Testimony of Bonner Cohen, Ph. D., Senior Fellow
Before the U.S. Senate Environment & Public Works Committee
July 9, 2002
Good afternoon. My name is Bonner Cohen. I am a senior fellow at the Lexington Institute, a non-profit, non-partisan, public policy research organization located in Arlington, Virginia. I want to thank Chairman Jeffords, Ranking Member Smith, and the other members of this committee for the opportunity to address a subject bearing directly on our nation's security.
In recent years, well-intended environmental statutes designed to do such things as protect endangered species and safeguard migratory birds have been applied to military installations and activities where they come in direct conflict with the proper training of soldiers for the deadly business of battle. Everyone in this room knows that the military has a unique mission, one that requires the highest state of readiness so as to prevent the needless sacrifice of young lives. The Joint Chiefs of Staff have come here today, because they have a problem that needs to be addressed. Failure to do so in a timely and sensible fashion will put the lives of those in uniform at an unnecessary risk.
This need not be the case. By making a few narrowly focused, but vitally important, clarifications to some of our environmental statutes, we can continue to provide for environmental progress, without jeopardizing military readiness. Let me briefly address three areas where, through the application of common sense, improvements can be made.
Marine Mammal Protection Act (MMPA): The Marine Mammal Protection Act's definition of “harassment” has been a source of confusion since it was included in the 1994 amendments to the statute. The statute defines “harassment” in terms of “annoyance” or the “potential to disturb,” vague standards which have been applied inconsistently and are difficult to interpret. Both the Clinton and the Bush administration have sought to refine this definition. But efforts by the National Marine Fisheries Service to solve the problem through a regulatory interpretation of “harassment” proved unworkable and would have opened the door to substantial litigation. Last year, the Navy, the National Marine Fisheries Service (NMFS), and the US Fish & Wildlife Service (FWS) developed a definition of “harassment” which all three agencies could accept. In line with a recommendation put forward by the National Research Council, it clarifies that “harassment” as applied to military readiness activities to mean death, injury, and other biologically significant effects, including disruption of migration, feeding, breeding, or nursing.
Until the law is amended to clarify the definition of “harassment,” the Navy and the NMFS are subject to lawsuits over application of that term. Indeed, several groups have already announced their intention to challenge the deployment of the Navy's Low Frequency Active Sonar, a key defense against ultra-quite diesel submarines, and for which the Navy has an immediate and critical need.
Worldwide, all activities undertaken by the Defense Department account for fewer than 10 deaths or injuries to marine mammals annually, as compared with 4,800 deaths annually resulting from commercial fishing. By giving a science-based definition to “harassment,” we can ensure protection of marine mammals while allowing the Armed Forces sufficient flexibility to training and other operations essential to national security.
Migratory Bird Treaty Act (MBTA): On March 13, 2002, a federal judge, acting on a suit brought by the Center for Biological Diversity, ruled that the incidental takes of migratory birds during the course of training activates at Farallon de Medinilla (FDM) are unlawful under the MBTA without a permit. FDM is a tiny (less than 1/3 square mile), uninhabited island in the West Pacific. It has been used as a firing range for naval gunfire and air bombardment since 1976. The ruling has halted all training exercises on FDM pending the judge's final decision on whether to enjoin the Navy from carrying out bombing exercises at the site.
In an area designated as a bombing range, some accidental killing of migratory birds will take place. Common sense tells us this. Common sense also tells us that shutting down the remote firing range will weaken Armed Forces' to train and test for future conflicts.
The implications for military readiness go far beyond the FDM firing range in the West Pacific. Almost all species of birds everywhere are migratory, and the FDM case was brought in the DC Circuit, which has jurisdiction over all Department of Defense activities. As a result, the recent ruling in the FDM case puts at risk all US military aviation, military telecommunications, and live-fire training nationwide and abroad. A far better solution would be to return to the legal and regulatory status quo as it existed for over 80 years, until the FDM ruling in March.
Endangered Species Act (ESA): The Department of Defense manages 25 million acres on more than 425 military installations in the United States, providing sanctuary to some 300 species listed as threatened or endangered. More often than not, it is good stewardship of land, be it in the public or private sector, that attracts threatened or endangered species. This has created problems for the military which must train troops and test weapons in realistic conditions on bases that harbor endangered species. Applying the ESA's provision pertaining to “critical habitat” to military installations, as some litigants are demanding, would undermine readiness activities in bases all over the country, including Fort Hood, Texas, Camp Pendleton, California, and Fort Polk, Louisiana -- just to name a few.
The courts have held that critical habitat is intended for species recovery. Hence, the designation of critical habitat is a bar to any land use that diminishes the value of that land for species recovery. Rather than military lands being used for military purposes, once critical habitat is designated, such lands must be used first for species recovery. The most sensible way to deal with this issue is through a legal instrument that already exists. Instead of critical habitat designation, endangered species on military reservations should continue to be protected through Integrated Natural Resource Management Plans (INRMPs), which are required under the Sikes Act and are developed in close cooperation with the Department of Interior and state wildlife agencies. This approach has been endorsed by both the Clinton and the Bush Administrations. The widespread presence of threatened and endangered species on military bases attests to the effectiveness of INRMPs. There will always be problems, but they are best dealt with through the holistic approach provided by INRMPs rather than through the cumbersome species-by-species analysis required by the designation of critical habitat.
In closing, I would like to pose two questions that go directly to the heart of the readiness issue: If soldiers cannot be trained in realistic conditions in areas designated for that purpose, then where is that training supposed to take place? If weapon systems cannot be tested in realistic conditions in areas designated for that purpose, then where is that testing supposed to take place?
Thank you very much.