Bird Nests and Bomb Ranges: Hill Nears Pact to Exempt Pentagon from Law Protecting Species

By Eric Pianin, Washington Post, Wednesday 23 October 2002; page A09

House and Senate negotiators have tentatively agreed to exempt the Defense Department from an international law designed to protect more than 850 species of migratory birds, in response to Bush administration complaints that such treaties seriously hamper military training and bombing exercises.

The decision, disclosed yesterday by lawmakers and environmental groups, could effectively allow the incidental bombing of habitats of hundreds of thousands of migratory birds, including a number of endangered species, that fly over 25 million acres of military-controlled land.

The administration earlier this year sought exemptions from numerous environmental laws dealing with endangered species, marine mammals, migratory birds, clean air and hazardous waste cleanup. The restrictions, officials said, were impeding military readiness and training in the wake of the Sept. 11, 2001, terrorist attacks. Critics, including environmental groups, some governors and state attorneys general, said the administration was using the terrorist attacks as an excuse to undermine important environmental protections.

As a compromise, Senate and House conferees drafted a version of the fiscal 2003 defense authorization bill granting the military an exemption from the 1918 Migratory Bird Treaty Act, which sets forth U.S. obligations under four treaties to protect birds and guide conservation management with the governments of Canada, Mexico, Japan and Russia. While the exemption would be permanent, the Defense Department would be given a year to identify ways to minimize the adverse impact of military training activities on migratory birds.

Some lawmakers and environmentalists said Congress was bowing to administration pressure to undermine the nation's oldest conservation law. Exempting our military from the MBTA drops a bomb domestically and internationally as it endangers our wildlife heritage and compromises our international treaty obligations, said Rep. Nick J. Rahall II (W.Va.), the ranking Democrat on the House Resources Committee, which oversees the Migratory Bird Treaty Act.

But the conference report draft says the proposed military exemption is entirely consistent with the underlying terms of all treaty obligations of the United States.

Raymond F. DuBois, deputy undersecretary of defense for installations and environment, said the exemption was made necessary last April after a federal judge halted bombing exercises on Farallon de Medinilla, a western Pacific island where migratory birds were being killed.

Solely a military training range for the past 26 years, FDM provides vital training for frontline units involved in Operation Enduring Freedom, DuBois said. The provision has no effect on our obligation to assess the environmental impact of our actions or our obligation under the Endangered Species Act not to jeopardize endangered species.

Environmental groups including Audubon, the Sierra Club, the American Bird Conservancy and the Endangered Species Coalition, said in a joint statement: Our existing laws already provide for the achievement of military readiness while maintaining environmental protections.

Senate Armed Services Committee aides cautioned yesterday that lawmakers were still working on portions of the conference report and the final version may change. Moreover, congressional leaders have yet to decide whether to seek final action on the defense authorization bill when Congress returns for a postelection session.