The federal district court in Lansing released its opinion in April 1995 rejecting AMAC's legal challenge to the sufficiency of the Environmental Impact Statement (EIS) for the Camp Grayling Multi-Purpose Range Complex-Heavy (MPRC) project. The court's decision was a disappointment to those of us who revere, and fear for, the integrity of the Au Sable and Manistee River basins.
Congress enacted the National Environmental Policy Act (NEPA) in 1970 to require federally sponsored projects - like the MPRC - to be preceded by a thorough environmental analysis. The keystone of NEPA is the preparation of an EIS which "shall provide full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts. . . ." Congress contemplated that citizens groups could challenge proposed government projects in federal court if the requirements of NEPA are not met. The prescribed remedy for governmental noncompliance is a court injunction halting the project until an adequate EIS is prepared. Moreover, Congress believed that if government decisionmakers - such as senior military officials - are required by law to take a hard look at the environmental consequences of their actions, and if the public is informed about those consequences, better decisions would be made in balancing environmental risks against the perceived benefits of government action.
Unfortunately, many federal courts in recent years have not been friendly to NEPA citizens' suits, perhaps reflecting the anti-environmentalist or "wise-use" movements spreading in some conservative circles. In the current political climate, it is predictable that those who cause environmental harm, from private exploiters to government abusers, will continue to jump on the bandwagon trumpeting their right to do as they wish with our land, rivers, lakes, forests, and air.
The MPRC project involves the National Guard's construction of a state-of-the-art heavy weapons training range within the existing tank range just north of North Down River Road. Work on the MPRC is now underway; the construction crews were waiting with engines running as the federal court released its decision in April. The MPRC has been highly controversial since it was first proposed in the late 1980s. The project has drawn critical attention from numerous environmental organizations, concerned citizens, elected officials, and local government entities, and was the focal point of an Advisory Committee formed by the Governor of Michigan in 1989 to address conflicts between military activity at Camp Grayling and the surrounding environment.
The government began its NEPA analysis of the MPRC in 1989, with the release of a draft environmental impact statement (DEIS). Over the next five years, while the project remained outwardly on hold in the face of AMAC opposition, momentous events were occurring in national and international affairs affecting the mission of the National Guard. The end of the Cold War, reductions in defense spending, and the re-examination of the role of the National Guard because of faulty performance in Operation Desert Storm should have had a pivotal impact in the Pentagon regarding the future efficacy of combat reserves. During this same period, the MDNR declared the Guard to be in violation of environmental laws and listed Camp Grayling as an Act 307 site of significant contamination under the Michigan Environmental Response Act. Also during this period, AMAC remained vigilant and closely monitored developments at Camp Grayling.
With the arrival of 1994, the National Guard's $8 million appropriation for the MPRC was set to expire automatically in September - at the end of a five-year authorization. So it was money, rather than military necessity, that triggered government action. With the congressional appropriation about to expire and the military fearful of losing its funding, the Guard released its final EIS (FEIS) on the MPRC in June 1994, years after the public comment period on the DEIS had closed. After five years of inaction, the National Guard was suddenly in a hurry-up mode, notifying interested parties that they would have only thirty days to comment further on the 400-plus page FEIS.
AMAC sprang into action, quickly hiring experts to look at the FEIS and requesting an extension of the comment period to ninety days. The request was summarily denied by Guard officials. AMAC and its experts found numerous flaws in the FEIS, and discovered that though the document accumulated a wealth of extraneous data and focused on issues of minimal relevance, it avoided meaningful discussion of the most critical issue: the harm that the use and operation of the MPRC might cause to the environment.
What ought to have been the major issue addressed in the FEIS? It did not require high-priced government consultants to conclude that the central question involved the impacts the new firing range would have on the surrounding environment. But there was no discussion of such impacts in the FEIS, which focused primarily on construction rather than use of the MPRC.
The emerging national disgrace of environmental contamination at military installations around the country demonstrates that the firing of heavy weapons at training ranges can pose significant environmental risks, because of the witches' brew of chemicals found in various munitions. But in the FEIS, which purported to provide a "full and fair" discussion of environmental impacts of the MPRC, there was no disclosure or discussions as to the chemical nature of munitions that will be fired on the MPRC, or a mention of the contaminants found in them.
Moreover, there was no discussion of the nature or extent of existing contamination on Tank Range 30 - the site of the MPRC - even though the MDNR has ordered the study of Range 30 for contamination under a 1993 Consent Order resulting from environmental violations at the artillery range west of Lovells. There also was no discussion of the risk of fuel spills or other operational hazards. The FEIS mentioned in passing, for example, that white phosphorous rounds had been previously used in the area proposed for the MPRC, but the document disingenuously failed to mention that white phosphorous is highly toxic to both humans and wildlife and has recently been the subject of intense concern and critical study at military installations.
In July 1994, AMAC filed its federal court lawsuit under NEPA. The case was assigned to federal judge David McKeague, who had been appointed after he spearheaded the successful 1988 Bush primary campaign in Michigan. AMAC sought a preliminary injunction to halt the MPRC project until the flaws in the FEIS could be corrected. The National Guard - committed to beat the September deadline - argued that its $8 million appropriation would expire if the court prevented the award of an MPRC construction contract. The court denied AMAC's preliminary injunction request in the face of the threatened loss of public funding for the project. The court went on to state that it would decide the merits of the NEPA challenge before construction on the MPRC was scheduled to begin in mid-April 1995.
The Anglers of the Au Sable, the Au Sable North Branch Area Association, the Au Sable Property Owners Association, Trout Unlimited, Kalkaska County, Garfield Township, and Lovells Township then joined the case as plaintiffs supporting AMAC's position. Crawford County filed papers in support of the National Guard.
As the case progressed, the plaintiffs - led by AMAC - sought to introduce evidence and expert testimony to support its contention that the use of the MPRC could have serious environmental consequences in the upper Au Sable River basin. The court denied the request, ruling that no evidence outside of the government's administrative record would be permitted in connection with the judicial review of the FEIS. Under cover of this protective shield, the Guard in its legal papers managed to convince the court that the MPRC posed no environmental risk. The government persuaded the court, for example, that no explosive rounds had ever been used on Range 30, even as the Guard separately wrote to MDNR in December 1994 admitting that explosive rounds were used for decades on this tank range after it opened following World War II. Plaintiffs brought this incredible inconsistency to the court's attention, but the judge apparently disregarded the Guard's written admission to MDNR as "outside the administrative record." Guard officials also informed the court, without scientific disclosure or discussion, that the use and operation of the MPRC would cause no contamination.
After considering lengthy briefs and legal arguments during the winter of 1994-95, the court released its written opinion in April denying the request for injunctive relief. Before the ink was dry, construction equipment was rolling into Range 30 to begin work on the MPRC.
There is a temptation at moments when a legal challenge is lost, or when political tides shift, to despair that considerable effort has gone for naught. But there can be a modest silver lining even in the cloud of a legal defeat. Those who love the Au Sable must not forget how the government "won" the case in court. The military must be held to the representations it made to persuade the court that the MPRC would cause no environmental harm. Many of these representations were referred to in the court's opinion. Remember these National Guard assurances in the coming months and years:
The government prevailed in its case by making these assertions. It is up to all of us to make sure that our state and federal environmental agencies hold the Michigan Department of Military Affairs to those promises.
The clash of values reflected in the continuing Camp Grayling controversy - the inherently destructive forces of modern weaponry versus the incalculable value of unique environmental resources - could not be more starkly presented. Sadly, segments of our military establishment over the past fifty years have engaged in a reckless pattern of abusing the environment and human health, only to conceal such abuse with misinformation, whitewash, and cover-up - all in the name of patriotism and national defense. The requiem for this ugly saga is now being played out in horrendous revelations of military firing ranges so dangerous and contaminated that they cannot be remedied, radioactive poisoning of unwitting citizens who had the misfortune to be in proximity to nuclear facilities, deliberate testing of chemical and biological agents on unsuspecting people, and the waste of billions of dollars in public treasure through bureaucratic incompetence, fraud, pointless training excesses, and unnecessary military gizmos, hardware, or facilities.
Perhaps with vigilance the MPRC will not become another chapter in this sad legacy. But the Au Sable and Manistee river basins are resources too important to entrust to the unbridled discretion of the military establishment that has brought us the last half century of insults to the natural environment. There are many good people in the National Guard, and our nation must be defended. But those who love the Au Sable must keep a watchful eye on the MPRC to assure that the mission of the National Guard does not foul the irreplaceable resources we hold dear.
RWOL
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