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Without question, life in the United States has changed significantly since September 11, 2001. The attacks launched from within the United States in broad daylight against non-military targets and innocent civilians, followed by the intentional dispersal of the biological agent anthrax, ushered in an era of uncertainty and fear in this country unlike any in recent memory. The visible manifestations of this fear are still with us--concrete barriers and the closing of public spaces around public buildings, heightened security at airports and train stations subjecting people to invasive searches of their persons and belongings, the sudden, seemingly random appearance of fighter planes over major cities, previously benign colors taking on a whole new and frightening appearance, and the detention of persons who were our neighbors and, we thought, our friends.

This is also a war unlike any other the United States has experienced. No nation-states are threatening our shores. Therefore, it is unlikely that there will be a clear signal that the war is over as no armistice will be signed. Instead, the country appears to be now perpetually at war with "shadowy groups, often fluid in nature, motivated by a distorted Islamist ideology and only sometimes in association with established governments." The methods and weapons these groups use are "unconventional" and "intended to disrupt civil society rather than conquer it with large-scale military means." In response to the horrors of that day, the country is newly and fervently patriotic, and "the military is popular again."

The events of 9/11 have also brought into sharp focus a conflict that this country has not witnessed since the Cold War: the clash between the safety and continuation of the Republic and other values we hold dear, among them a healthy environment. That conflict is the subject of this article.

Unavoidable conflicts between the requirements of environmental laws and protecting national security exist, although some like Stephen Dycus believe that they are avoidable with proper planning and foresight. No one understands this situation better than the military.

In time of war, the resolution of these conflicts may favor national security over the environment. According to Lawrence Gostin, in a constitutional democracy, however, "[t]he state acts at its lowest level of legitimacy when the risk [of harm] is low and the means are ill-suited to achieve legitimate ends." Even in high-risk situations, if "the means . . . exceed the scope of the threat," Gostin suggests the government's actions will be "unacceptable." The challenge is to find a workable balance in this new, and perhaps unending, era of terror without undercutting the national defense and the government's legitimacy. This article posits that the proper balance has not been found, at least with respect to laws protecting the environment and public health.

The first section of the article describes the ways in which pre-9/11 environmental laws protected the country's national security interests. To provide a broader context for understanding the more narrowly focused changes to environmental laws after 9/11, the article next briefly describes the USA PATRIOT Act and the fundamental changes it has made to basic civil liberties. The third part of the article describes changes made to wildlife laws in the immediate aftermath of 9/11, and pending revisions to pollution control laws, which have not moved as swiftly. This part of the article also contains a discussion of modifications made to public disclosure laws and policies, including those curtailing the release of information to the public about environmental risks. The article concludes by discussing why these initiatives should be of concern and asks whether they are a necessary response to the perceived terrorist threat to the country; a question made all the more urgent by the fact that war now appears to be "continually on the horizon." The article concludes that the military is using the "war on terrorism" as a Trojan horse to get out from under thirty years of constraining environmental laws it has never fully accepted.

Publication Citation

25 Va. Envtl. L.J. 105-156 (2007)