By Barry Steinberg
We recently honored and buried Sen. John McCain. The accolades bestowed upon him were rich and well deserved. His commitment to fairness and the proper role of government in that regard merit no further comment than that a grateful nation has lost a valued and iconic public servant.
The military base closure community is particularly indebted to Sen. McCain. He, unlike many of his colleagues, understood the domestic implications of warfighting and the toll that training activities and industrial operations at military bases have on our physical environment. In response to those consequences and the implications for redevelopment of former military bases, Sen. McCain sponsored and forcefully advocated for passage of section 330 of the 1993 National Defense Authorization Act, a provision of law that indemnifies owners, tenants and others in control of property closed pursuant to a base closure law for the environmental losses, costs, expenses and liabilities incurred as a result of military activities while the property was used by the Department of Defense (DOD). Without this protection, defense communities and developers were concerned the transfer and reuse of closed bases would be plagued by legal issues, environmental risk and costly delay.
Unsurprisingly, DOD forcefully opposed the legislation, arguing that an open-ended indemnity obligation posed a risk to its budget. With equal vigor, Sen. McCain forcefully underscored the fairness and overwhelming need for the language he proposed adding to the authorization bill. Here are excerpts from the statement he made on the Senate floor in September 1992 during the chamber’s debate of the legislation:
Under current law, receivers of closed base property can be successfully sued for pollution caused by Defense Department activities. Such suits might include environmental cleanup orders or civil damage claims.
This situation is unjust and it must be remedied. We simply cannot ask states or businesses to assume potentially devastating liability for conditions they did not create. Moreover, the federal government has a duty to accept full and unconditional responsibility for its actions.
Last year, I introduced legislation to ensure that the federal government remains fully responsible for hazardous waste problems at military installations after base closure. The bill requires the Department of Defense to defend, hold harmless, and indemnify innocent receivers of the property against claims arising from pollution caused by military activities.
This protection is absolutely critical if we are to promote the timely and efficient transmission of base property to new and productive uses. How many states or employers are anxious to acquire base property without such protection?
… In many cases, hazardous dumping by the military occurred prior to the enactment of our environmental laws. Such dumping probably would not be defined as negligent. Under the committee bill that would mean receivers of closed base property could not receive indemnification. The unfortunate result is that the innocent property owner pays for Uncle Sam’s mistakes.
… Mr. President, base closure is a difficult and traumatic period for local economies which have grown dependent on the employment and economic activity provided by defense installations.
We have a federal obligation to help facilitate a safe and timely transfer of base property to other productive uses. We cannot possibly achieve that goal if those who would put that property to use must risk everything in the process.
We must do what is right — ensure, without condition, that the federal government will defend and indemnify states and employers who are sued over pollution caused by federal activities. My amendment will accomplish that goal.
(138 Cong. Rec. S13982-01 (daily ed. Sept. 18, 1992), 1992 WL 229896; Pls. App. at Tab 18)
The appeal to basic fairness is characteristic of Sen. McCain. He was not swayed by assertions that the public fisc would be at risk, recognizing instead that indemnification for DOD-caused contamination was essential to redevelopment and it was the right thing to do.
We at ADC are beholden to the senator’s wisdom, foresight and willingness to carry the fight to the floor of Congress and ensure its passage. A belated thank you is well deserved.
Barry Steinberg is a partner at Kutak Rock and an expert on environmental law for BRAC redevelopment. He has been speaking at ADC events for the past 28 years.
Navy photo by Mass Communication Specialist 2nd Class Nathan Burke