A National Security Threat Without Borders: Climate Change and the Need for Military Facility Modernization

• Date: 01 December 2024

ARTICLES

122024 ENVIRONMENTAL LAW REPORTER 54 ELR 11035

Climate change is a relatively new national security

threat that threatens A merican military operations.

e U.S. Department of Defense (DOD) has doz-

ens of military inst allations throughout the United States,

including Hawaii and Alaska. Many of these installations

have aging infra structure, specically building s and related

structural facilities.1 Such facilities a re growing increas-

A NATIONAL SECURITY THREAT

WITHOUT BORDERS: CLIMATE

CHANGE AND THE NEED FOR

MILITARY FACILITY MODERNIZATION

by Janessa H. Brito

The U.S. military has recognized climate change as a national security threat. Over the past three decades,

installations across the countr y have experienced infrastr ucture damage, personnel evacuations, and millions

or billions in rebuilding or repair costs. This Article argues that most military facilities are woefully unpre-

pared for these impacts; to expedite action, it calls for a focus on expanding Other Transaction Authority

(OTA) for infrastructure-related procurement, as well as specif‌ic measures, mandates, and responses. The

Article examines recent devastating weather events across Air Force installations in Florida and California.

It then discusses recent laws on environmental response, with a focus on the National Defense Authorization

Acts and specif‌ic provisions for infrastructure, facility, and related environmental measures, and highlights

various directives, plans, and spending behavior. It concludes by proposing top-down solutions for speeding

procurement and broadening use of OTAs.

SUMMARY

Major Janessa H. Brito is a 2024 LL.M. graduate of the George Washington

University Law School and a judge advocate general in the U.S. Air Force.

Author’s Note: The author would like to f‌irst thank God, and

her spouse for her unfathomable support, patience, and

love. Second, the author thanks Dean Randall S. Abate’s

wise feedback and guidance in steadily reminding her to

ask, “so what?” Those two simple words drove the writing

and resolve to explain why this timely topic must be dis-

cussed in literature and in conference rooms across the U.S.

Department of Defense. Finally, the author thanks Dean

Steven L. Schooner for directing the procurement aspect of

the Article while sharing his broad expertise related to sus-

tainable defense acquisition.

Disclaimer: Major Janessa H. Brito currently serves as an

active-duty judge advocate general in the U.S. Air Force.

The views, opinions, and recommendations expressed in

this Article are only those of the author and do not neces-

sarily represent the views or positions of the U.S. govern-

ingly and concerningly ill-equipped to withstand climate

change-related threats.2 At least since 2016, DOD has

implemented policy for climate adaptation and acknowl-

edged the increasing threats from climate change.3

Nonetheless, over the past two decades, many DOD

military ins tallations have been devastated by natura l disas-

ters. Domestically, most U.S. military bases have facilities

1. U.S. G A O (GAO), GAO-22-104481,

D I: DOD S B M R P

 D F M (2022).

2. A N  ., RAND C, RR-A523-1, G:

A E-W L  D   A F I-

 E  N H ix (2021), https://www.rand.org/

content/dam/rand/pubs/research_reports/RRA500/RRA523-1/RAND_

RRA523-1.pdf.

3. DOD Directive 4715.21, Climate Change Adaptation and Resilience

(Jan. 14, 2016, with Change 1 eective Aug. 31, 2018), https://www.

esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/471521p.pdf?

ver=2018-09-25-081059-330 (providing an example of a DOD pol-

icy including climate change’s application or consideration in a mili-

tary context).

ment, the U.S. Department of Defense, the U.S. Department

of the Air Force, or its components. This Article was submit-

ted in partial satisfaction of the requirements of the degree

of master of laws in environmental and government pro-

curement law at George Washington University.

Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org.

54 ELR 11036 ENVIRONMENTAL LAW REPORTER 122024

that have exceeded their expected life-spans.4 Mea nwhile,

DOD has historically experienced d iculty in reducing

the facility maintenance backlog.5 ough the U.S. Gov-

ernment Accountability Oce (GAO) found that DOD’s

gap in facility sust ainment funding has decreased in recent

years, the Department does not completely account for

the cost of sustaining facilities that have exceeded their

expected life-spans.6 Even without the threat of climate

change, DOD faces hardships with upgrading and ma in-

taining its roughly 550,000 facilities worldwide.7 Climate

change exacerbates t he threat to some of these facilities.8

e Congressional Budget Oce (CBO) found that of

49,000 U.S. Army buildings examined in 2020, the aver-

age building age was 47 years old.9 ousands of those

buildings have existed for at least 75 years.10 e CBO

report noted DOD previously expressed a goal of mod-

ernizing or replacing its facilities “once every 67 years.”11

Several facilities, including ightlines, pre-date the estab-

lishment of the U.S. Department of the Air Force (DAF)

because many were used by the Army in the rst half of

the 20th century.12

In the past few decades, DAF has spent billions in

post-disaster rebuilding. In 2018, Hurricane Michael

caused more than $4 billion in da mages and rebuilding

costs after pummeling Tyndall Air Force Base (AFB) in

Florida.13 However, base leaders note that complete restora-

tion and modernization of the base will not be completed

until about 2026, nearly eight years af ter the hurricane.14

Now, DAF is calling Tyndall AFB the “Installation of the

Fut u re .”15 A lthoug h unfort unate, Tyndall’s rebuild s hould

serve as a lesson to adapt existing DAF installations now

rather than wait for a future natural disaster to occur.

4. See GAO, supra note 1, at 14-16 (the expected life-spans of facilities vary by

military branch).

5. Id. at 2.

6. Id.

7. See id.

8. e U.S. Army and U.S. Navy are the oldest U.S. military branches; thus,

their installations pre-date those of the U.S. Department of the Air Force

(DAF). While DAF is newer than the Army and Navy, many of its facilities

are also aged. See U.S. Air Force Historical Research Agency, e Birth of

the United States Air Force, https://www.afhra.af.mil/About-Us/Fact-Sheets/

Display/Article/433914/the-birth-of-the-united-states-air-force/ (last vis-

ited Oct. 18, 2024) (DAF was ocially created in 1947 via the National

Security Act of 1947).

9. Mackenzie Eaglen, U.S. Military Bases Are Literally Falling Apart, A. E-

. I. (Dec. 2, 2022), https://www.aei.org/op-eds/u-s-military-bases-

are-literally-falling-apart/ (citing CBO, T A’ C  E

I D M B   R  M-

 I B 5 (2022)).

10. CBO, supra note 9, at 7.

11. Id. at 5. e Army, Navy, U.S. Marine Corps, and U.S. Coast Guard cer-

tainly have their own military bases and climate impact challenges; however,

any reference to specic examples will be only for context. is Article will

focus primarily on DAF domestic military installations.

12. 1 R M, U.S. A F H R C-

, A A F B W  U S  A-

  17 S 1982 (1989), https://media.defense.gov/2010/

Sep/21/2001330255/-1/-1/0/airforce_bases_us%20v1opt.pdf.

13. See N  ., supra note 2, at ix.

14. David Roza, Tyndall Rises Again, A  S F M. (Aug. 31,

2023), https://www.airandspaceforces.com/article/tyndall-rises-again/.

15. Id.

is Article begins with a review of some of the most

vulnerable DAF instal lations in the United States. Plagued

by wildres, droughts, ooding, and hurricanes, ba ses in

Florida and California should be the rst ba ses adapted

for extreme weather impacts. DOD and DAF have policies

in place that support modernization of their facilities, and

functions to maintain c ontinuous mission accomplishment

despite environmental impacts.16 ere have been projects

for alternative energy, electric or hybrid vehicles, microgrids,

and other “new age” technologies, but such projects are not

widespread across DAF.17 Many of these technologie s are

subject to the time-consuming and administratively costly

Federal Acquisition Regulation (FAR) government pro-

curement processes.18 Not all acquisitions should require

years for delivery or completion.

e Article then high lights some of the prominent laws,

executive orders, and DOD and DAF policies that have

climate implications, infrastructure and facility resiliency,

and modernization. A review of key provisions from the

National Defense Authorization Act (NDA A) of recent

years shows how the U.S. Congress directs, appropriates,

and limits militar y actions, including their procurement.

e Article also notes the lack of DOD and DAF policy

governing the use of the “other transactions authority”

(OTA) as a procurement option, while decades’ worth of

FAR acquisitions rulemaking a nd conduct are well-docu-

mented and regulated.

Finally, the Article recommends top-down measures

to modernize DOD facilities and insta llations quickly,

eectively, and resiliently. First, it oers proposals for con-

gressional implementation and expansion of existing legis-

lation. One such proposal is the statutory expansion of the

use of the OTA and creation of a separate OTA budget,

to allow for faster and more ecient procurement. Other

transactions (OTs) fall outside of the FAR, and many agen-

cies appreciate the faster timelines that OTs provide, along

with their other advantages.19 en, where Congress c annot

or does not act, the president, as the military’s commander

in chief, has several options available. DOD, DAF, and,

ultimately, individual base commanders ca n take measures

to modernize facilities as DOD race s to adapt to extreme

weather events.

A DOD- or DAF-wide mandate for immediate imple-

mentation is cr itical for both noncomplex and complex

“green” projects on DAF installations. e mandate should

require that installations implement plans and eorts for

both installation modernization and mitigation (or show

reasonable progress toward completion) by no later than

16. DOD’s Climate Adaptation Plan and DAF’s Climate Action Plan are two

examples of such policies. ese and other relevant policies and reports will

be discussed in Parts I and II.C of this Article.

17. Some such examples will be discussed in Part I, particularly in the context of

Tyndall AFB, Florida.

18. Nathaniel E. Castellano, “Other Transactions” Are Government Contracts,

and Why It Matters, 48 P. C. L.J. 485, 488 (2019) (internal cita-

tions omitted).

19. 10 U.S.C. §§4021-4022 (Congress codied OTs herein).

Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org.