William Cohen
Secretary of Defense
1000 Defense Pentagon
Washington, D.C. 20301-1000
Dear Mr. Secretary,
I write out of a great concern that the issues created by the United States Navy's determination to deploy the low frequency active sonar system known as SURTASS LFA will strike at the foundations of the constitutional order. The question is rapidly becoming whether the Navy considers itself above the law and beyond accountability to any civilian authority. Given the importance of the question, I am providing you with a discussion of the legal and historical context defining the current situation. That context set the stage for what is ultimately a political issue facing your office.
Legally, the situation is deceptively simple. There are various laws which require a federal agency considering a significant federal action to evaluate possible environmental effects of the proposed action before making a decision to pursue the proposal.
The National Environmental Policy Act (NEPA) requires that the agency proposing the action prepare an environmental impact statement (EIS) prior to implementing the proposal. NEPA requirements include a mandate to consider alternatives to the proposed action and to provide an opportunity for public comment on that consideration prior to a final decision.
Historically, the United States Navy apparently determined in the early 1980's that the existing passive sonar systems could not detect a new generation of silent, diesel submarines. In response to that determination, the Navy proposed to develop new systems for detecting such submarines and evaluated numerous alternatives. That initial consideration should have prompted the preparation of an EIS examining those alternatives with an opportunity for public comment on the alternatives considered. 42 U.S.C. Section 4332(C)(iii) and (E).
Instead, the Navy simply decided internally that low frequency active (LFA) sonar was the only available technology. The selection of the LFA alternative for detection did not involve environmental considerations. The Navy acknowledges this history in their draft EIS for SURTASS LFA deployment. Draft Overseas Environmental Impact Statement and Environmental Impact Statement for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar (hereinafter "DEIS") dated July 1999 at 1-5 - 1-8.
After choosing the LFA technology, the Navy engaged in an extensive program of research,
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development, testing, and evaluation over approximately a ten year period. DEIS at 1-8 - 1- 9. All of this activity took place prior to the initiation, let alone the completion, of an EIS.
In 1995, the Natural Resources Defense Council discovered the Navy on the verge of deploying the SURTASS LFA and threatened suit based on the failure to prepare an EIS. On July 18, 1996, the Navy responded by announcing its intention to prepare an EIS.
Returning to the legal context, NEPA procedures requiring a consideration of alternatives include the alternative of taking no action. As part of the alternatives consideration, the federal agency is required to prepare a detailed statement of "any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." 42 U.S.C. Section 4332(C)(v). The requirement is clearly that such a detailed statement be prepared before a decision to pursue the proposal is made and before such irreversible and irretrievable commitments of resources.
By expending considerable resources on the development and testing of the SURTASS LFA system prior to preparing an EIS, the Navy violated that NEPA requirement and created a momentum for deployment of SURTASS LFA - exactly the situation the law seeks to avoid.
Because the SURTASS LFA system has potential adverse effects on endangered species, such as whales, a similar provision in the Endangered Species Act (ESA) should have prevented the Navy from making such resource commitments. 16 U.S.C. Section 1536(d). The Navy has been and continues to be in violation of this section as well.
Despite finally agreeing to prepare an EIS, the Navy never stopped expending irreversible and irretrievable resources in furtherance of deployment. As I am sure you can confirm, the Navy is constructing a ship (TAGOS-23) designed to carry the SURTASS LFA, installing the infrastructure on that ship necessary for carrying a SURTASS LFA system, and fabricating a second system. These and other resource commitments are for deployment and have nothing to do with studies or other developmental work relevant to the EIS. All of these expenditures constitute a continuing violation of NEPA and ESA.
Last week, I formally placed the Secretary of the Navy and the Secretary of Commerce on notice of these violations pursuant to 16 U.S.C. Section 1540(g). That formal notice, however, is not the first time either agency has been notified of the violations. During the 1998 testing of SURTASS LFA off the coast of the Island of Hawai`i, various organizations and individuals filed law suits to stop the testing. During the litigation of those suits, the continuing expenditure of irretrievable resources by the Navy was brought to the attention of the agencies. Obviously, the Navy knows without notice that it is violating NEPA and ESA.
The real problem arises because the Navy has spent at least $350 million on SURTASS LFA to date. The momentum for deployment creates tremendous pressure for the EIS to justify
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deployment, rather than being an objective assessment of environmental impact. Not surprisingly, the DEIS is characterized by (1) a discussion of irreversible and irretrievable commitments of resources consisting of a single paragraph, DEIS at 9-1, which obviously evades the NEPA requirement for a "detailed statement", 42 U.S.C. Section 4332(C); deliberate omission of evidence demonstrating adverse effects on marine life and humans developed during the testing phase; misuse of the minimal scientific research conducted on environmental effects to justify full scale deployment; and other serious deficiencies. I have enclosed my comments on the DEIS to give you one perspective on those deficiencies. Numerous other individuals and organizations filed highly critical comments, which I encourage you to request for your review.
The current situation is that we have the combination of ongoing massive expenditures in pursuit of deployment and a draft EIS that gives all the appearance of being a chimera, which looks like an EIS and yet lacks the required integrity and comprehensive of a true EIS. Having gone so far down the road toward deployment before belatedly agreeing to prepare an EIS, refused to stop preparing for deployment even after such agreement, and preparing a draft EIS that does not come close to meeting the requirements of NEPA, the Navy created a major difficulty for everyone.
There will be court challenges to the Navy's actions to date. The Navy will undoubtedly press a claim of national security upon the court, as it did in the 1998 litigation. I am sure the Navy will also argue that to stop the ongoing expenditures would produce major disruption and irreparable harm.
The judiciary will then be placed between a rock and a hard place, with an agency substantively and substantially violating environmental laws over an extensive period of time in pursuit of a system the agency claims is necessary for national security. To accept the Navy's behavior would be to create an exemption for the Navy to compliance with the law. Such an exemption would be to place the Navy beyond the mandates of Congress applicable to all other federal agencies and call into question whether the Navy is actually subject to civilian control.
To stop the deployment, even for the time necessary for the Navy to prepare an adequate EIS, would require the court to reject the Navy claims of harm to the national security. Federal judges are very reluctant to take such a step.
There is one final factor I ask you to consider. Part of the heightened public concern regarding deployment of this system is the threat posed by LFA to marine life, such as whales. The Navy ignored evidence regarding such effects during the Hawai`i testing. More importantly, the EIS is prepared only for routine deployment during military operations and does not address "the use of the system in armed conflict or direct combat support operating, nor during periods of heightened threat conditions, as determined by the National Command
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Authority." If the Navy does not take a hard look at potentially damaging effects on the environment from routine operations, the Navy will not have really considered the potential damage from use during conflict and threat conditions.
The Endangered Species Act provides that you, as Secretary of Defense, can secure an exemption for SURTASS LFA, if you find that exemption is necessary for reasons of national security. 16 U.S.C. Section 1536(k). I would assume that you would want to know just what damage this system could actually do under all circumstances, including conflict and threat conditions, before accepting this alternative as the technology of choice for detecting silent submarines.
Given that the Navy did not pursue an open process for selecting the LFA technology, there is no reason to assume alternatives are not available. That the Navy is spending more than $100 million for Lockheed Martin Corporation of Manassas, Virginia to build a passive deep water, undersea surveillance system for both open ocean areas and noisy coastal areas at least strongly suggests that alternatives are in fact available and acceptable to the Navy.
I respectfully suggest that, before a federal judge has to step into the mine field created by the Navy, you provide yourself with some independent assessment of (1) the adequacy of the EIS process being conducted by the Navy for SURTASS LFA; (2) the potential impacts of full scale use of SURTASS LFA; and (3) the availability of options for achieving the same purpose. Given the conflict of interest within the Navy created by the major investment to date in the SURTASS LFA system, I also respectfully suggest that you remove the final decision on deployment from the Secretary of the Navy to your office.
What has happened is a most unfortunate series of events created by an inadequate concern for environmental effects early in the process. Now that evidence of those effects is emerging, the tendency is to ignore, suppress, or otherwise deny those effects. Those involved on a day to day basis with the development to date have a vested interest in such denial. I am writing in the hope that you can take a broader overview and relieve those who continue a mistake made long ago from the responsibility for stopping the process now.
I trust that whoever reads this letter first will perceive the contents as important enough to bring to your personal attention.
Sincerely,
/s/
Lanny Sinkin
Enc.: Comments on draft Environmental Impact Statement
c.c: Senators Daniel Inouye and Daniel Akaka, Representative Patsy Mink
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