Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1995 How Do We Get Rid of These Things? Dismantling Excess Weapons While Protecting the Environment David A. Koplow Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1734 89 NW. U. L. Rev. 445 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Environmental Law Commons, and the Military, War, and Peace Commons Copyright 1995 by Northwestern University, School of Law Printed in U.S.A. Northwestern University Law Review Vol. 89, No. 2 HOW DO WE GET RID OF THESE THINGS?: DISMANTLING EXCESS WEAPONS WHILE PROTECTING THE ENVIRONMENT David A. Koplow* I. INTRODUCTION The startling successes of contemporary international arms con- trol negotiations call to mind the old aphorism that one should be careful about what one wishes for, because the wish just might come true. Today, disarmament diplomacy has wrought unprecedented tri- umphs across a wide range of global bargaining issues, producing a series of watershed treaties that offer spectacular new advantages for the security of the United States and for the prospect of enduring world peace. At the same time, however, these unanticipated negotia- tion breakthroughs have themselves generated unforeseen implemen- tation problems, spawning a host of novel difficulties for which the traditional tools and methods of arms control are ill-prepared or inappropriate. This Article examines one such difficulty: the potential legal and political conflict posed when a dramatic and crucial new arms control agreement, the 1993 Chemical Weapons Convention (CWC),1 con- fronts the equally fundamental and pressing dictates of national envi- ronmental protection policy. In short, the CWC will mandate the peaceful dismantling of massive national arsenals of now obsolete, but still exceptionally lethal chemical weapons (CW) agents, armaments, * Professor of Law, Georgetown University Law Center. The author gratefully notes the support of the Lawyers Alliance for World Security in the preparation of this Article. The au- thor thanks Hope Babcock, George Bunn, Barry Kellman, and Amy E. Smithson for their com- ments and suggestions on an earlier draft of this Article, and Jonathan Jackel for his creative and persistent research assistance, supported by a grant from the Ford Foundation. Any nonprofit organization is hereby given permission to make copies of all or any portion of this Article for educational purposes without written permission or the payment of any fee. 1 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature Jan. 13, 1993, 32 I.L.M. 800 [hereinafter Chemical Weapons Convention or CWC]. The CWC will enter into force 180 days after 65 countries have deposited an instrument of ratification, but no earlier than January 1995. ld. art. XXI, para. 1. NORTHWESTERN UNIVERSITY LAW REVIEW and facilities-and the destruction must be accomplished relatively promptly, reliably, and under the supervision of international inspec- tors. In the United States, however, long-standing environmental leg- islation, starting with the National Environmental Policy Act of 1969 (NEPA)2 and continuing through a sequence of resource-specific anti- pollution enactments, mandates punctilious adherence to procedural safeguards (such as the preparation of disclosive Environmental Im- pact Statements) and compliance with stringent national and local substantive standards on emissions, hazardous wastes, community par- ticipation, and safety. At present, there is no established technology that can credibly promise to dismantle the United States CW stockpile in a manner that is entirely consistent with both of these sets of legal compulsion. Un- less some Solomonic and politically tolerable mechanism can quickly be invented, therefore, the United States (and other treaty parties) may be forced to depart from one, or both, of our hard-fought priori- ties: it is not entirely clear, at this point, that the United States can simultaneously remain fully faithful to the language and spirit of both the CWC and the NEPA. Under those circumstances, arms control- lers and environmentalists are suddenly cast into the uncomfortable, mutually-antagonistic posture of asking which set of laws should the country abandon, modify, defer, or violate? Following this Introduction, Part II of the Article addresses the public policy of arms control, highlighting the accomplishments-es- pecially the provisions requiring weapons dismantling-of earlier arms control agreements and contrasting them with the greater exacti- tude of the CWC. That Part demonstrates why the novel approach to the regulation of chemical weapons will pose challenges far greater than those associated with prior generations of disarmament obliga- tions pertaining to nuclear, biological, conventional, or other weap- onry. Part III addresses the public policy of environmental protection, summarizing what NEPA and its legislative and judicial progeny now require before (and while) undertaking certain major federal actions. It constitutes essentially a primer highlighting those aspects of Ameri- can environmental law that will be most relevant to chemical weap- ons disposal. Part IV next identifies two prominent types of jurisprudential issues arising in this hierarchy-of-laws context under the Supremacy Clause3 of the Constitution. One set of questions con- 2 National Environmental Policy Act, Pub. L. No. 91-190,83 Stat. 852 (codified at 42 U.S.C. § 4321) (1970). 3 U.S. CONST. art. VI, § 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Author- ity of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."). 446 89:445 (1995) Dismantling Excess Weapons cerns the legal priority accorded to treaties (such as the CWC) versus statutes (such as NEPA); the other addresses the pre-emption vel non of state and local environmental regulation by overarching federal policy. In Part V, the Article scrutinizes the current, deeply flawed effort to fashion a technological solution to these conflicts-the "baseline" incineration approach embodied in the Johnston Atoll Chemical Agent Disposal System (JACADS). The United States Army's proto- type facility, located on a minute, isolated Pacific Ocean island, JA- CADS relies upon a dedicated high-temperature, multi-furnace process which, based on performance to date, augurs to serve per- fectly the interests of neither arms control nor environmentalism. The prospect of replicating this experimental facility at eight sites around the continental United States, as the Army currently plans, is there- fore daunting-for its social and ecological implications, as well as for its estimated $8.6 billion pricetag.4 The international ramifications of this dilemma are described in Part VI, where the cognate problems-and the associated domestic political and legal disquietude-of Russia and other key CWC coun- tries are displayed. The CWC's dismantling mandate is no more ac- cessible in other nations than it is in the United States, as the imperatives of deweaponization and environmental protection con- tinue to clash worldwide. Russia alone has more CW than does the United States (an estimated forty thousand metric tons of chemical agent in Russia, compared to approximately thirty thousand tons for the United States) and fewer technological and financial resources available to cope with the challenges. s Part VII then recapitulates the overall problem posed by this con- flict of social interests and proposes some solutions. These include recommendations for improving the operation of JACADS, exploring technological alternatives to that baseline approach, and-as a tempo- rary expedient-deferring some aspects of the problem by distin- guishing between "deweaponizing" the CW arsenal in the short term 4 The eventual pricetag for the chemical weapons stockpile destruction effort is difficult to calculate, as the program undergoes recurrent modifications and stretch-outs and as the official estimates continuously rise. The current projection is $8.6 billion. Department of Defense Au- thorizationfor Appropriationsfor FiscalYear 1994 and the Future Years Defense Program:Hear- ings on S. 1298 Before the Comm. on Armed Services, 103d Cong., 1st Sess. 302 (1993) (statement of Michael W. Owen, Acting Assistant Secretary of the Army) [hereinafter Owen Statement]. See also Michael Satchell, Death Rattle of Poison Gas, U.S. NEws & WORLD REP., Sept. 13,1993, at 54 (estimating $9 billion or more). Not long ago, the Army had consistently publicly placed the total cost of the program at $7.9 billion. Amy E. Smithson, Chemical Destruction: The Work Begins, BULL. ATOM. ScIENnSTS, Apr. 1993, at 38-39. The completed destruction program may eventually cost approximately 100 times as much as the original construction of the chemical weapons. Timothy M. Beardsley, Easier Said Than Done, Sci. AM., Sept. 1990, at 48, 50. 5 Smithson, supra note 4, at 38-39. NORTHWESTERN UNIVERSITY LAW REVIEW and "destroying" it over a longer time. The Army's