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Ray DuBois, the former Deputy Under Secretary of Defense for Installations and Environment, argued that environmental laws had been hampering realistic training long before President George W. Bush was elected. “It was not something that emerged full flower in my mind or after Jan. 20, 2001, in the Bush administration’s mind. This had been percolating for years. This doesn’t happen overnight. Encroachment doesn’t happen overnight.” Beginning with the fiscal year 2003 defense authorization bill, DuBois pressed Congress in each year of his tenure for exemptions and amendments for the military to just such environmental laws. In April 2002, the Pentagon, calling its effort the Readiness and Range Preservation Initiative, argued that the upcoming defense bill should ease the definition of whale and dolphin “harassment” in the MMPA, exempt military facilities from state Clean Air Act compliance for five years, reduce munitions cleanup standards under the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and preclude the listing of any military land as “critical habitat” under the Endangered Species Act (ESA) as long as a site had in place a so-called Integrated Natural Resource Management Plan (INRMP), essentially a broad environmental usage strategy document.
DuBois’ decision to be proactive was not always well received, and objection to the proposal was not limited to environmental groups. An April 2, 2003, letter to the Senate environment committee by 15 state and territorial attorneys general noted, “We are not aware of any instance in which RCRA, CERCLA or the Clean Air Act has ever caused an adverse impact on military readiness. To our knowledge, DOD has not cited any examples of any such conflicts. And we note that [then-EPA Administrator] Christine Whitman recently testified before the Senate Environment and Public Works Committee that she was not aware of any training mission anywhere in the country that was being held up or not taking place because of these laws.” Contrary to DuBois’ argument that the requests were narrowly targeted at potential training impediments, the letter said, “DOD’s proposed amendments likely create broad exemptions that jeopardize the states’ ability to protect their citizens’ health and environment, without any corresponding benefit to readiness.”
Although most of the proposals that year were defeated, DuBois was undeterred. Over the next several years the Initiative was presented, always in slightly modified form, to successive Congresses for consideration, only to be rejected time and again for lack of evidence that it was necessary. (Subsequent versions also sought exemptions from the Clean Water Act and Safe Drinking Water Act.) Ultimately, DuBois succeeded in winning limited exemptions from the MBTA in the 2003 bill and the ESA and MMPA in the 2004 bill, although he contends today that not only should the other exemptions also have been granted, but that opposition to the amendments that passed was unreasonable.
“The environmental movement and the conservation movement, duck hunters and ranchers and farmers, always look at their world holistically,” he said. “I said, why shouldn’t the ESA do the same? I said, ‘Let’s take the initiative and do it holistically.’ We’re going to present our holistic plan to state-level EPA folks, and if the INRMP got approved, then allow the military to use the land Congress dedicated for training purposes in the way it’s supposed to be used, notwithstanding that it’s probably going to damage certain endangered species habitat.” If the INRMP “promises there will be no diminution of endangered species,” he argued, “then let us use the land as it was originally dedicated. Well, you can see there were a number of folks, especially on the environmental left to be quite blunt, who absolutely positively said no. Some might ascribe that position to being anti-militaristic and some might ascribe it to being extremely pro-endangered species. I don’t want to question their motives, but I do want to say that national security, training our young men and women in the most realistic fashion possible, is every bit as important, if not more so, than protecting the golden-cheeked warbler in southern Texas, the red-cockaded woodpecker in the Southeast and whatever that little frog was in Camp Pendleton,” a Marine Corps base south of San Diego.
DuBois knew all along, he said, that he would be accused of “the beginning of the rollback of environmental protections. I worked very hard to convince a majority in Congress that that was not our objective. Of course, many Democrats found President Bush to be very suspect when it came to environmental protection, and I had to overcome that and say I only want to amend the legislation for the very narrow purpose, when necessary, for military training.” Ultimately, he said, “I basically asked for the benefit of the doubt. And boy, that doubt was big.”
While some thought the efforts, at one time or another, to amend virtually every environmental law on the books was part of a “bargaining chip strategy” whereby DOD would ask for more than it expected to get from Congress, DuBois said he believed in every request he ever made. “Politically we had a wonderful debate, a classic example of ‘Do you go for five or six items knowing you’re only going to get two or three, or do you go for two or three hoping you’ll get two or three.’ I never bought off on that. That’s an interesting debate you can have at graduate school on legislative tactics.” He pounded the table as he continued: “I said, ‘Ask for what you think is right to ask for.’ I didn’t believe in the bargaining chip approach. I knew full well we’re not going to get anywhere near what we ask for in year one or year two. This is going to be a legislative campaign that will take at least three legislative cycles.”
How could that effort succeed? He pounded the table again: “You had to put together a plan, a campaign, and a story, a narrative, that demonstrated you could embrace environmental concerns and execute realistic training at the same time, and that’s the narrative I tried to articulate to the American people, to Congress and to the environmental movement. There were parts of the movement who listened thoughtfully and said, ‘Maybe we can work together.’” Indeed, one of his signature accomplishments was the expansion of property buffer zones around military ranges in partnership with land trusts and other environmental groups, who often found in DuBois a willing partner in efforts to buy acres near training grounds specifically in order to leave them unmolested. Speaking before the House Armed Services Military Readiness Subcommittee on March 14, 2002, then chaired by Rep. Joel Hefley (R-Colo.), DuBois praised the military’s partnership with The Nature Conservancy at Fort Bragg, N.C., where an endangered population of red-cockaded woodpecker had made a home. “The imperative of realistic combat training and the stewardship of the environment: Are they necessarily mutually exclusive?” he rhetorically asked the panel. “Not if the example of Fort Bragg and the Nature Conservancy Private Lands Initiative . . . is any test. Protecting lands that adjoin military reservations with conservation easements and other protective measures is a proposition that can provide increased protection to at-risk species while also reducing the management burden on military lands. This is a partnership that succeeds in creating and providing that balance we all have spoken to.”
Interestingly, DuBois said during his interview with DCBureau.org that although the Department of the Interior would have been just as plausible a partner for such land preservation initiatives, “I was in a better position.” He put air quotes around his next statement: “National security. We were a country under siege post-9/11 and it was much easier to appropriate to the Defense Department budget than the Interior Department budget.” Indeed, national security was a frequently stated rationale for much of DuBois’ program throughout his tenure.
Instead of accepting EPA’s decision, DuBois said, in early 2004 he asked Shannon Cunniff, his recently hired chemical policy expert, to “pick up the phone and call some other folks in the scientific community, chemical or environmental.” According to him, the two of them asked these outside observers whether the Pentagon should accept the draft results. “And they said, ‘No, you shouldn’t,’” he recalled. “I said as a non-scientist, ‘Shannon, what’s the deal here?’ She said, ‘You have competing science. The best way to do this is to go to the National Academy of Sciences (NAS) and have them do the analysis.’ So that’s what we did. But that whole process made me think about how DOD should be positioned. You had to take some risks here. I was criticized by some people in Congress that I was kicking the can down the road, ignoring clear scientific results. I said, ‘On the contrary. I am embracing whatever the scientific community is going to tell me. I don’t want to rely on what I’ve been told are inadequate scientific results.’”
Based on this warning, DuBois said, he rejected the draft’s conclusions outright. “Then I decided to call up Jimmy Connaughton [then chair of the White House Council on Environmental Quality (CEQ)] and I said, ‘Jimmy, I need your help. I’m not just going to sit here in my DOD world. I want a bigger audience, a bigger group of people to be dealing with this problem.’ I wanted to be proactive.”
But DuBois’ version of events could not be confirmed. Cunniff began working in DuBois’ office in late March 2004, just as NAS was having its last public meeting on the perchlorate risk assessment. Any decision to contest the 1 ppb figure would have been made a year or more before she got to DOD. Asked to explain this discrepancy, DuBois wrote in an e-mail: “I guess the comment about ‘competing science’ may have emanated from one or more of the Military Departments’ scientific types or even from EPA itself or both” — he wasn’t sure. The “important issue,” he wrote, is that after multiple discussions he had with his staff and EPA, “I asked for help in assessing the scientific basis of the preliminary . . . determination by EPA and turned to the CEQ which then lead to the interagency discussion and ultimately the decision to ask the NAS to study it.”
The inconsistency of DuBois’ account only throws into sharper relief the importance he attached to his hiring of Cunniff, who previously had worked for 10 years at the U. S. Bureau of Reclamation. Working with her was a necessity, he said, because even though he wanted to take an active role in chemical regulation, he had no one available to advise him. “She had been recommended to me on the basis of her scientific expertise, so I interviewed her and realized that not only was she the right person for the job, but I had no one on staff with this kind of expertise,” he said. “I told her it wouldn’t be easy. She was coming into a department that historically has been reactive and very nervous about potential costs at the hands of individuals who might not be as sympathetic to national security or who might be much more sympathetic to the issues of cleanup and remediation. I said, ‘You and I are going to come up against obstacles internally and externally in terms, arguably, of the environmental movement.’ That was the beginning of it. I wanted someone on the staff who could advise me from a scientific, analytical standpoint whose credentials were impeccable and who, yes, I could lean on.”
How could they be proactive? In addition to the Pentagon, DuBois says, the Department of Energy, the National Aeronautics and Space Administration and other federal agencies and departments “had equity” in chemical regulation issues, and so he pressed to create a nearly government-wide roundtable that could make decisions better than EPA could acting alone. “I didn’t want to be put in a position where it’s me versus EPA,” he said. “I wanted a federal government integrated group looking at these issues thoughtfully and scientifically.”
This effort, essentially overturning EPA’s traditional prerogative as the nation’s sole environmental agency, began with the NAS — rather than waiting for EPA to finish its customary assessment process — accepting a proposal to conduct a lengthy review of all available scientific data on perchlorate’s health risks. The panel formed to conduct the review quickly became the subject of its own controversies: according to a joint letter from California Democratic Senators Barbara Boxer and Dianne Feinstein to then-NAS President Bruce Alberts dated May 14, 2004, “records indicate that a financially interested party has funded two of the committee scientists, Dr. Richard Bull and Dr. Charles Capen. Dr. Bull’s conflicts of interest were partially acknowledged only due to external pressure. Dr. Capen’s reported relationship with Lockheed Martin” — a major defense contractor with potential perchlorate cleanup responsibilities — “remains unnoted. This raises serious issues about NAS review of conflict of interest, bias, and balance for this panel.” Capen, it emerged, was once a paid consultant for Lockheed on perchlorate, and Bull had consulted for the company during a toxic contamination lawsuit in Redlands, California.
Bull resigned from the panel; Capen, a professor at Ohio State University, remained to contribute to the final version. Ultimately, the NAS review led to EPA adopting a significantly weakened, unenforceable health guideline of 24.5 ppb. To date, the agency still has no formal regulatory limit for the substance, a common occurrence with chemicals important to the military.
Next: Part V – Toxic Bureaucracy: Burned in Effigy
