Features, Online — October 13, 2011 at 10:22 am

Regulatory Obstacles to Military Operational Readiness

By James Moxness –

The full complexity, benefits, and costs of the regulatory state, especially as they relate to national security, are too infrequently discussed or appreciated publicly in the United States. It would come as a surprise to too many that environmental regulation places significant hedges on military—especially naval—training, spurring lawsuits (like Winter v. NRDC) that, at their foundation, place the environment and national security in opposing positions. It is insufficient to side simply with one principle over another, but the evolving nature of combat and the concomitant challenges faced by military operational readiness must be addressed, and a realistic path must be found that respects the concerns embodied by the regulations.

The U.S. Navy probably faces the most profound example of regulation threatening military readiness. Each year, the Navy trains in American territorial waters, in foreign territorial waters, and on the high seas. Broadly, the training fulfills two critical purposes: it prepares the Navy to handle sea-based threats and serves as a global force-projection of the protective and offensive capabilities of the Navy. The former has renewed importance in the face of foreign development of stealth submarine technology, a fact that demands that the Navy stay at the forefront of Anti-Submarine Warfare (ASW) capabilities.

The current regulatory regime affecting Naval training at sea includes significant legislation, including the Coastal Zone Management Act (CZMA), the Marine Mammal Protection Act (MMPA), and the National Environmental Policy Act (NEPA). Each of these places protection and reporting requirements on Naval training. Over time, the effects, particularly of the CZMA and the MMPA, have expanded from their intended scope. These expansions, along with the concomitant regulatory burdens and expanded possibilities of litigation faced by the military, provide little if any marginal environmental benefit and impose unnecessarily burdensome congressionally-mandated training and readiness requirements.

As a representative example of the deleterious impact on military readiness created by excessive complexity and unnecessarily expansive authority in regulatory regimes, consider the problems created by the CZMA. Where the act originally limited each state’s regulatory influence to “direct effects” of actions taken within the waters of the state’s coastal zone, a 1990 amendment expanded jurisdiction outside the state’s own “coastal zone” to include actions taken anywhere that may with reasonable foreseeability “[a]ffect” that state’s “coastal zone.” No apparent distinction is made between, for example, the long-range effects of an oil spill and the temporary disruption of whale movement for the purposes of whale watching. Furthermore, each state has dramatically varying approaches to its own coastal management (anywhere from near cursory approval of Navy training to months-long contentious disputes). This is to say nothing of the fact that what each state’s regulations even are is not always clear, as there is no common repository of all current state CZMA regulations. And lastly, it is not always clear to affected bodies such as the Navy when “coastal management plans” have been altered, as review procedures are separated into “significant” and “routine” without explanation, with only significant changes requiring a process resembling “notice and comment” for affected federal bodies. The end result of these unnecessary complications is that military legal personnel encounter an almost Kafkaesque body of regulations that vary according to time and place, sometimes without notice, and are frequently subject purely to interpretation by state officials, who do not necessarily stay in office long-term.

It is worth remembering that Congress, in establishing the CZMA, repeatedly emphasized in both the legislative history and the act itself the importance of cooperative interaction between regulators (the states) and the regulated (private and public entities), and that it established the CZMA in 1972 in the face of severe degradation of America’s coastal ecosystems primarily as a result of private despoliation. All of these goals are noble and any suggestion that one must choose either the environment or national security poses a false choice; however, since its inception in 1972, the CZMA has grown more expansive and less clear. This problem is amplified by the fact that, where amendments have been introduced in response to specific, concrete issues, their impacts now go well beyond the issue that led to the amendment (e.g. offshore oil and gas development in California spurring the 1990 amendment to expand the “effects” test). The impediments to military readiness created by all of the above issues are only those emergent from the CZMA. The severity of the problem is only magnified by the regulatory issues (to say nothing of litigation) created through the MMPA, NEPA, et cetera.

As the United States continues to face challenging national security threats, it is essential, both from the point of view of policy and of law, that the inefficiencies and ambiguities of regulation are corrected. Subjecting the military to a statutorily geographically-unbound regulatory regime, hemmed in only by a “reasonable foreseeability” test, or leaving entirely unclear what constitutes a “routine” change outside any notice requirement in a highly-decentralized system of 34 coastal management plans is to create a system where unclear legislation is allowed to have unforeseen and potentially grave consequences.

Image courtesy of the U.S. Navy.

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