Whale Watching from 200 Feet Below: A New Approach to Resolving Operational Encroachment Issues
Military training objectives and environmental protection have been at odds for years. One can argue, not unconvincingly, that military training by land, air, or sea is inherently antithetical to environmental protection. The essential goal of the armed forces—to protect the sovereign territories of the United States—requires each uniformed service to be ready to engage hostile enemies in any locale with destructive impact. The emergence of strong national environmental protection laws presents a fundamental conflict for military leadership. The term “operational encroachment” has been used to encapsulate the description of this often abrasive relationship.
Most environmental laws contain provisions to allow for exemptions in the interest of national security, but it is difficult to state a definitive policy regarding these exemptions because the legal requirements are inconsistent. There is no clear statutory scheme to dictate who grants an exemption, under what circumstances an exemption is appropriate, or what the military needs to do to obtain an exemption. To promote efficiency and predictability, and more importantly to clearly define the license of the armed forces in carrying out daily training exercises, Congress should resolve these inconsistencies. By reforming current environmental laws to establish a uniform standard and by creating a new commission to apply that standard, a balance between national security and protecting the environment can be attained.
Part II of this Comment analyzes current federal environmental protection laws to illustrate the inconsistent approach to providing national security exemptions. This inconsistent approach underscores the vast potential for litigation. Part III further exposes the potential for litigation by discussing the recent Supreme Court decision in Winter v. Natural Resources Defense Council. Finally, Part IV proposes several possible solutions for resolving existing inconsistencies and inefficiencies to achieve a proper balance between environmental protection and appropriate levels of military training.
Aaron M. Riggio, Whale Watching from 200 Feet Below: A New Approach to Resolving Operational Encroachment Issues, 33 SEATTLE U. L. REV. 229 (2009).