THE MILITARY AND THE
ENVIRONMENT:
APPLICATION OF NEPA TO MILITARY BASE
WALTER B.
HUFFMAN
CLOSINGS
The Military and the Environment J Application of NEPA to Military Base Closings
I.
Introduction
Military attorneys are often viewed by the uninitiated as lawyers whose sole
occupation is the prosecution or defense of courts-martial.
This concept has never
been entirely true, but since the passage of the National Environmental Policy Act
of 1969 (NEPA)^ it is even less so.
4s some recent commentators on military law
have noted, NEPA has produced the most significant impact on the military of any
single congressional act in recent history.
Consequently, a number of military
attorneys are now engaged in yet another speciality: environmental law.
Environmental law includes, quite naturally, a number of subfields with which
the military is concerned such as land use planning, the various forms of pollution
control, historic, preservation, and protection of endangered species, to name a
few.
The focus of this paper, however, is on the particular problems encountered
by the military in the context of military base closings and relocations.
The
sweeping provisions of NEPA have caused a number of interesting questions to arise
concerning base closings which are incapable of easy resolution.
One such question
will recieve primary consideration in this paper is whether socioeconomic factors
are proper
rt
environmental" concerns in the base closing context.
As will be fully
developed infra, the Federal Courts are split on this exact issue.^
Before con-
sidering these precise questions, however, it is useful to consider the general
impact that environmental legislation has had on the military and the ways in which
the military has attempted to meet this new challenge.
1±
I I . Army Environmental Policy in General
A.
The Application of Environmental Legislation to the Military
A number of pieces of environmental legislation include specific language
detailing their application to federal facilities, a term which obviously includes
348
military installations.
Some of the more important environmental statutes that
specifically apply to military activities include the Clean Air Act,^ the Federal
Water Pollution Control Act,^ the Noise Control Act of 1972,^ the Solid waste
q
q
Disposal Act of 1972,
the National Historic Preservation Act of 1966,
the En-
dangered Species Act of 1973* ^ ^ the Safe Drinking Water A c t , ^ and the Coastal
1?
Zone Management Act of 1972.
Th® foremost environmental statute applicable to
military activities is, of course, KSPA itself.
A few of these environmental pro-
visions grant exceptions to federal installations in limited instances or allow
noncompliance in certain cases of impracticality.
As stated, however, the ex-
ceptions are quite limited and it can safely be said that in most instances,
military activities fall under the standard of mandatory compliance with the statutes.
In addition to the congressional mandates self-containad within the environmental statutes, federal activities are also bound by the environmental directive
of the following executive orders
It is the purpose of this order to assure that the Federal
Government, in the design, construction, management, operation,
and maintenance of its facilities, shall provide leadership
in the nationwide effort to protect and enhance the quality
of our air, water, and land resources through compliance with
applicable standards for the prevention, control, and abatement of environmental pollution in full cooperation with State
and local governments. Compliance by Federal facilities with
Federal, State, interstate, and local substantive standards
and substantive limitations, to the same extent that any person is subject to such standards and limitations, will accomplish the objective of providing Federal leadership and cooperation in the prevention of environmental pollution. In
light of the principle of Federal supremacy embodied in the
Constitution, this order is not intended, nor should it be
interpreted, to require Federal facilities to comply with
State or local administrative procedures with respect to
Dollution abatement and control.
As should be readily apparent from the preceeding paragraphs, Department of
Defense activities are now subject to a rather large, and rather recent, body of
environmental law.
Incorporation of this body of law into military activities
has been both difficult and expensive.
For example, the Air Force spent 29 man-
years and 2.3 million dollars in 197^ merely to incorporate NEPA into its programs. \k
Despite the expense and inconvienience, however, the military has been
349
able to form its own set of environmental policies and implement them.
3. Army Implementation of Environmental Law
The Army's implementation of the various applicable environmental statutes
is primarily found in Army Regulation 200-1, Environmental Protection and Enhancem e n t . " ^
The regulation contains general environmental goals and individual
chapters covering Army objectives and policies concerning specific environmental
problems.
The general environmental goal of the Department of the Army is stated
as follows:
It is the Department of the Army's goal to plan, initiate, and
carry out all actions and programs to minimize the adverse
effects on the quality of the human environment without impairment to the Army's mission. Inherent in this goal is the
requirement to achieve the following objectives:
a. Eliminate the discharge of harmful pollution produced
by Army activities.
b. Conserve and wisely use natural and material resources
provided for use throughout the Army,
c. Maintain, restore, and enhance the natural and manmade environment in terms of its visual attractiveness
and productivity.
d. Demonstrate initiative and leadership in the formulation
and execution of a program that contributes to the
national goal of preserving and enhancing the environment,^
Clearly, the Army's stated environmental goal is in line with national
objectives.
The skeptic, however, might note that the language quoted appears
to subordinate environmental goals to the accomplishment of the Array's primary
mission, i_1_ei, the national defense.
Fears that the Army might attempt to cir-
cumvent environmental goals by raising a "mission" argument can be alleviated by
reference to other language contained in Army Regulation 200-1.
The following
mandatory language, for example, insures that environmental laws will not be disregarded with impunity.
" All Department of Defense agencies are required to -
(1) Comply with the provisions of the National Environmental Policy Act and all
17
other Federal environmental laws, executive orders, and regulations."
In
addition, the Army's environmental policy includes the following language: " The
Department of the Army policy is that- (1) The achievement of environmental
3£0
1 ft
objectives is a integral part of the Army mission. n
Thus, part of the Array
mission is the achievement of environmental goals and Department of the Army
activities are directed to comply with all federal laws in the environmental area.
Further, although the Army environmental policy statement goes on to allow an
exception for " essential mission" activities,"'^ A rm y Regulation 200-1 insures
that subordinate commands will not disregard environmental assessments on that
basis by requiring subordinate commanders to refer matters on which noncompliance
with environmental law is contemplated to the Office of the Chief of Engineers
20
for final resolution.
When the language contained in the environmental
statutes, the applicable executive order, and Army Regulation 200-1 are consid&rod
together, it becomes quite clear that only the most critical national defense
20.5
matters will warrant Army noncompliance with federal environmental laws.
Although the Army's position regarding general compliance with federal environmental legislation seems reasonably clear, a few words must be devoted to
the interaction of military installations and the environmental requirements of
the States within which they are located.
The previously quoted executive order
of then President Nixon indicates that federal activities are to comply with
State and local substantive requirements, but
21 exempts federal facilities from
State and local administrative procedures.
between State substantive requirements and
Quite naturally, the distinction
administrative
procedures could b®
expected to cause some disagreement, and recently, one aspect of the substantiveprocedural distinction has risen to the level of the united States Supreme Court
for decision.
In Hanco ck v. Train 2 2 , and the closely related case of Environmental
Protection Agency v. California ex rel. State Water Resources Control Board
the Supreme Court was called upon to decide whether federal facilities were
required to obtain State operating permits for their sources of pollution.
To
say that the results of these cases were important to the Army is to understate
the situation.
In Hancock, for example, the large Army installations of Fort
351
Knox, Fort Cambell, and the Lexington- Blue Grass Army Depot were among th«
oh,
federal facilities whose compliance was in question.
Hancock's importance is
further underscored by the Court's statement of the possible ramification of the
easel
The permit requirement is not intended simply to regulate the
amount of pollutants which the federal installations may discharge. Without a permit, an air contaminant source is forbidden to operate even i f it is in compliance with every other
state measure respecting air pollution control and abatement.
It is clear... that prohibiting operation of the air contaminant sources for which the State seeks to require permits,
. . . is tantamount to prohibiting operation of the federal
installations on which they are l o c a t e d . ^
The crucial language before the Hancock Court was contained in an amendment
to the Clean Air Act.
executive order 11752
Basically, the amendment incorporated the language of
27
regarding compliance with the substantive pollution reOO
quirements of the states.
The Courts' analysis of the issue is beyond the scope
of this paper, but the Courts' conclusion was simply that Congress did not in29
tend to subject federal facilities to State permit requirements.
The Depart-
ment of the Army's interest in the Court's resolution of this environmental issue
was evidenced by the fact that the Courts' conclusion was sent
30 by teletype to
field commanders on the same day the decision was announced.
The Hancock
decision certainly does not resolve all of the potential confrontations between
the States and Army installations located within their boundries in the environmental area.
In fact, as a direct result of Hancock, military facilities are
even more aware of the increased part both federal and State environmental regulations must play in their plans and operations.
I I I . Application of NEPA to Military Base Closings.
A. General Application of NEPA to the Military
Dp to this point, this paper has considered the general application of the
relatively recent federal and State environmental legislation to the military and
the military implementation of those policies and statutes.
From this point on,
however, discussion will center on a single piece of federal environmental legis31
lation, the National Environmental Policy Act ( NEPA).
NEPA is undoubtedly the most significant single legislative enactment of
recent times, both in terms of its affect on the workings of the federal government
and the amount of controversy it has engendered.
Whether NEPA i s , as its pro-
ponents claim, a much needed " environmental bill of rights" or "an atrocious
piece of legislation... poorly thought out and ambiguous at all the crucial points",
its impact on military operations has been tremendous.
Basically, NEPA is simply
a statement of national environmental policy dedicated to the achievement of
certain environmental ends.
NEPA contains no sanctions to be imposed on those
who fail to comply with its stated policy, but it does contain so-called "actionforcing" provisions in Section 102.
Chief among the requirements set out in Section 102 is the preparation of
an Environmental Impact Statement (EIS) for "every recommendation or report on
proposals for legislation and other major Federal actions significantly affecting
the quality of the human environment.
The reauiremsnt for the preparation of
an impact statement was intended to overcome former government planning policies
wherein project planning had been done almost exclusively by engineers and cost
analysts.Planning
under NEPA represents a much more interdisiplinary approach.
To assist agencies in implementing the sweeping policy of NEPA, Congress also
created the Council on Environmental Quality (CEQ).-^
The CEQ is not a regulatory
agency, but instead has as its primary function
the duty to issue guidelines on
3?
the "action-forcing" provisions of NEPA.
However, although CEQ guidelines are
not binding on federal agencies, at least one court has stated that
05 the CEQ guidelines will be given weight as the proper interpretation of NEPA.
In short, the
purpose of the CEQ guidelines is to help agencies correctly apply NEPA to their
actions, and an agency would be sadly mistaken to simply disregard them.
Being one of the federal agencies encompassed by NEPA, the Army has incorporated the NEPA requirements into Army Regulation 2 0 0 - 1 . U n d e r the regulations
353
provisions, the potential environmental consequences of proposed actions must be
considered before the planning phase of the action has reached a point of significant decision.^®
To enable the planners to determine whether the proposed
action is a major action having a significant impact on the environment, the
regulation, like NEPA itself, requires that an Environmental Impact Assessment be
made on each proposed action.^
When the Environmental Impact Assessment indicates
that an EIS should be prepared, Army Regulation 200-1 also includes the method
of analysis to be used in preparing the EIS.
According to the regulation, tha
EIS analysis must identify the environmental impact of the proposed action,
probable adverse effects, alternatives to the project, the relationship between
short-term use of the environment and long-term maintenance productivity, and
any irreversable and irretrievable commitment of
resources.^
The analysis re-
quired by the regulation, of course, is drawn entirely from NEPA.
43
More detailed
44
guidance on the preparation of an EIS is found in other Army publications.
Although the EIS requirement is perhaps the most well known NEPA provision,
the more critical requirement from the planning point of view may well be the
environmental assessment.
quickly done.
Environmental assessments are nalther simply nor
In fact, tha Air Force estimates that environmental assessments add
45
at least one year to the planning-to-decision process for many Air Force actions.
The most critical inquiry in the process of assessing the need for an EIS is
whether the proposed action is a "major46
federal action significantly affecting
the quality of the human environment."
Unfortunately, NEPA does not define
the term "major federal action significantly affecting the quality of the human
environment."
The phrase has, however, been refined into a series of four distinct
47
questions: '
Is the project a major action?
have a significant effect?
Is it federal in nature?
Will it
Does it involve the human environment?
These questions seem, at least on the surface, to be relatively straightforward, but the courts have had considerable difficulty applying them to specific
situations.
In Hanly
v, K16indienst( Hanly
7 3 5 4
I I f o r
example the court noted
it was attempting to apply terms which are variously described as "opague",
ij. 9
"woefully ambiguous", and "amorphous" to a real life fact situation.
When the
four threshold questions are applied to the military base closing or relocation
situation, however, the courts can narrow their focus and thereby eliminate some
application issues.
There would seem to be no cogent argument to support the
proposition that the inactivation (or activation) of a military base is not a
major action.
Without doubt, such an action is federal in nature.
Similarly,
no reasonable argument can be made that a military base closing or relocation will
not have several significant effects on the community or communities involved.
By the process of elimination then, the planners and courts need only to correctly
resolve one question:
Does this type of action involve the human environment?
Proper resolution of this question, in turn, depends on the intended coverage of
the term "human environment" for the purposes of NEPA.
Stated more specifically,
does the term human environment as used in NEPA encompass socioeconomic factors?
If the preceeding question is answered in the affirmative, it follows quite
logically that military base closings and relocations should be supported by the
preparation of anEIS.
No serious contention can bo made that the socioeconomic
effects of this type of action are not multifold and quite significant.
A very
serious contention can be, and has been, made however, that NEPA is intended to
protect only the physical or natural environment.
It is to these competing and
mutually exclusive contentions that the discussion will now turn.
B.
Does NEPA Encompass Socioeconomic Factors?
One of the maxims of administrative law is that an agency may not violate
its own regulations.^
Therefore, the first investigation in this inquiry should
logically be whether the applicable Army Regulations require a consideration of
socioeconomic factors within the environmental analysis conducted regarding the
activation/inactivation of military bases.
Unfortunately, no resolution of the
issue can be found among the Department of the Army Regulations bearing on the
355
subject.
The policies and criteria for the selection of military bases to be
opened or closed are found in Army Regulation 210-15. ^
This regulation, how-
ever, not only fails to answer the pertinent inquiry in this case, but also, as
one military commentator has critically noted, fails to specify the consideration
Co
of any environmental factors in the inactivation/activation selection process.
Faced with a lack of guidance from Array regulations, and the absence of any
definition from NEPA itself, resolution of the question whether socioeconomic
factors are a proper consideration under NEPA in the military base closing context
has primarily fallen on the courts.
The courts, as might be expected in light of the limited guidance presented
by NEPA, have reached conflicting conclusions regarding th® inclusion of socioeconomic factors within the term human environment.
Perhaps the logical starting
point in any consideration of judicial thinking on NEPA is Calvert Cliffs
53
Coordinating Committee v. Atomic Energy Commission.
In that case, the court
stated that NEPA must be interpreted broadly to give effect to its purposes and
that agencies must consider all types of potential environmental impact.
Un-
doubtedly, had all courts followed the sweeping guidance provided in the landmark Calvert Cliffs decision, socioeconomic factors would be included without
question as a proper part of the environmental assessment.
However,
some courts
(TJi
have taken what has been critically described as a narrow view -
that excludes
socioeconomic factors from environmental assessments under NEPA.
The first federal courts to consider the socioeconomic factor question did
so in the context of proposed civilian actions in various urban settings.
The
courts that have refused to require an assessment of socioeconomic impacts have
differed in their reasons for doing so.
Essentially, however, the reasoning of
these courts can be identified in one of two catagories.
The first catagory is
comprised of those courts that view the socioeconomic effects of federal actions
as being beyond the scope of NEPA.
In First National Bank v. Richardson,^5 for
example, the seventh circuit was called upon to enjoin the construction of a
S 5 G
detention center and parking garage pending the preparation of an EIS.
Th®
court refused to enjoin the project and noted that the traditional environmental
objectives, such as preservation of the wilderness, fresh air, and clean lakes
and streams are of little moment to the inner-city dweller.
According to the
seventh circuit, the inner-city resident may dream of such things, but their
56
central concern is with objectives more economic and sociological in nature.-^
The view taken by the seventh circuit might loosely be characterized as the
Leventhal view.
In his commentary on judicial decisionmaking in th® environmental
a r e a , J u d g e Leventhal argues that courts considering NEPA should focus only onCQ
protecting natural resources and health, the so-called "hard core" NEPA values.
In his opinion, the urban environment, although not necessarily completely outside
the scope of NEPA, 59
was in all probability only a peripheral concern to the Congress
that enacted NEPA.
Judge Leventhal also contends that an interpretation of
NEPA broad enough to include the socioeconomic problems of inner-city dwellers
would be counterproductive in that it would unduly dissipate the
6 0 already overburdened resources of the judiciary and the executive branch.
In addition to the catagory of courts that view socioeconomic factors as
beyond the scope of NEPA, a second group of courts has adopted the position that
socioeconomic impacts are not susceptible to accurate measurement.
Hence, the
argument goes, because socioeconomic effects cannot be measured, they may be
regarded as insignificant and need not be considered in project planning.^
The
courts that have espoused this position have done so in a variety of situations.
62
Hanly I I ,
the second circuit concluded that the sociological reaction of
persons who were to have a jail located in their midst probably need not be considered because it was not measurable.
The District of Columbia Circuit has made
a similar statement concerning individual preferences on aesthetic
m a t t e r s .
And the United States District Court for the Southern District of New York has
stated that community attitudes and fears concerning the propensity of certain
10 is too subjective to be included in
economic and racial groups to commit crimes
Qx
an environmental assessment.
In contrast to those courts that have excluded socioeconomic impacts from
the umbrella of NEPA are those courts requiring affirmative consideration of
socioeconomic factors.
The second circuit, in Hanly 1 , ^
concluded that although
the traditional environmental concerns had been well developed in a plan to build
a federal detention center in Nex-r York City, the environmental assessment was
66
insufficient under NEPA. According to the court, the planning agency
should
have also considered such socioeconomic factors as the availability of drugs,
67
crime, and increased congestion. '
Other federal courts have reached similar
68
conclusions,
but i t should be noted that in each of these cases there were also
significant "traditional" environmental considerations.
In at least one case,
however, a court has required an EIS to be prepared solely to consider socioeconomic factors. 6 9
The proposed action in that case was the construction of
70a
juvenile detention facility in a residential area near an elementary school.
The court considered the impact of the planned action on the physical environment
to be insignificant, but noted that the sociological and psychological effects of
the planned action on neighborhood families, students attending the school, and 71
property values were potentially of such magnitude that they must be considered.
C.
The Base Closing Cases
Against this background of the varied treatment given socioeconomic factors
by the courts in the context of civilian actions have arisen the cases concerning
the inactivation and relocation of military bases and resources.
As is true in
the civilian action context, the courts reaching decisions in the base closing
area are also diametrically opposed.
The cases best representing the opposing
7?
73
points of view are McDowell v. Schlesinger'^ and Breckinridge v. Rumsfeld.
Therefore, those cases will be the focus of this discussion.
In McDowell, the challenged action was an Air Force plan to transfer 2,992
job positions from Richards-Gebaur Air Force Base, Missouri (RGAF3) to Scott Air
Force Base, Illinois (Scott).
The plaintiffs, civilian employees at RGAFB and
Jackson County, Missouri, within which RGAFB is located, sought an injunction
against the proposed transfer on the ground that the Air Force had failed to
comply with the requirements of NEPA.^
The basis for the plaintiffs action was
that the planned relocation was a major federal action significantly affecting
the human environment.
As such, according to the plaintiffs, no decision on the
76
transfer could be made without the preparation of an EIS.'
The facts relied on
by the plaintiffs to support their claim consisted almost exclusively 77
of various
socioeconomic impacts on both the transferee and the transferor bases.
The de-
fendant Air Force did not deny the existence of the socioeconomic impacts forecast by the plaintiffs, but instead contended that "secondary social and economic
impacts resulting from federal action, as contrasted to direct impacts on the
ecology, do not fall within NEPA's ambit."
contention and granted the injunction.
The court rejected defendants'
In so doing, the court expressly held
that socioeconomic impacts must be considered in determining whether a proposed
action is a major federal action significantly affecting the quality of the human
environment.?9
The McDowell court's rather lengthy opinion can be divided into three main
segments for the purposes of this article.
First, the court had to decide i^hether
socioeconomic impacts are properly within the scops of NEPA and, i f so, whether
the socioeconomic impacts contemplated by the present action were significant
enough to require an EIS.
Second, the court had to determine whether, in fact,
the Air Force had given proper consideration to the socioeconomic factors involved
in the present action.
Third, the court had to choose the standard of judicial
review i t should use to determine whether the Air Force decision not to prepare
an EIS was a proper one.
The court began its examination of the question whether socioeconomic
impacts
on
are properly within the ambit of NEPA by citing Calvert Cliffs
for the pro-
position that NEPA's broad mandate requires consideration of any and all types
359
of potential environmental impact.
31
The court also noted that the policy section
of NEPA itself contains language that would encompass socioeconomic effects.
Specifically, the court pointed to that part of I 101(a) which states that one
policy of NEPA is to " fulfill the social, economic and other requirements of
82
11
present and future generations of Americans.
CEQ guidelines to aid its interpretation.
The court next turned to the
In guideline 1500.6 the court found
that among the potentially significant effects of an action which agencies were
to consider were so-called secondary effects.
defined in guideline 1500.8.
Secondary effects, in turn, are
The court found the following language from that
guideline to be particularly relevant to the question in issue:
Secondary, or indirect, as well as primary or direct, consequences for the environment should be included in the analysis.
Many major Federal actions, . . . stimulate or induce secondary
effects in the form of associated investments and changed patterns
of social and economic activities. Such secondary effects,
through their impacts on . . . community facilities and activities,
. . . may often be more substantial than the primary effects of
the original action itself. For example, the effects of the
proposed action on population and growth may be among the more
significant secondary effects, [gn assessment "should be made
of the effect of any possible change in population patterns or
growth upon the resource base, including land use, water, and
public services of the area in question.^"
Having found ample support in the CEQ guidelines for the proposition that socioeconomic impacts are to be considered in environmental assessments under NEPA,
the court next considered a source rather close to home as far as the Air Force
was concerned: Department of Defense (DOD) directives.
In DOD directive 6050.1,
the court found a regulation that clearly required the consideration of the
secondary, socioeconomic impacts of a proposed action under NEPA. 85
Further,
the court noted that the DOD directives " essentially adopted" the CEQ definition
of secondary impacts contained in CEQ guideline 1500.3.
86
Finally, the court
noted that a number of cases considering civilian actions had required the consideration of socioeconomic impacts in the preparation of impact statements.
P7
Accordingly, the court concluded that socioeconomic impacts were clearly among
the environmental impacts to be considered under NEPA,
88
The McDowell court then turned to the question whether the socioeconomic
impacts of the proposed action were significant enough to require an EIS.
The
Air Force assessment of the proposed action had concluded that the only impact
PiQ
resulting from the action would be a "short-term economic impa ct."
The
court, however, after conducting what appears to be an independent examination
of the available evidence, disagreed with that conclusion.
The court noted
a number of factors which, taken together, produced a very significant impact.
Included among these factors were: a direct salary loss to the RGAFB area of
35 million dollars annually; a significant rise in unemployment, especially in
the towns immediately surrounding RGAFB; an immediate and long term decrease in
tax revenues; the immediate vacancy of some 1600 housing units in the immediate
area of RGAFB which would, according to the court, retard growth for a period
of 5 years or longer and increase problems of vandalism and fire protection;
a loss of $700,000 annually in federal aid to schools; and the loss of numerous
persons who had been active in local government a f f a i r s . ^
The
court also
took issue with the Air Force conclusion that the area surrounding Scott had
sufficient housing available to accomodate incoming,
personnel.
The evidence
considered by the court led the court to conclude that the housing units needed
in the Scott area were neither available nor would they "become available in
the foreseeable future."
^
Despite the court's finding that the significance of the socioeconomic
impacts of the proposed action warranted the preparation of an EIS, the Air
Force insisted that because the impacts had been considered by way of an environmental assessment, preparation of an EIS was unnecessary.
disagreed with the Air Force contention in two respects.
found that the assessment made was deficient.
The court, however,
First, the court
One aspect of the deficiency was
that no assessment had been made of the impact on the gaining areas' resources
and facilities, such as the availability of sewage disposal, utilities, and
public t r a n s p o r t a t i o n . T h e court also found deficient the Air Force decision
3451
not to conduct on site hearings or inspections because of the "close hold"
93
status of the proposed actions.
In addition to these integral deficiencies,
the court also found that th© assessment which was made was not properly used.
The court noted that after the initial decision by the maker of the assessment
that no EIS was required, the environmental factors involved were never before
those persons charged with making the final decision on the action.
The court
similarly discounted three updates to the assessment made by th® Air Force
because the updated data was not made available to the final decisionmakers.
The final Air Force contention faced by the court was that the Air Force
decision not to prepare an EIS could only be overturned by a reviewing court
on a finding that the Air Force decision was arbitrary and capricious.
The
court noted that the courts of appeals of the various circuits disagreed on what
standard of judicial review should be applied to NEPA a c t i o n s , ^ but further
noted that the eighth circuit standard was settled.
The eighth circuit
standard of review is whether the decision
96 not to prepare an EIS is reasonable
under all of the relevant circumstances.
Under this standard of review,
the court concluded that the Air Force decision was unreasonable.
97
Accordingly,
the court enjoined the proposed transfer pending the preparation of an EIS.
98
In sharp contrast to the McDowell decision is the sixth circuit decision
99
of Breckinridge v. Rumsfeld,7
The proposed action in Breckinridge was a
large transfer of job positions from the Lexington-Bluegrass Army Depot,
Kentucky (LBAD) to depots in California and P e n n s y l v a n i a . T h e
sought to enjoin the action pending the preparation of an EIS.
plaintiffs
The injunction
was granted by the district court, but the sixth circuit reversed.
The basis
for the reversal was simply that NEPA was not intended to encompass the socioeconomic problems present in this c a s e . ^ ^
According to the sixth circuit, the sole dispositive issue before the
court was whether the scope of the term "human environment" encompassed the
1 C)?
closing of a military base and transfer of personnel by the Army.
The Army
15
contended that the proposed action was not the proper subject of a suit under
NEPA.
The Army conceded the proposed action, most notably the loss of 2,648
job positions in the Lexington area, would have a detrimental socioeconomic
impact on the area.
Nevertheless, the Army argued, NEPA is not intended to
"be a statutory cure-all for the temporary economic ills of Lexington, Kentucky."
In short, the Army's contention was that NEPA is directed to the preservation
of traditional environmental assets, not the prevention of short term economic
disruptions.
The plaintiffs in Breckinridge, who included Kentucky Congressman, Senators,
and a Chamber of Commerce, contended that socioeconomic impacts do fall within
1 04
the ambit of NEPA.
According to the plaintiffs, the term human environment
extends to any effect on human beings, including loss of revenue and unemployment.''^
The court accepted the plaintiffs contention that NEPA goes
beyond mere impacts on the physical environment, and noted several instances
in which courts construing NEPA had considered socioeconomic factors in the
civilian c o n t e x t . ^ 6
The court further noted, however, that in these cases
considering socioeconomic
107 impacts, there also existed a primary impact on the
physical environment.
The Breckinridge Court next turned to a consideration of the breadth of
the term human environment.
In so doing, the court found that other courts
had reasoned that not every social or economic
deviation was an effect on the
108
environment as that term is used in NEPA.
Additionally, the court found
Senator Jackson's remarks in the legislative history of NEPA to be indicative
of congressional intent.
Quoted with approval was the Senator's statement that
NEPA was intended to insure "that we will not intentionally initiate actions
which will do irreparable damage to the air, land, and water which support life
on earth." ^ ^
xhe court also noted Senator Jackson's statement that the con-
cern of NEPA was maintaining "the integrity of mans' life support system - the
human environment." ^ ^
According to the court, to encompass the fact situation
$53
^^
that faced them within "the integrity of mans1 life support system" would be
a distortion of congressional intent.
Therefore, having concluded that NEPA
was not intended to reach the social and economic problems presented, the court
held that no EIS was required. ^ ^
IV.
Conclusion
As the sixth circuit in Breckinridge v. Rumsfeld specifically noted, their
decision that no EIS was required for a base closing was in direct conflict with
the decision in McDowell v. Schlesinger.
112
The fact situations facing the two
113
courts was so similar that no distinction can be logically drawn on that basis.
Hence, the question of which court was right is squarely presented for consideration.
The concluding section of this paper is devoted to an attempted resolution of
that question.
The general question whether socioeconomic impacts can be so significant
1
as to require as EIS under NEPA is quite complex.
Often, the proper resolution
of the question turns, as it should, on the particular fact situation presented.
When the question is narrowed to the context of military base closings, however, some principles appear to be susceptible to general application.
other principled can likewise be shown to be generally inapplicable.
Some
One such
principle was relied on by the court in Breckinridge when it asserted a distinction between actions with a pure socioeconomic effect and those with a
primary effect on the physical environment accompanied by socioeconomic impacts.
Although the Breckinridge court proceeded to ground its decision that no EIS
was required under the fact situation before it on this purported distinction,
it can easily be demonstrated that the distinction is false.
It should be
noted that the Breckinridge court may have been correct in drawing the distinction in the case before it because no physical impacts were alledged.
a precedent for future decisions, however, the distinction cannot stand.
As
Any
careful draftsman can avoid the Breckinridge distinction by including ohysical
36*$
environment impacts in his allegations even though the most significant impacts
will ba socioeconomic.
For example, any personnel transfer will be accompanied
by private autos and their accompanying emissions; military vehicles of some
type with a similar effect on the physical environment; and a solid waste disposal problem of some degree.
Hence, without distorting the facts, it can be
shown that any base closing will have some effect on the physical environment.
And even i f the physical effects are relatively insignificant, the distinction
drawn by the Breckinridge court would apparently be avoided.
Clearly, the
"accompanying physical impact" distinction is basically a matter of form and
11 Ll
not the type of distinction on which to base a NEPA analysis.
a
The analysis undertaken by the McDowell court was quite different from the
Breckinridge approach.
The extensive analysis of NEPA, the relevant CEQ guide-
lines, and the applicable DOD directives included in the courts' opinion lead
to the inescapable conclusion that isocioeconomic impacts are a proper con11 f\
sideration under NEPA.
Both civilian
^ and military
commentators have
reached an identical c o n c l u s i o n . ^ D e s p i t e the soundness of this conclusion,
however, and the false distinction made in Breckinridge, this writer submits
that the result reached in Breckinridge was the correct one.
In short, no EIS
should have been required.
It should be noted that the differing decisions in McDowell and Breckinridge
could be explained by^differing standard of judicial review.
The McDowell
court used the standard of whether the agency decision not to prepare an EIS
was reasonable.
The Breckinridge court did not state what standard it was using.
As the commentators have noted, however, the standard of judicial review may
117
often be outcome determinative.
Obviously, an agency decision being tested
against the standard of whether it was arbitrary or capricious has a much
better chance in the courts than a decision being tested against the concept
of reasonableness.
The proper standard of judicial review, however, is not
the subject of this article.
Instead, the focus will be on the policy of NEPA
in the base closing context.
As previously stated, the McDowell court correctly concluded that socioeconomic factors are a proper consideration under NEPA.
It is believed, how-
ever, that the socioeconomic effects of a base closing can be distinguished
from socioeconomic impacts that may validly require an EIS.
The cases re-
quiring a consideration of socioeconomic factors in the civilian context have
as a common bond one fact: the socioeconomic result of the proposed actions
was permanent.
For example, there is an unquestioned permanent socioeconomic
impact from building a jail or detention center in a primarily residential
neighborhood.
To take a hypothetical situation, consider the socioeconomic
effect of an Atomic Energy Commission decision to build a nuclear reactor in
the middle of a densely populated residential area.
Even i f the AEC had
properly determined that the plant was safe and would have a minimal effect
on the physical environment, such a decision, at least today, would result in
severe and permanent socioeconomic repercussions.
Undoubtedly, NEPA would
prevent such a decision by the AEC without a full consideration of the potential socioeconomic effects by way of an EIS and properly so.
On the other hand, consider the socioeconomic impacts of a base closing
or relocation.
The rise in unemployment, loss of tax revenues, and other
associated effects are merely temporary.
Certainly no structure has been
erected or decision made that would effectively prevent the losing community
from regaining its former economic balance in the span of a few years.
It could be argued, of course, that the balance should not be upset in
the first instance.
That, however, is not the question.
When Congress cuts
defense funding, the question whether to close some bases or consolidate some
117a
defense functions by relocation has been effectively made.
The only
question facing the agencies affected is which bases to close.
Therefore,
some community is going to suffer some temporary social and economic disruption.
And the decision as to which community will suffer, it is respectfully
1
I
f^DD
submitted, is one of politics, not the environment.
in Breckinridge.
Consider the plaintiffs
Their number included four Kentucky Congressmen, two United
States Senators (from Kentucky), and the Greater Lexington Chamber of Commerce.''
Although these plaintiffs certainly have an interest in such suits, can i t
seriously be argued that their concern is with the environment?
thinks not.
This writer
And the plaintiffs in Breckinridge are not an isolated aberration.
In fact, the "political plaintiff" seems to be the norm in base closing cases.^
A case in point is the recent controversy concerning an Air Force recommendation that Webb Air Force Base in Big Spring, Texas, be closed.
An
alternative considered by the Air Force was to close Reese Air Force Base in
Lubbock, Texas.
As part of its environmental assessment of the proposed action,
the Air Force conducted hearings in both Big Spring and Lubbock.
In Lubbock,
the Air Force heard testimony from the Chamber of Commerce, the Mayor, the
districts 1 United States Representative, three State Representatives, and a
State Senator.
119
7
The testimony elicited from those persons dealt entirely
with the socioeconomic effects of the base closure on the city, especially a
rise in unemployment.
120
Indeed, the only testimony concerning the physical
environment was presented by a farm wife who said she had just as soon those
1 21
noisy Air Force jets be moved somewhere else.
At the Big Spring hearing, the nature of both the testimony and those
testifying was much the same.
The Mayor, the Chamber of Commerce, and other
assorted political figures with an interest in Big Spring all spoke of rising
122
unemployment, population losses, and decreases in tax revenues.
As was previously noted, both Lubbock and Big Spring could have, i f
necessary, included some testimony in their presentations concerning some
impact to the physical environment.
But that approach misses the real point.
As one commentator has noted, when 123
the environmental concern is primary socioeconomic, motives become relevant.
The courts have established, albiet in
a different context, that when the real purpose of a suit is financial or an
cm /
20
attempt to prevent economic competition, references to the environment do not
bring such a suit within the ambit of NEPA.
1
In a very real sense, the cities
of Lubbock and Big Spring are economic competitors insofar as the base closure
1 25
decision is concerned.
As the politicians representing both cities testified,
the financial and economic laoss to the city suffering the closure will be
q^uite significant.
Despite this significance, however, the social and economic
concerns of competing municipal corporations, no less than private corporations,
should be beyond the scope of NEPA.
The concerns of the communities affected by base closings and military
transfers are both real and proper.
The proper forum for the expression of
these concerns, however, is neither an environmental assessment hearing nor the
pages of an EIS.
Instead, as is indicated by the nature of the plaintiffs in
base closing controversies, the proper forum is political, i . e . ,
Congress.
NEPA has an important mission that should not be derogated by strained interpretations and misuse as a tool of socioeconomic competition.
The sooner the
courts recognize socioeconomic impacts in the military base closing context for
what they really are, the sooner they too can turn their much needed energies to
the suits properly before them, environmental and otherwise.
368
21
FOOTNOTES
1.
42 U.S.C. I 4321 et ssq.
(1970).
2.
Brothers, The Judge Advocate and the Action-Forcing; Provisions of tha
National Environmental Policy Act 18 Air Force L. Rev. 1 (1976) ^hereinafter
cit@d as Brothersj ; A. Gamboa, Environmental Considerations In Army Land Use,
March 1976 (unpublished thesis in University of Virginia Law School Library)
[^hereinafter cited as GamboaJ.
3.
Compare Breckinridge v. Rumsfeld, 537 F.2d 864 ( 6 t h Cir. 1976), cert.
denied, 9 ERC 1352 with McDowell v. Schlesinger, 404 F. Supp. 221 (W.D. Mo.
1975).
4.
Because the Army is of primary interest to this writer, Army policies,
problems, and procedures will be discussed where possible.
However, the
experience of sister services will be drawn on where necessary to illustrate
a point.
5.
42 U.S.C. § I857f (1970).
6.
3 3 U.S.C. i 1323 (Supp. I l l 1973).
7.
42 U.S.C. i 4903 (1970).
8.
42 U.S.C. i,3254e (1970).
9.
16 U.S.C. I 470f (1970).
10.
16 U.S.C. i 1536 (1970).
11.
42 U.S.C. § 300J-6 (1970).
12.
16 U.S.C. § 1456c (1970).
13.
Exec. Order No. 11752, 3 C.F.R. 3 8 O (1974).
14.
Brothers, supra note 2, at 2.
15.
Army Reg. No. 200-1, Environmental Protection and Enhancement (7 December
1973).
16.
Id. para. 1-4.
369
17.
Id. para. 1-5a (emphasis added).
13.
Id. para. 1-5b.
19.
Id.
20.
Id. para. 1-5d.
20.5.
The District of Columbia Circuit has recently made it quite clear that
i t will take a dim view of asserted military exceptions under NEPA.
About Trident v. Rumsfeld,q ERC 1370 (1976).
Concerned
There, the Navy argued that NEPA
could not possibly apply to strategic defense decisions such as the location
of the support site for the Trident Submarine/Missle Program.
In answer, the
court stated that "We view this as a flagrant attempt to exempt from the mandates of NEPA all such military actions under the overused rubic of 'national
defense'." Id. at 137^.
See Also, Shiffler V. Schlesinger, 5^8 F.2d 96, 101
(3d Cir. 1977).
21.
Note 13, suora, and accompanying text.
22.
96 S.Ct. 2006 (1976).
23.
96 S.Ct. 2022 (1976).
2k.
Hancock v. Train, 96 S.Ct. 2006, 2010 n.21
25.
Id. at 20'1 3.
26.
hZ U.S.C. I I857f (1970).
27.
Note 13, suora, and accompanying text.
28.
Hancock v. Train, 96 S.Ct. 2006, 2009 (1976).
29.
Id. at 2022.
(1976).
The Gourt reached the same conclusion with respect to the
Federal Water Pollution Control Act in Environmental Protection Agency v.
California ex rel. State 'Water Resources Control Board, 9 6 S.Ct. 2022 (1976).
30.
DA Message R 171835, 7 June 1976.
31.
^2 U.S.C. § 4321 et seq.
32.
1 A. Rsitz, Environmental Law 0ne-51 (2d ©d. 1972).
(1970).
370
33.
Brothers, supra note 2, at 1, quoting Gaorge F. Trowbridge, former attorney
with the Atomic Energy Commission.
34.
42 U.S.C. i 4332 (2)(e)
(1970).
35.
Brothers, supra note 2, at 4 .
36.
42 U.S.C. § 4342 (1970).
37.
Exec. Order No. 11514, 3 C.F.R. 271 (1974).
38.
Green County Planning Board v. Federal Power Commission, 455 F.2d 412,
421 (2d Cir.), cert, denied, 409 U.S. 849 (1972).
39.
Army Reg. No. 200-1, Chapter 2 (25 October 1974).
40.
Id. para. 2-5b ( 1 ) .
41.
Id. para. 2-8b ( 1 ) .
42.
Id. para. 2-8a.
43.
42 U.S.C. § 4332 (2)(c)(i-v) (1970).
44.
Dep't of Army Pamphlet No. 200-1, Handbook of Environmental Impact Analysis
(April 1975).
45.
Brothers, supra not® 2, at 2.
In Concerned About Trident v. Rumsfeld,
9 SRC 1370 (D.C. Cir. 1976), the court noted that the Navy had prepared 27
EIS's over a period of four years in connection with the Trident program.
Id. at 1373 n. 6.
46.
42 U.S.C. g 4332 ( 2 ) ( c )
47.
Sullivan, Four Years of Environmental Impact Statements: A Review of Agency
(1970).
Administration of NEPA, 8 Akron L. Rev. 545,552 (1975).
48.
471 F.2d 823 (2d Cir. 1972), cert, denied, 412 U.S. 908 (1973).
49.
Id.
50.
Vitarelli v. Seaton, 359 U.S. 535 (1959). School Bd of Broward County, Fla.
v. HEW, 525 F.2a 900 (5 t h Cir. 1976).
51.
Army Reg. No. 210-15, Activation, Inactivation, or change in status of
371
installations (8 November 1974).
52.
Gamboa, suora note 2, at 119.
53.
449 F.2d 1 1 0 9
(D.C. Cir. 1971).
5^.
Comment, Sooioeconomic Impacts and, the National Environmental Policy Act
.
of 1 9 6 9 , 64 Geo. L . J . 1121 ( 1 9 7 6 ) ! hereinafter cited as Socioeconomic Impacts'.
55.
484 F.2d 1369 ( 7 t h Cir. 1973).
56.
Id. at 1377-78.
It should be noted that although no EIS was prepared based
on socioeconomic factors, those factors had been considered in the agencies'
environmental record of the project.
57.
Id. at 1378-81.
Leventhal, Environmental Decisionmaking and the Role of the Courts, 122
U. Pa. L. Rev. 509 (1974).
58.
Id. at 522.
59.
Id. at 523.
60.
Id.
61.
Socioeconomic Impacts, suora note 54, at 1127.
62.
471 F.2d 823 (2d Cir. 1972), cert, denied, 412 U.S. 908 (1973).
63.
Maryland Nat'l Capital Park and Planning Comm'n v. Postal Serv., 487 F.2d
1029 (D.C. Cir. 1973).
64.
Trinity Episcopal School Corp. v. Rotnney, 337 F. Supp. 1044 ( S . D . N . I . 1974),
rev'd on other grounds, 523 F.2d 38 (2d Cir. 1975).
65.
460 F.2d 640 (2d Cir.), cert, denied, 409 U.S. 990 (1972).
66.
The planning agency was the General Services Administration.
67.
460 F.2d 640, 6^-7 (2d Cir.) cert, denied, 409 U.S. 990 (1972).
68.
See Chelsea Neighborhood Ass'n v. Postal Serv., 516 F.2d 378 (2d Cir. 1975);
Jones v. HUD, 390 F. Supp. 579 (E.D. La. 1974).
69.
Tierrasanta Community Council v. Richardson, 4 Env. L. Rep. 20309 (S.D. Cal. 1973).
372
70.
Id. at 20311.
71.
Id.
72.
404 F. Supp. 221 (W.D. Ho. 1975).
73.
537 F.2d 864 ( 6 t h Cir. 1 9 7 6 )
74.
McDowell v. Schlesinger, 404 F. Supp. 221,224 (W.D. Mo. 1975).
cert, denied, 9 ERC 1352.
dependents, the plan called for the movement of some 10,000 persons.
Counting
Id.
75.
Id.
76.
Id. at 225.
77.
The court noted that the increased number of airplanes would also contribute
to increased air pollution in the Scott area, but socioeconomic factors were the
sole basis for the decision.
Id.
78.
Id. at 244.
79.
Id. at 254.
80.
Calvert Cliffs Coordinating Committee v. A . E . C . , 449 F.2d 1109 (D.C. Cir. 1971).
81.
McDowell v. Schlesinger, 404 F. Supp. 221, 244 (W.D. Mo. 1975).
82.
I d . , quoting 42 U.S.C. i 4331(a) (1970).
83.
Id. at 245.
I d . , quoting 40 C.F.R. I 1 5 0 0 . 8 ( a ) ( 3 ) ( i i )
85.
Id.
86.
Id. at 246.
87.
Id.
cases.
(1975) (emphasis by the court).
See notes 65-71 supra and accompanying text for a discussion of such
In addition to the cases discussed previously in this article, the
McDowell court also cited M.P.I.R.G. v. Buta, 493 F.2d 1314 ( 8 t h Cir. 1974)
(en banc).
88.
Id. at 245.
89.
Id. at 232.
90.
Id. at 235-37.
37^
91.
Id. at 238.
92.
Id. at 234.
The court noted that several of the communities around Scott
already had problems with sex-jage disposal and power supply.
93.
Id.
Id. at 238.
Contra, NAGE v. Rumsfeld, 9 ERC 1487 (E.D. Pa. 1976).
In NAGE, the
plaintiffs argued that th® fact that the decision to close Frankford Arsenal was
made in secret violated the public disclosure provisions of NEPA.
The court held
that the public participation and other procedural provisions of NEPA only apply
where NEPA is applicable.
Therefore, because the court found that NEPA did not
apply to the purely socioeconomic factors surrounding the base closing, the lack
of public participation was immaterial.
The court then went even further and
stated that it considered Hanly I I to have been wrongly decided insofar as it
held public participation was required at the environmental assessment stage.
Com-oare Socioeconomic Impacts, supra note 54 at 1129-31*
94.
Id.
95.
Id. at 248.
96.
Id.
97.
Id. at 251.
98.
Id. at 256.
The court later modified its injunction to exclude one Air Force
unit the transfer of which was deemed essential to the national security.
Some-
what ironically, the name of this particular unit is the Environmental Technical
Applications Center.
Id. at 256-59.
For a case reaching the same conclusion as
McDowell, see Prince Georges County v. Holloway, 404 F. Supp. 1181 (D.D.C. 1975).
99.
537 F.2d 864 ( 6 t h Cir. 1976), cert, denied, 9 ERC 1352.
100.
Id. at 865.
101.
Id. at 867.
102.
Id. at 865.
103.
Id.
374
104.
Id.
105.
Id.
106.
Id. at 866, citing, inter alia, Hanly I , 460 F.2d 640 (2d C i r . ) , cert.
denied, 409 U.S. 990 (1972).
107.
Id.
108.
I d . , citing Maryland-National Capital Park v. United States Postal Services,
437 F.2d 1029, 1037 (D.C. Cir. 1973).
109.
Id.
110.
Id. at 867.
111.
Id. Accord, NAGE v. Rumsfeld, 9 ERC 1487 (E.D. Pa. 1976); IMAGE of Greater
San Antonio v. Rumsfeld, 9 ERC 1183 (W.D. Tx. 1976).
112.
Id. at 8 6 7 n.1 .
113.
Even the number of job positions being transfered or eliminated was quite
similar.
McDowell involved 2,992 jobs and Breckinridge 2,648.
The reader is
reminded, however, that the 2,992 job positions in McDowell translated into a
direct effect on 10,000 plus persons when dependents are included.
It is pre-
sumed that a like ratio existed in Breckinridge.
114.
114a.
Socioeconomic Impacts, suora note 54.
Two decisions subsequent to Breckinridge, however, have relied on the
same distinction.
NAGE v. Rumsfeld, 9 ERC 1487 (E.D. Pa. 1976); IMAGE of
Greater San Antonio, 9 ERC 1183 (W.D. Tx. 1976).
115.
Id.
116.
Brothers, suora note 2.
116a.
Compare the approach of the court in NAGE v. Rumsfeld, 9ERC 1437 (E.D. Pa.
1976).
The NAGE court interpreted the CEQ guidelines and DOD directives relied
on by the McDowell court to mean that secondary or socioeconomic impacts must
be considered only i f a decision is made to prepare an EIS on the basis of
375
traditional or primary environmental impacts.
117.
Id. at 1490,
Socioeconomic Impacts, supra note 54 at 1133-38.
In Shiffler v. Schlesinger,
548 F.2d 96 (3d Cir. 1977), a case concerning the transfer of the Army Signal
School from New Jersey to Georgia, the Army tried a new defense by asserting
that the decision to consolidate military units is committed to agency discretion
within the meaning of APA i 701 ( a ) ( 2 ) .
Therefore, the Army argued, the proposed
relocation was unreviewable by the courts under any standard.
court rejected the Army's contention.
Id. at 100.
The
Id. at 101.
The Air Force, however, did manage to gain a small coneession from the court
concerning standards of review in IMAGE of Greater San Antonio v. Rumsfeld, 9
ERC 1183 (W.D. Tx. 1976).
In that case, where the court found no EIS to be re-
quired on an Air Force decision to delete 1250 job positions at Kelly AFB, the
court stated: "This court also recognizes that in reviewing general military
affairs, the judiciary must be aspecially circumspect".
117a.
118.
I d . at 1188 n , 1 ,
IMAGE of Greater San Antonio v. Rumsfeld, 9 ERC 1183, 1184 (W.D. Tx. 1976).
Breckinridge v. Rumsfeld, 537 F.2d 864,865 ( 6 t h Cir. 1976), cert, denied,
9 ERC 1352.
118a.
See Also, Shiffler v. Schlesinger, 548 F.2d 96 (3d Cir. 1977) (movement
of Army Signal School from New Jersey to Georgia; plaintiffs included U.S.
Representative from New Jersey).
119.
Lubbock Avalance-Journal, Nov. 9,1976, at 1, col.1.
120.
Id.
121.
Id. at 12, col. 2.
122.
Lubbock Avalance-Journal, Feb. 3,1977. at 1, col. 2.
123.
Socioeconomic Impacts, supra note 54 at 1139.
124.
Clinton Community Hosp. Corp. V. Southern Md. Med. Center, 374 F. Supp.
450 (D. Md. 1974), a f f ' d per curiam, 510 F.2d 1037 ( 4 t h C i r . ) , cert, denied,
37G
422 U.S. 1043 (1975).
125.
See IMAGE of Greater San Antonio v. Rumsfeld, 9 ERC 1133, 1139 (W.D. Tx. 1976).
377