Environmental Compliance in Contigency Operations: In Search of a Standard?

• Author: Major Karen V. Fair
• Pages: 02

112 MILITARY LAW REVIEW [Vol. 157

ENVIRONMENTAL COMPLIANCE IN CONTINGENCY OPERATIONS:

IN SEARCH OF A STANDARD?

MAJOR KAREN V. FAIR1

Environmental threats do not heed national borders and can pose long-term dangers to our security and well being . . . . Decisions today regarding the environment and natural resources can affect our security for generations; consequently, our national security planning is incorporating environmental analysis as never before.

-President Clinton's National Security Strategy2

Environmental responsibility involves all of us. The environmental ethic must be part of how we live and how we train . . . .

By working together, we can forge a premiere Environmental Stewardship Program. Protection of the environment is key to ensuring we can continue to conduct tough, realistic training and keep the Army trained and ready in the future.

-General Dennis Reimer3

Chief of Staff, U.S. Army

1. Introduction

   In November 1992, the secretary and the chief of staff of the Army signed the United States Army Environmental Strategy into the 21st Century.4 The strategy states: "Leadership is the key to success . . . . Each of

   you in the chain of command is responsible for ensuring that the U.S. Army strategy is implemented and that environmental stewardship is an integral part of everything you do."5 The strategy also directs the Army leadership to instill an environmental ethic-in addition to the warfighting ethic-throughout the force.6 In the context of multilateral peace operations7 that are evolving in the current complex international and political world stage, this is a demanding mandate for today's armed forces.

   The United Nations Security Council authorized more peacekeeping operations after 1988 than in the preceding forty years.8 Consequently, since 1990, the National Command Authorities (NCA)9 have deployed military forces in over twenty-five operations worldwide. 10 The protec-

   tion of the natural environment during the planning and execution phases of these varied contingency operations must reflect the national security strategy and the Army leadership's vision of environmental stewardship. Despite the best efforts of military planners in the planning and execution of contingency operations, the media microscope can transform an otherwise successful operation into a political failure absent vigilant oversight of the impact of military operations on the environment.11 Proper staff planning for environmental considerations during contingency operations, accompanied by a standardized environmental package for every military unit that deploys to a world "hot spot" will assist in the successful accomplishment of the operation and will insulate commanders from negative media publicity.

   The balance between successfully completing a contingency operation, such as a United Nations sanctioned Chapter VI or Chapter VII multinational force mission, and protecting the environment has become increasingly more demanding since 1992.12 The failure to navigate successfully through the maze of international law and treaties, domestic statutes, Department of Defense directives, and other assorted service-level regulations can impede the mission, damage international relations, generate negative media coverage, and produce costly environmental claims. A deploying unit's failure to comprehend fully the environmental maze of

   obligations may result in the commander's personal criminal and/or civil liability.13 Despite these potential negative consequences and the increased emphasis on environmental protection, there is "no strategic environmental policy, either at the joint or service level, which applies specifically to overseas contingency operations."14 There are myriad existing environmental laws for peacetime military operations worldwide. Most of these peacetime laws, however, are either inapplicable or are inappropriate for application during overseas military operations other than war (MOOTW).15

   In light of existing environmental doctrine and guidance, this article analyzes the continuum of recent contingency operations and demonstrates that current doctrine is incomplete, vague, and disjointed. This article then offers proposed solutions to address the legal void for environmental considerations during MOOTW. Part II of this article examines the current legal structure and the analysis that applies to environmental considerations in overseas contingency operations. Part III describes the fluctuating environmental doctrine in recent MOOTW and the current legal void in this area. Part IV focuses on the imminent changes in the area of environmental considerations during MOOTW and how these changes will impact on the combatant commander's discretion and force a new approach to environmental considerations during MOOTW. The final section, Part V, anticipates the impact of these changes on legal

   advisors in the field and on the initiatives that the chairman of the Joint Chiefs of Staff and service-level operators and planners must pursue to integrate environmental considerations into the contingency operation planning and execution processes.

2. Current Framework of Environmental Standards Applicable During Overseas MOOTW16

   Recent contingency operations, such as Operation Joint Endeavor in Bosnia, illustrate the major role that environmental issues can play.17 Such issues may take even the most seasoned legal advisors by surprise. Many people might mistakenly assume that domestic environmental statutes have no applicability in foreign countries or that military necessity negates or mitigates compliance with environmental law.18 The critical job for

   deployed judge advocates is determining which international laws, domestic statutes, Department of Defense directives, service regulations, and host nation laws and policies apply and which do not.19 An elaborate and complicated statutory and regulatory scheme exists to ensure that the combatant commander, at the very minimum, considers the environmental consequences of contingency operations.

   A. Executive Order 12,114

   Although the National Environmental Policy Act20 (NEPA) presumptively does not apply extraterritorially,21 Executive Order (EO) 12,114, Environmental Effects Abroad of Major Federal Actions,22 mandates that the armed forces comply with the spirit and intent of the NEPA during major overseas operations.23 Executive Order 12,114 requires extensive

   environmental analysis for major federal actions that have significant effects on the environment outside the United States and its territories and possessions.24

   B. Department of Defense Directive 6050.7

   Department of Defense (DOD) Directive 6050.7, Environmental Effects Abroad of Major Department of Defense Actions,25 imposes NEPA-like requirements with respect to major DOD actions that may adversely affect the environment of a foreign nation, a protected natural or ecological resource of global importance, or the global commons.26 Specifically, the directive establishes environmental compliance procedures, as well as exemptions and categorical exclusions to the compliance requirements.27 The individual services have supplemented this guidance with specific rules that define the environmental documents required, levels of review for actions in the global commons, and requirements for env

   ronmental considerations that affect foreign nations and protected global resources. 28

   C. Analytical Approach-The Two Prong Analysis

   A two-prong analysis determines whether EO 12,114's review requirement is triggered.29 The first prong is whether a major federal action is involved. Major federal actions include: operations that involve substantial expenditures of time, money, and resources; operations that affect the environment on a large geographic scale, or have substantial environmental effects on a more limited area; and, actions that are significantly different from other actions that were previously analyzed and

   approved.30 From a practical perspective, virtually all overseas MOOTW will meet the test for a "major federal action."

   The second prong of the analysis is whether the MOOTW will significantly harm the environment. Significant environmental harm is damage to: the global commons (for example, oceans or Antarctica); a foreign nation that is not participating with the United States in the action (commonly referred to as the "participating nation" exception); a foreign nation that receives from the United States, during the federal action, a generated product, emission, or effluent that is prohibited or strictly regulated by U.S. federal law; or, any area outside the United States with natural or ecological resources of global importance.31 The combatant commander decides whether the "participating nation" exception applies, and, if so, the exception allows the deploying unit to avoid cumbersome documentation requirements.32 Specifically, no environmental reviews or documentation is required with respect to federal actions outside the United States that affect only the environment of a "participating nation."33

   Executive Order 12,114 exempts other specific major federal actions from the review requirement.34 The exemptions most commonly asserted by the armed forces are actions taken following the President's direction during an armed conflict35 and actions taken following the direction of the President when national security interests are involved.36 Unlike the "participating nation" exception, which is simply approved by the combatant commander as part of the operational plan, these exemptions require commanders to seek affirmatively from the secretary of defense (through cha

   nels) variance from formal documentation requirements.37 Executive Order 12,114 also allows the secretary of defense to designate as categorical exclusions (CXs) actions that "normally do not, individually, or cumulatively" result in significant harm to the environment.38 If a CX provision covers the environmental action, the...