WARS, WALLS, AND WRECKED ECOSYSTEMS: THE CASE FOR PRIORITIZING ENVIRONMENTAL CONSERVATION IN A NATIONAL SECURITY-CENTRIC LEGAL SYSTEM.

• Author: Walker, Skye M.

1. INTRODUCTION 914 II. THE CURRENT LEGAL FRAMEWORK 917 A. Military Exemptions in Federal Environmental Laws 917 B. Environmental Law Waivers Under the Illegal Immigration Reform and Immigration Responsibility Act of 1996 922 C. The Judiciary's Approach to Resolving National Environmental Policy Act Lawsuits Challenging Military Operations 925 1. Injunction Battles: Weighing Military Interests Against Environmental Preservation 926 2. Difficulties Establishing Procedural Violations of the National Environmental Policy Act 930 III. ENVIRONMENTAL CONSEQUENCES OF THE CURRENT FRAMEWORK 933 A. The Impact of the Department of Defense's Military Operations 934 B. The Impact of the Department of Homeland Security's Programs That Purport to Further National Security 935 IV. A PATH FORWARD: BUDGET REFORM 937 A. The Growing Motive to Restructure Defense and National Security Budgets, and to Increase Environmental Stewardship in Military Operations 938 B. Current Funding Gaps for the Department of Defense's and Department of Homeland Security's Environmental Programs, and the Best Utilization of Additional Resources 942 V. CONCLUSION 947 I. INTRODUCTION

   "[T]his is a recognition that national defense is a unique area .... It is also a realization that some changes, even major changes, in the environment may be required for the survival of the Republic." (1) This quote accurately characterizes the special role that national defense and national security (NDNS) play in the U.S. legal system. Congress shaped federal law to accord NDNS agencies, (2) such as the Department of Defense (3) (DOD) and Department of Homeland Security (4) (DHS), special leeway and deference when carrying out their operations--even if Mother Nature suffers in the process. (5) Similarly, federal courts have not served as a meaningful forum to hold the DOD and DHS accountable. (6)

   In the course of preparing for war and securing borders and cities from perceived threats, NDNS agencies have unintentionally degraded the very ecosystems that humans rely on to support life. The DOD, for example, has released billions of metric tons of carbon dioxide into the atmosphere, adversely impacted a staggering number of wildlife species, and contaminated natural resources to such a degree that more than two-thirds of all Superfund sites listed by the Environmental Protection Agency--approximately 900 sites--are affiliated with military operations. (7) Considering the scale and magnitude of environmental harm, environmental advocates should take swift action to increase awareness about the issue and adopt workable solutions.

   Attempting to limit or repeal overly broad NDNS exemptions in federal law is an important objective, as is pushing back against the judiciary's use of sweeping deference when evaluating legal challenges to NDNS operations. However, these approaches, by themselves, are unlikely to remedy the issue in the foreseeable future. (8) Advocates should explore additional avenues to bring about faster, more concrete change; for example, encouraging the DOD and DHS to better absorb the negative externalities that accompany NDNS operations by adding vigor to their environmental restoration efforts. (9) DOD and DHS could accomplish this objective by amending the structure of their multi-billion dollar budget to allocate greater funding for environmental conservation and green technology. (10) The DOD, for example, has already begun leveraging the resources and technical expertise of private and public actors in order to preserve lands and implement greener technologies, but the lack of resources limits their work. (11)

   Part II of this Chapter seeks to explore how the legislature and judiciary have given NDNS policy preferential treatment. First, the discussion sheds light on various exemptions codified in federal environmental laws that NDNS actors may invoke to further military and national security operations. (12) Second, the piece explores the DHS Secretary's authority to waive environmental laws under the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA). (13) Third, the Chapter examines federal courts' unwillingness to interfere with NDNS operations when deciding whether to issue an injunction or to find procedural violations of the National Environmental Policy Act (NEPA). (14) Part III then uncovers the consequences of the current framework. Lack of accountability in the legal system exacerbates the scale and magnitude of NDNS-induced environmental harm, contributing heavily to climate change, natural resource contamination, and biodiversity loss. (15)

   Finally, Part IV identifies a workable solution that would facilitate a more harmonious coexistence between NDNS operations and the environment: strategic budget reform. With a budget that exceeds the combined military spending of America's major rivals--Russia and China--the DOD is well equipped to increase appropriations for environmental work, and there exists a growing movement to do so. (16) Similarly, critics have called for DHS to restructure its massive, poorly-managed budget. (17) With more resources, NDNS agencies could strengthen existing environmental programs and expand the number of partnerships among themselves, the private sector, and non-governmental organizations. Additional partnerships would enable the DOD and DHS to accelerate development of innovative and eco-friendly defense technologies, invest more heavily in renewables, and manage public and private lands more effectively to protect natural resources and wildlife. (18)

2. THE CURRENT LEGAL FRAMEWORK

   In the 1960s and 70s, Congress catered to NDNS agencies by creating exemptions and waivers that allow the DOD and DHS to bypass environmental laws when, in the agency's view, national security demands it. (19) Courts have played a role in advancing NDNS policy as well, giving immense weight to the professional judgment of high-ranking officials in NDNS agencies when evaluating disputes between environmentalists and the Armed Forces. (20) Courts have refused to interfere with NDNS operations except when agencies have made egregious errors. (21) In effect, both Congress and federal courts have played a passive role in holding the DOD and DHS accountable for operations that degrade the environment.

   Perhaps society gives the concept of NDNS so much weight because without protection from foreign invasions, terrorism, and crime, all other policy interests cease to exist. Perhaps past events such as world wars, civil wars, and 9/11 have heavily influenced the way that society perceives NDNS. Or perhaps the answer lies in our nation's roots: in 1787, the Framers of the U.S Constitution expressly provided for a strong national defense--not the right to a clean environment. (22) Fast-forward 228 years, and NDNS is still at the forefront of political agendas, allocating the largest portion of U.S. discretionary spending every year. (23) Regardless of the cause, the result remains the same: where NDNS officials believe that national security is at risk, all other policy considerations must fall.

   1. Military Exemptions in Federal Environmental Laws

      Nearly every federal environmental law contains an exemption providing the DOD with greater flexibility and leeway to carry out its operations. (24) Congress limited most exemptions to emergencies and situations where it is in the "paramount interest" of the nation to expedite national defense actions; however, skeptics assert that several exemptions are overly broad and overly utilized. (25) Even the Ninth Circuit Court of Appeals criticized the Navy for relying on an exemption in a situation that did not justify its use. (26) This Section seeks to explore exemptions with varying degrees of applicability and potentials for misuse.

      NEPA does not expressly exempt the military from compliance with the statute. However, NDNS exemptions in related laws and regulations have eroded NEPA's efficacy as an environmental protection tool. First, Congress created a workaround for the DOD in the Administrative Procedure Act (APA), (27) a statute that provides a cause of action for those seeking to enforce NEPA requirements. (28) The APA national security exemption is narrow and rarely invoked, applying only to "military authority exercised in the field in time of war or in occupied territory." (29) However, workarounds in regulations issued by the Council on Environmental Quality (CEQ)--the entity that oversees NEPA implementation (30)--are more broad. (31) One regulation provides for alternative arrangements where emergency circumstances warrant taking an action with significant environmental impacts without observing certain regulatory requirements. (32) Another allows the Air Force, in limited circumstances, "to take immediate action having significant environmental impact, without observing all the provisions of the CEQ regulations." (33)

      The DOD has commonly invoked the former CEQ exemption, which provides for alternative arrangements, to address natural disasters, insect infestations, release of chemicals and hazardous substances, and containment of disease-ridden fish at hatcheries. (34) However, components within the DOD have relied on the alternative arrangements exemption five times between 1980 and 2018 to expedite various military and national security actions. (35) Similarly, the Air Force has, in limited circumstances, invoked the latter exemption to move forward with operations without complying with NEPA requirements such as public notice and comment, or production of a final environmental impact statement. (36)

      In addition to the APA and CEQ regulations, the Base Closure and Realignment Act (BCRA) (37) limits NEPA's applicability to military actions. While NEPA does apply to the Secretary of Defense during the process of closing or realigning a military installation, the Act prohibits consideration of NEPA when selecting installations to close or realign...