The Law of Environmental Responsibility: A New Field for the Military Lawyer

• Author: Captain John E. Kirchner
• Pages: 03

The battle ~ O T

the pnality of the American enz,iron-rnent is a battle against neglect, mismanagement, poo? plannzng. and n piecemeal approach to problems o i natu..I resources.'

1. INTRODL'CTIOX

Two recent significant lawsuits have illustrated that the military departments cannot remain neutral in the battle over the "issue of the decade." In California, a Federal District Judge ruled that an Army Installation Commander must comply with State administrative orders to stop polluting llonterey Bay.' In addition, the Commander was held subject to wit for monetary damanes for Past violation of those orders.' In Maine, local and

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1752 Before the Senate Comm. on Intenor and lnsuiav Atairs,

91et Cong., 1st Sess. 1969)) [hereafter cited as Hearings on S. 10751.

'Cape Yay Izaak Waiton League Y. Macchia, 329 F. Supp. 604, 2 ERC 1661, 40 CSLW 2001 (D,X.J. 1971) at 1661. [In recognition of the Imita-tions and diverat1 of most Army legal libiades, authorities cited herein will attempt to include ail knom soureer. Federal cases in the emiron. mental field are freqvently quite recent and many district eowt Opinions sre not published in omerai reports. For this reason, c a m are frequently published an11 in the Bureau of National Affairs publication, Environment Reporter. Uniesn otherwise indicated. page citations for cases 41ii be to the latter ~ e r ~ i e e

(ERC) Additionally, it should be noted that msnl of the environmental cases haye aeauired desermrive names to overcome the mob-lem of lengthy atyie and the'faet that many eases mwiw identical pirtiea. These descriptive tiriea are used throughout the text and m e indicated in brackets in the initrsi faatnote mtatmnl.

'Califorma U. De,idson, 3 ERC 116; (N.D. Cai.. 19 January 1971 (Cn- published)) [Fovf. Ovd].

'Id. at ll6S. Because the ease was dismissed by mutual consent on 14July 1971 there was no challenge to this eoneimmn. The ease wai undoubt- 131

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*This article %,as adapted from B thesis presented to The Judge Adrocate General's School. US Army, Chsrldteaville. Virginia. while the author was B member of the Twentieth Advanced Course. The opinions and Conclusion6 presented herein m e those of the author and do not necessariiy represent the views of The Judge .advocate General's School or m y other govern-mentai agency.

*.JAGC. US Arm): Office of the Staff Judge Advocate. 2d Armored Division, Fort Hood, Texas. B.A., 1964, LL.B., 1966, Cnwersity of Texas. Member of the bar of the Supreme Court of Texas.

A Strategy of Quality C~nseivation in the Seventiel, Redia Address by Richard 11. Sixon. 18 October 1968 (wprinted in Heonngs on S. 1075.

s. 297, ond s.

national citizen groups sought an ~njunction to block "Operation Snowy Beach"--a joint Navy/.\larine amphibious training maneuver.' The Federal Distrlct Court denied the injunction be-cause the Nary was able to show ''Full good faith compliance with the substantive and procedural requirements . . of nhat has been described as "one of the cleverest pieces of lepislatian devised in recent 3-ears.'' - Yith the passage of The Natmnal Environmental Policy Act of 1969

'I

~ the Federal Government, and thus the military departments, acquired a major new responslblllty in the battle for environmental quality As the mere mention of the word "lawsuit" suggests, the military l a y w can expect to be called upon to aa-sist in both understanding and meetmg that responsibiliti Unfortunately, it is quite possible that only a few Army lawyers were even aware of SEPA until January 1972 when a Department of Arm, letter recommended "that command Iegd offices be represented on command environmental committees." ' On the per-haps questionable assumption that most local commands nowhave such a committee and that a lawyer has been assigned to It,

this article offers an introduction to the Law of Environmental Responsibility-a field which promlsea tQ become a larger part of the military lawyer's job description.

Beginning with Earth Day in April 1970 the public effort to achieve environmental quality gained national recognition and power. Traditional conservationist organizations experienced

ENVIRONMENTAL LAW

great increases in membership.'" New organizations developed on bath local and national levels." Colleges and universities hurriedlr added nea courses, departments, and even degree programs.'i The newly farmed Council on Environmental Quality (CEQ) labeled 1970 as "the year of the environment" and one writer caneiuded :

The environmental pliey-growing numbers of citizens and students intensely committed and deeply concerned about the growing prab-lemi of environmental pollution-promires to provide the malor impetus for the development of an environmental ethic. The massesof emironmental aetivrsfr promise to develop the law of the environment and ta inspire the lswmsker The citizen and his iax, bequeath to us the blessings af B clean environment." "Environmental law" in its broadest sense is not so much a new body of law as it is the effect of a new "environmental ethic" I' on a variety of traditional legal principles. Because both the statutor? and case materiala are still in a formative process, the "SUT-ves of law" contained herein is scarcely more than "ephemeral." What is intended is a basic starting point far the military lawyer who faces the difficult task of assisting his client in complying with "both the requirements and the spirit of Executive Order 11507, . . . and with [KEPAI a8 implemented by Executive Order 11514. . , ."Ia Because the relatively few "requirements"

"E.#.

The Sierra Club, ongmally founded in 1892 pdmsrli? 8s an outdoor ~ocisl group, incressed from 40,000 members m 1968 to over 100,000~n 1970, Enoiramentol Qwality, The Firat Annual Report oi the Counoiion Eniironmentol Quolbtv, Avpval 1910, at 215 [hereafter cited as 1st CEQ Report]. By 1971, membership In the Ave Imgeat nstmnal environmentai organizations had increased to 1.6 million. slmolt 33 percent mer 1070. Enviramrntal Quality. The Srroad Arriuol Report ai the Cound on Bit. i'mnnental Quality, August 1971, at 92 [hereafter cited 88 Id CEQ Re. port]. (The ~nnus.1 CEQ Reparti are highly recommended to an)-one ~n-terested ~n obtaining B broad oiewiew of the problems a1 the environment~n Bummar? form.)

"Winder, Citizen Group#, The Law and The E,mronmmt. 2 EZ~~RONYEXT L. REI.. 40. 50 reprinted from 1970 UTAH L REV. 404 (1970)

"Slve, Some Thoughts of an En 'tramentel Lo%yer in !he W'ildernrsaof Admmistmtwe Loa. 2 ENIIROSMEW L. RFI. 87 (1971). at 88-89 (ye. pmnted iiom 70 COLUM. L. REV. 612 (1970)). (Mr. Sive haz been raun~el in B number of maim envimnmental lawsuits, most notably the Stam King esse, Scsiiio Hudson Fresrrrafron Conference Y Frderol Powei Com-mi~s%on,

354 F.2d 603 i2d Clr 1966). cert. denzed sub nom., Conadzdated n Co. Y. Seenic Hudsor Fmirrvatzon Canierenoe, 384 L-s

941 i19S6))

1st CEQ Report at 1.Wmder. supm note 11. at 50.

S Arm>- Chief of Staff Memorandum 70-323, Subject. Protection and Enhancement of Environmental Quality, para. E(.), 14 September 1970, ertendrd until 31 August 1072 by Chief of Stsff lilemoiandum 71-115-48,5 August 1971. (emphasis added) [hereafter cited as CoiS .Mema].

presentlr In existence require considerable interpretation, the ask is primarily to 8sSist ~n understanding the

As uith most ephemeral beings, the spirit of the Lau of Environmental Respansibilits- 1s elusive and perhaps transltary. For the most part it appears to depend upon one's perspective. But, like a religion, the variety of specific philosophies and interpretations are united by one fundamental belief in "environmental quality." While there may he little agreement an what environmental quality is, virtually e%-er>-one knows what it isn't. Even though u'e may not agree on how to achieve it, everyone agrees we must try. For these reasons, accurate prediction of legal ruli n g ~ and statutory interpretations 18 largely dependent upon the accuracy of one'a appraisal of the attitude of the Courts, the Congress, and the Public. That appraisal must begin with a look at the basic precepts of the "environmental ethic."

11. WHAT VALUES ARE PROTECTED?

Defining and protecting the values contemplated by the "en-vironmental ethic" can be simplified if the>- are divided into two distinct categories: objective and subjective. The farmer in-involves the most obnoua and fundamental of values-thatof life Itself. Thus, Pollution Abatement JAWS are designed to define and protect the health and safets of human life, plant hfe, and animal life. Because the presence or abjence of life id

fairly simple to determine, the factors uhich are detrimental to life can be dealt with abjectirely. And, because pollution abatement IS concerned with objectively definable values, enforcement can deal with direct cause and effect relationships

The latter category. which is broader, is much more difficult for a societs- accustomed to the ever-increasing benefits of an advanced technology Except far a few complex and spec~almed subjects, such as the law of future interests in property, the legal system 1s not normally concerned with the long-range problems associated with "responsibilities to future generations." The emerging law of Impact Assessment Decisions, however, is an attempt to deal with such long-range problems. As such, It seeks to introduce a legal framework by which the subjective values can be identified.'. In addition, it seeks to insure that the decisions made todq wll not overlook the indirect consequences which in the future will present a threat to the objectivelr determinable values protected by pollution abatement laws.

' see seetmn IV, mtrr.

ENVIRONMENTAL LAW

Too often, administrative officials and government managers, particularls in the military departments, may tend to equate "environmental quality" with a reduction in the amount of effiuent dumped into the physical surroundings. The result is to deemphasize the broader and more important...