Order Code RS22149
Updated August 17, 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 cumulative impact of environmental requirements on readiness. There
also has been disagreement over the impacts that broader exemptions would have on
environmental quality. Although certain exemptions DOD has requested have been
enacted into law, Congress has opposed others. After considerable debate, the 107th
Congress enacted a temporary 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. As in each year 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 the Administration’s FY2008 defense authorization
bill (S. 567), but Congress has not included them in the FY2008 defense authorization
bills (H.R. 1585 and S. 1547), nor the FY2008 defense appropriations bills (H.R. 2642,
H.R. 3222, and S. 1645), on which it has acted so far. Apart from these bills, stand-
alone legislation (H.R. 3366) would seek to clarify the compliance of military activities
with environmental laws.
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

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are specifically for national security.1 Most of these exemptions are limited to one year,
but they can be renewed.2 Whether 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 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 requirements that it argues could restrict or delay training. In FY2003, 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
combat training and other readiness activities. 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
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 a temporary 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 again has requested exemptions from these three statutes as part of its FY2008
defense authorization proposal, included in Sections 314 and 315 of the Administration’s
bill (S. 567). 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 continuing concerns about human
health and environmental risks, have motivated opposition to these exemptions.
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.

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DOD’s proposed exemptions are not included in any of the FY2008 defense
authorization bills (H.R. 1585 and S. 1547), nor the FY2008 defense appropriations bills
(H.R. 2642, H.R. 3222, and S. 1645), on which the 110th Congress has acted so far. In
its report H.R. 1585 (H.Rept. 110-146), the House Armed Services Committee did note
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 environmental laws, regulations, and exemptions have affected military
readiness and the environment. GAO has conducted similar studies in the past, and has
acknowledged the difficulty in assessing such impacts, as discussed below.
Apart from the above defense bills, stand-alone legislation (the Military
Environmental Responsibility Act, H.R. 3366) has been introduced that would seek to
clarify the compliance of military activities with numerous environmental laws. Section
3 of the bill would specify the substantive and procedural requirements to which DOD
and other defense-related agencies are subject. However, the effect of certain provisions
is unclear. Although one provision would prohibit exemptions from environmental
requirements, another provision would acknowledge the possibility of future exemptions
and limit their duration to six months, unless extended by an act of Congress.
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 at certain installations,
a system is not 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
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.

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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
readiness, but it concluded that these requirements had not affected readiness activities
so far, causing some to continue questioning the need for broader exemptions.
Exemptions Enacted in the 107th and 108th Congresses
The 107th Congress enacted a temporary exemption for military readiness activities
from the Migratory Bird Treaty Act, which has since expired. 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. Each of these exemptions, and relevant developments subsequent to their
enactment, are 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 (INRMP) for such lands provides a “benefit” to the species for which
critical habitat is proposed for designation. In many instances, 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. Since the enactment of these provisions,
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].
6 191 F. Supp. 2d 161 (D. D.C. 2002).
7 72 Federal Register 8931.

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the U.S. Fish and Wildlife Service has routinely excluded military lands from critical
habitat designations either because an INRMP was deemed to offer adequate protection,
or because of potential impacts on national security. However, DOD remains subject to
all other protections provided in the Endangered Species Act, such as the prohibition on
“takings” in Section 9 of the act, and consultation requirements in Section 7.
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. At the time, DOD argued that these amendments were needed to allow the use
of the Navy’s low-frequency “active” sonar system. Environmental advocates had legally
challenged the use of this sonar, arguing that it harmed marine mammals and thus violated
the Marine Mammal Protection Act and other environmental statutes.8
The impacts of mid-frequency active 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 active 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.
Although DOD has invoked the above exemption from the Marine Mammal
Protection Act, other federal statutes have been used to challenge the Navy’s sonar use.
On August 6, 2007, a U.S. district court granted a preliminary injunction against the Navy
to prevent the use of mid-frequency active sonar in training exercises planned off the
coast of southern California.9 The court based its decision on potential violations of the
Coastal Zone Management Act, National Environmental Policy Act, and the
Administrative Procedures Act. The preliminary injunction does not appear to prevent
the Navy from carrying out other training activities it may have planned in that area of the
ocean that do not involve the use of mid-frequency active sonar.
Administration FY2008 Proposal
Although Congress has enacted the above exemptions from the Migratory Bird
Treaty Act, Endangered Species Act, and the Marine Mammal Protection Act, Congress
has not acted on the exemptions from the Solid Waste Disposal Act, CERCLA, and the
Clean Air Act, which DOD continues to seek. The following sections discuss these latter
exemptions and the issues surrounding them.
8 NRDC v. Evans, 232 F.Supp. 2d. 1003, 1055 (N.D. Cal. 2002).
9 NRDC v. Winter, No. 8:07-cv-00335 (C.D. Cal. August 6, 2007).

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Solid Waste Disposal Act and CERCLA. Section 314 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. Opponents
have asserted that this exemption would place military munitions on such ranges beyond
the reach of these two statutes, allowing munitions and resulting contamination to remain
and present potential health risks. 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 with authorities under the Solid Waste Disposal
Act.10 Under these regulations, “used or fired” munitions on a range are considered a
solid waste only when they are removed from their landing spot. Until DOD removes
them and they “become” solid waste, they are not subject to disposal or cleanup
requirements under the Solid Waste Disposal Act. DOD states that this clarification is
needed in statute to eliminate the possibility of legal challenges that could require cleanup
of a range each time a munition is deposited, which could make training impractical.
Some Members of Congress, states, and environmental organizations have expressed
concern that the proposed amendments could have broader implications. First, amending
the definition of release would exceed the scope of the above regulations and place
military ranges beyond CERCLA’s reach. Second, the exemption could result in
removing state authority to monitor contaminated ranges to determine whether a health
hazard is present. Further, the proposed amendments could circumvent the authority under
CERCLA and the Solid Waste Disposal Act to file citizen suits to compel cleanup of
munitions and related contamination on military ranges.
Clean Air Act. Section 315 would allow a three-year exemption from air quality
“conformity” requirements for military readiness activities. Under current law, emissions
must conform to limits in State Implementation Plans (SIPs) to achieve federal air quality
standards, unless offsetting reductions from other sources are made in the same area
where the violation would occur. DOD asserts that its proposed exemption would provide
greater flexibility for transferring training operations to areas with poor air quality, as
those operations would be given more time to conform to emissions limits in those areas.
Although DOD states that these operations would have a small, short-term impact on air
quality, some Members of Congress, states, and environmental organizations have
questioned whether the emissions would be great enough to present a health risk.
Section 315 includes additional provisions that would alter Clean Air Act
requirements for nonattainment areas in which emissions from military readiness
activities would be exempt from conformity requirements. Under these provisions,
individual areas would exclude emissions from readiness activities in determining
whether they have met federal air quality standards. As a consequence, 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 readiness activities. Some
have questioned whether these provisions would therefore weaken the public health
protections that federal air quality standards are intended to provide.
10 40 C.F.R. Part 266, Subpart M, Military Munitions Rule.

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