Yesterday, the 4th U.S. Circuit Court of Appeals upheld a federal judge’s decision, who last year threw out the lawsuits brought against KBR, a former Halliburton Corp. subsidiary. The panel found that the military had unrestricted control over KBR so that KBR's decisions on waste management and water services were "de facto military decisions" not appropriate for judicial review.

"The facts found by the district court plainly show that KBR had little to no discretion in choosing how to manage the waste," Judge Henry F. Floyd wrote for the panel in the 3-0 ruling. "The military mandated the use of burn pits as a matter of military judgment. KBR could not unilaterally choose to use landfills, recycling, or incinerators instead."

The “facts” the court chose to ignore was the FACT that KBR decided what went into the pits. The FACT that KBR violated their military contract by violating U.S. environmental laws by allowing toxins to escape into the air and soil. The FACT that despite orders directly from U.S. Central Command to cease using these pits, KBR continued to operate them.

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Most veterans affected by the exposure to the emissions from the burn pits have life-altering and even life-ending diseases; which the Department of Defense (DoD) and Department of Veterans Affairs (VA) have continuously denied any correlation to the operation of the pits. According to the VA testimony during a June 7th Congressional hearing on the matter; the VA has only processed 9,000 burn pit-related claims since the inception of the war; while their own Registry has nearly 150,000 people on it. These same veterans, many who have died as a result of their illnesses; are still being denied benefits and services by both the DoD and VA. The DoD was scheduled to appear and testify at this hearing, but backed out at the last minute. Their purpose behind doing so is now glaringly apparent.

For over a decade, the DoD has permitted the use of open-air pits as its only method of waste disposal for its combat operations in the Middle East and the Horn of Africa. In 2009, after reports of toxic chemicals being emitted from these burn pits came to light, the DoD ordered that incinerators replace the open-air pits. Yet despite a direct order from U.S. Central Command, (https://www.cemml.colostate.edu/cultural/09476/pdf/CENTCOM_ITTR_CCR_200-2-1.pdf ), the use of open-air burn pits in combat zones continue to this very day; even at well-established bases in both Iraq and Afghanistan.

The courts’ decision to allow KBR “de facto military” status in their decisions to operate burn pits in violation of their contracts and U.S. environmental laws is a pure slap in the face to the very people who should have been protected. The DoD’s public stance that the pits do not cause harm, while privately agreeing that they do; is pure evidence of a catastrophic failure of policy and leadership. Tens of thousands of veterans have waited over a decade for justice and their rightfully earned benefits and services. Once again, veterans will be ignored and those in power will dance on our graves. Our tombstones will read; “Delay, Deny, Until You Die”.

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