Environmental Law in Military Operations

Abstract

Military commanders and their operational attorneys must be cognizant of the myriad environmental laws, treaties, associated regulations, international agreements and policies that apply to military activities and operations within and outside the United States. Deciphering applicable environmental considerations can quickly become complicated and is dependent on numerous factors to include the nature of the operation, where it takes place, and the associated host nation’s relevant environmental laws and regulations. Irrespective of the environmental legal drivers, respecting host nation and global environmental norms are often inextricably linked to larger strategy and mission goals. Indeed, the failure to comply with non-prescriptive environmental standards and norms abroad can generate worldwide criticism that ultimately undermines the strategic goals of the larger military operation and can negatively the health and safety of servicemembers. This chapter is intended as an operational environmental law overview and toolkit for use by military commanders and their lawyers in identifying and addressing environmental issues within the geographic locations and operational contexts in which they are likely to arise. Clear standards and definitive legal requirements for a large amount of military activities operations — to include contingency operations — at non-enduring military installations outside the United States can be particularly difficult to decipher. And environmental considerations during military operations have taken on increased importance in recent years, with the proliferation of domestic environmental laws and an increasing international awareness of the environmental harm caused by military operations. This chapter addresses three different areas where myriad environmental laws and policies could feasibly apply to military operations. First, it briefly provides an overview of the Title 10 “man, train and equip” missions at U.S. installations within the jurisdiction of the United States. Here, nearly the full menu of domestic environmental laws applies to military activities. Indeed, failure to comply with environmental laws within the jurisdiction of the U.S. could lead to civil lawsuits and injunctions against the Department of Defense (“DoD”) or a military service or even criminal charges against the alleged wrongdoers. Second, this chapter addresses military activities outside the United States at established and enduring DoD installations. Military bases outside the U.S. are largely governed by executive branch policy and DoD directives as most — but not all — U.S. domestic environmental laws lack a clear extraterritorial application that applies to military activities abroad.Third, this chapter addresses military activities and operations outside the United States where DoD directives and domestic environmental law have limited application. This includes operations that take place in both international and non-international armed conflict, contingency operations, and the large swath of other DoD activities abroad where DoD policies do not clearly apply. While this chapter addresses U.S. military operations, other nations also have domestic environmental laws that impact their individual militaries. These foreign domestic laws remain particularly important for the U.S. military during multinational operations. Additionally, emerging international environmental law and Law of Armed Conflict (LOAC) principles increasingly inform environmental compliance for military operations and will be discussed in the latter part of this chapter.Within this general construct, a complete understanding of the intersection between the military and U.S. environmental laws and policies requires analysis of at least six relevant factors: (1) the plain meaning of the statutory language of the relevant environmental law; (2) the statutory language describing any national security exemptions; (3) the statutory language addressing its extraterritorial application; (4) the practical implementation and application of environmental laws and regulations to the military via military instructions, directives, and regulations; (5) international agreements to include host nations laws and status of forces agreements (SOFAs); and (6) traditional law of armed conflict (LOAC) treaties addressing environmental protections in armed conflict. These six factors are discussed in greater below.