U.S. Military Aviation Training and Environmental Regulations - Research Paper Example

? U.S. Military Aviation Training and Environmental Regulations Waitz et al. (2005) argued that military aviation was responsible for a small and decreasing fraction of total fossil fuel use contribution to local air quality impacts and community noise in the United States in the period 1960 – 2000 (p. 329). However, community noise and air quality are a growing concern for military aviation because of increased regulation, public awareness, urbanization and increased areas required for military training (Waitz et al., 2005, p.329). Though in many cases the US military protects the wildlife, noise, air quality and endangered species are issues over which they sometimes dispute with the local communities. This paper is structured around the influence of environmental laws on the US Air Force training activities and inventory. Environmental laws went hand in hand with the lawsuits against the US Air Force. Technological changes brought along an increased use of the airspace. However, laws were based on the ancient Roman law, which was developed at a time when airplanes did not even exist as an idea. Thus, lawsuits preceded the legislation, which will be described in the 1946 the United States vs. Causby (1946) case in particular. Legislation then affected not only the usage of airspace but also of technology and structure of the US Air Force bases. Environmental laws interplay with the current events. Be it endangered species or noise levels, the September 11 attacks changed the dynamics of lawsuits against the US Air Force. It will be shown later on in this paper that recent events, such as the financial crisis, have led to conflicting interests of local communities and local authorities with regard to the US Air Force training activities. Through the interaction of the three interest groups it will be shown how environment is treated by some interest groups as a secondary concern. Military pollution is decreasing and smaller than commercial pollution levels. Utilization of commercial aircraft is higher than for military, standing at 4.7 times per day versus 0.35 respectively (Waitz et al., 2005, p. 334). However, military aircraft are noisier because of the kind of thrust engines employed by these aircraft. Waitz et al. (2005) argued that noise pollution increased from 1960 to 1995 for new military fighter aircraft (p.337). However, because of fleet reductions and a reduction in number of operations, the noise contributions decreased overall on a national level (Waitz et al., 2005, p.329). With regard to emissions, according to Waitz et al. (2005), the US Air Force contributes insignificantly to the overall US impact on the climate, amounting to 1 percent of the total climate impact (p.338). The commercial aircraft fleet burned by 2000 around 7 times the amount of fuel used for military aviation (Waitz et al., 2005, p.337). Moreover, the US military protects wildlife by offering it large, untouched areas. The US military administered over 25 million acres of land in 1994, being one of the largest stewards of federal land (Wheeler, 2006, p.440). However, urbanization pushes wildlife into military bases as cities and suburban areas expand (King, 1996, p.3). Thus, any reduction in training area has not only an adverse effect for the military, but also for the environment (Wheeler, 2006, p. 441). Rand Corporation assessment indicated that the US military is one of the friendliest users of environmental resources (Wheeler, 2006, p.445). Still, the US Air Force has been sued for decades over endangered species and air pollution. Following paragraphs will provide examples of lawsuits and corresponding legislation. Before the 1960’s, the US law was based on the Roman law maxim cujus est solum, ejus est usque ad coelum, according to which whoever owns the land also owns the airspace above it (King, 1996, p.5). The corresponding law was formulated during the ancient Roman times, when technology was based on horsepower. Airplanes were not discussed as a possibility by the intellectuals of their times. However, the 20th century experienced a rapid chain of technological advancements, with development of commercial and military aircraft being some of them. With increased US Air Force overflights and commercial use, several lawsuits followed, leaving the court unprepared. First lawsuit was in 1946, United States vs. Causby. In United States vs. Causby (1946), the plaintiff’s property was overflown just above the tree tops by a significant number of heavy bombers and smaller fighter aircraft. The court found that the plaintiff had a constitutional right to compensation as his sleep and economic activities were disturbed (King, 1996, p.9). The court was faced with several legal dilemmas while reaching a verdict. First, the court found that overflights were an everyday reality, thus not in violation of the Fifth Amendment. The court also found that the Roman law maxim stated previously was no longer applicable to the modern technology (King, 1996, p.9). Instead, the court referred to the Air Commerce Act of 1926 (amended in 1938), according to which the military flew below 500 ft, thus being in violation of minimal safe overflight level designated by Congress. Moreover, the court argued that if the overflights rendered the property uninhabitable, the case would be treated as the violation of the Fifth Amendment. In the United States vs. Causby (1946), diminution of real estate value was discovered and the court thus ruled in favor of the plaintiff. New laws increasingly focused on damage that overflights could cause to the surrounding environment. Congress passed in 1958 the Federal Aviation Act, requiring not only a minimal altitude for overflights of 500 ft, but also that damage should not be caused during overflights (King, 1996, p.16). The 1958 Act clearly terminated the Roman law maxim. New lawsuit, together with Causby vs. United States (1946) established the criteria for determining whether a violation of the Fifth Amendment occurred. In Griggs vs. Allegheny County (1962) the plaintiff alleged that airplanes at county airport created too much noise while landing and taking off. The Supreme Court ruled in favor of the plaintiff because the planes took off and landed within the plaintiff’s airspace, thus having rendered the property unsuitable for residential use. Though not a complaint against the US Air Force, Griggs vs. Allegheny County (1962) has ever since been used together with Causby vs. United States (1946) as a test in all subsequent takings cases (King, 1996, p. 18). The test established four factors that needed to be considered: whether planes flew directly over the claimant's property, whether the flights were low and frequent, whether the flights directly and immediately interfered with the claimant's enjoyment and use of the land and whether this interference was substantial (King, 1996, p.18). More legislation followed. In 1969 the National Environmental Policy Act (NEPA) was created. According to NEPA federal agencies are required to “assess the health, socioeconomic, ecological, cultural, and aesthetic impacts of major actions” (Waitz et al., 2005, p.330) and summarize their findings in environmental impact statement (EIS). Communities can then use these findings as well. The Congress recognized a correlation between human activity and environmental outcomes, such as effects of population growth, urbanization, industrial expansion and resource exploitation on endangered species and quality of air and water. Additional laws on air pollution were passed. 1970 Clean Air Act (CAA) provided for minimum air quality standards for certain pollutants and required “states to implement a plan to achieve or exceed these minimum standards” (Waitz et al., 2005, p. 330). In 1972 the Noise Control Act (NCA) was passed, which gave “EIS process and court actions based on constitutional and tort law a central role in responses to noise impacts” (Waitz et al., 2005, p.330). According to Waitz et al. (2005), though military aviation was not directly regulated by any of these laws, the federal government was not allowed to allocate funding to any activity that would violate the state implementation plan (SIP). Both Acts have been of use to real estate owners. The first case was Branning vs. United States (1981), where the plaintiff Branning was a large real estate owner whose real estate value diminished significantly, though overflights occurred at 600 ft. The plaintiff won, having changed the earlier Congressional decision of minimal altitude of 500 ft. Instead, the other three test criteria became more important in the court’s decision. Several factors led to the tension between environmental law, environmental interest groups, and the US Air Force in the 1990’s. Several military bases were closed in the 1990’s. In 1989, the Cold War ended. As a result, the US government no longer saw it necessary to operate as many bases as before. Congress passed a Defense Base Closure and Realignment Act (1990), which created the five-year Defense Base Closure and Realignment Commission. The Commission closed 82 major bases and additionally realigned 83. Already in 1988 several bases were closed, but those closures occurred on a much smaller scale (King, 1996, p. 2). The two rounds of closure amounted to 21 percent of military base capacity (King, 1996, p. 2). As a result, the aircraft had to be located on a smaller area, causing a second problem: expansion of the training ground of the already existing bases. A third problem also arose, being an increased and more diverse set of activities. King (1996) argued that these three factors caused the Fifth Amendment violations and led to litigations against the US Air Force (p.3). Protection of animal rights curtailed the ease of the US Air Force operations. The Endangered Species Act of 1973 (ESA) called for the conservation, protection, and propagation of endangered species of fish and wildlife. Two lawsuits challenged the US Air Force bombings in the midst of the habitat, Defenders of Wildlife vs. Windnall (1996) and vs. Babbit (2001).The plaintiff’s complaint alleged that the Air Force violated sections 7 and 9 of the ESA in connection with its activities on and around the natural habitat of the Sonoran pronghorn antelope (Woodley, 1997). The first lawsuit was settled by the Air Force, which agreed to monitor the habitat and consult the United States Fish Wildlife Service. However, having found the result of the consultation insufficient, the second lawsuit involved all branches of the military. The plaintiffs won, forcing the US Air Force to provide protection of the wildlife at the Barry M. Goldwater range. With time DOD’s authority diminished as well. On June 13, 2001 Military Environmental Responsibility Act (MERA) was introduced by several U.S. Representatives. The Act required full compliance from DOD with federal and state environmental laws designed to protect public health and the environment; it revoked and eliminated any immunity previously granted to DOD with regard to environmental law. Through the above mentioned actions, the Act signaled to the judicial branch that DOD should not be given a preferential treatment in any respect (Wheeler, 2006, p. 442). This Act tried to diminish the interfering power of DOD in cases of environmental law violations by the military branches, including the US Air Force. Instead, this Act established a direct line between the judicial branch and the US Air Force in cases of environmental law violations. Training became harder due to the restrictions and community concerns. According to Waitz et al. (2005), pilots need to rehearse landing as if they were in a real combat situation (p.330). However, landing from a 600 ft altitude created too much noise for the local communities, which forced the military to look for other options, such as an increased altitude or new training grounds. Changes had to be made to the aircraft. The Pratt and Whitney J57 power plants, which utilized water injection to assist with take off, were too noisy and environmentally unfriendly (Archer, 2000, p.107). Starting in 1981, they were replaced by more fuel efficient engines, such that 159 aircraft were fitted with refurbished JT3D turbo fan engines. Converted tankers produced 30 percent more power while noise levels reduced by 85 percent (Archer, 2000, p.107). The Air Force owned three VC-9C VIP configured versions which were operated at Andrews Air Force Base, Maryland. However, their Pratt and Whitney JT8D turbo fan engines were environmentally unfriendly due to the amount of noise they produced. Thus, they were fitted with hush kits to reduce noise (Archer, 2000, p.92). Examples above do not account for all of the changes made to the US Air Force aircraft; they only describe some of the types of changes that occurred. The environmental laws have affected manufacturing companies, as well as the military inventory. Manufacturers are increasingly using environmental performance as one of the standards that the military aircraft must possess (Waitz et al, 2005, p.331). Because of advances in environmentally friendly aircraft production, some older versions of aircraft were also retired (Waitz et al., 2005, p.333). Environmental effects were visible. According to Waitz et al. (2005), though by 1990 these jets amounted to 55 percent of the fleet, they produced over 90 percent of the noise (p.333). Thus, their replacement decreased levels of noise significantly. However, manufacturing time and costs are very high. It takes ten to twenty years to develop a new aircraft, which cost up to one billion US dollars (Waitz et al., 2005, p.335). Service life of some of them is very long, as in case of B – 52, which can be used for an entire century. Thus, replacement can be costly. However, environmentally friendly policies do not imply national security will be prioritized. Sometimes environmental laws clash with the need for an optimal performance in a battle. As already mentioned above, in order to be as prepared for combat as possible, the military has been expanding the training grounds, which has produced more noise. In order to counteract the environmental dominance over security, the 2002 DOD budget authorization bill required a national security impact assessment to be performed in parallel with the EIS (Waitz et al., 2005, p.331). Moreover, MERA 2001 created a backlash by DOD. In 2003 the Deputy Defense Secretary Paul Wolfowitz issued a memo to the secretaries of the Army, Navy, and Air Force, which ordered them to find exemptions from environmental laws whenever possible, providing them with a relevant protocol (Wheeler, 2006, p.449). Seven environmental acts were allowed to be exempted. The Clean Air Act is pertinent to the US Air Force. According to this Act, the US Air Force must comply with the air pollution requirements, be it at the local or federal level. However, the exemption allows the US president to issue contradicting orders when it is in the paramount interest of the US. Moreover, the Act exempts military tactical vehicles from the supervision (Wheeler, 2006, p. 452). The same exemptions apply to the 1972 Noise Control Act stated previously in this paper. The exemptions to the Clean Air Act were approved in 2004 by the Congress but the Noise Control Act remained unchanged (Wheeler, 2006, p. 456). The September 11 attacks marked a new cooperation between DOD and environmental agencies, indicating a shift in priorities. Wheeler (2006) argued that the Environmental Protection Agency (EPA), Occupational Safety and Health Administration and several other independent environmental service firms monitored the World Trade Center site for air contaminants when the September 11 attacks took place (Wheeler, 2006, p. 445). They monitored for anthrax, mustard gas and plague and then published their data. The obtained results enabled the US Military and rescue workers to make faster assessment of possible security threats. EPA became also in charge of a possible terrorist attack on the US air and water systems (Wheeler, 2006, p. 445). Thus, though environmental policy is oftentimes seen by the US Air Force as a burden, the September 11 attacks created a common ground for the environmental agencies and the US Air Force. The rest of the paper will depict more clearly the change in priorities that occurred after September 11 and the current economic crisis. Current events curtailed the importance of environmental policy. It was depicted above how the September 11 attacks brought together EPA and the US military. Following case studies will be show how the current crisis also interplayed with the environmental policy. In the first case study, several lawsuits from the 1990’s alleging a violation of NEPA will be presented. Court decisions were based on presented information. Local populations and local authorities acted either together or separately, but never against each other in lawsuits against the US Air Force. However, the current crisis divided the two interest groups. In the second case study, the town authorities sued the US Air Force over noise pollution, but the locals and the county countersued the town authorities in order to force them to drop the charges. While the town authorities were primarily concerned with the noise pollution and real estate prices, the local population and the county authorities were concerned with employment and wage income, which is hard to come by in the current crisis. Case study one There were several lawsuits in the 1990’s against the US Air Force alleging violations of the National Environmental Policy Act (NEPA). The process was quick and there were no third party interferences in the lawsuits. The first case was George Washington Homeowners Association, Inc. vs. Widnall (1994). Plaintiffs aimed to obtain a right to civilian reuse of Lowry Air Force Base in Denver until further environmental studies could be conducted and a supplemental EIS prepared. The court ruled against the plaintiff’s motion. The court cited Baltimore Gas & Electric Co. v. NRDC in their decision that the Air Force was not in violation of compliance with NEPA. The court also found that plaintiffs had failed to prove they would suffer substantial loss in real estate value or personal health. The second case used is Conservation Law Foundation, Inc. and Town of Newington vs. USAF (1994). The lawsuit was brought by an environmental group and local residents near Pease Air Force Base. They alleged that NEPA was violated through US Air Force’s transfer of Pease Air Force Base to a state agency for redevelopment into an international trade hub. The court found that the Air Force had violated the public disclosure requirements of NEPA as they relied on post-EIS studies to satisfy its statutory obligations regarding air quality concerns. They claimed that the US Air Force also failed to include in the FEIS the decision to transfer parcels by long-term lease. The court reached a verdict that a supplemental EIS was to be prepared. The third case was Foundation on Economic Trends v. Aspin (1993). The Foundation on Economic Trends (FOET) alleged that the Secretaries of Defense, Army, Air Force and Navy did not present to the public proper NEPA documents on the DOD’s Chemical Warfare Program. Defendants argued in a counter motion that plaintiffs’ argument was nonexistent because of deprivation of information; and that plaintiffs had failed to allege a specific major Federal action or proposal that would trigger NEPA. Five years later, after several cases were already decided in defendants’ favor, the court ruled in favor of the defendants, based on lack of informational standing and failure to challenge a major Federal action. What can be learned from this case study is that information and ability to present the case were most important factors for judges reaching a verdict. However, in the second case study below, courts will not be as important for winning or losing a case. Moreover, the case study below will depict how a lawsuit can trigger a backlash by other interest groups, indicating that a number of interest groups who benefit and lose from the US Air Force activity have increased. Case study two In 2008, the US Air Force decided to equip the Eglin Air Force Base with over one hundred F – 35s in the year 2010. The nearby town of Valparaiso started two lawsuits against the US Air Force. The first lawsuit was the Freedom of Information Act lawsuit in 2008, and the second was in 2009 over the US Air Force decision to bring 59 F-35s to Eglin Air Force Base and use its runway nearest Valparaiso. The first lawsuit, City of Valparaiso vs. United States Air Force (2008) was settled out of court. The town of Valparaiso claimed in that lawsuit that information about Base Realignment and Closure measures was withheld by the US Air Force (Moore, 2008). The city requested all Air Force records on the Joint Land Use Study, base realignment and closure (BRAC) and the draft Environmental Impact Statement. The lawsuit was settled out of court on 19 July 2009, when the US Air Force agreed to provide the town authorities with all of the conducted test results on the noise effects of the Joint Strike Fighter. The information the town obtained indicated the new fighters would produce too much noise. According to a DOD funded Joint Land Use Study (JLUS) over 35 % of Valparaiso, which is a mostly residential community, would be rendered unsuitable for residential use (Griggs & Moore, 2009). In March 2009 the town started a second lawsuit, City of Valparaiso vs. United States Air Force et al., demanding better protection against noise produced by the fighter jets. In 2009, the Air Force decided to bring 59 Joint Strike Fighter aircraft to the base, from the 100 initially planned before the first lawsuit. The town sued over the noise these jets would produce (The Airforce Association, 2009). The town authorities met behind closed door to discuss the directions they would give to lawyers related to the pending litigation. The meeting was held during a scheduled budget meeting, as required by the Florida's Sunshine Law (Moore, 2008). However, some of the locals were against the lawsuit. The argument of some of the local residents was based on the economic benefits of increased employment due to the military investments (Caver, 2009). The Mayor Arnold’s argument was that benefits would be smaller than the costs, the latter being measured through lower real estate prices (Caver, 2009). Due to noise, real estate prices would decrease, leaving the local government with a smaller tax income. However, many locals work at the Base, thus being dependant on the existence and well being of the Eglin Air Force Base. These locals saw a benefit in forcing the town authorities to drop the charges. The Okaloosa County and locals retaliated by suing the town on April 15 2009. The two lawsuits were the Okaloosa County vs. Arnold et al. and Bradley vs. City of Valparaiso. Plaintiffs alleged that the City of Valparaiso violated Chapter 119, Public Record Law, and §286.011, Fla. Stat., Sunshine Law, with regard to February 18 2009, when the town authorities authorized litigation against the US Air Force. The circuit judge Remington decided in favor of the plaintiffs on the first accusation and against the second. Moreover, the plaintiffs requested that the Court enjoin the defendants from prosecuting the US Air Force in federal court. Their request was denied on the ground that the state court is not allowed to join the in personam actions in federal court. The US Air Force negotiated out of court, until the case was settled in 2010. The military first offered to buy the land affected by their operations; then they suggested that the mayor relocate this area for some other use (Griggs & Moore, 2009). In 2010, the case was settled with the US Air Force making certain concessions. Eglin Air Force Base had to pay 60,000 dollars towards the city’s legal costs. Moreover, the Air Force agreed to consider construction of a new or re-locating a current training site somewhere else on the Eglin reservation. Their first plan was to use runway 1-9, but then the airplanes would be flying over the city center. According to the settlement, the Base was allowed to use this runway only in times of emergency, unplanned contingency, or weather affecting the aircraft performance (O'Halloran, 2010). The city of Valparaiso kept the right to sue the Air Force again if it does not follow the settlement guidelines. This case study has depicted how town authorities, local residents and the US Air Force all have differing interests. The locals favored a stable source of income. Real estate value was of secondary value, perhaps because a decrease in value always implies a decrease in income tax levels. Town authorities, on the other hand, collect revenue from these taxes, thus not being willing to have anything interfere with perhaps their most important source of revenue. The US Air Force’s interests were to operate at the smallest cost possible, at the already built facilities. Were it not for the economic crisis, perhaps locals would see a benefit in preserving their real estate value, as they could sell their house quickly in a well functioning economy and would not had sided with the military. This paper has depicted a development of environmental policy and its effects on the US Air Force. Though lawsuits preceded the legislation, the two soon complemented each other and enabled further protection of the Fifth Amendment. Recent events have also depicted how priorities have changed, leaving the US Air Force with more allies than before. In the wake of recent events priorities changed for many interest groups, which could further affect the respect for environmental laws. References Archer, B. (2000). US air force: The new century. Leicester: Midland Publishing. Bradley vs. City of Valparaiso, 09 CA 1965 (2009). Branning vs. United States, 654 F.2d 88, 228 Ct.Cl. 240 (1981). Caver, D. ( 2009, May 4). In fighting noisy jets, mayor divides his town. The New York Times. Retrieved from http://www.nytimes.com/2009/05/05/us/05mayor.html City of Valparaiso vs. United States Air Force et al., 3:09 cv 135 (2009). City of Valparaiso vs. United States Air Force, 3:08 cv 420 (2008). Conservation Law Foundation, Inc. and Town of Newington vs. USAF, 864 F.Supp. 265 (1994). Defenders of Wildlife vs. Widnall, 96 - 2117 (1996). Defenders of Wildlife vs. Babbitt, 130 F. Supp. 2d 121 (2001). Defense Base Closure and Realignment Act of 1990, as amended, Pub. L. No. 101 – 510, § 2901 – 2914, 104 Stat. 1808 (2005). Foundation on Economic Trends vs. Aspin, 88-3475 (1993). George Washington Homeowners Association, Inc. vs. Widnall, 863 F. Supp. 1423 (1994). Griggs vs. Allegheny County, 369 U.S. 84 (1962). Griggs, T., & Moore, M. (2009). Valparaiso, lawsuits, and Eglin F-35 basing. Tucson Forward. Retrieved from http://tucsonforward.com/is-tucson-headed-for-a-lawsuit/valparaiso-on-lawsuit-settled-other-pending/ King, W.S.(1996). The fifth amendment takings implications of Air Force aircraft overflights and the air installation compatible use zone program. Retrieved from The National Law Center of The George Washington University in partial satisfaction of the requirements for the degree of Master of Laws. Moore, M. (2008, September 28). Valparaiso commission meets Thursday to discuss Air Force lawsuit. Northwest Florida Daily News. Retrieved from http://www.nwfdailynews.com/news/lawsuit-11496-commission-city.html National Environmental Policy Act of 1969 § 102, 42 U.S.C. § 4332 (1994). Okaloosa County vs. Arnold, et al., 09 CA 2020 (2009). O'Halloran, M. (2010, March 2). Valparaiso settles suit with F-35 noise concerns. WJHG. Retrieved from http://www.wjhg.com/home/headlines/86078257.html The Endangered Species Act of 1973, Pub.L. 93 – 205, 87 Stat. 884 (2002). The Air Force Association (2009, March 3). Eglin F-35 saga continues. Airforce Magazine. Retrieved from http://www.airforce-magazine.com/DRArchive/Pages/2009/March%202009/March%2003%202009/EglinF-35SagaContinue.aspx United States vs. Causby, 328 U.S. 256 (1946). Waitz, I.A., Lukachko, S.P., & Lee, J.J. (2005). Military aviation and the environment: Historical trends and comparison to civil aviation. Journal of Aircraft, 42, 329-339. Wheeler, K.D.(2006). Homeland security and environmental regulation: Balancing long-term environmental goals with immediate security needs. Washburn law Journal, 45, 437 – 466. Woodley, C. (1997). Comment: The sonoran pronghorn: The Air Force's strongest adversary. Dickinson Journal of Environmental Law & Policy, 6, 299 – 319. Read More