Green Rules in Gray Zones: Domestic Regulation of Environmental Damage in Conflict
Maya Granderson
During times of armed conflict, military strategists, government officials, and leaders grapple with a multitude of considerations when determining their strategies. However, one critical aspect that is often overlooked or marginalized is the impact of warfare on the environment. Heavy metals and fuel leaks from machinery can pollute soil and surface water and, over time, seep into groundwater sources. Bombing and military activity can also lead to extensive habitat and biodiversity loss, resulting in the deaths of wildlife and plants, and generating immense amounts of waste, including building rubble and greenhouse gas emissions. Unexploded ordnance, including bombs, shells, and grenades, presents immediate threats of physical injury and death to anyone who comes across it. Historically, several conflicts have led to devastating and persistent environmental damage, making life after war more difficult for people, plants, and animals alike.
In Afghanistan, the United States (U.S.) military was responsible for carcinogens, teratogens, and genotoxins released from bombs dropped in the area.[1] America’s two-decade military presence deeply impacted numerous aspects of Afghanistan’s environment, leading to potential hazards that might never be fully understood or explored. Similarly, in Iraq, research revealed a staggering legacy of approximately 11 million pounds of toxic waste attributable to military activities,[2] while herbicides like Agent Orange used in Vietnam caused extensive loss of foliage.[3] The magnitude of the challenge is underscored by estimates from the Department of Defense, which calculates that it faces an environmental cleanup liability amounting to approximately $33 billion.[4] This staggering figure reflects the urgent need for structured cleanup procedures and accountability mechanisms. The question then arises: What specific policies and procedures are in place to authorize and incentivize the Department of Defense to address and remediate hazardous waste and environmental damage resulting from military operations? Understanding these measures is crucial for ensuring responsible behavior and mitigating the long-term impacts of armed conflict on our planet.
Beyond the borders of U.S. states and territories, various legal and diplomatic frameworks influence the cleanup of military sites. A significant guideline in this context is the Department of Defense Instruction 4715.22 (DOD Instruction 4715.22), which specifically prohibits remediation activities for U.S. military installations that are no longer operational.[5] This instruction establishes that, outside of what is classified as “initial spill response,” the only circumstances under which the Department of Defense is authorized to undertake remediation of environmental contamination from military operations are as follows: when remediation is mandated by an international agreement, when the contamination poses a serious threat to the health and safety of U.S. military personnel, or in the presence of extraordinary circumstances as determined by the respective lead Service and the Combatant Commander.[6] This rule does not protect locals, who will have to live with long-lasting environmental hazards as chemicals seep into the ground, contaminate water sources, and pollute the air. The American Public Health Association has underscored the grave implications of this situation, stating that, “Iraqi and Afghan citizens face equal, if not greater, risk from exposure” to these environmental contaminants since local residents often have no choice but to remain in the same area that occupying soldiers easily left behind.[7]
Even though DOD Instruction 4715.22 appears to block entirely attempts to clean up environmental and health hazards after military campaigns, there must still be something the U.S. government can and should do. One such action is assisting host nations in their efforts to remediate environmental contamination by providing documentation of hazardous material, waste storage sites, and the location of spills. When closing or transferring an installation, the military must document the final environmental conditions of the area and note, at a minimum, any significant change to the surface and groundwater quality, soil conditions, natural resources, cultural and historic properties, air quality, and other environmental conditions.[8] This information provides a baseline for the foreign government to use when deciding how and whether to tackle remediation projects in the area, since the military is also required to provide a comparison of the initial environmental condition study, which is completed as early as mission conditions allow, and a final exit or closure environmental condition study.[9] However, these requirements seem very lax considering the extent of environmental contamination left after military operations and the lasting impacts they cause. Enforcement of many provisions is delegated to the military leadership, a prime example of the fox guarding the hen house. Lastly, DOD Instruction 4715.22 explicitly disclaims the authority to bring a legal or equitable action under this rule, meaning there is no ability to ensure that the military is fulfilling its limited environmental obligations.[10]
To help facilitate collaboration between host nations and the U.S., the military has designated entities responsible for environmental compliance and remediation of contamination, known as lead environmental components (LEC). The Department of Defense Instruction 4715.08 (DOD Instruction 4715.08) encourages the LEC to provide country-specific guidance on procedures for negotiating the scope of remediation undertaken by the host nation and for providing information regarding environmental contamination to host nation authorities.[11] LECs must also maintain existing and subsequently developed documentation on environmental contamination related to Department of Defense installations for 10 years after the installation is returned to the host nation.[12] Although it is clear that the Department of Defense does not participate in any after-the-fact investigations or contribute funding to cleanup conducted by host nations, some procedures are in place that lay the groundwork for the U.S. to provide informational support for remediation efforts.
The Department of Defense appears to be leveraging favorable interpretations of environmental directives to navigate contamination issues at its overseas military installations as well. As it stands, there are no enforceable policies that mandate the Department of Defense to take further action to address environmental hazards on foreign soil. This has led to a perception that the military’s response to environmental hazards has been secretive, and critics have labeled it as a “do-nothing” approach.[13] The U.S. military has avoided environmental cleanup responsibility through favorable basing agreements with foreign nations that lessen U.S. liability; specifically, the military avoids liability by constructing bases on unincorporated territories where civilians lack full constitutional rights and by using their vast discretion under regulations like DOD Instruction 4715.22 to conceal the true extent of environmental contamination from the public.[14] These strategies have created a legal shield that minimizes accountability, places environmental oversight of overseas bases in a gray area, and leaves governments and citizens with little authority to enforce environmental laws.
A solution to this dilemma includes strengthening the Environmental Protection Agency (EPA)’s authority to enforce environmental laws at military bases by amending environmental statutes, such as the Clean Air Act and Clean Water Act, to explicitly provide for their extraterritorial application to U.S. military installations. Further reform could be considered by revisiting and, if necessary, revoking certain exemptions outlined in DoD Instruction 4715.22 that currently enable the Department of Defense to circumvent comprehensive environmental cleanup efforts. This would also allow the Compliance-related Cleanup (CC) program, housed under the U.S. Army, to make a meaningful impact on the remediation of environmental contamination overseas. The CC program is responsible for the cleanup of contaminated Army overseas installations. Still, it is is subject to the restrictions of DOD Instruction 4715.08, which prohibits actions to remediate environmental contamination resulting from armed conflict beyond that specifically required by applicable international agreement.[15] Such changes would enhance transparency and accountability, ensuring that the military takes appropriate actions to remediate environmental hazards both domestically and abroad.
[1] Lynzy Billing, America’s War in Afghanistan Devastated the Country’s Environment in Ways That May Never Be Cleaned Up, Inside Climate News (Sep. 25, 2023), https://insideclimatenews.org/news/25092023/war-in-afghanistan-devastated-the-countrys-environment/.
[2] Serwan Aziz, America leaves Iraq a toxic legacy of dumped hazardous materials, The Times (June 14, 2010), https://www.thetimes.com/world/us-world/article/america-leaves-iraq-a-toxic-legacy-of-dumped-hazardous-materials-fnzcknh226r?gaa_at=eafs&gaa_n=AWEtsqez3LPGjjElCh_JHvRlvlxgb8Jww6Li0GvRWAtXovJg6rN754AClyjTg6n66eM%3D&gaa_ts=69ad929e&gaa_sig=j8GjrIuR2Q5nVOGG8Xz2lRlCSJL7sH2iHbSFUQ6kw5lwergt_d9ij9cWqUjm1-QgEr2zEOnx82_RMAJO1Zoyvg%3D%3D.
[3] E.W. Pfeiffer, Defoliation and Bombing Effects in Vietnam, 2 Biological Conservation 149 (1970).
[4] David Vergun, Defense Department Committed to Cleaning Up the Environment, U.S. Dep’t of War (Dec. 3, 2020), https://www.war.gov/News/News-Stories/Article/Article/2434491/defense-department-committed-to-cleaning-up-the-environment/.
[5] U.S. Department of Defense, DOD Instruction 4715.22: Environmental Management Policy for Contingency Locations, at §3.11(c) (Aug. 31, 2018), https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/471522p.pdf?ver=2017-11-14-112330-200.
[6] Id. at § 3.11(a).
[7] Cleanup of U.S. Military Burn Pits in Iraq and Afghanistan, Am. Pub. Health Ass’n (Nov. 3, 2015), https://www.apha.org/policy-and-advocacy/public-health-policy-briefs/policy-database/2015/12/16/08/56/cleanup-of-us-military-burn-pits-in-iraq-and-afghanistan.
[8] U.S. Department of Defense, supra note 5, at Appendix 3A.
[9] U.S. Department of Defense, supra note 5, at Appendix 3A(a)(2).
[10] U.S. Department of Defense, supra note 5, at § 1.1(c).
[11] U.S. Department of Defense, DOD Instruction 4715.08: Remediation of Environmental Contamination Outside the United States (Nov. 1, 2013), https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/471508p.pdf.
[12] Id.
[13] John Lindsay-Poland & Nick Morgan, Overseas Military Bases and Environment, Foreign Policy in Focus (June 1, 1998), https://fpif.org/overseas_military_bases_no enforceable policies that mandate the Department of Defense to take further action to clean upand_environment/.
[14] Sonia Lei, Pacific Islands and the U.S. Military: The Legal Borderlands of the Environmental Movement, 47 Seattle Univ. L. Rev. 1547, 1547 (2024).
[15] Compliance Cleanup Program, U.S. Army Environmental Command, https://aec.army.mil/Cleanup/Compliance-Cleanup-Program/.