Order Code RS22149
Updated May 15, 2007
Exemptions from Environmental Law
for the Department of Defense:
Background and Issues for Congress
David M. Bearden
Specialist in Environmental Policy
Resources, Science, and Industry Division
Summary
Since FY2003, DOD has sought broader exemptions from environmental laws that
it argues are needed to preserve training flexibility 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 readiness. There also
has been disagreement over the impacts that broader exemptions would have on
environmental quality. Although Congress has enacted certain exemptions DOD
requested, it has opposed others. After considerable debate, the 107th Congress enacted
an exemption 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. These exemptions were contentious to some because of
concerns about the weakening of protections for animals and plants. As in recent years
since FY2003, DOD again has requested exemptions from the Clean Air Act, Solid
Waste Disposal Act, and Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA). These exemptions are included in S. 567, as introduced, but
are not included in H.R. 1585, as reported by the House Armed Services Committee.
Although DOD asserts that these exemptions are needed to maintain military readiness,
concerns about potential impacts on human health and the environment have motivated
opposition to them.
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

---

CRS-2
are specifically for national security.1 Most of these exemptions are limited to one year,
but they 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 could restrict
or delay necessary training. 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, 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 oppose
broader exemptions, pointing to the lack of data to demonstrate the extent to which
environmental requirements 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 an exemption 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 animals and plants, there has been greater opposition to exemptions that DOD has
requested from the Clean Air Act, Solid Waste Disposal Act, and CERCLA. Opponents
to exemptions from these three latter statutes have expressed concern about human health
risks from potential exposure to air pollution and hazardous substances.
DOD has requested exemptions from these three statutes again as part of its FY2008
defense authorization proposal, included in Sections 314 and 315 of the Administration’s
bill (S. 567, as introduced). DOD continues to assert that critical training could be
restricted without these exemptions. However, the absence of data demonstrating how
these statutes have restricted training and affected readiness overall, and concerns about
1 The following environmental laws 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), Solid Waste Disposal Act (42 U.S.C. 6961(a)), and Safe Drinking Water Act (42
U.S.C. 300(j)(6)). A “national security” exemption is provided in CERCLA (42 U.S.C. 9620(j)).
The Endangered Species Act (16 U.S.C. 1536(j)) authorizes a special committee to grant an
exemption if the Secretary of Defense finds it necessary for national security.
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.

---

CRS-3
human health and environmental risks, have motivated opposition to these exemptions.
In reporting its version of the FY2008 defense authorization bill (H.R. 1585, H.Rept. 110-
146), the House Armed Services Committee did not include the exemptions that DOD
requested. However, the committee noted the “often competing requirements for
maintaining military readiness and protecting the environment,” and directed the
Government Accountability Office (GAO) to study the extent to which current
environmental laws, regulations, and exemptions are affecting military training and
readiness activities, and the environment. GAO has conducted similar studies in the past,
noting the difficulty in assessing such impacts, as discussed below.
The following sections discuss challenges in assessing the impact of environmental
requirements on military readiness, broader exemptions for military activities that
Congress has enacted, and DOD’s continuing request for additional exemptions.
Impact of Environmental Requirements on Readiness
Whether existing exemption authorities are sufficient to preserve military readiness
has been an ongoing issue. Assessing the need for broader exemptions is difficult because
of the lack of data on the cumulative impact of environmental requirements on readiness
overall. Although DOD has cited instances of training restrictions or delays at certain
installations, the Department does not have a system in place to comprehensively track
these cases and assess their impact on readiness. In 2002, GAO found that DOD’s
readiness reports did not indicate the extent to which environmental requirements restrict
training activities, and that such reports indicate a high level of readiness overall.3
However, GAO did note individual instances of environmental restrictions at some
installations. In 2003, GAO found in another report that environmental restrictions are
one of several factors, including urban growth, that can affect DOD’s ability to carry out
training activities, but that DOD continues to be unable to broadly measure the impact of
encroachment on readiness.4
To better understand training capacity and needs, Section 366 of the National
Defense Authorization Act for FY2003 (P.L. 107-314) required DOD to develop a
comprehensive plan to address training constraints caused by limitations on the use of
military lands, marine areas, and airspace. The following year, Section 320 of the
National Defense Authorization Act for FY2004 (P.L. 108-136) required DOD to report
to Congress on how civilian encroachment, including compliance with air quality and
cleanup requirements, affects military operations. DOD released a report on these matters
in February 2006.5 The report included an inventory of training ranges but did not
identify constraints on each, as DOD indicated that it does not have a mechanism in place
to retrieve and centralize this information for each individual range. The report also
described situations in which air quality and cleanup requirements could affect military
3 General Accounting Office, Military Training: DOD Lacks a Comprehensive Plan to Manage
Encroachment on Training Ranges, GAO-02-614, June 2002.
4 General Accounting Office, Military Training: DOD Approach to Managing Encroachment on
Training Ranges Still Evolving, GAO-03-621T, April 2003.
5 Department of Defense. Report to Congress on Sustainable Ranges. February 2006. See
[https://www.denix.osd.mil/denix/Public/News/OSD/i366/i366.html].

---

CRS-4
readiness, but it concluded that these requirements have not affected readiness activities
thus far, causing some to continue questioning the need for broader exemptions.
Exemptions Enacted in the 107th and 108th Congresses
At the Administration’s request, the 107th Congress enacted an interim exemption
for military readiness activities from the Migratory Bird Treaty Act, which has since
expired. Also at the Administration’s request, 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 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, as enacted, is discussed below.
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 issuing 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 were drafted. A U.S. district court had ruled that
federal agencies, including DOD, are required to obtain permits for incidental takings.6
DOD had argued that an exemption was needed to prevent the delay of training activities
until takings permits could be issued. In February 2007, the U.S. Fish and Wildlife
Service finalized regulations for issuing incidental takings permits to DOD.7 The interim
exemption expired on the effective date of these regulations, March 30, 2007. DOD now
is required to obtain permits for activities that may result in incidental takings.
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 allowed these
plans to substitute for critical habitat designation. 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 directed 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.
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
6 191 F. Supp. 2d 161 (D. D.C. 2002).
7 72 Federal Register 8931.

---

CRS-5
consideration of impacts on military readiness in the issuance of permits for incidental
takings. DOD argued that these amendments were needed to prevent restrictions on the
use of the Navy’s low-frequency “active” sonar system. Environmental advocates had
legally challenged the use of the sonar system, arguing that it harmed marine mammals
and thus violated the Marine Mammal Protection Act and other environmental statutes.8
Although the debate over this exemption involved the use of low-frequency sonar,
the impacts of mid-frequency sonar on marine mammals also has been an issue. In
January 2007, DOD invoked its authority in P.L. 108-136 to issue a two-year exemption
from the Marine Mammal Protection Act for Naval training activities involving the use
of mid-frequency sonar, and the use of a new sensor that utilizes small explosive charges
under water. In its report on H.R. 1585, the House Armed Services Committee expressed
its concern about the impacts of this exemption. The committee directed the Navy to
assess the increase in military readiness, and the number and species of marine mammals
injured and killed, resulting from activities conducted under the two-year exemption.
Administration FY2008 Proposal
As noted earlier in this report, the Administration requested exemptions from certain
requirements of the Clean Air Act, Solid Waste Disposal Act, and CERCLA, as part of
its FY2008 defense authorization proposal. Senator Carl Levin, Chairman, and Senator
John McCain, Ranking Member, of the Senate Armed Services Committee, introduced
the Administration’s legislative proposal (S. 567) on February 13, 2007. In a statement
introducing the measure, Senator Levin noted that he offered the bill before Congress at
the Administration’s request without expressing the views of the committee on its
substance.9 Exemption provisions in S. 567, and related issues, are discussed below.
Solid Waste Disposal Act and CERCLA. Section 314 of S. 567 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 current definition of operational range,10 under which
DOD has the discretion to designate practically any lands under its jurisdiction as
operational, regardless of whether the land is being used for training. Opponents have
asserted that this exemption would place military munitions on operational ranges beyond
the reach of these two statutes, and could allow munitions and resulting contamination to
remain on any military lands designated as operational. As the exemption would no
longer apply once a range ceased to be operational, it presumably would not apply to
ranges on closed bases after the land is transferred out of military jurisdiction.
DOD asserts its proposal would clarify existing regulations that the Environmental
Protection Agency finalized in 1997.11 Under these regulations, “used or fired” munitions
on a range are considered a solid waste only when they are removed from their landing
8 NRDC v. Evans, 232 F.Supp. 2d. 1003, 1055 (N.D. Cal. 2002).
9 Congressional Record, February 13, 2007, pp. S1911-S1912.
10 10 U.S.C. 101(e)(3).
11 40 C.F.R. Part 266, Subpart M, Military Munitions Rule.

---

CRS-6
spot.12 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 clarify existing regulations in order to eliminate the possibility of
legal challenges, which might result in an active range being closed to require the removal
of accumulating munitions and cleanup of related contamination. DOD cautions that such
challenges could restrict training.
However, excluding military munitions from “solid waste” and “release” in federal
statute could have broader implications. Opponents, including state attorneys general,
state waste management officials, municipal water utilities, environmental advocates, and
communities, have argued that DOD’s proposal would narrow the waiver of federal
sovereign immunity in states, resulting in the removal of state authority to monitor
groundwater on operational ranges to determine whether a health hazard is present, or to
file citizen suits under the Solid Waste Disposal Act or CERCLA to compel cleanup of
that substance. They maintain that if this were the case, groundwater contamination could
not be investigated until it migrated off-range, potentially resulting in greater
contamination and higher cleanup costs than if the contamination were identified and
responded to earlier. Opponents also have asserted that the potential threat of litigation
is not sufficient basis for a broad change to existing law, noting that cleanup requirements
have not resulted in widespread restrictions on the operation of military training ranges.
Clean Air Act. Section 315 of S. 567 would exempt emissions generated by
military readiness activities from requirements to “conform” to State Implementation
Plans (SIP) for achieving federal air quality standards. Under current law, sources of
emissions, including activities of federal agencies, that would increase emissions above
limits 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
restrictions on these operations due to the emissions they would generate.
DOD asserts that the activities in question have a small impact on air quality, many
of which involve the reassignment of aircraft from one installation to another. In most
areas, the threshold for imposition of the conformity requirement is a net increase of 100
tons of emissions annually, an amount that some municipal governments estimate would
be equal to 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 advocates.
Section 315 also would alter Clean Air Act requirements for nonattainment areas in
which nonconforming military readiness activities are conducted. These areas would be
allowed to demonstrate that they would have met the standards except for emissions from
readiness activities. The bill 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 were the result
of emissions generated by military readiness activities.
12 40 C.F.R. 266.202(c).

---