner (R-VA) and Representative Duncan Hunter (R-CA), succeeded in removing the Senate’s bipartisan language and adding broad military exemptions from both the Endangered Species Act and the Marine Mammal Protection Act. The final bill was approved by Congress and signed into law by President Bush.