U.S. military responsibility for environmental cleanup in contingency environments.

• Author: Neuhauser, Jennifer Ann
• Position: I. Introduction through II. Environmental Hazards in Post-Conflict Areas, p. 129-151

1. INTRODUCTION II. ENVIRONMENTAL HAZARDS IN POST-CONFLICT AREAS A. UXO As an Environmental Hazard B. Release of Hazardous Substances C. Depleted Uranium D. Burn Pits E. Why It Matters III. CONVENTIONAL INTERNATIONAL LAW AND CUSTOMARY INTERNATIONAL LAW A. Conventional International Law B. Customary International Law IV. U.S. DOMESTIC LAW AND POLICY V. CAUSES OF ACTION VI. PROPOSED SOLUTIONS VII. CONCLUSION I. INTRODUCTION

   Seventy years after the last Allied bomb fell on Germany, accidental detonations of unexploded World War I and II ordnance remain so common German construction companies must consult sixty-year-old Allied bombing maps and have explosive ordnance disposal experts on standby before building in major metropolitan areas. (1) In August 2012, explosives experts conducted a controlled detonation of the remnants of a 550-pound World War II-era bomb discovered under a bar in Munich, Germany. (2) The detonation ignited several buildings and shattered windows across the city. (3) More recently, a bomb dropped on the city of Euskirchen, Germany in the 1940s claimed the life of a bulldozer driver and injured thirteen others. (4)

   Unexploded ordnance (UXO) (5) is just one of many environmental hazards common to modern warfare. Complicating efforts to address these hazards is the unsettled nature of modern victory. There are no longer defined phases of conflict such as declaration, warfare, and post-conflict. (6) A new dynamic has emerged for what are now known as "contingency operations," wherein U.S. Armed Forces "are or may become involved in military actions, operations, or hostilities against an enemy of the United States." (7) Rather than declared hostilities and signing ceremonies, conflicts today are marked by fluid phases, which often overlap: pre-conflict, engagement and deterrence, seizing the initiative, decisive operations, and post-conflict. (8) This overlap often results in situations where the U.S. military is destroying the environment through combat operations and simultaneously improving it with civil works projects. In such a chaotic and potentially deadly setting, preserving the environment and remediating environmental damage from combat is often overlooked. Nonetheless, with the recent departure of U.S. military personnel from Iraq in 2011 and the anticipated drawdown from Afghanistan by 2016, (9) the time has come for the U.S. military to consider what, if any, actions it will take to mitigate the environmental legacy of over a decade of armed conflict, even as it turns authority over to the governments of Iraq and Afghanistan. As this Article will demonstrate, American military environmental policies and procedures in combat zones are either outdated, insufficient, or ignored outright; though environmental damage and destruction may be an inevitable result of the exigent circumstances of war, it is indefensible not to mitigate and remediate such damage once hostilities are over, and it is deemed safe enough for our departure.

   Large gaps remain in U.S. military environmental policy, which threaten to undercut military efforts in Afghanistan and Iraq. A 2011 survey of U.S. Army environmental practices in contingency operations concluded:

   A review of existing strategies and policies indicated, however, that none of the documents are directed at implementing or developing sustainability as a driving factor in contingency operations. Even recent attempts by the Department of the Army to implement a Strategic Sustainability Campaign Plan have left sustainability conspicuously absent when it pertains to contingency operations. (10) In this instance the Army defines sustainability as "the ability to simultaneously meet current as well as future mission requirements worldwide, safeguard human health, improve quality of life, and enhance the natural environment." (11)

   All four of the U.S. armed services (12) acknowledge environmental protection and encourage sustainability as a contribution to the military's mission of "fight[ing] and win[ning] this Nation's wars." (13) Beyond enlightened self-interest, the military assumes certain legal and ethical responsibilities when it chooses to invade or deploy to a foreign country. These obligations are part of what Cohn Powell infamously referred to as the "Pottery Bam Rule:" if you break a country, you own it. (14) This Article argues the failure of the U.S. military to adequately plan for and execute post-conflict environmental cleanup violates the obligations it assumes when entering contingency operations and largely undermines its efforts to achieve lasting victory. The ad hoc, slapdash method used by the U.S. military to address environmental damage is largely the result of inadequate leadership and training and outdated policies which ignore the long-term nature of modern contingency and stabilization operations. The failure to acknowledge and attend to environmental damage in these areas not only endangers the civilian populations it seeks to support, but also threatens U.S. personnel and U.S. standing as a world leader as well.

   This Article examines U.S, military obligations with respect to cleaning up and mitigating environmental damage and destruction wrought by U.S. military deployments to foreign countries, both during and after combat. Part II outlines current environmental issues in conflict and post-conflict areas, explaining why they are vital to the U.S. national interest. Part III describes the international law and environmental policy for conflict areas. Part IV explores U.S. domestic environmental law and policy governing military matters. Part V examines methods of redress for citizens living in conflict and post-conflict areas. Part VI proposes solutions to current U.S. environmental law and policy governing military operations. Finally, Part VI concludes that the United States has a moral obligation and a national interest in better managing military operations to minimize and remediate environmental degradation.

2. ENVIRONMENTAL HAZARDS IN POST-CONFLICT AREAS

   Armed conflict has long been known to cause devastating effects on the environment. (15) Apocryphal stories of the Roman general Scipio salting the earth of Carthage following the Third Punic War in 146 B.C. are but one example of environmental destruction in warfare. (16) In 2009, the United Nations (U.N.) declared, "[t]he toll of warfare today reaches far beyond human suffering, displacement and damage to homes and infrastructure. Modern conflicts also cause extensive destruction and degradation to the environment." (17) In addition to physical destruction by bombs and other munitions, UXO and other hazardous substances released as a consequence of war can cause environmental damage "beyond the borders of conflict-affected countries [and] threaten the lives and livelihoods of people well after peace agreements are signed." (18)

   Recent conflicts in Iraq, Afghanistan, Bosnia, and Kosovo magnified the issue of environmental damage in warfare, where long-term deployments in-theater became the norm as the United States sought to rebuild and stabilize these countries while simultaneously defeating enemy combatants. (19) Longer military deployments meant more interaction with local populations as well as more opportunities to create hazards affecting those populations. A constant refrain of U.S. commanders during contingency operations is the need to win the "hearts and minds" of civilians in conflict areas, (20) populations that are often both poor and dependent on the land for their livelihood. (21) As a result, stewardship of the environment by the U.S. military, particularly in regard to UXO, depleted uranium, and handling and disposal of hazardous substances, impacts how the local population views U.S. military operations. (22) The following paragraphs discuss the size and scope of these issues, and current U.S. efforts to address them.

   1. UXO As an Environmental Hazard

      During World War II, massive Allied aerial bombing dropped more than 1.9 million tons of bombs on German soil, killing an estimated 500,000 people. (23) Most experts agree between 5% and 15% of these bombs did not explode, with an estimated 95,000 to 285,000 tons of munitions still dotting the German countryside. (24) The grave and long-lasting environmental consequences of UXO are dire in Germany where WWII ordnance continues to maim and kill. (25)

      Unlike Germany, nearly 40% of the Afghan population lives in poverty. (26) Beginning with the Soviet occupation in 1979, thousands of tons of ordnance have fallen on Afghanistan. (27) Even before the U.S. invasion in 2001, the...