Mark Nevitt on “The Environmental Law of the Gaza Port Construction”

Can U.S. environmental laws block a military operation?   This question arose recently in connection with President Biden’s plan to have the Army construct a temporary pier to facilitate getting humanitarian relief into Gaza. 

This answer is actually a nuanced one but, fortunately, we have Lawfire^® contributor Prof Mark Nevitt to explain it to us.  In my book, Mark is the top expert on the interplay between environmental law and national security.  Here’s Mark:

The Environmental Law of the Gaza Port Construction

By Mark Nevitt

In last week’s State of the Union Address, President Biden announced that the United States would construct a temporary port facility on the Gaza Strip. 

This pier construction is an innovative and somewhat daring attempt to aid suffering Gaza civilians by establishing a maritime humanitarian corridor.  The humanitarian situation in Gaza has become dire, with over half a million people on the brink of famine. Construction of the pier appears imminent.   

And this is no small fishing pier.  The Pentagon reports that construction will take up to two months and 1,000 American troops will be deployed to deliver up to 2 million meals a day.

In response to Biden’s proposal, Representative Thomas Tiffany (R-WI) urged the House Appropriations Committee to insure that the proposed port facility complies with all environmental laws, to include the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). 

Representative Tiffany’s letter has been interpreted as being written in a somewhat tongue in cheek manner, with Rep. Tiffany using the Gaza pier construction as a vehicle to criticize the Biden Administration’s strict adherence to environmental laws. 

Many members of Congress have criticized the Biden Administration’s emphasis on environmental processes, arguing that strict compliance with environmental laws only leads to rising costs and delayed infrastructure projects. 

While Rep. Tiffany’s criticism may have been written to score political points, the letter nevertheless offers the opportunity to analyze when and how U.S. environmental laws apply to military activities at home and abroad—a somewhat thorny  exercise.

And getting this answer correct is of immense, strategic importance:  In recent years, environmental laws have played a role in halting the Navy’s use of advanced submarine sonar, thwarting the movement of a Marine Corps Air Station in Japan, and challenging the construction of a border wall.

To address how environmental laws apply to the Gaza Pier construction—and any related question addressing how environmental laws apply to military activities—attorneys and policymakers alike should ask three fundamental questions.

First, has Congress waived federal sovereign immunity within the environmental statute? 

Start here. The sovereign immunity doctrine is derived from English law which assumed the “King can do no wrong.”  Somewhat surprisingly, sovereign immunity—described as an “anachronistic relic”—lives on in American law. 

Sovereign immunity states that the U.S. government (and its federal agencies) cannot be sued unless Congress has expressly waived sovereign immunity, thereby consenting to suit.

Understanding the scope of the sovereign immunity waiver remains central to understanding the precise scope of environmental law’s applicability to federal agencies—to include the Department of Defense. 

Congress has waived federal sovereign immunity for most— but not all — U.S. environmental laws.  For example, the Clean Water Act states that all federal agencies must comply with  “all federal, state, interstate and local environmental requirements in the same manner and extent as other non-federal entities.”   

Most of these waivers are fairly broad, requiring that all federal agencies—to include the Department of Defense—comply with all applicable laws (federal, state, local) that fall within the environmental  statute’s ambit. 

This results in a “reverse federalism” dynamic that is somewhat unique in American law:  local and state environmental officials have regulatory authority over military installations for many environmental matters that fall within the scope of the waiver.  

As a general matter, when state and local environmental regulators ask to come onboard a military installation, military authorities should grant this request and be ready and willing to comply with all state and local environmental laws.

Rep. Tiffany referenced two statutes in his letter, the National Environmental Policy Act (NEPA) and the  Endangered Species Act.  While NEPA does not have a sovereign immunity waiver per se, NEPA does require an environmental impact statement (EIS) for “major federal actions significantly affecting the quality of the human environment.” 

The Endangered Species Act does have a sovereign immunity provision.  It requires all federal agencies—to include the DoD—to ensure that their actions are not “likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification” of critical habitat.

The upshot:   both NEPA and the ESA do apply to federal agency actions—to include the DoD, but whether they apply to overseas military activities is the next question.

Second, does the environmental law have an extraterritorial application?  

As a general matter, U.S. law does not apply outside the United States unless Congress has included an express extraterritorial provision within the underlying statute.

This question of extraterritorial application is of critical importance for the Department of Defense, which has installations around the globe and conducts military operations on the high seas and within foreign nations. 

This question of extraterritorial application is complicated by unclear Supreme Court jurisprudence, ongoing confusion regarding how environmental laws apply to operational (vice administrative) military matters, and divergent extraterritorial provisions within each environmental law statute. 

NEPA does not have an express extraterritorial application within the statutory text, but Executive Order 12,114 requires that all federal agencies take into account environmental factors for actions taken outside the United States. 

This executive order (EO), titled “Environmental Effects Abroad of Major Federal Actions,” was signed by President Carter in 1979, remains in force today.  The EO does not trigger judicial review and the EO makes clear that “nothing in this Orders shall be construed to create a cause of action.” 

Still, all federal agencies must “establish internal procedures” to consider the effects of their actions outside the United States.

The Endangered Species Act does not have a corollary executive order.  Further, the statute is a bit murky on when and how it precisely applies outside the United States.  The ESA does mention both the “territorial sea” and the “high seas” in the statute, suggesting some support that the law applies outside U.S. borders. 

In Lujan v. Defenders of the Wildlife, the Supreme Court overturned an appellate court opinion applying the ESA to federal actions within Sri Lanka and Egypt. But the Court did not squarely address ESA’s extraterritorial application.  In his concurring opinion, Justice Stevens would not apply the ESA to another foreign nation. 

Today, there appears to be little legal support to apply the ESA to another nation’s territory absent a revised ESA and a clear statement from Congress.

Of note, the extraterritorially question is of critical importance for the National Historic Preservation Act (NHPA), a statute that requires all federal activities to take into account their actions on historic properties. 

The NHPA integrates international obligations under the World Heritage Convention.  This law has been interpreted to apply to military activities within the border of other nations, and has even played a role in thwarting the movement of a Marine Corps Air Station in Okinawa, Japan.

The upshot:  The ESA does not apply to the Gaza Pier construction, but the Department of Defense must still follow the directives in E.O. 12,114 and comply with internal NEPA procedures absent an exemption.  This is the third and final question which I turn to below.

Third, is there a national security or related exemption that would apply?

Many environmental statutes have exemptions for activities that are in the “national security” or “paramount interest” of the United States.  Of note, NEPA does not have an express military exemption built into the statute while the Endangered Species Act does have a national security exemption. 

The overseas NEPA executive order, however, does have a broad exemption that squarely applies to the proposed Gaza Pier construction.  It states that federal activities are exempt as “may be necessary to meet emergency circumstances, situations involving exceptional foreign policy and national security sensitivities and other such special circumstances.” 

The situation in Gaza and the establishment of a humanitarian corridor are clearly national security activities that implicate exceptional foreign policy matters.  While the executive order requires consultation with the Council on Environmental Quality and the Department of State to tap into this exemption, this should be a quick consult in light of the immense national security, foreign policy, and humanitarian interests unfolding in Gaza today.

Outside any statutory exemption, the Supreme Court has reaffirmed the military deference doctrine.  In Winter v NRDC, for example, Justice Roberts “interpreted any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors.”

While not an express exemption, this common law doctrine is always lurking in the background and is relevant to any analysis tackling the military’s compliance with environmental laws.

Finally, the Administrative Procedure Act (APA) is often how environmental laws are enforced in federal court. The APA has provisions that exempt military authority exercised in the field in the time of war or in occupied territory” and “military or foreign affairs functions of the United States.”

These exemptions must be taken into account, particularly for those environmental statutes that lack a citizen suit provision where the APA is the vehicle to challenge agency action.

Concluding thoughts

In sum, the Department of Defense does not have to conduct a NEPA-mandated independent environmental review nor comply with the Endangered Species Act when constructing the Gaza pier. 

But DoD will continue to with applicable internal military environmental guidance throughout the pier construction, and environmental considerations cannot and should not be wholly dismissed.

While Rep. Tiffany’s letter may have been written to score political points, addressing the applicability of environmental laws to military activities remains a critically important and highly nuanced exercise. 

Indeed, failure to analyze the applicability of environmental laws prior to any major federal action can create immense national security challenges down the road. These three questions can help guide you to the correct answer.

About the Author

Mark Nevitt is an Associate Professor of Law at Emory University School of Law.  A former tactical jet aviator and Navy judge advocate (JAG), he has taught at University of Pennsylvania Law School, U.S. Naval Academy, and Syracuse University College of Law.  Originally from Rhode Island, Nevitt received his J.D. and LL.M. (with distinction) from the Georgetown University Law Center and his B.S.E. from the Wharton School, University of Pennsylvania.  His research focuses on environmental law and national security law, with a particular emphasis on climate change’s destabilizing impacts.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University.  See also here.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!