Testimony of Bonner Cohen, Ph. D., Senior Fellow
Lexington
Institute
Before the U.S.
Senate Environment & Public Works Committee
Washington,
DC
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.