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Time to Face the (Climate) Changes

By Scout Henninger

As the United States faces increasing challenges related to the rapidly-changing climate, the Department of Defense (DoD) is struggling to handle the associated risks. The Department has failed to take comprehensive steps to minimize the impact of environment changes, despite listing climate change as a threat to both its operations and its installations since 2010.

Key DoD facilities are already experiencing the effects of climate change as floods and droughts impact training capabilities, military readiness, equipment movement, and energy consumption. According to the DoD, approximately two-thirds of its key facilities are currently at risk for regular flooding, with drought and wildfires posing additional threats to approximately half of its facilities.

The DoD also expects that its role on the global stage will be altered as the climate continues to spark humanitarian crises. It forecasts that the Department will be called on more frequently for assistance as climate-related disasters occur, sparking both unrest and geopolitical crises.

The DoD has made some efforts to lessen the damage caused by climate change. For instance, the Department and the U.S. Army Corps of Engineers collaborated to improve stormwater drainage for a California base, and the DoD has updated its planning and construction standards. It has also implemented a research program to study the long-term ramifications of climate change and partnered with firefighters to better respond to wildfires. Furthermore, it has authorized investments in updating infrastructure and directed that environmental impact be considered in project planning.

However, in June, the General Accountability Office (GAO) issued a report finding that the DoD is underprepared for dealing with the effects of climate change. The GAO found the DoD is not using climate projections in the planning military installations. Instead, the DoD is considering how climate has impacted past installations. The GAO warned that failing to use future projections can lead to increased damages.

From examining the case law, environmental legislation, and the DoD’s current position, the most effective way forward is likely a multi-faceted approach. While the DoD is implementing its own plans to lessen its environmental impact, Congress could use more civil suit provisions, and legal challengers could frame their arguments in an economic narrative.

The case law surrounding DoD environmental accountability has been consistently deferential. For instance, in Winter v. NRDC the Supreme Court held the public interest in having a ready and well-trained militia outweighs harm done to marine wildlife. That case, decided in 2008, cited the 1973 Supreme Court case, Gillian v. Morgan, which held, “[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.”

Although Lujan v. Defenders of Wildlife held citizens do not have standing to force agency’s to act in the environment’s best interest just because everyone is impacted by the environment, the 1997 Supreme Court case Bennett v. Spears might provide a path forward. In that case, Congress had included a “citizen suit” provision within the Endangered Species Act. That provision stated that “any person” may bring suit against the agency. The Court held that even though the plaintiffs’ interests were at odds with the ESA, because they would suffer economic harm they had adequate standing. Thus, future challengers should craft their arguments to more closely align with the Bennett arguments, with an emphasis on economic harm. Focusing on an environmental concern will not be enough, as demonstrated in Lujan.

The citizen suit provision in the ESA (located at 16 USCS § 1540(g)) provides a unique possibility for environmentalists. It specifically states “any person” may “enjoin any person, including the United States and any other governmental instrumentality or agency . . . . who is alleged to be in violation of any provision of this Act or regulation issued under the authority thereof; or . . . . compel the Secretary [of the Interior]” to comply with the Act. Unfortunately, this provision is anomalus and most legislation is extremely deferential to the DoD. In fact, the Marine Mammal Protection Act (MMPA) of 1972 expressly states the Secretary of Defense may exempt actions from the MMPA if is a matter of national security. There is a similar exception to the Coastal Zone Management Act of 1972.

If the DoD is successful in implementing its plans for sustainable development, Congress is intentional about crafting environmental legislation, and legal challengers focus on potential economic harm, the DoD might be better able to protect its assets and American national security.

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