[Congressional Record Volume 148, Number 147 (Thursday, November 14, 2002)]
[Extensions of Remarks]
[Pages E2010-E2011]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      CONFERENCE REPORT ON H.R. 4546, BOB STUMP NATIONAL DEFENSE 
                 AUTHORIZATION ACT FOR FISCAL YEAR 2003

                                 ______
                                 

                               speech of

                          HON. JOHN D. DINGELL

                              of michigan

                    in the house of representatives

                       Tuesday, November 12, 2002

  Mr. DINGELL. Mr. Speaker, while there may be many worthwhile 
provisions in this bill, I strongly oppose the unnecessary and 
unwarranted exemption contained in Section 315 for the Department of 
Defense (DOD) from the Migratory Bird Treaty Act of 1918, our Nation's 
oldest conservation law. The Migratory Bird Treaty Act provides 
protection for over 850 species of migratory birds, including many that 
are threatened or endangered. The Act also sets forth U.S. obligations 
under four separate treaties to protect migratory birds and guide 
cooperative conservation management with Canada, Mexico, Japan, and 
Russia.
  The provision which was inserted at the Bush Administration's request 
will effectively give the Defense Department license to bomb and 
destroy at will the natural habitats of migratory birds, endangering 
more than one million birds and curtailing the enjoyment of more than 
50 million bird enthusiasts in this country. The provision will also 
provide an exclusive legal immunity from third-party lawsuits which 
challenge DOD non-compliance with the Act.
  I have dealt with the military for years and they constantly seek to 
get out from under environmental laws. It is despicable that they are 
now using the threat of September 11 and al Qaeda to get unprecedented 
environmental immunity. We have fought two World Wars, the Korean War, 
Vietnam, and the Persian Gulf War with this law in place, and there is 
no demonstrated need to exempt the Department of Defense now.
  I raised concerns about this provision when H.R. 2456 was being 
considered and passed by the House. This environmental exemption was 
rushed through without significant public scrutiny. No hearings were 
held on the specifics of the proposal. Only one hearing was held in the 
House Armed Services Committee on the general issue and only the DOD 
and

[[Page E2011]]

Federal government agencies were allowed to testify. Other 
stakeholders, such as state and local governments, industry 
representatives, tribal governments, and citizen groups did not have a 
full opportunity to participate in hearings on the bill. This provision 
falls under the jurisdiction of the Committee on Resources and that is 
where the reviews and debate of this issue should have taken place.
  Mr. Speaker, the Secretary of the Interior already has the authority 
under current law to issue permits for actions that might kill, harm or 
injure migratory birds in the course of government activities. In 
addition, the U.S. Fish and Wildlife Service and DOD have been 
developing regulations pursuant to Executive Order 13186 to resolve 
migratory bird disputes. And, in March 2002, a U.S. court recognized 
for the first time the DOD must comply with MBTA and ordered the 
military to apply for the administrative remedy already available. The 
DOD has chosen to fight this court ruling in the case of Center for 
Biological Diversity vs Robert B. Pirie, Jr., Acting Secretary of the 
Navy; Donald H. Rumsfeld, Secretary of Defense, (U.S. District Court 
for the District of Columbia).
  The members of this body should also be aware of the ridiculous 
arguments that the DOD was making in court to support its efforts to 
exempt itself.
  In the above-mentioned case, the DOD claimed:
  . . . plaintiffs have suffered insufficient injury because the more 
birds that the defendants (DoD) kill, the more enjoyment Mr. Frew (a 
plaintiff) will get from seeing the ones that remain: ``bird watchers 
get more enjoyment spotting a rare bird than they do spotting a common 
one.''
  Let me also quote Judge Sullivan's finding with respect to DoD's 
argument (on page 17 of his opinion):
  Suffice it to say, there is absolutely no support in the law for the 
view that environmentalists should get enjoyment out of the destruction 
of natural resources because that destruction makes the remaining 
resources more scarce and therefore valuable. The Court hopes that the 
federal government will refrain from making or adopting such frivolous 
arguments in the future.
  I also oppose the bill's provisions concerning the Price-Anderson 
Act, which are incomplete, insufficient, and fail to protect the public 
interest.
  First, let me make clear that I am a strong supporter of the Act's 
reauthorization, and believe the best course at this late date would be 
for the other body to approve H.R. 2983, the Price-Anderson 
reauthorization passed by the House last November on suspension. 
Second, it is highly regrettable that this issue has been allowed to 
languish and, as a consequence, the Act lapsed in August. It is equally 
regrettable, however, that when my colleagues on the Armed Services 
Committee chose to address the Department of Energy (DOE) contractor 
issue in this bill, they did not take the logical step of including 
reforms from H.R. 2983 to make contractors accountable for 
irresponsible actions that harm the public.
  Under current law, DOE contractors are completely indemnified for 
accidents involving nuclear materials, even if the accident resulted 
from willful misconduct or gross negligence. This means that the 
taxpayer actually is required to reimburse a contractor for the cost of 
public harm caused by its own misconduct.
  No other government contractor enjoys the right to unconditional 
indemnification, even those engaged in nuclear or other hazardous work 
for the defense agencies. When the House passed its version of Price-
Anderson reauthorization, that bill included a bipartisan provision 
which prohibited indemnification of contractors for ``conduct which 
constitutes intentional misconduct.'' The DOE claims that despite the 
current law's safety disincentive, it is necessary to secure 
contractors' services. I cannot imagine why the Department should even 
wish to hire a contractor who is not willing to be held accountable for 
its intentional misconduct.
  Finally, it is my understanding that several contractors have signed 
contracts with DOE since the Act lapsed in August, under alternate 
statutory authority which can continue to fill the gap until Congress 
has an opportunity to address this issue thoroughly next year. In other 
words, there is no emergency that needs to be addressed in this bill, 
and in any event no reason for Congress to continue the unjustifiable 
policy of unconditionally indemnifying DOE contractors for intentional 
misconduct.
  Mr. Speaker, in adopting the Migratory Bird Treaty Act exemption for 
DOD one of our Nation's most important environmental laws has been 
undermined. And by providing total indemnification for DOE contractors, 
even when they engage in intentional misconduct, we reduce public 
safety. Therefore, I rise in opposition to this conference report.

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