Environmental Politics and Law

EVST 255 - Lecture 7 - Site Restoration Law

Chapter 1. Citizen Suit Provisions in Federal Statues [00:00:00]

Professor John Wargo: Okay, so I want to continue the story about cleaning up landscapes that have been severely affected. And I wanted to use this as a basis for reviewing a variety of different laws that apply and certain key provisions in the statutes that have met with more or less success. And I'm going to start today with the National Environmental Policy Act, which was passed in late 1969. And it was one of the first statutes that declared a comprehensive national policy to protect the environment.

And I wanted to just pause on this, because many people think that the idea of sustainability is fairly new. But if you look at the purpose statement inside this statute, you see that back in the late 1960s that many of the ideals that people now believe and think of when they use the phrase sustainability are deeply embedded in this statute. So let me just go through this quickly.

"The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances, and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the federal government, in cooperation with state and local governments and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance in a manner calculated to foster and promote the general welfare. To create and maintain conditions under which man and nature can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations of Americans."

This is an exceptionally broad mission statement. This law was passed, not with any regulatory authority, so it could not prevent human development. But it demanded instead that any project, private or federal, that would receive public funds from the Federal Treasury, would be required to declare exactly what the proposed development was and to project out what the environmental effects might be into the future.

The statute was also curious in that it included something called a citizen suit provision. So that environmental groups or other citizen watchdog groups could monitor federal agencies, they could look at their budget and think about what kinds of development were being proposed by Congress, contained in authorization statutes or appropriations, and then think down the road about how to make sure that those developments proceeded in a way that had a minimal impact on the environment. So this was the origin of the idea of an environmental impact statement, a model for declaring and basically making public all proposals for new development. And also, it created an enormous industry in the environmental sciences, an industry that really involved soil scientists, atmospheric chemists, water quality experts that all joined together to try to figure out exactly what the effects of new development might be.

Now, if you think about the scale of our economy and you think about the federal budget and you realize that just this past week our president issued his proposed budget, almost $3 trillion. That's an enormous amount of money being expended that would be put into projects developed by the Defense Department, the Energy Department, the Department of Transportation and Highways. Even the Environmental Protection Agency, when they issue a permit now to a new sewage treatment plant or a new water supply facility, that treatment plant must be reviewed in the context of an environmental impact statement. So that any expenditure of funds demands that this forward-looking projection occur, and it's always open to citizen suit, citizen contest through litigation.

And it's been very effective in altering new development. Many dams have been stopped by this statute, by judges' interpretation of it, because of claims of insufficiency of the environmental impact statements. So that it also includes a very extensive public hearing process whereby drafts have to be prepared. They have to be taken to public hearing, people have to have an opportunity to review the material so that they can understand what might be happening in their backyard. And they may also be very critical of the quality of science.

And this is not laboratory science, this is science that really is predictive in nature. It's probabilistic in a sense. So most environmental science that demands forecasting, you should think about it as being probabilistic, which is why most programs in environmental studies have a requirement for taking statistics and often probability. So the scientists needed to look into the past and try to discern from previous studies what was most likely to happen in the future. And the only way that a project could be stopped would be if the impact statement were found to be insufficient, to not fully have disclosed what the effects would be or to include science that really was poorly done, that did not seem defensible.

So I'm going to move on to discuss several other statutes now. But one key point is that citizen suit provisions have been built into a variety of major environmental laws, including the Clean Air Act, the Clean Water Act, CERCLA, which is the Superfund law, the Resource Conservation and Recovery Act, the cradle-to-grave statute that I mentioned the other day, the Emergency Planning and Community Right to Know Act, which gives communities the right to know what chemicals are being released in their environments if those chemicals are recognized to be hazardous substances, and the Endangered Species Act. So basically, this opportunity for litigation has really radically changed the way that new development and uses of the environment have gone forward.

Now in this case, in the case that we talked about on Tuesday, hazardous site on Vieques in Puerto Rico, this was a very important statute in that the court case, Romero-Barcelo v. Weinberger, or Weinberger v. Romero-Barcelo, was brought in part because the Navy had not developed an environmental impact statement that projected out what the long-term effects might be of their continued bombing of the island. So this statute required — was interpreted by a judge in Puerto Rico to require the development of a draft environmental impact statement, which was prepared.

It's kind of curious, because I wanted to find that draft environmental impact statement. I didn't know whether or not there might be projections of long-term damage or perhaps accounting of kinds of weapons that had been released. So I looked for it and in Mudd Library, the former government documents library here, we had and we still have many environmental impact statements that you can request. Unfortunately, you can't wander through the aisles anymore because it's been closed down. But the university still maintains these environmental impact statements that are actually quite interesting to browse through.

Well, I couldn't find this impact statement. And then our social science librarian put out a message on her email list and asked if anybody in the nation might have a copy of this. And it turned out that one person on this list of all university libraries and public libraries responded yes, that he had collected all military draft environmental impact statements, including this one. So he Xeroxed it and sent it to me. It turned out to be a goldmine in that it demonstrated a variety of historical action on the part of the Navy, including diagrams such as this. You see the bombing range up here on the upper left, but you also see in basically the same scale, other maps that the Navy put together showing where their targets were, showing also color codings of these areas, in this case, concentric circles, that had the metric and the key number of bombs dropped or pounds of bombs dropped per acre per year. So this proved to be really important, to try to think through what was released, when it was released, and where it might have gone.

And one interesting thing is that you see that this side of the bay over here looks like it was continually targeted. In fact, tanks were located at the top of hills, and they were clearly being targeted, both by bombers but also by artillery shells. So gradually, this area, this part of the landscape, was being flattened. And by flattening the beach area at the end of that runway, they basically created a trough, a trough by which that lagoon could drain all of the material that it had collected into the bay.

And also, I looked at this air photograph maybe thirty or forty times and it hadn't dawned on me that this little light patch right here seemed like it was just an open area of sand. But you can track it on Google Earth and find that it reaches down gradually and then fades into sea grass beds. But clearly, it's evidence that material has flowed out of that area and killed the vegetation on the floor of this bay. The same thing happened on the other site.

And if you see these lines in the diagram down here, these lines depict the bombing route, so that planes would take off from aircraft carriers. They would fly up in this direction on the east side. They'd circle around and come back and fly back this way and bomb in both directions. So three or four fighter planes would be doing this continually, year after year, decade after decade, millions of pounds after millions of pounds, so that they disclosed not just pounds per acre per year, but total amount of munitions so that the estimate of 100 to 150 million pounds of ordinance is basically derived from information that was provided in the environmental impact statement that would not otherwise have been made available.

Since that time, I've recognized also that the Navy has maintained a really tough and tight accounting system of what they did. And how would I know that? Well, by talking to people that were ordinance officers. And you recall those large concrete bunkers, couple hundred concrete bunkers up in the hills loaded with different kinds of weapons? Well, they were officers or enlisted men that were responsible for the inventory in each of the buildings. I mean, they want to know how many nuclear weapons they've got and where they are at any point in time. So they had kept their records very neatly. Again, this information was not included in the environmental impact statement, but it provided a basis for litigation. So that this type of historical documentation is often very difficult to come by.

Another statute that has played an important role here and in many hazardous sites around the nation, is the Resource Conservation and Recovery Act of 1976, which was designed to manage both hazardous and nonhazardous waste, and included the cradle-to-grave tracking system, meaning that wastes or hazardous chemicals from their time of creation, their movement via ship or by rail or by tanker truck, and their ultimate disposal had to be recorded.

So it was a large-scale national inventory system. And the key to this system, just the Endangered Species Act that I was talking about the other day or the Safe Drinking Water Act, the core of the system and its Achilles' heel, is really that the chemical has to be listed as a hazardous substance to make its way onto the list. So you can imagine that adding additional chemicals is something that the chemical companies and people that use basic chemicals don't really want to have happen because it increases their accounting responsibilities and their reporting responsibilities to the government.

It included a hazardous waste land disposal ban. And this is kind of interesting, because there are about 300,000 community landfills sprinkled around the nation. Every town has a landfill. They used to call them dumps, now they call them sanitary landfills, which is an oxymoron if anybody has any sense about what's happened there. But for much of history, people have taken everything and just piled it up in a landfill. And then by about 1950, they started covering it over with soil, not thinking about where the material might go.

I remember when I was young going to our local "dump," we called it, with my dad and watching trucks pull up, oil trucks pull up and drain their tanks into the piles of refuse. People that would pull up that were mechanics that worked on people's heating systems, and they would use solvents to take the grease off of somebody's oil burner. And that grease and the solvent would then just be thrown into the dump. So that if you dug down beneath any of these sanitary landfills today, you would find not just solvents and residues of oil and fuel, but you'd find many other chemicals, as plastics and other products degrade, just leaching into the soil and to underlying water. So that preventing land disposal was a very significant provision back in 1984.

Also, the underground storage tank program is located in this statute. And it requires an inventory and monitoring of underground storage tanks. And you can imagine that underground storage tanks that contain gasoline or other fuels or oils sitting beneath the surface in a steel tank designed to last forty years has contaminated many, many sites. Those gas stations that you see with the yellow ribbons around them? They basically are regulated under this statute. And they are a product of some engineer who had the bright idea, probably back around 1920 or 1930, that a forty-year life cycle for a storage tank made out of steel was going to be an okay thing. So what's the life cycle of a storage barrel, a fifty-five gallon drum, for example? So this design error has polluted ground water and soil literally around the world. And used oils as well, what happens to that oil that your mechanic drains out of your car when you get your oil changed every 3,000 miles? Well, it used to be just taken to the town landfill. So this statute prevented that from happening.

So Vieques was like any other community, it had many of these landfills, so to speak. And it was a repository for a variety of hazardous chemicals. So key RCRA controversies that have emerged include the listing issue, what's hazardous, mixtures. If a waste is mixed with nonhazardous waste, is it still hazardous? This has been a debate that has been intensely litigated with the idea that dilution is not the solution. The idea that motor oils, some of them are exempted, even though they're toxic. That's been the subject of much litigation. Household wastes also. Can they be mixed up with more hazardous waste? Mining and oil production wastes have been excluded.

And one interesting provision in this case is that corporate officials can be found guilty of criminal behavior. So the standard of evidence for a criminal case is different than a civil case, a civil action, whereby a civil action would be decided by a preponderance of the evidence, which means that it's more likely than not that damage was induced. But a criminal case demands a higher burden of proof, meaning basically that it has to be demonstrated that a causal link exists beyond a reasonable doubt. And RCRA also, as I mentioned earlier, contains a citizen suit provision. So by 1986, about 27,000 contaminated sites had been identified. And as I mentioned the other day, now there are more than 300,000 contaminated sites in the private sector and perhaps 50,000 to 100,000 in the public sector.

Another statute that is at play here is the Emergency Planning and Community Right to Know Act that's contained in the Superfund amendments of 1986. And this basically gave every community the right to know about chemicals that are made by, stored in, or emitted from local businesses. This evolved after many first responders experienced toxic reactions to chemicals that were stored in buildings that were on fire. So they went in to put the fire out and received intensive exposures. And it created something called the Toxic Release Inventory.

The Toxic Release Inventory is a list of who releases what, where, and when. And it has to be provided on an annual basis to the Environmental Protection Agency, but only if the chemical is put on the list and only if it's produced or present at a level that exceeds a certain volume or weight limit. So the SARA amendments authorized additional funds for National Priority List sites, mandated public involvement, provided permanent remedies to restore sites or to basically pay for proven damages. It also requires something known as best available technologies to clean up the site.

So a huge question in all these cases is once a site is contaminated, how should it be restored? What's the standard for restoration? Is it pre-human? Is it a certain risk-based standard so that it's okay to have a little bit of lead or a little bit of benzene in the soil or the groundwater or the trees? So these are very difficult questions. No site is cleaned up back to its pre-polluted condition completely, so residues are always detectible in all of these cases. State standards apply if they are more stringent.

And this is an interesting provision, because it's one of the few laws that allows states to preempt federal standards. So the Clean Air Act basically preempts Connecticut, for example, from having tougher standards than the federal government to emit chemicals to the air. But unless, and we'll talk about this in a week or so, unless Connecticut is out of compliance with the Clean Air Act standards, then we have to meet California standards, which are the toughest in the nation.

So the idea of preemption, preventing a lower level of government from passing a law that is more stringent at the federal level of government, is very desirable from the perspective of the private sector. Now, why would that be? Basically, you'd want kind of a common ground, you want to deal with only one set of regulations rather than worrying about moving your goods or your material or whatever it is, your service, across state boundaries and having to negotiate fifty different sets of regulations. So this is a really important statutory provision that includes the citizen suit provisions.

Litigation basically stalled out RCRA. And it stalled out Superfund cleanups during much of the 1980s and 1990s predominately because of the citizen suit provision, it's an interesting thing. So that potentially responsible parties would then sue the government, claiming that they really were not the primary responsible party or that they should pay only for the proportion of the material that was hazardous that was detected on the site. So the Superfund amendments of 1986 prevented certain forms of litigation by potentially responsible parties or parties that EPA had declared to be responsible, and things sped up.

The Vieques story was also affected by these amendments in one way, in that it created the Agency for Toxic Substance and Disease Registry, that's quite a mouthful for a federal agency. It sits inside the Centers for Disease Control, based in Atlanta, Georgia. And this group has the responsibility to respond to any community that petitions the federal government arguing that they have been damaged, either their property or their health has been damaged, by federal actions that are now declared to be Superfund sites. So it allows the citizens of the nation to basically get expert scientific advice to figure out what chemicals are released and how people might be exposed and what the hazards are. And this agency has played a really unusual role in that they very, very rarely in their history, now they're twenty-three, twenty-four years old, they very rarely have found that there was conclusive evidence that the wastes on a site, that the hazardous materials released produced adverse health effects.

Chapter 2. Sanchez v. United States [00:24:27]

So in 2003, they went down to Vieques because one of the islanders petitioned the agency with this question. And they went about their business looking for whether or not the contaminants in drinking water might be a problem. And they concluded no, the drinking water is okay. The water comes from a national forest which is on the mainland of Puerto Rico, and it's actually piped six miles underneath the bay to the island of Vieques. They also concluded that now that the Navy had left the island that the air quality was sufficient so that that did not pose a significant threat to the community. They also concluded that the food that was grown on the island and the fish that were caught in the coastal waters were not contaminated at a level that posed a significant threat. So they virtually washed their hands of this being a significant threat to human health. And they dismissed all of the claims on the part of the Vieques residents who believed that the Navy's behavior and their contamination caused a whole array of different kinds of adverse health effects.

A lawsuit was filed on behalf of 7,100 residents on the island in 2007 that claimed that the Navy was responsible for loss of health. And the government's response has been really quite interesting. In one respect, they responded that well, they are protected by sovereign immunity, which basically is an argument that the king is immune from any litigation, that the king should not be held accountable for past behavior. They also argued that bringing a class action lawsuit representing a large group of people like this but focusing in on a representative sample of that group so that you wouldn't have to litigate and develop evidence for each individual among the 7,100. The Justice Department believed that this should be handled case by case.

Now, here's a community that is well, well below the national poverty level. They had no resources to mount a case like this. So that several law firms have picked this up. And one in particular has been pursuing Sanchez versus the United States. And by some mysterious coincidence, there was a convergence of this lecture and the lecture on Tuesday and a CNN documentary on Vieques that was released this week. I'm going to play you, if this works, I'm going to play you just one clip from this documentary. [pause]

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Video voiceover: Nearly forty years ago on this tiny, remote, American island of Vieques, off the coast of Puerto Rico, a young U.S. Marine was stationed as a security guard.

Hermogenes Marrero: I arrived on the island on the third of July, 1970. I was seventeen and a half years old.

Video voiceover: At age fifty-seven, this is Sergeant Hermogenes Marrero now. He's had colon cancer twice. He's nearly blind, and needs an oxygen tank. He has Lou Gehrig's Disease, crippling back problems, and sometimes needs a wheelchair.

Hermogenes Marrero: This is where we lived. This is the actual campsite.

Video voiceover: Sergeant Marrero says he's been sick ever since he was stationed on the island.

Video interviewer: During that period of time, did you ever think, something is really wrong with this picture?

Hermogenes Marrero: Yeah, sure. All the time. All the time, because I used to get sick. I used to get sick, you know? I'd go out to the firing range, and sometimes I'd start bleeding automatically from my nose. I said, "My God, why am I bleeding?" I come back and maybe I'm vomiting now. I used to get diarrhea, pains in my stomach all the time, headaches. I mean, tremendous headaches. My vision, it used to get blurry.

Video interviewer: So what was over there?

Video voiceover: Today, this decorated former Marine is the star witness in a multi-billion dollar lawsuit. More than 7,000 residents of this Caribbean island, about seventy-five percent of the people here, are suing the U.S. government. They say what the U.S. military did here made them sick.

For nearly six decades, beginning right after World War II, the American island of Vieques was one of the Navy's largest firing ranges and weapons testing sites.

Video interviewer: Can you give us just a really detailed picture of what it was like when they would use this island as a training ground?

Hermogenes Marrero: Inside the base, you could feel the ground, the ground moving. You can hear the concussions. You could feel it. If you were on the range, you could feel it in your chest. It would rain, actually rain bombs. And this would go on seven days a week.

John Eaves, Jr.: The people need the truth to understand what is happening to their bodies.

Video voiceover: John Eaves, Jr. is the attorney in the lawsuit.

John Eaves, Jr.: One of the biggest problems we have is that we don't believe that the military has fully come clean with all the chemicals and the agents that have been used on this island. Like depleted uranium was denied and then they admitted it.

Video voiceover: After years of controversy and protest, the Navy left Vieques Island in 2003. Today, much of the base is demolished, and what's left, largely overgrown.

John Wargo, on video: In my experience in dealing with hazardous sites and toxic substances, Vieques is likely to be one of the most contaminated sites in the world.

Video voiceover: Dr. John Wargo is a Yale professor who studies the effects of toxic exposures on human health. He believes people on the island are sick because of the Navy's bombing range.

John Wargo, on video: This contamination results from the longevity of the bombing, the shelling, the strafing, and many different compounds were released, including lead and mercury and cadmium, as well as flame retardants, fuels, and many of these were released in great intensity.

Video voiceover: These images, recorded five years ago by University of Georgia scientists, show the former bombing range and surrounding waters strewn with unexploded ordinance. According to the UGA scientists, many of those bombs continued to corrode, leaching out carcinogens.

The Environmental Protection Agency in 2005 designated parts of Vieques a Superfund toxic site, requiring the Navy to begin cleanup. The Navy identified many thousands of unexploded munitions, and set about blowing them up, outraging islanders who fear more toxic chemicals will be released. The U.S. government's response to the islanders' lawsuit is to claim sovereign immunity, that residents have no right to sue the government. And the government also disputes that the Navy's activities on Vieques made islanders ill, citing a 2003 government study that found no link.

Video interviewer: So, do you think this island made you sick?

Hermogenes Marrero: Of course it did. I got sick here on the island. My bones hurt, respiratory problems, vomiting, intestinal disorders.

Court clerk on video: Do you swear to testify the truth, and nothing but the truth?

Video voiceover: Sergeant Marrero is not one of the plaintiffs, but was questioned for this sworn deposition. He testified the weapons used on the island included chemical insecticides, depleted uranium, napalm, and Agent Orange.

Hermogenes Marrero: Agent Orange [inaudible] and we used to store it in the hazardous material area. It was used in Vieques as a defoliant for defense line.

Video voiceover: The military has never acknowledged a link between Sergeant Marrero's illnesses and his time at Vieques.

Hermogenes Marrero: This is American territory. The people that live here are Americans. And how do you do something in your own back yard, and you hurt someone, you have to take care of that person. And the government's just not doing anything about it.

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[pause]

Professor John Wargo: All right, now as you reflect on that, you should be asking yourself a whole bunch of questions. One of them would be, here's a gentleman who is now mid-fifties. He obviously has many different medical problems. But he faces a serious burden of proof of exposure to chemicals that were released by the Navy. So how would you think that through? How would you make that connection?

One question you might ask is, were the chemicals that they described in the lawsuit that were released by the Navy present in his body? Well, you know, the historical reconstruction problem that I mentioned on Tuesday is extraordinary. It's incredibly complex scientifically and would be very expensive to document how long do these chemicals last in somebody's body? What are plausible alternative sources of exposure? You know, the Navy argued that heavy metals used in the weapons were also minerals that had been driven by winds from Saharan dust storms across the Pacific and rained down, and perhaps that's a route of exposure. So the Navy's been very good, along with the Justice Department, in developing these plausible alternative hypotheses.

Another has been the ritualistic use of mercury. Did the mercury come from Navy switches in the bombs that leaked out on that site, made its way into the Marine food chain, built up, and then made its way to the dinner table and into people's bodies? Or did it come from an electric plant that was located on the island? Or could it have come from any fish in the area? When the Agency for Toxic Substances and Disease Registry did their fish sample, they wandered around the island sampling fish from many different locations. But as I mentioned, often the sample sizes were incredibly small, less than ten in size.

So what you'd want to do is, you'd want to know that these chemicals had moved in a gradient from their location of release further and further away. And you hoped to find a declining gradient in the concentration as you moved further and further away. But they didn't conduct this kind of work. James Porter, who is the professor at the University of Georgia that I mentioned, has done that work. As you move further and further away from the bombed area, you do see these declines.

Chapter 3. Key Questions: Knowledge, Suits, Immunity and Causation [00:34:53]

So key questions that are raised by this video, what was the prior knowledge of the Defense Department? I know that the Defense Department had very accurate records of the ordinance that was released and where it was released and when it was released. Another key question is, should this move forward as a class action lawsuit? If the courts find that it cannot, that it has to be judged individually, person by person, there's no hope that this would be concluded in the next fifty years. The idea of sovereign immunity — should the United States be responsible? And this is spoken to quite clearly in a variety of environmental statutes that I described to you just fifteen minutes ago.

But the central, core question here is one of causation. Did these chemicals cause those illnesses? What's the matchup between the chemicals released, the chemicals found in people's bodies, and what we know medically about the effects of those chemicals? This is very difficult science. To be held to a standard of scientific proof, say ninety-nine percent confidence that there is this established cause and effect relationship would virtually make it impossible for this community to recover damages. Beyond a reasonable doubt, it's a different matter.

So what you see here is you see the media getting behind this case, being sympathetic, having a very clear story about chemical release, not really knowing where it went. Not really fully understanding what people's exposures were, how they might have been exposed via air or water or food. But you also have a community that has lived in an environment that socially has been seriously affected. There is no debate about the fact that the presence of the military put the economy of that island in the freezer for much of the twentieth century. And the impact of that in diminishing their income, diminishing their access to basic public services such as education and healthcare, such as early detection, having to travel off the island when you don't own a car to a hospital on the mainland of Puerto Rico is a big disincentive to get early medical care. So late medical care translates into a higher incidence of disease and detection when the illness has progressed to become more serious, becomes more difficult to manage.

Also, everyone is thinking about "Okay, what is the cost going to be?" What's a likely cost for this one site? And remember the figure that I showed you the other day, that Congress allocates roughly two to $2.5 billion dollars per year for the entire Superfund program. Whereas plausibly, it could take up to a billion dollars to clean this area and also to provide sufficient medical care for the community. And also remember the fact that many of these families had earlier generations that were plucked up off their property and moved.  How would you think about compensating them for their loss of property value? Given $25 in 1945 for a tract of land, or for the costs incurred by having your house bulldozed and having the family move to a different part of the island.

So it also raises a very interesting counterpoint to the Marshall Islands case that we saw the other week. And that is that when the United States decided to take over the Marshall Islands, they did so thinking that no one could survive an attack there. They had to move everybody out of the islands that they bombed. In this case, they believed that they could conduct their weapons testing in a way that would not harm the population. If they concentrated them in the center of the island and they bombed the end of the island, they weren't thinking ecologically about pathways. They weren't thinking about diet. They weren't thinking about airborne dust and prevailing winds. So that the idea that they should move the entire population off the island was reconsidered.

There are now available documents demonstrating that John Kennedy thought very, very carefully about this. And Kennedy, you remember was president during the Cuban invasion. And Vieques was a very important base for staging for the invasion of Bay of Pigs. And what Kennedy was thinking about was okay, why don't we completely remove the islanders and resettle them in other parts of the Caribbean? He decided against that move. But that decision perhaps has come back to haunt the government, and certainly is haunting the islanders. However, this whole mess is a product of misunderstanding basic ecological principles, as well as I think a disregard for the long-term health of the community.

Chapter 4. Wilderness Act and Endangered Species Act [00:40:14]

There are a couple of other statutes here that are at play. And I wanted to bring your attention to the Wilderness Act of 1964. And this statute is quite interesting in that it defines wilderness as, "An area in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the Earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain."

And it goes on to define characteristics of an area that would have to be met before it could be designated as wilderness. But at the same time that the government left Vieques and transferred jurisdiction to the Fish and Wildlife Service to create a U.S. Fish and Wildlife Refuge on the island, Congress decided that it was also going to declare the area a federal wilderness. So it is distinctive in the United States right now because it is the only Superfund site, reserved for the most hazardous sites in the nation, that is also declared to be a wilderness area, a paradox that maybe you could explain to me, especially looking at the site.

The government clearly thought that it would give them greater power to exclude people, which they think they're doing well by posting signs on the beach. This is a sign that is right on the edge of the water that is within perhaps a hundred yards of tanks sitting on a hillside that became the target for planes as well as artillery shells. So the idea that you could post a sign and it would keep people out. I took a research crew out there several years ago. And one afternoon, there were six or eight large pleasure boats all lined up about fifty yards from this sign. Kids were out swimming in the water, playing on the beach. So the idea that you could control people via signs, with no other presence, it defies explanation.

Another statute that's at play here is the Endangered Species Act. And the purposes of this statute, passed in 1973, are to provide a means whereby the ecosystems upon which endangered species and threatened species depend, may be conserved to provide a program for their conservation. So certain types of acts, including damaging the habitat of an endangered species, or taking an endangered species and either shooting it, by killing an endangered species, you are taking it, under this statute. So this law, again, passed back in 1973, and the U.S. left the island in 2003, there were three decades during which species declared to be rare or endangered, particularly the turtles that lived on the island, were clearly being affected by military behavior and maneuvers. So here's a list of the species, if any of you happen to be particularly interested.

So I'm going to have to scoot ahead here, so we can keep moving on. But I wanted you to recognize that this history of military action, of training, basically testing weapons, of staging maneuvers that preceded major military actions, it's created a legacy of severely contaminated sites around the nation. Here's Johnston Atoll, which is now the Pacific Islands National Wildlife Refuge. So you see, there actually is a pattern of taking a former highly contaminated military base, transferring its jurisdiction into a Fish and Wildlife refuge. This may look like the moonscape, but this is the atomic testing site in Nevada, where you can see the craters that are the result of hundreds of other above ground tests. Here's another highly contaminated site in Hanford, Washington. The Hanford Works, the site of the Green Run, that you could read about in Green Intelligence. The underground storage tanks, the same problem that I mentioned earlier in the lecture, leaking radioactive waste that is highly concentrated into the Columbia River. The Columbia River is a habitat for Pacific salmon and many other species of fish. And it's a very highly prized region.

The military reservation on Cape Cod provides one more example. This reservation has a history that spanned just about the same amount of time as Vieques, from about 1940 to just about the year 2000, 2001 actually. The jets that we're trying to catch up to on the September 11, 2001, hijackers, they were scuttled from the Massachusetts military reservation on Cape Cod. This site is sitting on sands and gravels. And it's basically a collection of very large aquifers on Cape Cod, in which the freshwater sits on top of underlying saltwater the closer you get to the ocean. So that anything put on the surface will drain into underlying sands and aquifers moving very quickly.

So this has become the largest drinking water contamination site and remediation site in the United States now. They drilled some 8,000 different wells to try to figure out where the fuels, the flame retardants, the munitions residues, the TNT and RDX, etc., where did it go? And they've monitored it out, and they created these plumes that pump the water up, out of that aquifer and then into these charcoal tanks, activated carbon tanks, some of which are bigger than this entire lecture hall. So day after day, twenty-four hours a day, decade for decade, this water is pumping through there, hoping that it will be cleaned up to meet the Safe Drinking Water Act standards by the year 2035. Three thousand pounds of solvents have been removed from that water. One thousand pounds of fuels was removed from the groundwater. And eight plumes are now undergoing treatment and remediation. This is immediately adjacent to a variety of cranberry bogs, so cranberry farmers bore the brunt of economic loss when this was discovered.

So critical lessons here about Vieques, knowledge is power, that's very clear. Classified information prevents the public from understanding what was done, when and where, what the nature of surrounding or nearby community threats might be. A question of who conducts the science. It's clear that the ATSDR who are within the Centers from Disease Control, was not doing high quality science and came to a premature conclusion of safety based upon a highly limited sampling. Science normally proves no causal relation. So this type of science is perhaps one of the more complex that I could imagine.

Also one lesson here that is apparent is that new evidence of risky behavior generates a very defensive attitude on the part of government. So any information that they release, any studies that they conduct, could increase their liability. So often the response is "Well, then let's just not study it."

Okay. I'm going to pause there, and just wish you a great weekend.

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