ENVIRONMENTAL LAW AND NATIONAL SECURITY: CAN EXISTING EXEMPTIONS IN
ENVIRONMENTAL LAWS PRESERVE DOD TRAINING AND OPERATIONAL PREROGATIVES
WITHOUT NEW LEGISLATION?

[Colonel E.G. Willard, Lieutenant Colonel Tom Zimmerman,]{.smallcaps}

[Lieutenant Colonel Eric Bee]{.smallcaps}[^1]

**I. INTRODUCTION**

The Department of Defense (DoD) has become increasingly concerned in
recent years about the impacts of growth and environmental requirements
on training and operations. Collectively these diverse impacts have come
to be known as encroachment.[^2]

Examples of encroachment abound and have been extensively reported in
the media.[^3] The Marines at Camp Pendleton, California are prevented
from digging foxholes and are forced to drive vehicles single file
through protected habitat.[^4] The Air Force at Nellis AFB, Nevada has
stopped flying with live ordnance to the South because of the
development of extensive housing just off the end of the runway.[^5] The
Air Force has also restricted operations on the Barry M. Goldwater Range
to protect the breeding season and habitat for the endangered
sub-species known as the Sonoran Pronghorn.[^6] A proposed expansion to
the Channel Islands National Marine Sanctuary and a proposed change to
sanctuary regulations have threatened to restrict the Air Force's
satellite launch operations at Vandenberg AFB, California. The Navy has
nearly ceased operation on the Vieques Island ranges in Puerto Rico due
to Clean Water Act litigation and political pressure. The Navy also has
serious concerns about the impact of its latest sonar on marine
mammals.[^7] The Army, like all the services, has had to perform
expensive "work arounds" to preserve training initiatives. Examples are
Fort Bragg, North Carolina, where much has been spent to safeguard the
red-cockaded woodpecker[^8] and Fort Irwin, California, where protecting
the Desert Tortoise[^9] has adversely impacted realistic training.

In an effort to combat this encroachment, in the 2002 legislative
session, DoD proposed legislation known as the Readiness and Range
Preservation Initiative (RRPI).[^10] The RRPI came under heavy fire from
environmental groups[^11] but ultimately resulted only in a narrow
exemption from the Migratory Bird Treaty Act, discussed *infra*.

In March of 2003, DoD directed the service secretaries to "develop
procedures that will ensure such cases are brought to DoD's attention
sufficiently early in the regulatory or judicial process so that the
Secretary may act to request (or in the case of the Endangered Species
Act, direct) an appropriately tailored exemption before military
preparedness is affected."[^12] DoD again submitted legislation for the
2003 session[^13] and on the 24th of November, President Bush signed the
"National Defense Authorization Act of 2004"[^14] with changes to the
Endangered Species Act and the Marine Mammal Protection Act.[^15]

While this article will not attempt to present comprehensive solutions
to encroachment, it will briefly describe the existing national security
exemptions in our environmental laws and give examples of their use. It
will also look at common law privileges that might afford DoD some
relief.

## II. EXEMPTIONS IN ENVIRONMENTAL LAWS

A. RCRA (42 U.S.C. §6961(a)): Presidential exemption for one year
(additional one year exemption with new determination) -- report to
Congress required

The Resource Conservation and Recovery Act (RCRA)[^16] gives the
Environmental Protection Agency (EPA) authority to regulate the
treatment, storage, transportation, and disposal of hazardous waste from
cradle to grave.[^17] EPA has done so with an intricate permitting
program that can make compliance complex and burdensome for the
regulated entity. Of more importance to this article, however, are the
regulatory requirements for biannual inventories of hazardous wastes
generated and the requirement for EPA and state inspection of hazardous
waste facilities. These requirements often pose the largest concerns for
national security at DoD facilities because inspectors need to observe
the processes that generate the hazardous wastes and because their
reports are public records.

With that backdrop, it is appropriate to explore RCRA's provision for
potential exemption:

> The President may exempt any solid waste management facility of any
> department, agency, or instrumentality in the executive branch from
> compliance with such a requirement if he determines it to be in the
> paramount interest of the United States to do so. No such exemption
> shall be granted due to lack of appropriation unless the President
> shall have specifically requested such appropriation as a part of the
> budgetary process and the Congress shall have failed to make available
> such requested appropriation. Any exemption shall be for a period not
> in excess of one year, but additional exemptions may be granted for
> periods not to exceed one year upon the President\'s making a new
> determination. The President shall report each January to the Congress
> all exemptions from the requirements of this section granted during
> the preceding calendar year, together with his reason

for granting each such exemption. [^18]

This Presidential exemption to RCRA has rarely been invoked and there
has been little litigation concerning it.

An example, however, of such litigation is found in a Department of
Energy argument that its Oak Ridge facility should not be required to
obtain a RCRA permit. The U.S. District Court for the Eastern District
of Tennessee held that the facility must either get a permit or apply
for a presidential exemption.[^19]

Possibly the most famous invocation of RCRA's presidential exemption
occurred with regard to a classified Air Force operating location near
Groom Lake, Nevada. That situation began as two cases, *Frost v.
Perry*[^20] and *Doe v. Browner*.[^21] Plaintiffs in the *Browner* case
were employees at the site seeking to force the EPA to carry out its
mandatory requirements under RCRA. Specifically, they wanted the agency
to inspect the location. In *Frost*, a former employee's widow and
others brought suit to compel the Air Force to comply with its
obligations under RCRA.[^22]

To make a very long story short, EPA was granted summary judgment on
most of plaintiffs' claims in the *Browner* case because it had already
conducted an inspection and received an inventory from the Air Force by
the time of trial. The inspection report and the inventory were
classified, however, and the court found that this classification
conflicted with RCRA's § 3007b public disclosure requirements.[^23] The
court ordered the EPA Administrator to either declassify the report or
seek a presidential exemption.[^24]

Before resolution of the case on appeal, EPA sought and received an
exemption from President Clinton as follows:

> I hereby exempt the Air Force\'s operating location near Groom Lake,
> Nevada from any Federal, State, interstate or local provision
> respecting control and abatement of solid waste or hazardous waste
> disposal that would require the disclosure of classified information
> concerning that operating location to any unauthorized person.
> Presidential Determination No. 95-45, *60 Fed. Reg. 52,823* (Oct. 10,
> 1995).[^25]

The Ninth Circuit upheld the exemption in the face of plaintiffs'
arguments that the President could only exempt a facility from certain
sections of RCRA but could not exempt documents by their status. The
Court held that Congress left to the President's discretion what was in
"the paramount interest of the United States."[^26] That interest was
the prevention of disclosure of classified information to unauthorized
persons.

The companion case, *Frost*, never reached the merits. The Court
ultimately found the plaintiffs would never be able to state a claim
because much of the requested discovery was classified.[^27] The Air
Force was not required to answer plaintiffs' discovery requests because
of the state secrets privilege, which will be discussed *infra* under
common law exemptions.

B. CLEAN AIR ACT: Presidential exemption (42 U.S.C. § 7418(b)) for one
year if in "the paramount interest of the United States"; hazardous air
pollutants exemption (42 U.S.C. § 112(i)(4)); no exemptions for new
source performance standards

# *1. Refugees to Fort Allen*

The Presidential exemption for Clean Air Act (CAA) requirements has been
invoked in one situation involving the relocation of Haitian and Cuban
refugees to Fort Allen, Puerto Rico. From April to June 1980,
approximately 114,000 refugees entered the United States, and the
government was struggling to cope with the problem of overcrowding in
refugee camps.[^28] As part of the solution, the United States planned
to relocate some of the refugees to Fort Allen, a United States Naval
Communications Center that was due to be transferred to the Puerto Rico
National Guard.[^29]

In the summer of 1980, the State[^30] and local residents filed suit
seeking to stop the transfer of refugees, alleging that the intended
relocation violated, among other statutes, the National Environmental
Policy Act (NEPA),[^31] the Solid Waste Disposal Act (SWDA),[^32] and
the Clean Water Act (CWA).[^33] In response, the President signed
Executive Order 12244 exempting "each and every particular emission
source located on Fort Allen . . . from compliance with the provisions
of the \[Clean Air Act.\]"[^34] The Executive Order also exempted Fort
Allen from CWA, SWDA and Noise Control Act[^35] requirements. The U.S.
District Court for the District of Puerto Rico held that the Executive
Order was "a valid exercise of Presidential Powers notwithstanding its
invocation by a party Defendant after the commencement of this
litigation."[^36]

It should be noted that with respect to the SWDA exemption, the District
Court subsequently reversed its ruling, holding that "the exemption from
the Solid Waste Disposal Act . . . is limited in scope and does not
encompass the full range of the proven consequences of the refugee
activities at Fort Allen."[^37] The Court reasoned that because the
statutory exemption only exempted solid waste management facilities and
because Fort Allen did not have such a facility, requirements relating
to solid waste producing activities were not exempt.[^38] The District
Court's holding was vacated by the First Circuit Court of Appeals
because a settlement rendered the ruling moot.[^39] However, the
District Court's ruling stands as a warning to environmental
practitioners that a waiver must be drafted carefully to ensure its
scope reflects the underlying statutory authority and encompasses all
anticipated activities.

# *2. Other Exemptions in the CAA*

In addition to being able to exempt any federal agency from the
requirements of the CAA, the President may, "if he determines it to be
in the paramount interest of the United States to do so, issue
regulations exempting . . . any weaponry, equipment, aircraft, vehicles,
or other classes or categories of property which are owned or operated
by the Armed Forces of the United States . . . and which are uniquely
military in nature."[^40] The President must reconsider the need for
such regulations at three-year intervals. The President has not invoked
this provision.

Scattered throughout the text of the CAA are a variety of other
provisions that may be used to exempt specific national security
activities. For example, CAA section 604(f) allows the President to
exempt the use of certain ozone depleting substances if consistent with
the Montreal Protocol, if adequate substitutes are not available, and if
such use is necessary to protect national security interests.[^41] Other
national security provisions in the CAA have a similar, narrow focus.
[^42]

Regulations implementing the CAA also have exemptions related to
national security. For example, a conformity determination[^43] is not
required, generally speaking, for actions in response to emergency
situations such as terrorist acts and military mobilizations.[^44] Also,
tactical vehicles may be granted an exemption from new vehicle standards
and diesel fuel standards.[^45] Environmental practitioners are
encouraged to check applicable CAA regulations for exemptions that may
be applicable to the military.

# *3. Including Exemptions in Title V Permits*[^46]

For a number of years, the DoD CAA Services Steering Committee (SSC) has
recommended that installations with Title V permits seek to include a
national security provision in their permits. The national security
provision suggested by the CAA SSC exempts emissions that result from
surge conditions that are in response to a national security emergency.
The Naval Air Weapons Station, China Lake, has a national security
provision in its Title V permit. The permit states, in relevant part,
that "\[w\]hen a national security emergency occurs, the resulting surge
conditions shall not be considered in determining compliance with permit
terms."[^47] The permit states that the Commanding Officer is
responsible for determining when a national security emergency exists.
However, if the surge condition lasts for longer than 30 days, the
Secretary of the Navy must approve continued use of the exemption.
Installations should consider including an emergency exemption in their
Title V permit if there is likely to be a significant emissions increase
due to a national security situation.

# *4. Requesting Variances from State or Local Air Boards*

Some state or local air regulations contain provisions allowing a person
to apply for a variance from regulatory requirements. Although variance
procedures are not exclusively for "national security," they are an
alternative that should be considered if mission requirements dictate.

Variance procedures differ from state to state. For example, sections
42350-42362 of the California Health and Safety Code allow a person to
apply for a variance from "the rules and regulations of the \[air\]
district."[^48] In order for the variance to be granted, a hearing board
must make six findings of fact, including, among others, that the
applicant is or will be in violation of a rule, regulation, or order;
that, due to conditions beyond the reasonable control of the petitioner,
requiring compliance would result in either an arbitrary or unreasonable
taking of property or the practical closing of a lawful business; and
that during the period of the variance, the petitioner will reduce
excess emissions to the maximum extent feasible.[^49]

During the 2000-2001 energy crisis in California resulting in rolling
blackouts across the State, Onizuka Air Force Station (AFS) sought a
variance from a permit limiting the use of its back-up generators. Under
Onizuka AFS's CAA permit, the back-up generators were only allowed to
operate for approximately 16 hours during a 12-month period in the event
commercial power and natural gas supplies were lost. Faced with the
prospect of rolling blackouts and a questionable supply of natural gas,
Onizuka AFS applied for a variance to ensure that it would have power to
perform its satellite control mission. After a hearing, the Bay Area Air
Quality Management District Hearing Board granted the variance.

A note of caution before seeking a state or local variance: although a
state may have established variance procedures, the United States
Environmental Protection Agency (EPA) does not recognize such procedures
as a legitimate way of complying with the CAA. Thus, even though a state
may grant a variance, EPA can still take enforcement action for the
underlying violation. Therefore, before pursuing a variance,
environmental practitioners should be mindful of the risk involved. Air
Force practitioners should seek MAJCOM and Air Staff concurrence prior
to seeking a variance.

# 

# **C. ENDANGERED SPECIES ACT: National security exemption (16 U.S.C. 1536 (j)) and Endangered Species Committee review** 

# **(16 U.S.C. 1536 (e)(2))**

Section 7(a)(2) of the Endangered Species Act (ESA)[^50] requires
federal agencies to consult with the Fish and Wildlife Service[^51] to
ensure planned actions are not likely to jeopardize the continued
existence of any endangered or threatened species or to result in the
destruction or adverse modification of critical habitat.[^52] Section
7(j), however, provides a unique national security exemption. [^53]

A federal agency, the governor of the state where the action will occur,
or any permit or license applicant may apply to the Secretary of
Interior, who will consider the exemption request initially. If, in the
Secretary's opinion, the action would likely jeopardize species or
habitat, the exemption request will be considered by the Endangered
Species Committee[^54] for final determination.[^55] This Committee
reviews applications to decide whether to grant an exemption from the
requirements of section 7(a)(2).[^56]

The Committee employs a high threshold standard for exemptions,
specifically: (i) there are no reasonable and prudent alternatives to
the agency action; (ii) benefits of the action clearly outweigh the
benefits of conserving the species and habitat, and the action is in the
public interest; (iii) the action is of regional or national
significance; and (iv) there have been no irreversible commitments of
resources.[^57] Finally, reasonable mitigation and enhancement measures
must be established.[^58]

Ultimately, the Secretary of Defense (SECDEF) can overcome the Committee
standard by directing the Committee to grant an exemption if he finds it
necessary for reasons of national security.[^59] This power has never
been exercised, but it appears to be virtually unlimited. "Virtually,"
because the provision immediately preceding it states that
"notwithstanding any other provision of this chapter, the Committee
shall be prohibited from considering for exemption any application made
to it . . . if the Secretary of State . . . certifies . . . that the
granting . . . would be in violation of an international treaty
obligation."[^60] Neither has this provision ever been tested. Both of
these unusual exemption provisions have the "notwithstanding any other
provision of this chapter" language. [^61] If a situation materializes
where the two conflict and SECDEF and the Secretary of State cannot
agree, the President will likely have to resolve the conflict.

Though the SECDEF's national security exemption has never been invoked,
practitioners seeking to invoke it will benefit from a brief description
of the Committee process and the cases considered to date. The ESA was
originally passed in 1973 without any provision for the Endangered
Species Committee. The statute's lack of flexibility in calling for
almost absolute protection of an individual species from extinction
resulted in controversy. The controversy arrived in the form of a small
non-descript fish that stopped the construction of a dam. The fish, of
course, was the snail-darter, and the dam was the Tennessee-Tellico. It
was this seemingly irreconcilable conflict between survival of a species
and a federal infrastructure project that led Congress in 1978 to add
provisions for the cabinet-level Endangered Species Committee (ESC) in
an effort to mediate future conflicts between economic and environmental
interests.[^62]

If at least five of the seven members of the Committee find that the
applicable criteria, as specified in the ESA, have been satisfied, an
exemption will be granted, the text of which will specify the
appropriate mitigation and enhancement measures.[^63] This exemption is
permanent and irrevocable unless the Secretary of the Interior finds the
action will result in the extinction of another species not considered
in the exemption application.[^64] While removing the absolute
inflexibility of the 1973 Act, the ESC utilized a very demanding
balancing test in the event of an \"irresolvable conflict,\"[^65] one
that was very difficult to satisfy.[^66]

Shortly after it was formed, the Committee was quickly labeled the "God
Squad" or "Extinction Committee." The body first considered exemptions
for the Tellico Dam project in Tennessee and then for the Gray Rocks Dam
on the Laramie River in Wyoming. [^67] In the Gray Rocks Dam case, the
Committee granted the exemption; in the Tellico Dam case, it did
not.[^68] For the Tellico Dam case, the Committee carefully reviewed the
evidence and considered the benefits of the dam and the costs associated
with obliterating the Little Tennessee River. These costs included
eradication of the snail darter and the loss of the riverside way of
life. They concluded unanimously that the continued existence of the
snail darter outweighed the completion of the Tellico Dam.[^69] Rather
than exempting the dam outright, Congress amended the ESA in 1978
mandating both the balancing test and the Committee described in the
previous paragraph.

In the Gray Rocks case, a dam project in Wyoming threatened whooping
cranes in Nebraska. The Committee voted unanimously to grant an
exemption, with enforceable mitigation and enhancement measures imposed
to reduce the threat to the birds. These measures provided for the
establishment of a conservation trust fund to maintain critical habitat,
and monitoring of water withdrawals from the dam. To date, that is the
only application for exemption that has been fully granted.[^70] Thus,
from 1978 until 1991, the Committee met twice and granted one exemption.

In 1991, the Secretary of the Interior became involved in another issue
that would eventually call the Committee back into session. The question
had been smoldering in litigation for years. [^71] At issue were 44
proposed Bureau of Land Management (BLM) timber sales in Oregon and the
spotted owl that made its home in the trees to be harvested. The issue
pitted the timber economy and way of life against the spotted owl and
the old-growth ecosystem of the Pacific Northwest in what was largely a
battle of biology and politics.

BLM and the Fish and Wildlife Service are both federal agencies under
the supervision of the Department of Interior. Although they have
separate areas of responsibility, the nature of those responsibilities
(land, plants, animals, and the use of land) means their policies are
inextricably linked. Early in 1992, as directed by Manuel Lujan,
Secretary of the Interior, BLM developed a recovery plan. Several months
later, Interior formulated its own somewhat less protective preservation
plan. The Fish and Wildlife Service found that the timber sales would
"likely jeopardize" the continued existence of the owl.[^72]

Secretary Lujan took the issue to the Committee, and on May 14, 1992, in
a five to two vote, the Committee granted an exemption for about
one-quarter of the BLM timber sales and denied the request for the
remainder.[^73] Both plans were greeted with little support from either
side, and the controversy raged on. This was the last time the Committee
officially convened.

## D. MIGRATORY BIRD TREATY ACT (MBTA)

The Migratory Bird Treaty Act (MBTA) [^74] was, until recently, a piece
of legislation little known to military practitioners or anyone else. It
was passed in 1918 to codify the contents of numerous bilateral and
multi-lateral treaties prohibiting the taking of migratory birds.[^75]
The statute was designed to criminalize common practices that countries
had begun to realize were decimating migratory bird populations.[^76]
The Act provides in pertinent part:

> Unless and except as permitted by regulations made as hereinafter
> provided in this subchapter, it shall be unlawful at any time, by any
> means or in any manner, to pursue, hunt, take, capture, kill, attempt
> to take, capture, or kill, possess, offer for sale, sell, offer to
> barter, barter, offer to purchase, purchase, deliver for shipment,
> ship, export, import, cause to be shipped, exported, or imported,
> deliver for transportation, transport or cause to be transported,
> carry or cause to be carried, or receive for shipment, transportation,
> carriage, or export, any migratory bird . . . .[^77]

Not only is the Act's language extensive but the list of covered species
is staggering. Even species such as raptors and cattle egrets--though
they don't migrate off the parcel on which they were born--are covered
by the Act.

Air Force practitioners initially paid the Act little heed because
several different U.S. circuit courts of appeal had held that the
federal government was not subject to the MBTA.[^78] Accordingly, the
U.S. Fish and Wildlife Service (FWS) ceased giving permits[^79] to
federal agencies for intentional taking of migratory birds. These
intentional takes were of the type undertaken through the Air Force's
Bird Air Strike Hazard (BASH) program to rid flightlines of birds
dangerous to flying operations when they couldn't be controlled in other
ways.[^80]

The D.C. Circuit altered the MBTA playing field in July of 2000. In
*Humane Society v. Glickman*,[^81] the court held that MBTA
proscriptions applied to a Department of Agriculture effort to eradicate
the nuisance of an exploding population of Canada Geese. This case was a
surprise to Government practitioners but at least there were regulations
that might allow an installation to get a permit for intentional takes.
[^82]

The tougher situation involved unintentional takes. For the Air Force,
unintentional takes arise in two principal ways: bird deaths on power
poles and bird deaths from activities on ranges. In an effort to deal
with these situations, President Clinton signed an Executive Order[^83]
requiring federal agencies to work with FWS to mitigate the negative
impact of unintentional takes. It stopped short of requiring permits,
however, because FWS had no regulations to grant permits for
unintentional takes. Up until that time, they had used their enforcement
discretion to avoid the issue when there were insignificant impacts to
birds.[^84]

The Navy ran afoul of the unintentional take issue in 2002 when the U.S.
District Court for the District of Columbia held the Navy was violating
the MBTA by unintentionally taking migratory birds while bombing a range
in the Farallon de Medinilla islands. [^85] In a subsequent case,[^86]
the Court found it had no choice but to enjoin the Navy (and the Air
Force)[^87] from using the range. This decision precipitated a
Congressional response. Section 315 of the Fiscal Year 2003 Defense
Authorization Act[^88] makes the MBTA inapplicable to the incidental
taking of birds during "military readiness activities"[^89] until such
time[^90] as the Secretary of Interior writes regulations, with the
concurrence of SECDEF, [^91] exempting "military readiness activities."
This legislative initiative was part of a larger package of DoD
legislative proposals that will be discussed *infra*.

**E. CLEAN WATER ACT (CWA):**[^92] **Presidential exemption (33 U.S.C. §
1323(a)) for one year if in "the paramount interest of the United
States"; exemption may be renewed; not available for new sources subject
to national performance standards (33 U.S.C. § 1316) or subject to toxic
and pretreatment effluent standards (33 U.S.C. § 1317)**

The President has only invoked this exemption in connection with the
relocation of Haitian and Cuban refugees to Fort Allen, Puerto
Rico.[^93] However, the Supreme Court recognized the validity of the
exemption in *Weinberger v. Romero-Barcelo*.[^94] In that case, the
district court held, in part, that the Navy's release of ordnance into
the waters surrounding Vieques Island, Puerto Rico, constituted the
discharge of a pollutant without a permit in violation of the CWA.[^95]
However, the district court refused to enjoin the Navy from further
training.

The Court of Appeals for the First Circuit reversed, holding that the
CWA required the court to enjoin the unpermitted discharge.[^96] The
First Circuit relied, in part, on the availability of the Presidential
exemption to support its holding that the district court must issue an
injunction, stating that the Navy was free to request a Presidential
exemption if the injunction would significantly interfere with the
Navy's training.[^97]

The Supreme Court reversed and held that the district court had
equitable discretion whether to issue an injunction for a CWA violation.
In its opinion, the Court explained that the Presidential exemption did
not support the conclusion that the district court must enjoin the Navy
for an unpermitted discharge. The Court reasoned that the exemption
serves a different and complementary purpose from an injunction,
specifically "that of permitting *noncompliance* by federal agencies in
extraordinary circumstances."[^98]

In *Natural Resources Defense Council v. Watkins*, 954 F.2d 974 (4th
Cir. 1992), the Fourth Circuit addressed the Presidential exemption in
the CWA. The Court observed that by virtue of the exemption, the
"Executive Branch possesses ultimate unilateral authority to prevent any
compromise to national security concerns."[^99] The Court went on to
state that the Supreme Court's *Romero-Barcelo* decision illustrated
that the Presidential exemption "could completely isolate a
non-complying federal facility from the purview of the courts."[^100]

Like the CAA, the CWA allows the President, if he determines it to be in
the paramount interest of the United States, to issue regulations
exempting from compliance with effluent standards any weaponry,
equipment, aircraft, vessels, vehicles, or other classes or categories
of property which are owned or operated by the Armed Forces of the
United States and are uniquely military in nature.[^101] The President
must reconsider the need for such regulations at three-year intervals.
The President has not invoked this provision.

F.  NEPA: Relief from the requirements of the National Environmental
    Policy Act (NEPA) versus an actual exemption; Administrative
    Procedure Act (APA) §701 (b)(1)(g)

*1. NEPA and the APA*

NEPA section102(2)(C) requires federal agencies undertaking major
federal actions significantly affecting the quality of the human
environment to include a detailed statement by the responsible official
on the environmental effects of the action and potential alternatives to
it.[^102] The statute does not, however, provide a cause of action to
plaintiffs wanting to enforce it against federal agencies. The
Administrative Procedure Act (APA) provides that cause of action.

A plaintiff wanting to sue the Government for violating NEPA does so
under sections 703 and 704 of the APA.[^103] These provide for judicial
review of final agency actions for which there is no adequate remedy in
a court. Section 706(2)(A) of the APA provides the standard of review.
It states in pertinent part that "the reviewing court shall . . . hold
unlawful and set aside agency action, findings, and conclusions found to
be . . .arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law."[^104]

The APA, however, has a sort of national security exemption. Section
701(b)(1)(G) excludes from the definition of agency "military authority
exercised in the field in time of war or in occupied territory." Courts
have interpreted this clause narrowly. Although they are loath to
interfere in command relationships[^105] or the military's decisions on
training and equipping,[^106] they have not given military departments
much deference when it comes to application of other statutory
schemes.[^107]

*2. The CEQ and "Emergency Circumstances"*

Outside the APA, NEPA has no other statutory exemption for national
security. Rather, the courts and the Council on Environmental Quality
(CEQ) have found certain leeway in the language of the statute. As one
court stated, "Thus, while Congress hoped to compel the considerations
of environmental concerns in significant federal actions, Congress also
recognized that 'essential considerations of national policy' could
prevent the meticulous application of NEPA."[^108] CEQ has indeed
promulgated regulations to take emergencies into account. For example,
one regulation states:

> Where emergency circumstances make it necessary to take an action with
> significant environmental impact without observing the provisions of
> these regulations, the Federal agency taking the action should consult
> with the Council about alternative arrangements. Agencies and the
> Council will limit such arrangements to actions necessary to control
> the immediate impacts of the emergency. Other actions remain subject
> to NEPA review.[^109]

A case at Westover AFB during Operation Desert Storm tested the
emergency circumstance concept. In 1987, Westover Air Force Base issued
an Environmental Impact Statement (EIS) to evaluate the likely effects
that the presence and operation of C-5 transport aircraft would have on
the environment.[^110] The EIS provided that no military activity would
be routinely scheduled between 10:00 p.m. and 7:00 a.m., but in
September 1990, the Air Force began flying on a 24-hour schedule due to
events relating to Operation Desert Storm.[^111] CEQ determined the
situation in the Middle East constituted an emergency within the meaning
of its regulations and allowed the Air Force to operate the flights.

Plaintiffs, a group desirous of quiet around the base, challenged CEQ's
authority to allow such arrangements in an emergency and the application
of the regulation to those circumstances. The court upheld CEQ's
authority to both issue emergency regulations and its application to
Westover. Notably the court reflected that NEPA requires compliance only
"to the fullest extent possible,"[^112] indicating an EIS is not
mandatory in all circumstances. Further it held that the decision by CEQ
and the Air Force to characterize the Westover situation as an emergency
was reasonable given the hostile and unpredictable Persian Gulf
crisis.[^113] It is interesting to note that the parties in Westover
never contended that an EIS was essential under all circumstances. The
disagreement was over what constituted an emergency sufficient to
circumvent the EIS requirement.

*3. Other Unique Situations, Waivers, and Classified Actions*

In addition to the CEQ emergency exemption, practitioners should look to
Air Force guidance on the subject.[^114] AFI 32-7061, The Air Force
Environmental Impact Analysis Process (EIAP), as promulgated at 32
C.F.R. § 989, recognizes that "unique situations may arise that require
\[different\] EIAP strategies."[^115] It cautions, however, that
"\[t\]hese situations may warrant modification of the procedures," but
should only be considered when the resulting process "would benefit the
Air Force and still comply with NEPA and CEQ regulations."[^116]

A related exception allows for emergency or immediate actions where time
does not allow immediate compliance with CEQ regulations.[^117] In
applying this exception, the courts do not simply permit DoD agencies to
bypass NEPA. They will, however, allow a military department to make a
decision without going through the public notice and comment portions of
the law. An Air Force example of this occurred during the F-15 beddown
at Luke AFB in the 1970s. In that case, the Ninth Circuit held that
exigencies of national defense required deployment actions prior to a
final EIS. In sanctioning such actions, the Court relied on the fact
that decision makers had reviewed a completed, though not final, EIS
prior to making their decision.[^118]

Another case worth noting is *Crosby v. Young*.[^119] It stands for the
proposition that CEQ has the requisite authority to allow an agency, in
this case the Department of Housing and Urban Development, after making
alternative arrangements with CEQ, to approve urban development funding
before completion of an EIS. The Court found that CEQ had the authority
to interpret the provisions of NEPA to accommodate emergency
circumstances. Another case involved a fact situation in which Congress
mandated a timeline shorter than the time it would take to accomplish an
EIS. The Court held that the agency had little choice but to comply with
the mandate and that this was an emergency situation.[^120]

In addition to emergency provisions, there is a waiver provision in the
regulations.[^121] These waivers must be approved at the Secretariat
level and cannot contravene NEPA or CEQ regulations. The waivers can,
however, substitute more suitable procedures than those in the
regulations or allow for experimentation in certain situations.[^122]

Classified actions get special treatment under Air Force and CEQ
rules.[^123] In the 1981 case of *Weinberger v. Catholic Action of
Hawaii/Peace Education Project*,[^124] the Supreme Court upheld the
district court's decision concerning classified information. Plaintiffs
sued to require the Navy to prepare an EIS for alleged plans to store
nuclear weapons in a proposed facility in Hawaii. The Navy had completed
an Environmental Assessment for construction of a weapons storage
facility. Those documents, however, were classified, as the facility was
capable of storing nuclear weapons. The lower court decided that NEPA
applied to the Navy's actions, but that given national security
provisions and the Navy's own regulations,[^125] the Navy had complied
with NEPA to the fullest extent possible. The circuit court of appeals
disagreed, requiring the agency to prepare and release a hypothetical
EIS for the operation of a facility capable of storing nuclear weapons.

The Supreme Court overturned the appeals court decision, finding that a
hypothetical EIS was a creature of judicial cloth and not mandated by
statute or regulation. The Court acknowledged the twin goals of NEPA: a)
ensuring federal agency decisionmaking utilized environmental
considerations; and b) informing the public that those environmental
matters had been considered, stating these two aims were compatible but
not necessarily coextensive.[^126] Thus, NEPA contemplates that in a
given circumstance a federal agency might have to include environmental
considerations in its decisionmaking process, yet withhold public
disclosure.[^127] The Navy still needed to consider environmental
consequences in its evaluative process, even if it was unable to meet
NEPA's public disclosure goals due to the classified nature of the
material and the exemption found in Freedom of Information Act Exemption
1.[^128]

*4. NEPA in Summary*

In the final analysis, there is no *per se* national security exemption
in NEPA. Practitioners need to understand that the APA may disallow NEPA
causes of action against the Air Force in certain situations. The
regulations also provide some flexibility to NEPA's procedural
requirements in certain emergency situations. A careful analysis of the
facts will be necessary in each case.

## G. EXEMPTIONS IN OTHER STATUTES

## *1. Comprehensive Environmental Response, Compensation, Liability Act (CERCLA)*

## The President may issue orders regarding response actions as may be necessary to protect national security. Such orders may include an exemption from CERCLA and the Emergency Planning and Community Right-to-Know Act (EPCRA).[^129] (While Congress authorized an exemption from EPCRA, EPCRA, on its face, is not applicable to federal agencies; EPCRA is applicable to federal agencies through Executive Order 13,148.) 

##  

*2. Toxic Substances Control Act (TSCA)*

The Administrator of the Environmental Protection Agency shall waive
compliance with TSCA upon a request and determination by the President
that the waiver is necessary in the interest of national defense.[^130]

*3. Safe Drinking Water Act (SDWA)*

The President may exempt facilities for one year if in "the paramount
interest of the United States."[^131] Exemption may be renewed.

*4. Coastal Zone Management Act (CZMA)*

If a federal court finds that a federal activity is inconsistent with an
approved state coastal zone management program, the President may exempt
that activity if he determines the activity is in the paramount interest
of the United States.[^132]

*5. Marine Protection, Research, and Sanctuaries Act (MPRSA)*

The MPRSA gives the Secretary of Commerce authority to designate Marine
Sanctuaries and to promulgate regulations to protect them.[^133] The
head of a federal agency may decide not to implement Department of
Commerce alternatives regarding agency activities that may injure marine
sanctuary resources if the agency head issues a written statement
explaining the reasons for such a decision.[^134]

*6. Sikes Act Exemption*

An installation's Integrated Natural Resource Management Plan (INRMP)
may substitute for a critical habitat designation under the ESA.[^135]
It must also provide for "no net loss in the capability of military
installation lands to support the military mission of the
installation."[^136]

*7. Emergency Military Construction*

In the event of a declaration of war or the declaration by the President
of a national emergency, "the Secretary of Defense, without regard to
any other provision of law, may undertake military construction
projects. . . necessary to support such use of the armed forces."[^137]
The President authorized the use of this provision in Executive Order
13,235, November 16, 2001.

### III. COMMON LAW EXEMPTIONS

## A. The State Secrets Privilege

As described *supra* in the RCRA section, the Groom Lake litigation
concerning hazardous waste management at a classified operating location
was stopped in its tracks by the state secrets privilege.[^138] The
Ninth Circuit Court of Appeals has described the state secrets privilege
as a common law evidentiary privilege allowing the government to deny
discovery.[^139] Courts should generally try to disentangle sensitive
from non-sensitive information,[^140] but must remain wary of seemingly
innocuous information fitting into a larger mosaic.[^141] Once the
privilege is invoked, it is absolute, irrespective of plaintiff's
showing of necessity.[^142]

The plaintiffs in the Groom Lake litigation argued that RCRA should
control over a common law remedy. They argued that RCRA's presidential
exemption represents Congress' codification of the only national
security exemption from the hazardous waste statute.[^143] The Court
rejected this argument, noting that the privilege has constitutional
underpinnings, has been established in the rules of evidence for over
two hundred years, and may well be at the head of the list of common law
privileges.[^144]

The plaintiffs next argued that the state secrets privilege, as asserted
by the Air Force in these cases, was overly broad. The privilege was
supported by an unclassified declaration signed by Sheila Widnall,
Secretary of the Air Force.[^145] Several classified declarations were
also filed with the Court for *in camera* review--one from Dr. Widnall
and one from the Vice Chief of Staff. The court found all the
declarations sufficient and not overly broad. Of note, the unclassified
declaration applied the mosaic theory to what it described as "security
sensitive environmental data." As Dr. Widnall stated:

> The following are examples of why certain environmental data is
> sensitive to the national security. Collection of information
> regarding the air, water, and soil is a classic foreign intelligence
> practice, because analysis of these samples can result in the
> identification of military operations and capabilities. The presence
> of certain chemicals or chemical compounds, either alone or in
> conjunction with other chemicals and compounds, can reveal military
> operational capabilities or the nature and scope of classified
> operations.[^146]

Although there are statutory construction arguments against its
use,[^147] and some commentators argue that its use has been over
expanded,[^148] the state secrets privilege remains a potent weapon for
DoD practitioners to consider when faced with litigation involving
classified subject matter.

## B. The Totten Doctrine

Sometimes called a distant relative of the state secrets
privilege,[^149] the Totten Doctrine is another potential common law
tool to use in cases with classified facts. The Doctrine derives its
name from the 1875 U.S. Supreme Court case, *Totten Administrator v.
United States*.[^150] The plaintiff, administrator of William A. Lloyd's
estate, originally sued in the U.S. Court of Claims on behalf of Mr.
Lloyd's heir, Enoch Totten, to recover monies promised to him by secret
agreement with the President of the United States. At the beginning of
the Civil War, Abraham Lincoln asked that Lloyd spy for the Union. They
agreed to payment of \$200 per month.[^151] Following the war, Lloyd was
paid for his expenses but was denied the salary.

The Court of Claims dismissed the suit on the theory that the President
did not have the authority to enter into a contract for secret services
on behalf of the United States. The Supreme Court upheld the dismissal
on other grounds. The Court held simply that contracts for secret
services needed to be kept secret forever--that "\[b\]oth employer and
agent must have understood that the lips of the other were to be forever
sealed respecting the relation of either to the matter."[^152]

The case has been used as authority over the years to dismiss lawsuits
whose subject matter dealt with contracts for secret services. It has
arguably expanded in recent years to cover other non-contract cases
involving secrets.[^153] The Doctrine has the potential to be even more
powerful than the state secrets privilege because it requires immediate
dismissal of the case without the *in camera* review or disentanglement
of the non-sensitive items.

## IV. CONCLUSION -- EXISTING EXEMPTIONS ARE NOT ENOUGH

The foregoing brief description of national security exemptions from the
various environmental laws is a starting point for practitioners looking
to preserve an operational or training mission in the face of
irreconcilable environmental requirements and to comply with DoD policy.
While the exemptions have been rarely used, this appears to be changing.
Although DoD might be able to take greater advantage of these exemptions
from time to time, the bottom line is that we must be able to train the
way we fight, and we must be able to operate to defend the country and
its interests. Individual pieces of this day-to-day training are
difficult to quantify in absolute national security terms.

Most of the exemptions described above are narrow and conceived for
limited or one-time uses. In other words, the "work-arounds" described
at the beginning of this paper are one-time exemptions that might be
acceptable for an individual training mission; however, the aggregate
result of having to employ these exemptions on a case-by-case basis
might be "death by a thousand cuts." The death in question being the
totality of realistic training for the military. In the final analysis
training and operations are on-going needs-- not an emergency or an
exception.

> Although existing exemptions are a valuable hedge against unexpected
> future emergencies, they cannot provide the legal basis for the
> Nation's everyday military readiness activities. . .
>
> The Defense Department believes that it is unacceptable as a matter of
> public
>
> policy for indispensable readiness activities to be unlawful under our
> environmental laws absent repeated invocation of emergency
> authority---particularly when narrow clarifications of the underlying
> regulatory statutes would enable us both to conduct essential
> activities and protect the environment.[^154]

[^1]: ^\*^ *Colonel Everett Willard (B.S., Virginia Tech; J.D.,
    University of Mississippi School of Law; LL.M. (Environmental Law),
    George Washington University) is currently Chief of Environmental
    Law at Air Combat Command. He is a member of the Virginia and
    Mississippi Bars. Lieutenant Colonel Tom Zimmerman (B.S.E.E., U.S.
    Air Force Academy; J.D., University of Virginia; LL.M.
    (Environmental Law) George Washington University) is currently the
    Staff Judge Advocate for the 36th Air Base Wing, Andersen, Guam. He
    is a member of the Pennsylvania Bar. Lieutenant Colonel Eric Bee
    (B.S., Clemson University; J.D., University of Georgia; LL.M.
    (Environmental Law), Pace University) is currently the Staff Judge
    Advocate for the 35th Fighter Wing, Misawa AB, Japan. He is a member
    of the Georgia Bar.* The views reflected in this article are those
    of the authors; they do not reflect those of the Air Force or
    Department of Defense.

[^2]: DoD defines encroachment as the cumulative result of any and all
    outside influences that inhibit necessary training and testing.
    Deputy Under Secretary of Defense (Readiness) Dr. Paul M. Mayberry
    and Deputy Under Secretary of Defense (Installations and
    Environment) Mr. Raymond F. DuBois Jr., Testimony to the House Armed
    Services Committee on Range Encroachment (May 16, 2002) (available
    at
    <http://www.defenselink.mil/dodgc/lrs/docs/test02-05-16MayberryDuBois.rtf>)
    \[*hereinafter* Mayberry/DuBois testimony\].

[^3]: *See, e.g.,* George Cahlink, *Green Troops*, G[ov't]{.smallcaps}
    E[xecutive]{.smallcaps} (Oct 2002).

[^4]: *See* Jeanette Steele, *CORPS' WAR WITH LAW; Marines say
    protection of species hurts combat training*, [San Diego
    Union-Trib.]{.smallcaps}, Sep. 26, 2002, at A1.

[^5]: United States General Accounting Office Report on Military
    Training: DoD Lacks a Comprehensive Plan to Manage Encroachment on
    Training Ranges, at p. 11 (June 2002) (available at
    <http://www.gao.gov/new.items/d02614.pdf>).

[^6]: Mayberry/Dubois testimony, *supra* note Error: Reference source
    not found at p. 9.

[^7]: *Id*.

[^8]: *See, e.g.,* Linda Kanamine, *Fort Bragg Defense is for the
    Birds*, [USA Today]{.smallcaps}, Aug. 10, 1995 at 7A.

[^9]: *In Mojave**,** Tortoise and Plant Delay Expansion of Army Base*,
    [N.Y. Times]{.smallcaps}, Jan. 1, 2002 at A16.

[^10]: Mayberry/Dubois testimony, *supra* note Error: Reference source
    not found at p. 11.

[^11]: S*ee* Eric Pianin, *Bird Nests and Bomb Ranges; Hill Nears Pact
    to Exempt Pentagon from Law Protecting Species*, [Wash.
    Post]{.smallcaps}, Oct. 23, 2002 at A9.

[^12]: Memorandum from Deputy Secretary of Defense to THE SERVICE
    SECRETARIES (Subject: Consideration of Requests for Use of Existing
    Exemptions Under Federal Environmental Laws) (7 Mar 2003) \[on file
    with authors\].

[^13]: *See* Eric Pianin, *Environmental Exemptions Sought,* [Wash.
    Post]{.smallcaps}, Mar. 6, 2003 at A21. *See also* Ariel Sabar,
    *Pentagon Seeking Environmental Exemptions,* [Baltimore
    Sun]{.smallcaps}, Jan. 19, 2003 at A12.

[^14]: National Defense Authorization Act of 2004, Pub. L. No. 108-136,
    117 Stat. 1392 (2003).

[^15]: Section 318 of the National Defense Authorization Act of 2004
    amends § 4(a)(3) of the Endangered Species Act (16 U.S.C. §
    1533(a)(3)) to prevent the Secretary of Interior from designating
    DoD land as critical habitat if the land has a written integrated
    natural resource management plan under the Sikes Act. It also adds
    "impact on national security" to the Secretary's considerations
    under § 4(b)(2). *Id.* at § 318. Section 319 changes the Marine
    Mammal Protection Act's definition of "harassment" for military
    readiness activities (to be codified at 16 U.S.C. 1362(18)) and adds
    an exemption provision for actions "necessary for national defense"
    (to be codified at 16 U.S.C. § 1371). It also addresses incidental
    takings in military readiness activities. *Id.* at § 319 (to be
    codified at 16 U.S.C. 1371(a)(5)).

[^16]: 42 U.S.C. §§ 6901-6992k. RCRA amended the Solid Waste Disposal
    Act, and one will occasionally see citations to that original law.

[^17]: *See generally* 40 C.F.R. §§ 260-268.

[^18]: 42 U.S.C. § 6961(a).

[^19]: [Legal Environmental Assistance Foundation, Inc. v.
    Hodel](https://lexisapp.jag.af.mil/research/retrieve?_m=d08e55af73daf7934f6f4cb28346bc7b&docnum=13&_fmtstr=FULL&_startdoc=11&wchp=dGLbVzz-lSllW&_md5=ad5c81467740c7e48a7c57fe177cd70e),
    586 F. Supp. 1163, 1167 (E.D. Tenn., 1984) (finding that DOE's
    hazardous waste was subject to RCRA and that the agency should seek
    a presidential exemption for national security if they could not
    apply for a permit).

[^20]: 161 F.R.D. 434 (D. Nev. 1995).

[^21]: 902 F. Supp. 1240 (D. Nev. 1995).

[^22]: The suit contained eleven claims for relief alleging the Air
    Force's improper treatment, storage, and disposal of hazardous
    waste. These included improper burning of hazardous waste.

[^23]: *Browner,* 902 F. Supp. at 1252. *See also* 42 U.S.C. §
    6927(b)(1) (providing for public availability).

[^24]: 902 F.Supp. at 1253.

[^25]: Kasza v. Browner, 133 F.3d 1159, 1173 (9^th^ Cir. 1998). The
    President renewed this determination on 28 September 1996
    (Presidential Determination 96-54, 61 Fed. Reg. 52679 (1996)) and 26
    September 1997 (Presidential Determination 97-35, 62 Fed. Reg. 52647
    (1997)). It has been renewed each year since then.

[^26]: *Kasza*, 133 F.3d at 1173-74.

[^27]: Frost v. Perry, 919 F. Supp. 1459, 1467 (D. Nev. 1995).

[^28]: Puerto Rico v. Muskie, 507 F. Supp. 1035, 1040 (D.P.R. 1981).

[^29]: Colon v. Carter, 507 F. Supp. 1026, 1029 (D.P.R. 1980).

[^30]: In this section and most laws of the United States, "state" means
    any of the several states, including the District of Columbia and
    Puerto Rico. Puerto Rico is referenced here.

[^31]: 42 U.S.C. §§ 4321-4347.

[^32]: 42 U.S.C. §§ 6901-6992k.

[^33]: Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387.

[^34]: Exec. Order No. 12244, 45 Fed. Reg. 66,443 (1980). President
    Reagan issued a similar Executive Order a year later, Exec. Order
    No. 12327, 46 Fed. Reg. 48,893 (1981).

[^35]: 42 U.S.C. §§ 4901-4918.

[^36]: Colon v. Carter, 507 F. Supp. 1026, 1032 (D.P.R. 1980).

[^37]: Puerto Rico v. Muskie, 507 F. Supp. 1035, 1048 (D.P.R. 1981).

[^38]: *Id*. at 1048-49.

[^39]: Marquez-Colon v. Reagan, 668 F.2d 611, 614 (1st Cir. 1981).

[^40]: 42 U.S.C. § 7418(b).

[^41]: 42 U.S.C. § 7671c(f).

[^42]: *See, e.g.*, 42 U.S.C. § 7522(b)(1) (EPA may exempt new motor
    vehicles or engines for reasons of national security); 42 U.S.C. §
    7586(g) (facilities selling alternative fuel need not be open to the
    public due to security concerns); 42 U.S.C. § 7588(e) (vehicles may
    be exempted from fleet vehicle program based on national security).

[^43]: 42 U.S.C. § 7506(c).

[^44]: *See* 40 C.F.R. § 51.852, 51.853(d), (e).

[^45]: 40 C.F.R. §§ 85.1708, 80.602.

[^46]: 42 U.S.C. §§ 7651-7651o. A Title V permit is an operating permit
    for stationary sources issued pursuant to Title V of the Clean Air
    Act Amendments of 1990, Pub. L. 101-549, Title V, 104 Stat. 2399,
    2635-48 (1990) (codified as amended at 42 U.S.C. 7661).

[^47]: Great Basin Unified Air Pollution Control District, Permit
    #:V-1A, general condition 16 \[on file with Mr. Leslie H. Reed, Jr.,
    AFLSA/JACE\].

[^48]: Cal. Health and Safety Code § 42350(a).

[^49]: Cal. Health and Safety Code § 42352(a).

[^50]: 16 U.S.C. §1536 (a)(2).

[^51]: For marine species, one must consult with the National Marine
    Fisheries Service.

[^52]: 16 U.S.C. § 1536(a)(2).

[^53]: 16 U.S.C. § 1536(j).

[^54]: The Endangered Species Committee is composed of seven members:
    the Secretaries of Agriculture, the Army, and the Interior (serving
    as Chairman), as well as the Chairman of the Council of Economic
    Advisors, the Administrator of the Environmental Protection Agency,
    the Administrator of the National Oceanic and Atmospheric
    Administration, and one individual, selected for each hearing by the
    Secretary of the Interior and appointed by the President,
    representing the affected state or states. 16 U.S.C. §1536(e)(3).

[^55]: 16 U.S.C. § 1536 (g)(1).

[^56]: 16 U.S.C. § 1536 (a)(2). The six standing members of the
    Committee and one selected by the President for each affected state
    may hold hearings and secure information to carry out their duties.
    16 U.S.C. § 1533.

[^57]: 16 U.S.C. § 1536 (h)(1)(A).

[^58]: 16 U.S.C. § 1536 (h)(1)(B).

[^59]: "Notwithstanding any other provision of this Act, the Committee
    shall grant an exemption for any agency action if the Secretary of
    Defense finds that such exemption is necessary for reasons of
    national security." 16 U.S.C. § 1536 (j).

[^60]: 16 U.S.C. § 1536(i).

[^61]: *Id*.

[^62]: 16 U.S.C. § 1536 (*l*)(1).

[^63]: 16 U.S.C. §§ 1536 (h)(1), (h)(1)(B).

[^64]: 16 U.S.C. § 1536(h)(2)(B)(i).

[^65]: Endangered Species Act Amendments of 1978, Pub. L. No. 95-632, §
    2(4), 92 Stat. 3751 (amending 16 U.S.C. § 1532 (1976)).

[^66]: The Carter Administration conducted comprehensive surveys of
    Department of the Interior files and determined that, of more than
    4500 potential conflicts, only three had been administratively
    irreconcilable and, in each of these three cases (including
    Tellico), the federal agency involved had refused to discuss project
    adjustments that would have alleviated the conflict. Tenn. Valley
    Auth. v. Hill, 437 U.S. 153 (1978). *See* Zygmunt J.B. Plater, *In
    the Wake of the Snail Darter: An Environmental Law Paradigm and its
    Consequences*, 19 [U. Mich. J.L. Reform]{.smallcaps} 805, 828 n.82
    (1986) (providing in-depth analysis of Tellico Dam issue).

[^67]: 16 U.S.C. § 1539 (i)(l) (Supp. III 1979).

[^68]: *See* Jared des Rosiers, *The Exemption Process Under the
    Endangered Species Act: How the \"God Squad\" Works and Why,* 66
    N[otre]{.smallcaps} [Dame L. Rev]{.smallcaps}. 825, 845-46 (1991)*.*

[^69]: [George C. Cogging, Charles Wilkerson, & John D. Lesshy, Federal
    Public Land and Resources Law]{.smallcaps} 805 (3^rd^ ed. 1993).

[^70]: *Id*. at 806.

[^71]: For a description of the litigation, *see, e.g.,* John Lowe
    Weston, *The Endangered Species Committee and the Northern Spotted
    Owl: Did the \"God Squad\" Play God?,* 7 [Admin. L.J. Am.
    U]{.smallcaps}. 779 (1993).

[^72]: *Id.* at 808.

[^73]: *Id*. at 806.

[^74]: 16 U.S.C. §§ 703-712.

[^75]: For a list of treaties and species covered, see 50 C.F.R. §
    10.13.

[^76]: Throughout the country in the early 20^th^ century, huge muzzle
    loading guns known as cannons were used to kill hundreds of wild
    birds with a single shot. This practice is dramatized in James
    Michener's novel, *Chesapeake*.

[^77]: 16 U.S.C. § 703.

[^78]: *See generally*, Newton County Wildlife Ass\'n. v. United States,
    113 F.3d 110, 115 (8th Cir. 1997) (concluding that the Forest
    Service is not a \"person\" for purposes of the MBTA); Sierra Club
    v. Martin, 110 F.3d 1551 (11^th^ Cir. 1997); Curry v. United States,
    988 F. Supp. 541 (W.D. Penn. 1997).

[^79]: 50 C.F.R. § 21.

[^80]: *See generally*, AFI 32-7064, Integrated Natural Resource
    Management (Aug 1, 1997), ¶ 6.6; AFI 91-202, USAF Mishap Prevention
    Program (Aug 1, 1998); AFPAM 91-212, Bird Aircraft Strike Hazard
    (BASH) Mgmt. Techniques (April 1, 1997). On September 12, 1997,
    USAF/ILE issued a policy directing installations to, among other
    things, comply with the treaties, follow the National Environmental
    Policy Act, 42 U.S.C. §§ 4321-4347, and make every effort to use
    non-lethal means, before intentionally taking any migratory birds.
    Memorandum from HQ USAF/ILE to ALMAJCOM/SE/CE and USAFA/SE/CE
    (Subject: Interim Policy on Migratory Bird Treaty Act (MBTA)) (12
    Sep 1997) \[on file with authors\].

[^81]: 217 F.3d 882 (D.C. Cir. 2000) (dealing with MBTA § 703, not the
    criminal provisions of § 707).

[^82]: *See* 50 C.F.R. § 21.

[^83]: Exec. Order No. 13,186, 66 Fed. Reg. 3,853 (2001).

[^84]: Center for Biological Diversity v. Pirie, 191 F. Supp. 2d 161,
    168 (D. D.C. 2002), *vacated and remanded as moot*, Center for
    Biological Diversity v. England, No. 02-5163 consolidated with No.
    02-5180, 2003 U.S. App. LEXIS 1110 (D.C. Cir. 2003) (upon amendment
    of the MBTA).

[^85]: 191 F. Supp. 2d 161 (D. D.C. 2002).

[^86]: Ctr. for Biological Diversity v. Pirie, 201 F. Supp. 2d 113 (D.
    D.C. 2002).

[^87]: The Air Force submitted evidence to the court that the Air Force
    used the range about 25% of the time and that 57% of its training
    ordnance in the Pacific theater was dropped on that range. Air Force
    Brief, *Center for Biological Diversity v. Pirie* \[on file with
    authors\].

[^88]: Bob Stump National Defense Authorization Act for Fiscal Year
    2003, Pub. L. No. 107-314, § 315 (2002).

[^89]: \(f\) MILITARY READINESS ACTIVITY- (1) In this section the term
    'military readiness activity' includes\--(A) all training and
    operations of the Armed Forces that relate to combat; and (B) the
    adequate and realistic testing of military equipment, vehicles,
    weapons, and sensors for proper operation and suitability for combat
    use. (2) The term does not include\--(A) the routine operation of
    installation operating support functions, such as administrative
    offices, military exchanges, commissaries, water treatment
    facilities, storage facilities, schools, housing, motor pools,
    laundries, morale, welfare, and recreation activities, shops, and
    mess halls; (B) the operation of industrial activities; or (C) the
    construction or demolition of facilities used for a purpose
    described in subparagraph (A) or (B).

    *Id.* at § 315(f).

[^90]: The Act requires regulations not later than one year after
    enactment. *Id.* at § 315(d)(1).

[^91]: *Id.* at § 315(d)(2).

[^92]: Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387.

[^93]: *See* *supra* section II. B. (CAA section).

[^94]: 456 U.S. 305 (1982).

[^95]: *Id.* at 309.

[^96]: Romero-Barcelo v. Brown, 643 F.2d 835, 862 (1st Cir. 1981).

[^97]: *Id*.

[^98]: *Romero-Barcelo*, 456 U.S. at 318.

[^99]: Natural Resources Defense Council v. Watkins, 954 F.2d 974, 982
    (4th Cir. 1992).

[^100]: *Id*. at 983.

[^101]: 33 U.S.C. § 1323(a).

[^102]: 42 U.S.C. § 4332(2)(C).

[^103]: 5 U.S.C. §§ 703-04.

[^104]: 5 U.S.C. § 706(2)(A).

[^105]: Chappell v. Wallace, 462 U.S. 296 (1983).

[^106]: Gilligan v. Morgan, 413 U.S. 1 (1973).

[^107]: *See, e.g.,* Doe v. Sullivan, 938 F.2d 1370 (D.C. Cir. 1991)
    (holding that plaintiffs' challenge to a Health and Human Services
    rulemaking that allowed the military to use investigational drugs
    was outside the military authority exception).

[^108]: Valley Citizens for a Safe Env't v. Vest, 22 ELR 20355 (D. Mass.
    May 6, 1991) *citing* Kleppe v. Sierra Club, 427 U.S. 390, 421
    (1976) (Marshall, J. dissenting) (because NEPA is a \"vaguely worded
    statute,\" courts have the responsibility to give meaning to NEPA
    provisions).

[^109]: 40 C.F.R. § 1506.11.

[^110]: Valley Citizens, 22 ELR 20355.

[^111]: *Id.*

[^112]: 42 U.S.C. § 4332.

[^113]: Valley Citizens, 22 ELR at 20365.

[^114]: *See also* Exec. Order No. 12,114, 44 Fed. Reg. 1957 (1979).

[^115]: 32 C.F.R. § 989.34(a).

[^116]: *Id.*

[^117]: 32 C.F.R. § 989.34(b).

[^118]: Westside Property Owners v. Schlesinger, 597 F.2d 1214, 1218
    (9th Cir. 1979).

[^119]: Crosby v. Young, 512 F.Supp. 1363,1386 (E.D. Mich. 1981).

[^120]: Cohen v. Price Commission, 337 F.Supp. 1236, 1242 (S.D.N.Y.
    1972).

[^121]: In order to deal with unusual circumstances and to allow growth
    in the NEPA process, SAF/MIQ may grant waivers to those procedures
    contained in this part not required by NEPA or the CEQ Regulations.
    Such waivers shall not be used to limit compliance with NEPA or the
    CEQ Regulations but only to substitute other, more suitable
    procedures relative to the context of the particular action. Such
    waivers may also be granted on occasion to allow experimentation in
    procedures in order to allow growth in the EIAP. This authority may
    not be delegated. 32 C.F.R. § 989.36.

[^122]: *Id*.

[^123]: *See* 32 C.F.R. § 989.26; 40 C.F.R. § 1507.3(c).

[^124]: Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454
    U.S. 139 (1981).

[^125]: Navy Security Classification Guide for Nuclear Weapons, Navy
    SWOP 55-1 (1974); Dept. of Navy, OPNAV Instruction 5721.1C (1975).

[^126]: Weinberger, 454 U.S. at 141.

[^127]: 42 U.S.C. § 4332 (2)(C).

[^128]: Weinberger, 454 U.S. at 145. FOIA exemption 1 states: "(b) This
    section does not apply to matters that are - (1)(A) specifically
    authorized under criteria established by an Executive order to be
    kept secret in the interest of national defense or foreign policy
    and (B) are in fact properly classified pursuant to such Executive
    order." 5 U.S.C. § 552(b)(1).

[^129]: 42 U.S.C. § 9620(j); 42 U.S.C. §§ 11,001-11,050.

[^130]: 15 U.S.C. § 2621.

[^131]: 42 U.S.C. § 300j-6.

[^132]: 16 U.S.C. § 1456(c)(1)(B).

[^133]: 16 U.S.C. § 1439.

[^134]: 16 U.S.C. § 1434(d)(3).

[^135]: 16 U.S.C. § 1533(a)(3)(B)(i).

[^136]: 16 U.S.C. § 670a(b)(I).

[^137]: 10 U.S.C. § 2808.

[^138]: *See* Kasza v. Browner, 133 F.3d 1159 (9^th^ Cir. 1998).

[^139]: *Id.* at 1165, note 1 *citing* United States v. Reynolds, 345
    U.S. 1 (1953).

[^140]: *Kasza*, 133 F.3d at 1166.

[^141]: *Id.*

[^142]: *Id.*

[^143]: *Id.* at 1167.

[^144]: *See id*. at 1167-68; see also Halkin v. Helms, 598 F.2d 1 (D.C.
    Cir. 1978).

[^145]: *Kasza*, 133 F.3d at 1181 (the declaration is reprinted at the
    end of the case).

[^146]: *Id.* at 1182.

[^147]: *See,* Jonathon Turley, *Through a Looking Glass Darkly:
    National Security and Statutory Interpretation*, 53 [SMU L.
    Rev]{.smallcaps}. 205 (2000).

[^148]: J. Steven Gardner, *The State Secret Privilege Invoked in Civil
    Litigation: A Proposal for Statutory Relief*, 29 [Wake Forest L.
    Rev]{.smallcaps}. 567, 584-85 (1994) (asserting that the privilege
    was only used five times between 1951 and 1970 while it has been
    invoked more than 50 times since 1971).

[^149]: *See e.g.*, Sean C. Flynn, *The Totten Doctrine and its Poisoned
    Progeny*, 25 [Vt. L. Rev.]{.smallcaps} 793 (2001).

[^150]: 92 U.S. 105 (1875).

[^151]: *Id.* at 106.

[^152]: *Id.*

[^153]: *See* Flynn *supra* note 148.

[^154]: Mayberry/Dubois testimony, *supra* note Error: Reference source
    not found at p. 26.