2002 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: 10 May 2002 17:04:58 -0000
Reply: cpeo-military
Subject: [CPEO-MEF] Third-Party lawsuits
Over the past few weeks, I've researched a number of the site-specific
disagreements that  have triggered legislative proposals to revise the
nation's environmental laws, as they apply to the Department of Defense.
As the Environmental Council of the States pointed out in its letters to
House Armed Services Committee leadership, these proposals seem to
respond more to third-party lawsuits - filed by environmental,
community, and tribal organizations - than to direct regulatory oversight.

I don't mean to understate the frequent tensions between the Defense
Department and other federal and state agencies, but the pattern is
unmistakable. Whether or not each lawsuit is sound - either from a legal
or environmental perspective - is not the key issue. Rather, are we
willing to abandon the long-standing principle that citizens have a
right to challenge government agencies that don't always do their job,
simply because such litigation may interfere with military readiness
activities or require the military to devote resources to defending its
practices? Remember, these lawsuits are designed to require the military
to comply with the same laws as other government agencies and private parties.

The recent court decision on the U.S. Army's Fort Huachuca, in Arizona,
illustrates the problem. According to Defense Environmental Alert, April
23, 2002, a U.S. District court ruled that the U.S. Fish and Wildlife
Service's (FWS) final Biological Opinion (BO) on Fort Huachuca's
activities was legally insupportable. The Center for Biological
Diversity had filed suit, under the Endangered Species Act, to force the
Army to lead regional water conservation efforts, a requirement that
might interfere with Army activities at the desert base. This case
prompted Representative Jim Kolbe (R-Arizona) to submit unsuccessfully
an amendment  to the Defense Authorization Bill, limiting the military's
responsibility for off-base water consumption.

The Fish and Wildlife Service's earlier draft Biological Opinion would
have required mandatory actions called Reasonable and Prudent
Alternatives (PRAs), but the final Biological Opinion relied upon a
Memorandum of Agreement, between FWS and the Army, outlining possible
action. On April 11, 2002, the U.S. District Court ruled, "It seems more
likely that the modifications in the draft BO were, as Plaintiffs
assert, to sidestep specific substantive requirements contained in the
RPAs that are missing from the Final BO."

This case seems to reinforce the need for potential third-party
intervention in the dealings between government agencies. Within the
executive branch, the military sometimes has the clout to pressure other
agencies to enforce the law improperly, often through private
intra-federal discussions. Third-party lawsuits may not always prevail,
but whether they succeed or not, they remind the Defense Department that
it is not above the law.


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918

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