Senate Environment and Public Works Committee Holds Hearing Military Encroachment on Environmentally Sensitive Areas

FDCH TRANSCRIPTS
Congressional Hearings
Apr. 2, 2003

Senate Environment and Public Works Committee Holds Hearing Military Encroachment on Environmentally Sensitive Areas

WYDEN:

Thank you, Mr. Chairman.

Mr. Chairman, for two decades, I have enjoyed working with you. And I think it's important to shed light on this issue. But, colleagues, I cannot support forcing the Congress to make a false choice between the readiness of our troops for combat overseas and the health and safety of our citizens here at home.

Like Chairman Inhofe, I fully support our troops in combat and that includes the critical training that's needed so that they can be ready for battle. But the record is absolutely bereft of concrete examples that indicate that exemptions from environmental laws have anything to do with training and readiness.

And I think it is particularly important, colleagues, that we explore the fact that the major environmental laws already include exemptions for military readiness. And apparently none of these exemptions has been invoked. There has never been a claim that an exemption was needed under the Endangered Species Act—not an exemption under the Clean Air Act, not a claim under Superfund or RCRA (ph).

The laws have been on the books through Vietnam, in Iraq during Desert Storm, in Bosnia and Afghanistan. And I am very troubled about the idea that now we're talking about playing Russian Roulette with the health and safety of U.S. citizens here at home when it doesn't seem to be that there has been any significant exercise of laws that are on the books now to protect our troops, to ensure military readiness and to guarantee national security.

So, Mr. Chairman, I think you're performing a great service that we can examine this issue and get into some of the specifics.
And, as I say, I always enjoy working with you and I'm going to continue to do that.

I thank you.

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WYDEN:

Thank you very much, Mr. Chairman.

Mr. Cohen, I was very troubled by your comment that your agency is engaged in a defensive action because it looks to me like an offensive preemptive attack on the nation's environmental laws. And I want to tell you exactly why I feel that way. I have looked at your testimony very carefully and you, essentially, say in the testimony, "OK. There really isn't a problem with the environmental laws affecting readiness right now." But then you go on to say, "If litigants in the pending cases end up being successful, then at some point down the road, military readiness could be affected. So that's why we need to engage in preemptive efforts to change the environmental laws now."

I want to give you an opportunity to comment on it because that's the way it really looks to this member of the Senate.

BENEDICT COHEN:

Thank you, sir.

The reason why we believe that we are trying to preserve the regulatory status quo, which was the source of my comment that we were sort of on the defensive in this, is that we believe we are largely codifying the existing regulatory practices and policies both of the—of the states and of our federal regulators.

WYDEN:

But aren't you concerned about the possibility of future cases? You're not pointing to cases today, are you?

BENEDICT COHEN:

Yes, sir, actually in a number of instances, we are. There is Endangered Species Act litigation, for example, currently pending pursuant to which the Fish and Wildlife Service is going to have to, again, in just a few days make a decision whether to designate large parts of Camp Pendleton and Miramar as critical habitat. That's an ongoing litigation.

WYDEN:

But it hasn't come down against the department as of today.

BENEDICT COHEN:

(OFF-MIKE)

WYDEN:

You see, my—OK.

Mr. Chairman and colleagues, that's the bottom line here. The decisions haven't come down against the department and the military readiness as of now, but we are supposed to engage in preemptive action against something that may happen in the future. What if the decisions don't go against you in the future?

BENEDICT COHEN:

Sir, there are a number of reasons that we think that there is a wave of pending litigation in virtually all of these areas which does present a threat. And the department, philosophically—I mean, reasonable people can differ on this in terms of timing, but philosophically the department and the administration think it's unjustified or unwise to actually wait until there is a train wreck in court and critical national security activities are jeopardized.

To give just one example, sir, some very critical training activities taking place at an island in the Western Pacific—Veryondamettanea (ph) -- directly in support of Operation Enduring Freedom were enjoined last year under the Migratory Bird Treaty Act. And Congress, very responsibly and quickly, took action to revise the statute, but the injunction had already been in place for some time. And it is our belief that it is better public policy if we can see these threats clearly emerging and if they are systemic to try to address them proactively.

WYDEN:

I think—and extra points for candor, you know, Mr. Cohen, you have defined what this issue is all about. You are concerned about something that may happen in the future, so something ought to be done in a preemptive way now when I, and I think several colleagues, say we have had these laws on the books for a long time through a number of conflicts. We don't have the decisions that undermine readiness as of now. And I think it is very unfortunate that we are talking about, you know, preemptive assault on the nation's environmental laws when there is no body of evidence indicating that the problems have been seen under existing kinds of decisions. And the future rulings may not go against you.

But you have defined the issue at least clearly for me.

One last question, if I might, the Umatilla Chemical Weapons Depo in my state is currently in the process of destroying stockpiles of nerve gas and other weapons. It's sole function there—no combat or military readiness going on there. There is considerable interest in my part of the world, given the current mission of the depo, that it shouldn't qualify as the type of range where there would be an exemption from environmental laws. And I would like to have your thoughts this morning.

BENEDICT COHEN:

Yes, sir. The chemical incineration activities that you're describing—chemical destruction activities at Umatilla would not be covered. They wouldn't qualify as a military readiness activity.

UNKNOWN:

I'm sorry—what did you say?

INHOFE:

Get real close to that, if you would.

BENEDICT COHEN:

I'm sorry. I said chemical demilitarization—chemical demilitarization activities at those facilities...

WYDEN:

Demilitarization—yes.

BENEDICT COHEN:

...—demilitarization would not qualify as a military readiness activity in the definition that we have provided. So it wouldn't be affected by our legislation.

WYDEN:

My constituents will be pleased. I look forward to working with you and, again, to close by way of saying my door is open to you when there is evidence of a problem. But to say we're going to toss all of these environmental laws aside on the basis of what you characterize as a potential wave of problems doesn't make sense.

Thank you, Mr. Chairman.