Exemptions for Military Activities in Federal Environmental Laws

Exemptions for Military Activities in Federal Environmental Laws

Order Code RS21217
Updated June 18, 2002
CRS Report for Congress
Received through the CRS Web
Exemptions for Military Activities in Federal
Environmental Laws
name redacted
Legislative Attorney
American Law Division
Summary
Under several federal pollution-control statutes, activities of the U.S. military are
subject to federal, state, and local environmental requirements, both substantive and
procedural, along with activities of federal agencies generally. Each of these statutes.
however, authorizes the President to grant exemptions (generally, up to one year and
extendable by one year at a time) when he determines it to be in the “paramount
interest” or “national security interest” of the United States. In addition, the Clean Air
Act and Clean Water Act provide the President with further exemption authority for
property of the military of a “uniquely military” nature.
Among other federal environmental statutes relevant to military operations, the
National Environmental Policy Act has been construed to contain no general exemption
for federal actions in the interest of national defense or security, but such purposes may
affect the judicial remedy and the need for public disclosure of the environmental impact
statement. Also, Council on Environmental Quality regulations relax NEPA
requirements for “emergency circumstances.” Under the Endangered Species Act,
exemptions from the Act’s species protections are authorized by opinion of the
appropriate Secretary and by action of an “Endangered Species Committee.” That
Committee must grant an exemption if the Secretary of Defense finds it necessary for
reasons of national security.
Under several federal pollution-control statutes, the military branches (along with
other federal agencies) must comply with federal, state, and local environmental
requirements to the same extent as non-federal entities. These mandates include
requirements both substantive and procedural. Of special relevance to the military,
however, each of these pollution-control statutes contains a provision authorizing the
President to exempt executive-branch sites from pertinent environmental requirements
when in the “paramount interest” or “national security interest”of the United States.
Certain federal environmental statutes not specially directed toward pollution control
– for example, the National Environmental Policy Act and the Endangered Species Act
– also apply to the military along with other federal agencies, and also allow military-
relevant exemptions.
Congressional Research Service ˜ The Library of Congress

CRS-2
The scope of these exemptions from otherwise applicable environmental mandates
is currently of congressional interest due to pending legislation that would expand certain
of the exemptions for Department of Defense functions. This report briefly summarizes
(1) the statutory provisions making the military subject to the foregoing laws, and (2) the
provisions authorizing exemptions. Note that the provisions in the pollution-control
statutes, of which those in the Clean Air Act were the first enacted, are highly similar and
obviously patterned after one another. In contrast, the approaches taken in the non-
pollution-control statutes are quite different, both from the pollution control statutes and
from each other.
Clean Air Act
Section 118 of this statute (42 U.S.C. § 7418) says that each federal agency shall
comply with “all Federal, State, interstate, and local requirements, administrative
authority, and process and sanctions respecting the control and abatement of air pollution
in the same manner, and to the same extent, as any nongovernmental entity.” This
mandate is made applicable to “any requirement whether substantive or procedural,”
including any requirement respecting permits.
The President may exempt any executive-branch emission source if he determines
it to be “in the paramount interest of the United States,” except that no exemption may
be granted from the standards for new stationary sources (section 111). Also, an
exemption from the hazardous emissions section of the act (section 112) may be granted
only if the President determines that the technology to implement the standard is not
available and that it is “in the national security interest of the United States.” An
exemption may not exceed one year (two years in the case of hazardous-emissions
exemptions), but may be extended for up to one year at a time (two years at a time for
hazardous-emissions exceptions) upon the President’s making a new determination.
In addition, the President may, if he determines it to be in the “paramount interest
of the United States,” exempt any weaponry, equipment, aircraft, vehicles or other classes
or categories of property of the military that are uniquely military in nature. He shall
reconsider the need for such regulations at three-year intervals.
“Military tactical vehicles” need not comply with vehicle emission inspection and
maintenance programs.
Clean Water Act
Section 313 of this statute (33 U.S.C. § 1323) says that each federal agency shall
comply with “all Federal, State, interstate, and local requirements, administrative
authority, and process and sanctions respecting the control and abatement of water
pollution in the same manner, and to the same extent, as any nongovernmental entity ....”
This mandate is made applicable to “any requirement whether substantive or procedural,”
including any requirement respecting permits.
The President may exempt any executive-branch effluent source if he determines it
to be “in the paramount interest of the United States,” except that no exemption may be

CRS-3
granted from the national standards for new sources (section 306) and toxic and
pretreatment effluent standards (section 307). An exemption may not exceed one year,
but may be extended for up to one year at a time upon the President’s making a new
determination.
In addition, the President may, if he determines it to be “in the paramount interest
of the United States,” exempt any weaponry, equipment, aircraft, vessels, vehicles, or
other classes or categories of property of the military that are uniquely military in nature.
He shall reconsider the need for such regulations at three-year intervals.
Safe Drinking Water Act
Section 1447 of this statute (42 U.S.C. § 300j-6) says that each federal agency shall
comply with “all Federal, State, interstate, and local requirements, both substantive and
procedural ... , respecting the protection of ... wellhead areas, ... public water systems, and
... underground injection in the same manner and to the same extent as any person is
subject to such requirements ....”
The President may exempt any executive-branch facility if he determines it to be “in
the paramount interest of the United States.” An exemption may not exceed one year, but
may be extended for up to one year at a time upon the President’s making a new
determination.
Resource Conservation and Recovery Act
Section 6001 of this statute (42 U.S.C. § 6961) says that each federal agency shall
comply with “all Federal, State, interstate, and local requirements, both substantive and
procedural (including any requirement for permits ... ) respecting control and abatement
of solid waste or hazardous waste disposal and management in the same manner, and to
the same extent, as any person is subject to such requirements ....” This mandate is made
applicable to all administrative orders “any requirement whether substantive or
procedural,” including any requirement respecting permits.
The President may exempt any executive-branch solid waste management facility
if he determines it to be “in the paramount interest of the United States.” An exemption
may not exceed one year, but may be extended for up to one year at a time upon the
President’s making a new determination.
Section 9008 of this statute (42 U.S.C. § 6991f) says that every federal agency shall
comply with “all Federal, State, interstate, and local requirements, applicable to
[underground storage tanks], both substantive and procedural in the same manner, and to
the same extent, as any other person is subject to such requirements ....”
The President may exempt any executive-branch underground storage tank if he
determines it to be “in the paramount interest of the United States.” An exemption may
not exceed one year, but may be extended for up to one year at a time upon the President’s
making a new determination.

CRS-4
Comprehensive Environmental Response, Compensation and
Liability Act
Section 120(a) of this act (42 U.S.C. § 9620(a)) says that each federal agency shall
comply with “this Act in the same manner and to the same extent, both procedurally and
substantively, as any nongovernmental entity, including liability under section 107 of this
Act.”
The President may issue such orders regarding response actions at any specified site
or facility of the Department of Energy or the Department of Defense “as may be
necessary to protect the national security interests of the United States ....” CERCLA §
120(j), 42 U.S.C. § 9620(j). An exemption may not exceed one year, but may be
extended for up to one year at a time upon the President’s issuance of a new order. “It is
the intention of Congress that whenever an exemption is issued under this paragraph the
response action shall proceed as expeditiously as practicable.” Id.
Noise Control Act
Section 4 of this act (42 U.S.C. § 4903) says that each federal agency shall comply
with “all Federal, State, interstate, and local requirements respecting control and
abatement of environmental noise to the same extent that any person is subject to such
requirements.”
The President may exempt any single activity or facility, including noise emission
sources or classes thereof, of any executive-branch agency if he determines it to be “in the
paramount interest of the United States.” No exemption may be granted from noise
emission standards mandated under specified sections of the act, but this does not apply
to aircraft and “any military weapons or equipment which are designed for combat use.”
An exemption may not exceed one year, but additional exemptions may be granted for not
to exceed one year upon the President’s making a new determination.
Other, Non-pollution Control Statutes
Non-pollution-control statutes often mentioned in the debate over broadening the
available military exemptions in environmental statutes include the National
Environmental Policy Act and the Endangered Species Act. The Migratory Bird Treaty
Act, addressed in several pending military-exemption bills, is not listed here because it
neither explicitly addresses its applicability to federal activities, nor has generated a
consistent body of case law on the issue.1
The National Environmental Policy Act (NEPA) requires each federal agency to,
among other things, prepare an environmental impact statement (EIS) on “major Federal
actions significantly affecting the quality of the human environment.” NEPA §
102(2)(C); 42 U.S.C. § 4332(2)(C). The case law rejects any broad, general exemption
1 For more extended discussion of the military applicability of certain non-pollution-control
statutes, see (name redacted), The Endangered Species Act, Migratory Bird Treaty Act, and
Department of Defense Readiness Activities: Current Law and Legislative Proposals, CRS
Report RL31415 (updated May 17, 2002).

CRS-5
from this or other NEPA requirement simply because an action is taken in the interest of
national defense or security. See, e.g., Concerned About Trident v. Rumsfeld, 555 F.2d
817 (D.C. Cir. 1977); Weinberger v. Catholic Action of Hawaii, 454 U.S. 139 (1981)
(rejected implicitly).
Case law does recognize, however, that the importance of national defense and
security needs may affect the remedy granted by a court should a NEPA violation be
found. Thus, while holding that a proposed underground nuclear test was subject to
NEPA, the D.C. Circuit declined in the interest of national security and foreign policy to
grant an injunction despite serious questions as to the adequacy of the EIS. Committee
for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 796 (D.C. Cir. 1971).
Case law also recognizes that the Freedom of Information Act (FOIA, 5 U.S.C. §
552), stated by NEPA to govern the public disclosure of EISs, may in some instances
shield national defense activities from judicial review for NEPA compliance when
FOIA’s national security exemption applies. Weinberger v. Catholic Action of Hawaii,
454 U.S. 139 (1981). (FOIA’s national security exemption, 5 U.S.C. § 552(b)(1), makes
the Act’s public disclosure mandate inapplicable to “matters that are ... specifically
authorized under criteria established by an Executive order to be kept secret in the interest
of national defense or foreign policy and ... are in fact properly classified pursuant to such
Executive order ....”). Of similar import are regulations of the Council on
Environmental Quality stating that environmental assessments and EISs addressing
classified proposals (defined as in the FOIA national security exemption) may be
restricted from public dissemination. 40 C.F.R. § 1507.3(c).
Finally, Council on Environmental Quality regulations relax NEPA requirements for
“emergency circumstances.” Where such circumstances necessitate taking a federal
agency action having significant environmental impact without following the Council’s
regulations, the agency “should consult with the Council about alternative arrangements.”
40 C.F.R. § 1506.11.
The Endangered Species Act makes it unlawful for any “person” – defined to
include federal agencies – to “take” any fish or wildlife species listed as endangered. ESA
§ 9(a)(1), 16 U.S.C. § 1538(a)(1) (prohibition); ESA § 3(13), 16 U.S.C. § 1532(13)
(definition of “person”). “Take,” says the Act, means to harass, harm, wound, kill, or the
like. ESA § 3(19), 16 U.S.C. § 1532(19).
In addition, each federal agency must insure that its actions are “not likely to
jeopardize the continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of [designated critical] habitat ....” ESA
§ 7(a)(2), 16 U.S.C. § 1536(a)(2).
Two exemption processes are set out in the Act. First, if, after consultation with the
Secretary of Interior or Commerce (as appropriate), that Secretary concludes that the
taking of an endangered or threatened species incidental to the agency action will not
violate section the 7(a)(2) strictures against jeopardizing listed species, the action may
proceed. (The Secretary’s favorable opinion constitutes as well compliance by the
agency with the “incidental take” exception to the ESA section 9 prohibitions above.)

CRS-6
If, however, the Secretary’s opinion indicates that the proposed agency action would
violate section 7(a)(2), then a second exemption process comes into play. In this
circumstance, the federal agency may apply to the appropriate Secretary to exempt its
proposed action. ESA § 7(g), 16 U.S.C. § 1536(g). The Secretary then must submit a
report to an “Endangered Species Committee” (popularly known as the “God Squad”)
discussing the availability of alternatives to the agency action, its benefits compared with
alternative courses of action consistent with section 7(a)(2), whether the action is in the
public interest and of regional or national significance, etc. Within 30 days after receiving
the report, the Committee must decide whether to grant the exemption. Important here,
“the Committee shall grant an exemption for any agency action if the Secretary of
Defense finds that such exemption is necessary for reasons of national security.” ESA §
7(j), 16 U.S.C. § 1536(j) (emphasis added).

EveryCRSReport.com
The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the
Library of Congress, charged with providing the United States Congress non-partisan advice on
issues that may come before Congress.
EveryCRSReport.com republishes CRS reports that are available to al Congressional staff. The
reports are not classified, and Members of Congress routinely make individual reports available to
the public.
Prior to our republication, we redacted names, phone numbers and email addresses of analysts
who produced the reports. We also added this page to the report. We have not intentional y made
any other changes to any report published on EveryCRSReport.com.
CRS reports, as a work of the United States government, are not subject to copyright protection in
the United States. Any CRS report may be reproduced and distributed in its entirety without
permission from CRS. However, as a CRS report may include copyrighted images or material from a
third party, you may need to obtain permission of the copyright holder if you wish to copy or
otherwise use copyrighted material.
Information in a CRS report should not be relied upon for purposes other than public
understanding of information that has been provided by CRS to members of Congress in
connection with CRS' institutional role.
EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim
copyright on any CRS report we have republished.