Environmental deconfliction 2021: The National Defense Authorization Act for FY 2021

I n early November 2021, the U.S. Congress passed a $1 trillion infrastructure bill with broad bipartisan support. The bill was the result of months of negotiation between the Joseph Biden Administration and a bipartisan group of senators. It constitutes the largest infusion of federal investment into infrastructure projects in more than 10 years.1 In addition to spending hundreds of billions of dollars on “hard infrastructure” like roads and bridges, the bill funds major environmental and energy projects, providing billions to manage the risks of climate change, reduce wildfires, modernize the electric grid, support electric car charging stations, and buttress water and wastewater infrastructure, among other like initiatives.2 1. Jonathan Weisman et al., House Passes $1 Trillion Infrastructure Bill, Putting Social Policy Bill on Hold, N.Y. Times (Nov. 5, 2021), https://www. nytimes.com/2021/11/05/us/politics/house-infrastructure-reconciliation. html; Emily Cochrane, Senate Passes $1 Trillion Infrastructure Bill, Handing Biden a Bipartisan Win, N.Y. Times (Aug. 11, 2021), https://www.nytimes. com/2021/08/10/us/politics/infrastructure-bill-passes.html. 2. Mary Clare Jalonick, What’s Inside the Senate’s Bipartisan Infrastructure Bill, AP (Aug. 11, 2021), https://apnews.com/article/joe-biden-business-bills38b84f0e9fcc8e68646eedf6608c4c70; Paul Nelson, Infrastructure Bill Provides Money for Wildfires, Drought, and Schools, KTVN (Aug. 9, 2021), https://www.ktvn.com/story/44485692/infrastructure-bill-provides-moneyfor-wildfires-drought-and-schools. The infrastructure bill is proof positive that important energy and environmental priorities can be advanced through laws that may not be directly aimed at those issues but are nonetheless related. Nowhere is that truer than with regard to the omnibus yearly defense policy bill, the National Defense Authorization Act (NDAA). Although fundamentally tied to national security and military readiness, many provisions of the NDAA signal consequential energy, environmental, and natural resources policy, in light of the enormity of the U.S. Department of Defense (DOD) and the American military. So significant has defense policymaking become in these areas that one observer called the NDAA Congress’ “hidden green-infrastructure bill.”3 The U.S. military is the greatest energy consumer in the world, as well as one of the globe’s major greenhouse gas emitters.4 DOD manages more than 27 million acres of land—double the size of all American state parks combined—that is home to hundreds of threatened and endangered species.5 With a budget that is several times larger than that of other federal agencies, and with outposts 3. Dan Farber, The Hidden Green-Infrastructure Bill, Legal Planet (June 14, 2021), https://legal-planet.org/2021/06/14/the-hidden-greeninfrastructure-bill/. 4. Neta C. Crawford, The Defense Department Is Worried About Climate Change—And Also a Huge Carbon Emitter, Conversation (June 12, 2019), https://theconversation.com/the-defense-department-is-worried-about climate-change-and-also-a-huge-carbon-emitter-118017. 5. Ya-Wei Li & Tim Male, Environmental Policy Innovation Center, The Conservation of Defense: Opportunities to Promote ConservaAuthors’ Note: The authors express their sincere appreciation to WilmerHale Associate Mark L. Hanin and senior paralegal Caryn P. Garvin for their contributions. Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 51 ELR 11026 ENVIRONMENTAL LAW REPORTER 12-2021 bestriding the globe, DOD’s influence on energy, environment, and natural resource management can have national and even worldwide impact. As we have written of previous such defense authorization bills, the NDAA may be one of the most significant pieces of energy and environmental legislation most people have never heard of. For years, the NDAAs’ impact on energy, environment, and natural resources has been steadily evolving. The William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (the 2021 NDAA), which became law on New Year’s Day 2021, reinforces that trajectory.6 Judged by the breadth, depth, and volume of the law’s provisions addressing this suite of issues, the 2021 NDAA represents another significant foray into law making in the energy, environment, and natural resources management regime. At about 1,500 pages in length, the 2021 NDAA authorized $731.6 billion in defense spending for fiscal year (FY) 2021, including a base budget of $635.5 billion, $69.0 billion for overseas contingency operations, $26.6 billion for defense-related nuclear energy expenses, and $500 million for other federal agencies.7 Of that sum, the law authorizes a total of $7.35 billion for environmental remediation, including $1.07 billion for DOD’s environmental restoration accounts, which fund the remediation of environmental contamination and unexploded ordnance; $300.4 million to fund the remediation at defense installations closed as a result of a Base Realignment and Closure (BRAC) process; $5.82 billion for the U.S. Department of Energy’s (DOE’s) defense environmental cleanup account that funds the cleanup of former U.S. nuclear weapons production sites; and $163.3 million for DOE’s Office of Legacy Management charged with long-term stewardship of nuclear sites after cleanup is complete.8 These are among the many provisions touching on environment, energy, and natural resources. The 2021 NDAA elicited extraordinarily strong bipartisan support: it was passed by a Democratic U.S. House of Representatives and a Republican U.S. Senate, and it then garnered the support of 322 House members and 81 senators, north of 78% and 86% of each chamber’s voting members, respectively, to overcome a presidential veto.9 The 2021 NDAA sets important defense policy as it relates to many key areas. For example, it seeks to promote the energy resilience of DOD installations and reduce the dependence of U.S. forces on fossil fuels while promoting renewable energy. The law mandates a greater focus by military planners on how to prepare for, and adapt to, climate change. And it continues a years-long effort to stop tion Through Military Readiness 4 (2020), https://nri.tamu.edu/media/2960/conservation-of-defense.pdf. 6. 2021 NDAA, Pub. L. No. 116-283, https://www.congress.gov/bill/116thcongress/house-bill/6395/text/enr. 7. Pat Towell, Congressional Research Service, R46714, FY2021 National Defense Authorization Act: Context and Selected Issues for Congress 1 (2021), https://www.everycrsreport.com/files/2021-03-08_ R46714_fa874f9662ce23860de513d02a7339dbbe58b221.pdf. 8. Id. at 16-17. 9. Congress.gov, Actions Overview H.R.6395—116th Congress (2019-2020), https://www.congress.gov/bill/116th-congress/house-bill/6395/actions (last visited Oct. 19, 2021) [hereinafter Actions Overview H.R.6395]. the use of per- and polyfluoroalkyl substances (PFAS) in firefighting foam and to remediate residual PFAS contamination. The law also expands certain DOD authority for environmental cleanup projects while authorizing billions of dollars to that end, bolsters wildlife conservation, and establishes new research policies on sustainable chemistry. In this Article, the fourth in an annual series,10 we provide an overview of the 2021 NDAA’s major provisions as they relate to energy, the environment, and natural resources. Those provisions can generally be grouped into four broad categories: (1) climate and infrastructure resiliency; (2) energy management; (3) PFAS and remediation of contaminants; and (4) environment and natural resources management. We summarize in Part I the most significant provisions, then explore and analyze each category in detail. I. Executive Summary A. Climate and Infrastructure Resiliency (1) Assessing and combatting climate change. The NDAA advances several policies to address climate change. First, it directs a pilot program on alternative fuel purchasing, which may have significant consequences for the transition of the federal car fleet to green energy. Second, it calls for several major reports—including an updated climate change adaptation road map, which must set out the Department’s plan to address the potential adverse impact of a changing climate on the military, a report on the impacts of climate change on the U.S. Coast Guard, and a report on DOD’s greenhouse gas emissions over a decade. Third, breaking new ground, the NDAA requires the inclusion of top-line estimates of the investments required to address costs attributed to climate change, bringing transparency to a complex issue. Finally, the law requires studies related to environmental disasters like wildfires. (2) Infrastructure construction and installations resilience. The 2020 NDAA made significant changes to military construction policy; in particular, it placed installation resilience near the center of its 10. Rachel Jacobson & Matthew F. Ferraro, Environmental Deconfliction 2020: The National Defense Authorization Act for FY 2020, 50 ELR 10983 (Dec. 2020), https://elr.info/news-analysis/50/10983/environmental-deconfliction-2020-national-defense-authorization-act-fy-2020 [hereinafter Jacobson & Ferraro, Environmental Deconfliction 2020]; Rachel Jacobson & Matthew F. Ferraro, Environmental Deconfliction 2019: The National Defense Authorization Act for FY 2019, 49 ELR 10220 (Mar. 2019), https://elr. info/news-analysis/49/10220/environmental-deconfliction-2019-nationaldefense-authorization-act-fy-2019 [hereinafter Jacobson & Ferraro, Environmental Deconfliction 2019]; Rachel Jacobson et al., Environmental Deconfliction: The National Defense Authorization Act for Fiscal Year 2018 and Its Implications for Energy, Environment, and Natural Resources, 18 Pratt’s Energy L. Rep. 223 (2018), https://www.wilmerhale.com/en/insights/ publications/20180720-environmental-deconfliction-the-national-defenseauthorization-act-for-fiscal-year-2018-and-its-implications-for-energy-environment-and-natural-resources [hereinafter Jacobson et al., Environmental Deconfliction 2018]. Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 12-2021 ENVIRONMENTAL LAW REPORTER 51 ELR 11027 analysis of existing and new construction. The 2021 NDAA expands the military’s construction authority to address installation resilience by enlarging the scope of projects that can be undertaken under this authority to include certain Readiness and Environmental Protection Integration (REPI) Program projects.11 The NDAA also calls for (1) a report to be part of each new national defense strategy on sustainment and logistics, and (2) a biannual report on a U.S. Navy program to improve the conditions of shipyards, in part out of concerns about sea-level rise. (3) Water sustainment and maritime policy. The NDAA requires DOD to research, develop, and deploy “water sustainment technologies” to address anticipated water shortages at certain military bases. It also seeks to improve water management on military installations through (1) a “risk-based approach,” (2) creation of an assessment methodology for analyzing risks to sustainable water management and security, and (3) improved landscaping practices to increase water resiliency. On maritime policy, the NDAA reauthorizes the National Oceanographic Partnership Program, which facilitates partnerships among federal agencies, academia, and industry to advance ocean science research and education. It likewise authorizes $5 million for the National Maritime Heritage Grant Program for education and preservation projects designed to preserve historic maritime resources. The law also requires a report on how foreign governments leverage distant-water fishing fleets to extend their maritime security power. (4) Arctic prioritization. The NDAA expresses the “sense of Congress” that the strategic importance of the Arctic region “continues to increase.” To that end, the law calls for the establishment of an Arctic Shipping Federal Advisory Committee to advise the Secretary of Transportation on emerging opportunities for Arctic maritime transportation; calls for the establishment of an Arctic Security Studies Center; and directs DOD to assess risks stemming from the Arctic and to align training, research, and development requirements against those risks. B. Energy Management (1) Energy resilience. The 2021 NDAA proceeds on several tracks to improve the military’s energy resilience and energy conservation activities. The law continues efforts of the past several years to place considerations of energy resilience at the heart of military construction policy. It imposes new requirements on DOD to ensure that sufficient energy is provided at all U.S. bases to power critical missions, and it imposes energy-consumption-conscious 11. As discussed infra Section VI.B, the REPI Program promotes public-private partnerships in conserving natural habitats near military bases to further military goals. requirements on DOD contractors. Likewise, the law directs the military to consider how energy issues factor into the life-cycle costs of new construction, and authorizes funds for energy generation and conservation projects at several bases. The NDAA also directs a study on creating a fuel reserve for the western United States; seeks to promote energy resilience and energy security policies in privatized utility systems; directs the Secretary of Defense to consider using on-site energy production to promote energy resilience on military installations themselves; requires improvements in electrical metering at domestic DOD infrastructure; and authorizes DOD to create an emergency diesel generator microgrid pilot program to test assumptions about their use. And it reestablishes the position of assistant secretary of defense for energy, installations, and environment, which had been abolished in 2018. (2) Operational energy. Operational energy is the energy required for training, moving, and sustaining military forces and weapons for military operations. The law extends policies made in previous NDAAs to allow DOD to apply energy cost savings from “operational energy” to a broad range of activities, further incentivizing the Department to save energy. The law strengthens insight into the use of operational energy by creating a dedicated budget line for operational energy requirements, mandating an assessment of the use of operational energy by DOD, and authorizing increased funding for an account dedicated to operational energy. (3) Energy sources. The NDAA contains several provisions that promote various sources of energy. These include provisions to assess the feasibility of energetics (a branch of mechanics that deals primarily with energy and its transformations) and to expand military authority to assist green energy projects near military installations. These provisions also relate to the acquisition of furnished energy12 for a military installation in Germany, require a report on the feasibility of liquefied natural-gas-fueled vessels, expand authority relating to non-mineral energy resources on the continental shelf, and authorize nuclear-energyrelated expenditures. C. PFAS and Remediation of Contaminants (1) PFAS. Successive NDAAs have spearheaded congressional efforts to address the effects of historically oft-used fire suppressants known as perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) (or, collectively, PFAS). The 2021 NDAA continues Congress’ endeavors to remediate alleged PFAS contamination and search for alternatives. The 12. “Furnished energy” is a term of art that means “energy furnished to a covered military installation in any form and for any purpose, including heating, cooling, and electricity.” Defense Federal Acquisition Regulation Supplement §252.225-7053. Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 51 ELR 11028 ENVIRONMENTAL LAW REPORTER 12-2021 NDAA requires that DOD provide notifications to Congress of all releases of firefighting foam containing PFAS, authorizes prizes for the development of firefighting chemicals that do not contain PFAS, and calls for a survey of technologies DOD could use to phase out aqueous film-forming foam (AFFF), which can contain PFAS. The law also directs the awarding of grants for research and development of alternatives to AFFFs that contain PFAS or fluorine. The NDAA creates an interagency working group to coordinate federal activities related to PFAS research and development, directs DOD to notify agricultural operations near military facilities where PFAS has been detected in the groundwater, prohibits DOD from procuring certain products that contain PFOS or PFOA, and directs a study that will examine the presence of PFAS in firefighting equipment. (2) Burn pits. For years, lawmakers have used the yearly NDAAs to force the military to stop using open burn pits to incinerate waste in war zones and to address the alleged health effects of their use. The 2021 NDAA continues those efforts by requiring the sharing of certain information on servicemembers’ health and requiring extended health assessments of certain veterans exposed to open burn pit operations. (3) Other contaminants. The NDAA promotes the remediation of the effects of a range of contaminants. It requires the Navy to regularly review technology that could help contain a fuel spill at the Red Hill Bulk Fuel Storage Facility in Hawaii; directs the U.S. Army to submit to Congress a plan for completing remediation of wastewater and chemicals in Umatilla, Oregon; and addresses nuclear waste at the Hanford site in Washington State, by prohibiting efforts to reclassify some such material as low-level radioactive waste and by requiring continued analysis for the supplemental treatment of Hanford-related waste. In the area of servicemember health, the NDAA expands the number of diseases that the law presumes are connected with military service during the Vietnam War, requires an audit of the medical conditions of residents in certain privatized military housing, directs a study of the exposure of military personnel to toxic substances at an air base in Uzbekistan, and requires the Department to submit a study on establishing a service medal to recognize veterans exposed to radiation. D. Environment and Natural Resource Management (1) Environmental cleanup. The law expands DOD’s authority for environmental restoration projects, including those intended to mitigate the environmental effects of military activities on Native American lands. It also requires an annual public statement by the Secretary of Energy on the environmental liabilities of defense nuclear facilities where defense environmental cleanup activities are occurring, as well as a report to Congress on any missed milestones for defense environmental cleanup plans at DOE sites. The NDAA also directs an independent study on the potential environmental effects of nuclear war. The NDAA includes several provisions related to oil spill remediation and to the funding of defense environmental cleanups in the United States and in Vietnam. Notably, the law makes several changes to the Oil Pollution Act of 1990 (OPA),13 which was enacted after the Exxon Valdez oil spill, to (among other things) direct the Coast Guard to lead and revitalize interagency efforts to coordinate oil spill research and response technology development. The NDAA also requires a report on how liability limits for oil discharges are set, and repeals a loan program for fishermen related to losses from oil discharge incidents. (2) Land, space, and wildlife conservation. The NDAA broadens the reach of the REPI Program, which promotes public-private partnerships in conserving natural habitats near military bases to further military goals. The law includes several provisions addressing wildlife conservation, including those related to orcas, promotes the use of wildlife conservation banks, and protects lands that contain valuable natural resources. Congress also enlists DOD in efforts to mitigate the impact of wastewater entering the United States from Mexico’s Tijuana River Valley. And, related to mineral extraction and mining, the NDAA directs DOD to source critical materials either domestically or from its closest allies, and not from far-flung international supply chains that involve China, amid growing SinoAmerican competition. The law also directs a report on how the United States can compete with China in space. (3) Noise pollution. Noise emitted by military equipment and operations constitutes its own form of pollution. To help address it, the NDAA requires real-time sound monitoring at Navy installations that house Navy fighter aircraft, and requires DOD to create a process to receive, track, and analyze complaints of noise emanating from military helicopters in the Washington, D.C. area. The law also requires the Secretary of Defense to write a comprehensive report on the effect of noise restrictions on military operations and to recommend cost-effective measures for mitigating noise pollution. (4) Sustainable chemistry. The NDAA includes a series of bipartisan provisions to establish a comprehensive national strategy for the research and development of sustainable chemistry, which is the design of chemical products that reduce or eliminate the generation of hazardous substances. 13. 33 U.S.C. §§2701-2761, ELR Stat. OPA §§1001-7001. Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 12-2021 ENVIRONMENTAL LAW REPORTER 51 ELR 11029 II. Overview of Authorization and Appropriations Processes Congress has the constitutional authority to appropriate money from the U.S. Treasury to fund the federal government.14 Congress exercises this authority through a two-step authorization-appropriations process. First, Congress enacts authorization legislation that authorizes the appropriation of funds for specific purposes. Second, Congress must enact an appropriations law (or budget bill) to provide funds for the authorized agency, program, or activity.15 Both bills must be signed by the president to become law. The House Armed Services Committee (HASC) and the Senate Armed Services Committee (SASC) have jurisdiction over the annual NDAA, which authorizes the appropriations of funds for DOD, nuclear weapons programs of DOE, and defense elements of the U.S. intelligence community. The NDAA also “establishes defense policies and restrictions, and addresses organizational administrative matters related to [DOD].”16 The HASC and SASC work in parallel. Each committee holds hearings and writes its own national defense authorizing legislation, both of which are then reconciled by a conference committee. Once both houses of Congress approve the reconciled bill, it is presented to the president for signature. The House and Senate approved the conference version of the 2021 NDAA on December 8, 2020, and December 11, 2020, respectively. It was presented to President Donald Trump for signature on December 11, 2020.17 In an unprecedented move, the president vetoed the legislation on December 23, offering a litany of sometimes conflicting justifications.18 He tweeted, for instance, that the NDAA was “weak,” failed to confront China sufficiently, and neglected to remove unrelated immunity protections from Internet platforms.19 Congress overruled the president’s veto by votes of 322-87 in the House on December 28, 2020, and 81-13 in the Senate on January 1, 2021, making the bill law on New Year’s Day.20 14. U.S. Const. art. I, §9, cl. 7. 15. See Bill Heniff Jr., Congressional Research Service, RS20371, Overview of the Authorization-Appropriations Process 1 (2012), https:// www.senate.gov/CRSpubs/d2b1dc6f-4ed2-46ae-83ae-1e13b3e24150.pdf. 16. Valerie Heitshusen & Brendan W. McGarry, Congressional Research Service, IF10515, Defense Primer: The NDAA Process 1 (2021), https://fas.org/sgp/crs/natsec/IF10515.pdf. 17. Actions Overview H.R.6395, supra note 9. 18. Amanda Macias & Kevin Breuninger, House Overrides Trump Veto of $740 Billion Defense Bill, Sends to GOP-Led Senate, CNBC (Dec. 28, 2020), https://www.cnbc.com/2020/12/28/house-votes-to-override-trump-ndaaveto.html. 19. Claudia Grisales, Trump Vetoes Defense Bill, Setting Up Congressional Vote to Potentially Override Him, NPR (Dec. 23, 2020), https://www. npr.org/2020/12/23/949586964/trump-vetoes-defense-bill-setting-upcongressional-vote-to-override-him. 20. Actions Overview H.R.6395, supra note 9. III. Climate and Infrastructure Resiliency The NDAA addresses climate change and infrastructure resiliency in a variety of ways. It requires an alternative fuelpurchasing pilot program, which could have ramifications for the federal automotive fleet, and mandates a series of reports on the military’s preparation for and contribution to climate change. The law expands policies undertaken in the previous NDAA to emphasize installation resilience in military construction. Further, the NDAA recognizes that a warming planet poses threats to potable water essential to military readiness. Hence, the NDAA requires research and deployment of water sustainment technologies and the development of trailer-mounted water-harvesting systems for use at forward operating bases. Finally, the NDAA echoes years of defense policy bills in raising the alarm over the importance of the Arctic region to national security interests, and establishes Arctic policies that implicate DOD, the U.S. Department of Transportation, and others. A. Assessing and Combatting Climate Change Section 321—Pilot Program on Alternative Fuel Vehicle Purchasing. Furthering the federal government’s shift to electric vehicles, the NDAA establishes an alternative fuel vehicle pilot program that will require the military services to expand their use of alternative fuel non-tactical vehicles, such as hybrid and electric vehicles. The Secretary of Defense is to carry out this pilot program at two or more facilities of each military department in the continental United States.21 Section 327—Requirement to Update Department of Defense Adaptation Roadmap. A pair of Executive Orders from 2012 and 2014 compelled DOD to release a 2014 Climate Change Adaptation Roadmap.22 The road map, signed by then-Secretary of Defense Chuck Hagel, details the threats to military readiness and national security posed by climate change, and sets forth a series of actions to identify and assess the effects of climate change on the Department, integrate climate change considerations across the Department and manage associated risks, and collaborate with internal and external stakeholders on climate change challenges.23 The 2021 NDAA requires the Secretary of Defense to update the 2014 Roadmap by February 1, 2022. The law directs that the report outline DOD’s comprehensive strategy for addressing the effects of climate change, including worsening storms, drought, flooding, wildfires, and melting sea ice. “Unlike previous DoD Climate Roadmaps, the updated version must provide top-line estimates of the investments required to address costs incurred by climate change over the next five, ten, and 20 years,” observed the American Security Project, a nonpartisan 21. 2021 NDAA §321(a), (b). 22. DOD, 2014 Climate Change Adaptation Roadmap 3 (2014), https:// www.acq.osd.mil/eie/downloads/CCARprint_wForward_e.pdf. 23. Id. at 1. Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 51 ELR 11030 ENVIRONMENTAL LAW REPORTER 12-2021 national security organization.24 These investments may address heightened demand for disaster or humanitarian relief operations, climate threats to testing and training and military installations, and enlarged operations in an increasingly ice-free Arctic.25 Section 328—Department of Defense Report on Greenhouse Gas Emissions Levels. The NDAA requires the Secretary of Defense to submit a report to Congress and to the comptroller general on DOD’s total level of greenhouse gas emissions measured yearly for each of the past 10 FYs. “Such emissions levels shall include the agency-wide total, breakdowns by military department, and delineations between installation and operational emissions.” The report is due 180 days after the date of the NDAA’s enactment.26 This data may be used to provide a baseline from which greenhouse gas emissions reductions can be measured. Section 8250—Report on Effects of Climate Change on Coast Guard. The NDAA calls for the commandant of the Coast Guard to submit to the Senate Committee on Commerce, Science, and Transportation, along with the House Committee on Transportation and Infrastructure, a report on vulnerabilities of Coast Guard installations from climate change and on increased demands on the service resulting from the same. The report must list the 10 most vulnerable Coast Guard installations based on the anticipated effects of climate change, including rising sea tides and increased flooding, and address potential mitigations. On increased demands, the report must consider any possible increase in the frequency of the Coast Guard’s need to provide humanitarian assistance and deploy disaster relief missions due to extreme weather events, as well as contingency plans. Section 339—Assessment of Department of Defense Excess Property Programs With Respect to Need and Wildfire Risk. Federal excess personal property refers to U.S. Forest Service-owned property that is on loan to state entities for firefighting. Most of the property originally belonged to DOD. Once the Forest Service acquires the property, it loans it to state cooperators to fight fires.27 The Firefighter Property Program is a DOD program in which firefighters can receive excess DOD property for firefighting and emergency services.28 The NDAA calls for a study of these programs, specifically analyzing “community need and risk.”29 This study is very timely, given the extraordinary cost and destruction wrought by the West’s worsening year-round fire season and the government’s 24. Katherine Seevers, Climate & Energy Resiliency in the FY2021 NDAA, Am. Security Project (Jan. 26, 2021), https://www.americansecurityproject. org/climate-energy-resiliency-in-the-fy2021-ndaa/. 25. 2021 NDAA §327(b)(2)(A)-(D). 26. Id. §328(a). As of this writing, the report has not been made available to the public. 27. Forest Service, U.S. Department of Agriculture, Federal Excess Personal Property Program & Firefighter Property Program, https://www.fs.usda.gov/ managing-land/fire/fepp (last visited Oct. 19, 2021). 28. Id. 29. 2021 NDAA §339(a). interest in allocating DOD resources to support civilian wildfire suppression.30 Section 519B—Study and Report on National Guard Support to States Responding to Major Disasters. The NDAA calls for a DOD study on National Guard support to federal agencies and states during major disasters. The study must include a review of the authorization of fulltime National Guard duty and the speed of such an authorization. In addition, the study must cover the effectiveness of the funding transfer process between the Federal Emergency Management Agency and DOD, training materials, and lessons learned from the response to COVID-19.31 B. Infrastructure Construction and Installations Resilience Section 315—Modification of Authority to Carry Out Military Installation Resilience Projects. For several years, defense authorization bills have focused on developing “military installation resilience.” The term was first inserted into the federal code by the 2019 NDAA, which defined it as the capability of a military installation to prepare for and recover from “extreme weather events” and “changes in environmental conditions” that “adversely affect the military installation.”32 The 2020 NDAA included several provisions that placed the concept more at the center of DOD’s military construction program by requiring changes in DOD’s construction planning documents, directing that they take into consideration the projected changes in sea-level rise and the long-term effects of climate change.33 The 2020 NDAA also provided permanent general authority to DOD to carry out military construction projects for installation resilience.34 The 2021 NDAA continues Congress’ efforts to expand military construction authority to address installation resilience.35 It does so by enlarging the scope of projects that can be undertaken under this authority. Now, projects carried out pursuant to the law can be on a military installation; on a facility used by DOD that is owned by or operated in any state, if the Secretary of Defense “determines that the facility is subject to significant use by the armed forces for testing or training,” or outside of a military installation if the Secretary “determines that the project would preserve or enhance the resilience of” a “military installation”; certain DOD-owned facilities; or “community infrastructure determined by the Secretary concerned to be necessary to 30. See, e.g., Rosmery Izaguirre, Worst Fires in California History: Dixie, Camp, and More, L.A. Times (Aug. 24, 2021), https://www.latimes.com/california/ story/2021-08-24/worst-fires-in-california-history-dixie-camp-and-more. 31. 2021 NDAA §519B(a). 32. Jacobson & Ferraro, Environmental Deconfliction 2020, supra note 10, at 10988-89 (quoting 10 U.S.C. §101(e)(8)); see also Jacobson & Ferraro, Environmental Deconfliction 2019, supra note 10, at 10226 (discussing 2019 NDAA §2805). 33. See Jacobson & Ferraro, Environmental Deconfliction 2020, supra note 10, at 10988-91 (discussing relevant provisions). 34. Id. at 10989 (discussing 2020 NDAA §2801(b), which modified 10 U.S.C. §2815). 35. Id. Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 12-2021 ENVIRONMENTAL LAW REPORTER 51 ELR 11031 maintain, improve, or rapidly reestablish installation mission assurance and mission-essential functions.”36 REPI is DOD’s authorization to invest in conservation projects that protect military installations, such as buffer partnerships for easements near installations to preserve natural habitats. Section 315 of the 2021 NDAA modifies this program. The 2019 NDAA had originally expanded the REPI Program to allow the public-private partnerships to include agreements that enhance or improve “military installation resilience.” The 2021 NDAA amends federal law to allow REPI fund recipients to use those funds “to satisfy any matching funds or cost-sharing requirement of any conservation or resilience program of any Federal agency notwithstanding any limitation of such program on the source of matching or cost-sharing funds.”37 Importantly, conservation programs that receive federal funding from other agencies, such as the U.S. Fish and Wildlife Service, that require a nonfederal match, can now use REPI funding for that nonfederal match. Doing so, the law says, will “facilitate interagency cooperation and enhance the effectiveness of actions that will protect the environment, military installation resilience, and military readiness.”38 Section 341—National Defense Sustainment and Logistics Review. The NDAA adds a new requirement at the submission of each national defense strategy: a regular report to the congressional defense committees on the sustainment and logistics requirements necessary to support force structure, modernization, and deployment capabilities over periods up to 25 years.39 Among many other components, each report must analyze “the location, infrastructure, and storage capacity for petroleum, oil, and lubricant products, as well as the ability to store, transport, and distribute such products from storage supply points to deployed military forces, required to meet steady state and contingency requirements,” and “the cybersecurity risks to military and commercial logistics networks and information technology systems.”40 Section 346—Biannual Briefings on Status of Shipyard Infrastructure Optimization Plan. The Shipyard Infrastructure Optimization Plan (SIOP) is a program of the Navy to improve the conditions of shipyards. For instance, the Navy has determined that the “Norfolk Naval Shipyard is particularly at risk to flooding and ground subsidence,” in part because “local sea level rise for Norfolk, Virginia, will be about 0.16 inches per year, twice the global rate.”41 The NDAA calls for twice yearly briefings by the Secretary of the Navy to the congressional defense committees on the SIOP.42 The briefing must 36. 2021 NDAA §315(a) (amending 10 U.S.C. §2815). 37. Id. §315(b) (amending 10 U.S.C. §2684a). 38. Id. 39. Id. §341(a). 40. Id. 41. Naval Sea Systems Command, Frequently Asked Questions, https://www. navsea.navy.mil/Home/Shipyards/SIOP/SIOP-FAQs/ (last visited Oct. 19, 2021) (see Q&A7). 42. 2021 NDAA §346(a). include discussion of infrastructure development, human capital management, and performance metrics.43 C. Water Sustainment and Maritime Policy Section 226—Research, Development, and Deployment of Technologies to Support Water Sustainment. The NDAA includes a provision introduced by Army veteran Sen. Tammy Duckworth (D-Ill.)44 that requires the Secretary of Defense to research, develop, and deploy advanced technologies that support water sustainment with technologies that capture ambient humidity and harvest, recycle, and reuse water. The law requires the Secretary to develop modular and trailer-mounted water-harvesting systems, implement storage requirements for water-harvesting systems at forward operating bases, consider using commercially available off-the-shelf items to achieve cost savings, and share related information with foreign militaries if necessary. The law requires the deployment of these technologies for use by expeditionary forces no later than January 1, 2025.45 Such technological advancements could help reduce the logistical support required for military transportation and sustainment efforts, particularly in arid climates where U.S. military forces have often deployed. Section 2827—Improving Water Management and Security on Military Installations. The NDAA calls for a “risk-based approach” to water management and security on military installations.46 It also mandates the creation of an assessment methodology for analyzing risks to sustainable water management and security. The methodology must include evaluation of the water sources and supply connections for a military installation; the condition and jurisdictional control of water infrastructure serving the military installation; the military installation’s water security risks related to drought-prone climates; and impacts of defense water usage on regional water demands, water quality, and legal issues, such as water rights disputes. The methodology must include analysis of the resiliency of the military installation’s water supply and the overall health of the aquifer basin. In addition, each military installation must be analyzed to determine its potential for achieving net-zero water usage when practicable. Section 2827 also calls for improved landscaping management practices to increase water resilience. For instance, in non-arid climates, these practices should include the use of native grasses. Within one year of enactment, the Secretary of Defense must submit to the Committees on Armed Services of the Senate and the House a report on the progress made in implementing this section. 43. Id. §346(b). 44. Press Release, Office of Sen. Tammy Duckworth, Senate Passes Several Duckworth Provisions as Part of 2021 Defense Bill (Dec. 11, 2020), https:// www.duckworth.senate.gov/news/press-releases/senate-passes-severalduckworth-provisions-as-part-of-2021-defense-bill. 45. 2021 NDAA §226(b), (c), (d). 46. Id. §2827(a). Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 51 ELR 11032 ENVIRONMENTAL LAW REPORTER 12-2021 Section 1055—Reauthorization of National Oceanographic Partnership Program. The National Oceanographic Partnership Program is a 23-year-old program that facilitates “ocean-related partnerships between federal agencies, academia and industry to advance ocean science research and education.”47 In the 2021 NDAA, Congress reauthorized the program. Retired Navy Rear Adm. Timothy Gallaudet, Ph.D., assistant secretary of commerce for oceans and atmosphere and deputy National Oceanic and Atmospheric Administration (NOAA) administrator, described the reauthorization as “great news for the ocean that Americans rely on for environmental and economic well-being,” and explained that it “will help increase exciting and cost-effective partnerships that improve ocean science and education, strengthen the Blue Economy, and our national security.”48 Examples of prior projects include a partnership between private company Saildrone and researchers from the University of New Hampshire and Monterey Bay Aquarium Research Institute to develop an uncrewed seagoing system called the Saildrone Surveyor. The system can complete mapping functions and identify the presence or absence of organisms or toxins.49 The express purpose of the program is “[t]o promote the national goals of assuring national security, advancing economic development, protecting quality of life, ensuring environmental stewardship, and strengthening science education and communication through improved knowledge of the ocean.”50 Section 1063—Support for National Maritime Heritage Grants Program. The National Park Service (NPS) runs the Maritime Heritage Program as part of its NPS Park History Program. The Maritime Heritage Program seeks to promote understanding of the role of maritime affairs in the history of the United States.51 The National Maritime Heritage Grants Program provides funding for education and preservation projects designed to preserve historic maritime resources in pursuit of this goal.52 The 2021 NDAA authorizes DOD to contribute $5 million to the grant program.53 Section 1260I—Report on Directed Use of Fishing Fleets. The NDAA requires the commander of the Office of Naval Intelligence to submit an unclassified report to Congress on the use of distant-water fishing fleets by foreign governments as extensions of their official maritime security forces, including how these fleets are leveraged in support of naval operations and foreign policy.54 Sen. Sheldon Whitehouse (D-R.I.) championed this provision to particularly target China and its distant-water fishing 47. Congress Reauthorizes Law Supporting Partnerships to Advance Ocean Science, NOAA Rsch. News (Jan. 13, 2021), https://research.noaa.gov/article/ArtMID/587/ArticleID/2703/Congress-reauthorizes-law-supporting-partnerships-to-advance-ocean-science. 48. Id. 49. Id. 50. 2021 NDAA §1055(a). 51. NPS, Maritime Heritage Grants, https://www.nps.gov/subjects/maritimeheritage/maritime-heritage-grants.htm (last updated Sept. 7, 2021). 52. Id. 53. 2021 NDAA §1063. 54. Id. §1260I. fleet. Beijing has used what has been called its “invisible armada” to contest the sovereignty of other nations across maritime Asia.55 D. Arctic Prioritization Section 8421—Coast Guard Arctic Prioritization. The NDAA contains findings and the sense of Congress on Coast Guard Arctic prioritization. Congress finds that “[t] he strategic importance of the Arctic continues to increase as the United States and other countries recognize the military significance of the sea lanes and choke points within the region and understand the potential for power projection from the Arctic into multiple regions.”56 It specifically highlights the threat posed by China and Russia. It is the sense of Congress that “the increasing freedom of navigation and expansion of activity in the Arctic must be met with an increasing show of Coast Guard forces capable of exerting influence through persistent presence.”57 In addition, Congress finds that with respect to the Arctic, “additional measures are needed to protect vital economic, environmental, and national security interests of the United States.”58 Section 8426—Arctic Shipping Federal Advisory Committee. The NDAA calls for the establishment of an Arctic Shipping Federal Advisory Committee. The Committee will be tasked with “provid[ing] policy recommendations to the Secretary of Transportation on positioning the United States to take advantage of emerging opportunities for Arctic maritime transportation.”59 As Sen. Lisa Murkowski (R-Alaska) explained in introducing the legislation, “[w]ith environmental changes opening sea routes potentially year-round and an increased global interest in the area, we continue to see greater opportunities but also greater challenges in the Arctic.”60 Of note, one of the specific functions of the Committee will be to develop policy recommendations to create a U.S. entity that would improve Arctic environmental protection. The Committee must also submit a report to the Senate Committee on Commerce, Science, and Transportation and the House Committee on Transportation and Infrastructure with recommendations within two years of the enactment of the NDAA. Section 1060—Arctic Planning, Research, and Development. The NDAA instructs DOD to “continue 55. Press Release, Office of Sen. Sheldon Whitehouse, Whitehouse Maritime Security Amendment on Its Way to Becoming Law in NDAA (July 23, 2020), https://www.whitehouse.senate.gov/news/release/whitehouse-maritime-security-amendment-on-its-way-to-becoming-law-in-ndaa; Ian Urbina, The Deadly Secret of China’s Invisible Armada, NBC News (July 22, 2020), https://www.nbcnews.com/specials/china-illegal-fishing-fleet/. 56. 2021 NDAA §8421(a). 57. Id. §8421(b). 58. Id. 59. Id. §8426(a) (emphasis added). 60. Press Release, Office of Sen. Lisa Murkowski, Murkowski, Wicker, Sullivan Introduce Legislation to Prioritize Arctic Maritime Transportation Opportunities, Safety, and Security (Nov. 7, 2019), https://www.murkowski.senate.gov/press/release/murkowski-wicker-sullivan-introduce-legislation-toprioritize-arctic-maritime-transportation-opportunities-safety-and-security. Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 12-2021 ENVIRONMENTAL LAW REPORTER 51 ELR 11033 assessing” risks stemming from the Arctic and to implement “training, equipping, and doctrine requirements” necessary to mitigate these risks.61 The NDAA permits DOD to conduct training exercises in the Arctic in pursuit of this objective.62 It also authorizes research and development on the “current and future requirements and needs of the Armed Forces for operations in the Arctic.”63 For instance, this research and development may include “[d] evelopment of capabilities to monitor, assess, and predict environmental and weather conditions in the Arctic and the effect of such conditions on military operations,” or “[d] evelopment of materiel solutions for operating in extreme weather environments of the Arctic, including equipment for individual members of the Armed Forces, ground vehicles, and communications systems.”64 Section 1089—Ted Stevens Center for Arctic Security Studies. The NDAA calls for the establishment of a Ted Stevens Center for Arctic Security Studies with the goal of “enhancing understanding of the dynamics and national security implications of an emerging Arctic region, including increased access for transit and maneuverability.”65 DOD is tasked with determining whether it would be wise to locate the center, which would be named in honor of the legendary late Alaska senator, near the Arctic region and the armed forces positioned in that area.66 IV. Energy Management DOD is the largest single consumer of energy in the nation, “accounting for more than three-quarters of total government energy usage and 15 times the energy consumption of the Post Office, the No. 2 consumer—and it emits about 1 percent of the total U.S. carbon emissions.”67 The 2021 NDAA continues policies enacted by previous NDAAs to promote energy resilience in military construction and energy generation, as well as energy conservation projects. It also seeks to increase energy savings through various incentives, reorganize how DOD addresses operational energy, and promote various sources of energy. A. Energy Resilience Section 316—Energy Resilience and Energy Security Measures on Military Installations. DOD policy emphasizes “energy resilience”—the goal of enhancing military capability by providing assured access to durable fuel and power.68 The 2021 NDAA promotes this policy by requiring that DOD ensure there is sufficient energy 61. 2021 NDAA §1060(a)(1). 62. Id. §1060(a)(2). 63. Id. §1060(b)(1). 64. Id. §1060(b)(2). 65. Id. §1089(a)(2)(B)(i). 66. Id. §1089(a)(2)(D). 67. Eric Wolff, How the Department of Defense Could Help Win the War on Climate Change, Politico (Jan. 4, 2021), https://www.politico.com/ news/2021/01/04/biden-pentagon-climate-change-454404. 68. See DOD, Office of the Assistant Secretary of Defense for Sustainment, Welcome to Energy, https://www.acq.osd.mil/log/ENR/index.html (last visited Oct. 19, 2021). available at every military installation to maintain critical missions essentially year-round. It also requires DOD to impose requirements on defense contractors “appropriate to ensure energy resilience and energy security, including requirements for metering to measure, manage, and verify energy consumption, availability, and reliability consistent with this section and the energy resilience metrics and standards.”69 Specifically, the 2021 NDAA amends Subchapter I of Chapter 173 of Title 10 of the U.S. Code, by adding a section on energy resilience and energy security measures on military installations.70 The new section requires the Secretary of Defense, by the end of FY 2030, to ensure each year a minimum level of 99.9% energy “availability” to maintain the “critical missions” of each installation. “Availability” is defined as “the availability of required energy at a stated instant of time or over a stated period of time for a specific purpose.” And the term “critical mission” is defined to mean “those aspects of the missions of an installation, including mission essential operations, that are critical to successful performance of the strategic national defense mission,” including “operational headquarters” and like facilities, but not military housing and similar structures.71 The law requires the Secretary to issue standards for establishing levels of energy availability relative to specific critical missions, establish interim goals to take effect prior to FY 2025, and ensure each military agency meets those requirements. The law also directs a robust planning effort to effectuate these goals. This effort includes requiring that planning “promote the use of multiple and diverse sources of energy with an emphasis favoring energy resources originating on the installation such as modular generation,” promoting installation of microgrids, and favoring the use of full-time installed energy sources rather than emergency generation.72 The NDAA lays out testing criteria to monitor and measure the data necessary to comply with these energy-related requirements and directs the Secretary to notify Congress no later than 90 days after the end of FY 2029 if the Secretary determines the Department will be unable to meet the requirements of the section. Finally, the law requires that for contracts for energy and utility services, the Secretary of Defense shall “specify methods and processes to measure, manage, and verify compliance” with the law and “ensure that such contracts include requirements appropriate to ensure energy resilience and energy security, including requirements for metering to measure, manage, and verify energy consumption, availability, and reliability consistent with” federal law.73 Section 904—Assistant Secretary of Defense for Energy, Installations, and Environment. Section 904 of the NDAA reestablishe