Order Code RS22149
Updated June 2, 2005
CRS Report for Congress
Received through the CRS Web
Exemptions from Environmental Law
for the Department of Defense:
An Overview of Congressional Action
David M. Bearden
Analyst in Environmental Policy
Resources, Science, and Industry Division
Summary
Several environmental statutes contain national security exemptions, which the
Department of Defense (DOD) can obtain on a case-by-case basis. Since FY2003, DOD
has sought broader exemptions that it argues are needed to preserve training capabilities
and ensure military readiness. There has been disagreement in Congress over the need
for broader exemptions in the absence of data on the overall impact of environmental
requirements on training and readiness. There also has been disagreement over the
extent to which broader exemptions would weaken environmental protection. After
considerable debate, the 107th Congress enacted an interim exemption DOD requested
from the Migratory Bird Treaty Act, and the 108th Congress enacted a broad exemption
from the Marine Mammal Protection Act and a narrower one from certain parts of the
Endangered Species Act. These exemptions were contentious to some because of
concern about the weakening of protections for animal and plant species. In the 109th
Congress, DOD has again requested exemptions from the Clean Air Act, Solid Waste
Disposal Act, and Comprehensive Environmental Response, Compensation, and
Liability Act. These exemptions have prompted opposition from some states and
communities concerned about possible risks to human health from potential exposure
to air pollution and hazardous substances. Neither the FY2006 defense authorization
bill in the House (H.R. 1815, as passed), nor that in the Senate (S. 1042, as reported),
includes these exemptions. This report will be updated as warranted.
Introduction
Over time, Congress has included exemptions in several environmental statutes to
ensure that requirements of those statutes would not restrict military training needs to the
extent that national security would be compromised. These exemptions provide authority
for suspending compliance requirements for actions at federal facilities, including military
installations, on a case-by-case basis. Most of these exemptions may be granted for
activities that would be in the “paramount interest of the United States,” whereas others
Congressional Research Service ˜ The Library of Congress

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are specifically for national security.1 Most of these exemptions are limited to one year,
but can be renewed.2 The extent to which broader exemptions from environmental
requirements are needed for military readiness activities has become a prominent issue.
DOD argues that obtaining exemptions on a case-by-case basis is onerous and time-
consuming because of the number of training exercises that it conducts on hundreds of
military installations. DOD also argues that the time limits placed on most exemptions
are not compatible with ongoing or recurring training activities. Instead, DOD has sought
broader exemptions from certain environmental requirements that it argues restrict or
delay training necessary for readiness. As part of its FY2003 defense authorization
proposal, DOD issued a Readiness and Range Preservation Initiative, requesting certain
exemptions from six environmental laws: Migratory Bird Treaty Act, Endangered Species
Act, Marine Mammal Protection Act, Clean Air Act, Solid Waste Disposal Act,3 and
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
DOD’s request for broader exemptions has been contentious in Congress. Some
Members assert that such exemptions are necessary to provide greater flexibility for
conducting combat training and other readiness activities without restriction or delay.
However, other Members, states, environmental organizations, and communities have
opposed broader exemptions, pointing to the lack of data to demonstrate the extent to
which environmental requirements may have restricted training exercises and
compromised readiness overall. They argue that expanding exemption authority without
justification for its need would unnecessarily weaken environmental protection.
After considerable debate, the 107th Congress enacted the exemption DOD requested
from the Migratory Bird Treaty Act, and the 108th Congress enacted exemptions from the
Marine Mammal Protection Act and certain parts of the Endangered Species Act.
Although these exemptions were contentious among those concerned about the weakening
of protections for animal and plant species, there has been greater opposition to
exemptions DOD has requested from the Clean Air Act, Solid Waste Disposal Act, and
CERCLA. Opponents to exemptions from these three statutes have expressed concern
about risks to human health from the potential exposure to air pollution and hazardous
substances. Neither the 107th nor the 108th Congress enacted these exemptions. DOD has
proposed them again in the 109th Congress, as part of its FY2006 defense authorization
1 The following environmental statutes authorize the President to grant exemptions for federal
facilities, including military installations, on a case-by-case basis. Exemptions for activities in
the “paramount interest of the United States,” including national security, are provided in the
Clean Air Act (42 U.S.C. 7418(b)), Clean Water Act (33 U.S.C. 1323(a)), Noise Control Act (42
U.S.C. 4903), Resource Conservation and Recovery Act (42 U.S.C. 6961(a)), and Safe Drinking
Water Act (42 U.S.C. 300(j)(6)). An exemption specifically for national security is provided in
the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
9620(j)). The Endangered Species Act (16 U.S.C. 1536(j)) also authorizes a special committee
to grant an exemption if the Secretary of Defense finds it necessary for national security. See
CRS Report RS21217, Exemptions for Military Activities in Federal Environmental Laws.
2 The Safe Drinking Water Act does not impose time limits on exemptions. Although the
Endangered Species Act allows time limits, the law does not require it.
3 The Solid Waste Disposal Act is popularly referred to as “RCRA,” the Resource Conservation
and Recovery Act of 1976, which amended the Solid Waste Disposal Act in that year.

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legislative proposal, arguing again that critical training could be restricted otherwise.
Neither the FY2006 defense authorization bill in the House (H.R. 1815, as passed), nor
that in the Senate (S. 1042, as reported), includes these exemptions.
The following sections of this report discuss the difficulty of assessing the impact
of environmental requirements on military readiness, broader exemptions for military
activities that Congress has enacted, and DOD’s request for additional exemptions.
Impact of Environmental Requirements on Readiness
There has been ongoing disagreement as to whether existing authorities for case-by-
case exemptions from environmental requirements are sufficient to preserve military
readiness. Assessing the need for broader exemptions is difficult because of the lack of
data on the cumulative impact of environmental requirements on readiness. Although
DOD has cited some examples of training restrictions or delays at certain installations and
has used these as the basis for seeking legislative remedies, DOD does not have a system
in place to comprehensively track these cases and determine their impact on readiness.
In 2002, the General Accounting Office (GAO, now renamed the Government
Accountability Office) found that DOD’s readiness reports did not indicate the extent to
which environmental requirements restrict combat training activities, and that such reports
indicate a high level of readiness overall.4 However, GAO noted individual instances of
environmental restrictions at some military installations, and recommended that DOD’s
reporting system be improved to more accurately identify problems for training that might
be attributed to restrictions imposed by environmental requirements. A 2003 GAO report
found that environmental restrictions are only one of several factors, including urban
growth, that affect DOD’s ability to carry out training activities, and that DOD continues
to be unable to broadly measure the impact of encroachment on readiness.5
The lack of comprehensive data to assess the need for DOD’s request for exemptions
from the Clean Air Act, Solid Waste Disposal Act, and CERCLA prompted the 108th
Congress to include a reporting requirement in Section 320 of the National Defense
Authorization Act for FY2004 (P.L. 108-136). This section requires the Secretary of
Defense to conduct a study of the impact of compliance with these three statutes on
military operations and to report his findings to Congress. DOD expects to complete this
study by January 2006.
Exemptions Enacted in the 107th and 108th Congress
As noted above, the 107th Congress enacted an interim exemption for military
readiness activities from the Migratory Bird Treaty Act, and the 108th Congress enacted
a broad exemption from the Marine Mammal Protection Act and a narrower one from
certain parts of the Endangered Species Act. Throughout the congressional debate over
4 General Accounting Office, Military Training: DOD Needs a Comprehensive Plan to Manage
Encroachment on Training Ranges, GAO-02-727T, May 2002.
5 General Accounting Office, Military Training: DOD Approach to Managing Encroachment on
Training Ranges Still Evolving, GAO-03-621T, April 2003.

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these exemptions, there was significant disagreement among Members of Congress
regarding the military need for them in light of the lack of data on the effect of these
statutes on readiness overall, and the potential impact of the exemptions on animal and
plant species. A summary of each exemption is provided below.6
Migratory Bird Treaty Act. Section 315 of the National Defense Authorization
Act for FY2003 (P.L. 107-314) directed the Secretary of the Interior to develop
regulations for the issuance of permits for the “incidental takings” of migratory birds
during military training exercises, and provided an interim exemption from the Migratory
Bird Treaty Act while these regulations are being drafted. A U.S. district court had ruled
that federal agencies, including DOD, are required to obtain permits for incidental
takings,7 and DOD argued that an exemption was needed to prevent the delay of training
activities while regulations were being developed. The regulations were proposed on
June 2, 2004,8 and the interim exemption will remain in effect until they are finalized.
Endangered Species Act. Section 318(a) of the National Defense Authorization
Act for FY2004 (P.L. 108-136) granted the Secretary of the Interior the authority to
exempt military lands from designation as critical habitat under the Endangered Species
Act, if the Secretary determines “in writing” that an Integrated Natural Resource
Management Plan for such lands provides a “benefit” to the species for which critical
habitat is proposed for designation. The U.S. Fish and Wildlife Service had been allowing
these plans to substitute for critical habitat designation in recent years. DOD argued that
clarification of the authority for this practice was needed to avoid future designations that
in its view could restrict the use of military lands for training. Section 318(b) also directs
the Secretary of the Interior to consider impacts on national security when deciding
whether to designate critical habitat. Although these provisions affect the applicability
of critical habitat requirements on military lands, DOD continues to be subject to all other
protections provided under the Endangered Species Act, including consultation
requirements and prohibitions on the “taking”9 of endangered and threatened species.
Marine Mammal Protection Act. Section 319 of P.L. 108-136 provided a broad
exemption from the Marine Mammal Protection Act for “national defense.” Section 319
also amended the definition of “harassment” of marine mammals, as it applies to military
readiness activities, to require greater scientific evidence of harm, and required the
consideration of impacts on military readiness in the issuance of permits for incidental
takings. DOD had argued that these amendments were necessary primarily to prevent
6 For further discussion of the Migratory Bird Treaty Act exemption, see CRS Report RL31456,
Defense Cleanup and Environmental Programs: Authorization and Appropriations for FY2003.
For further discussion of the Endangered Species Act and Marine Mammal Protection Act
exemptions, see CRS Report RL32183, Defense Cleanup and Environmental Programs:
Authorization and Appropriations for FY2004. Also see CRS Report RL31415, The Endangered
Species Act (ESA), Migratory Bird Treaty Act (MBTA), and Department of Defense (DOD)
Readiness Activities: Background and Current Law.
7 26 191 F. Supp. 2d 161 (D. D.C. 2002).
8 69 Federal Register 31074.
9 As defined in federal statute, “taking” means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532(19)).

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restrictions on the testing of the Navy’s low-frequency “active” sonar system.
Environmental organizations had legally challenged the use of the sonar system, arguing
that it harmed marine mammals and was therefore a violation of the Marine Mammal
Protection Act, as well as other environmental statutes.10
Exemptions Proposed by DOD in the 109th Congress
DOD submitted its FY2006 defense authorization legislative proposal to Congress
on April 7, 2005.11 Similar to past proposals since FY2003, the current proposal includes
exemptions from certain requirements of the Clean Air Act, Solid Waste Disposal Act,
and CERCLA. DOD and some Members of Congress argue that these exemptions are
necessary to preserve training capabilities needed to ensure military readiness, and that
they would have a minimal impact on environmental quality. Other Members, states,
communities, and environmental organizations counter that the impacts reach beyond
DOD’s stated intent. As noted earlier, neither the FY2006 defense authorization bill in
the House (H.R. 1815, as passed), nor that in the Senate (S. 1042, as reported), includes
these exemptions. Each exemption, as proposed by DOD, is summarized below.
Clean Air Act. Section 313 of DOD’s legislative proposal would exempt
emissions generated by military readiness activities from requirements to “conform” to
State Implementation Plans (SIPs) for achieving federal air quality standards. Under
current law, sources of emissions, including activities of federal agencies, that would
increase emissions beyond limitations established in a state’s SIP are prohibited, unless
offsetting reductions from other sources are made in the same area. DOD argues that its
proposed exemption would provide greater flexibility for transferring training operations
to areas with poor air quality, without the possibility of restrictions on these operations
due to the emissions that they would produce.
DOD has argued that the activities in question (many of which involve the
reassignment of aircraft from one installation to another) have a small impact on air
quality. In most areas, the threshold for imposition of the conformity requirement is a net
increase of 100 tons of emissions annually, a threshold that translates to a net increase of
more than 72,000 military aircraft takeoffs and landings annually. Whether such an
increase is, in fact, “small” is one issue raised by opponents, including state and local air
pollution control program officials, state environmental commissioners, state attorneys
general, county and municipal governments, and environmental organizations.

The proposal also would alter Clean Air Act requirements for those nonattainment
areas in which DOD would be conducting non-conforming readiness activities, resulting
in weaker health-based standards for ozone, carbon monoxide, and particulates (PM ) in
10
these areas. These areas would be allowed to demonstrate that they would have met the
standard except for emissions from readiness activities. In addition, the proposal would
remove the consequences of failure to attain the standards in such areas — that is, an area
could not be forced to impose more stringent pollution control requirements if its failure
to meet air quality standards was the result of emissions from readiness activities.
10 NRDC v. Evans, 232 F.Supp. 2d. 1003, 1055 (N.D. Cal. 2002).
11 The full text of the proposal and supporting documents are available on DOD’s Office of
Legislative Counsel’s website at [http://www.defenselink.mil/dodgc/olc/legispro.html].

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Solid Waste Disposal Act and CERCLA. Section 314 of DOD’s legislative
proposal would amend the definition of “solid waste” in the Solid Waste Disposal Act and
“release” (or threatened release) in CERCLA, to exclude military munitions on an
operational range. The proposed exemption uses the definition of operational range in
current law,12 under which DOD has the discretion to designate practically any lands
under its jurisdiction as operational, regardless of whether the land is currently being used
for training. Opponents argue that, in effect, this exemption would place military
munitions on operational ranges entirely beyond the reach of these two statutes, and could
allow munitions and any resulting contamination to remain indefinitely on any military
lands designated as operational. The proposal specifies that the exemption would no
longer apply once a range ceases to be operational. It therefore would not apply to ranges
on closed bases once the land is transferred out of the jurisdiction of DOD.13
DOD argues that its proposal would codify existing federal regulations under the
Military Munitions Rule, promulgated by the Environmental Protection Agency in 1997.14
Under this rule, “used or fired” munitions on a range are considered a solid waste only
when they are removed from their landing spot.15 Until DOD removes them and they
“become” solid waste, they are not subject to disposal requirements. Munitions left to
accumulate on a range can leach hazardous constituents into the soil and groundwater
over time, possibly requiring cleanup. DOD states that it seeks to codify the munitions
rule in order to eliminate the possibility of legal challenges to existing regulations, which
might result in an active range being closed to require the removal of accumulating
munitions and cleanup of related contamination. DOD asserts that such challenges could
restrict training, citing a citizen suit at Fort Richardson in Alaska in 2002 that threatened
to stop live-fire exercises because of contamination leached from munitions.
However, excluding military munitions from the definitions of “solid waste” and
“release” in federal statute could have broader implications for cleanup than in existing
regulation. Those opposed to these statutory changes include some state attorneys
general, state waste management officials, municipal water utilities, environmental
organizations, and community groups. They argue that the exemption would narrow the
waiver of federal sovereign immunity in states, resulting in the removal of state authority
to monitor groundwater on an operational range to determine if a substance presents a
health hazard, or to file citizen suits under the Solid Waste Disposal Act or CERCLA to
compel cleanup of that substance. If this were the case, they argue, groundwater
contamination could not be investigated until it migrates off-range, potentially resulting
in greater contamination and higher cleanup costs than if the contamination were
identified and responded to earlier. Opponents also assert that the potential threat of
litigation is not a sufficient basis for a broad change to cleanup laws.
12 10 U.S.C. 101(e)(3). Operational range is “a range that is under the jurisdiction, custody, or
control of the Secretary of Defense and that is used for range activities, or although not currently
being used [emphasis added] for range activities, is still considered by the Secretary to be a range
and has not been put to a new use that is incompatible with range activities.”
13 For a discussion of cleanup requirements on closed bases, see CRS Report RS22065, Military
Base Closures: Role and Costs of Environmental Cleanup.
14 40 C.F.R. Part 266, Subpart M.
15 40 C.F.R. 266.202(c).

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