America Needs a NEPA Defense Exemption
It's NDAA season
Over the last few weeks, Congress has begun gearing up for its annual National Defense Authorization Act (NDAA) fight. Markup is set for the early summer, and the bill will likely go to the floor for a vote in the fall.
The NDAA is not typically a great vehicle for permitting reform – it is, after all, a defense bill. But there’s ample room for narrowly-tailored reforms that target our military preparedness. We should seize this opportunity, and create a NEPA exemption for defense activities.
The Problem
Virtually every major environmental statute contains national security exemptions. As we’ve covered on Green Tape, laws such as the Endangered Species Act, Clean Air Act, and Migratory Bird Treaty Act allow the President or the Secretary of Defense to exempt projects in the interest of national security, or contain broader exemptions for certain categories of military activity.
NEPA, however, does not.
And just as NEPA has become a procedural nightmare for infrastructure projects in general, it has become a nightmare for defense projects. The average NEPA environmental impact statement now takes 3+ years for the Air Force and Navy, 5+ years for the NNSA, and 6+ years for the Army Corps of Engineers.
The consequences have been somewhat terrifying. Navy carrier-landing practice fields have been frozen for years after court interventions. Army training expansions have been blocked despite documented shortfalls in maneuver space. Even during Operation Desert Storm preparations in the lead-up to the Gulf War, DoD had to ask CEQ for "alternative arrangements" just to increase flights from a strategic air base.
On military installations nationwide, training exercises get cancelled, postponed, or watered down to navigate NEPA requirements. The Government Accountability Office has found that, “DOD has used adjustments to training events, referred to as “workarounds,” to accomplish some training objectives while meeting environmental requirements.” This is what readiness erosion looks like in real time.
What To Do
All we need is a narrowly tailored exemption focused specifically on readiness activities – the kind of activities that directly impact our ability to fight and win wars. The exemption should:
Cover combat-related training, weapons testing, mission-critical facilities, and essential nuclear deterrent activities
Exclude routine infrastructure like administrative buildings, housing, and base amenities
Preserve other substantive environmental laws like the ESA
Include common-sense mitigation requirements where feasible
This isn't radical – it's just bringing NEPA in line with other environmental statutes. Congress has already set precedent with the 2003 NDAA (migratory birds exemption) and 2004 NDAA (marine mammals exemption). These targeted reforms enabled critical defense activities while maintaining broader environmental stewardship.
Why Now
The global threat environment isn't getting any simpler. Our adversaries are rapidly expanding their capabilities while our forces navigate a regulatory gauntlet that they don't face. Every day we delay addressing this issue means another day of compromised training, postponed modernization, or half-measures in preparation.
The current NEPA "alternative arrangements" process, used during Operation Desert Storm, isn't cutting it. These arrangements are undefined in statute, rely on regulations that have been rescinded, and create an ad hoc process with no timeline and rising litigation risk. And in practice, they're rarely used outside of immediate emergency scenarios – too little, too late for readiness activities.
A NEPA exemption for defense readiness belongs in the next NDAA. Our forces deserve training and equipment that prepare them for their missions without years of procedural delays. In a world of rapidly evolving threats, we can't afford anything less.