Wednesday, June 26, 2013

A few initial thoughts on Windsor (and Massachusetts v. EPA)

Today's blockbuster isn't an environmental case.  But as I read through the Court's opinion, I found myself thinking of Massachusetts v. EPA.  Both cases, on their face, turn on the application of a federal constitutional principle.  Each case also involved a principle that we traditionally interpret and apply without much reference to ideas of federalism.  Both standing (Massachusetts v. EPA) and, to an even greater extent, equal protection (Windsor) have affected relationships between the federal government and the states.  But (and more knowledgeable constitutional lawyers may correct me on this) I don't think there was a long tradition of letting the involvement of states drive the standing analysis, or (outside of the states' role in defining property rights) letting the political enactments of states determine the level of federal constitutional protection for asserted individual rights.

Nevertheless, in Massachusetts v. EPA, the Court attributed "considerable relevance" to the state status of the plaintiff.  And today's opinion repeatedly emphasizes the protection some states--including New York, where Edith Windsor and Thea Spyer lived--have chosen to accord to same-sex marriages.  In both opinions, it is far from clear exactly how the gloss of federalism changes the constitutional analysis; it matters, but we don't know exactly how.  And in both cases, dissents, though otherwise (in my view) spouting a fair bit of nonsense, pointedly criticized this ambiguity.

So what's going on?  Or, more narrowly, what is Justice Kennedy up to (he didn't write the Massachusetts v. EPA opinion, but he did raise the state-plaintiff point at oral argument, and it seems fairly likely that Justice Stevens' opinion was written in large part to appeal to Justice Kennedy's concerns)?  It seems that Justice Kennedy would very much like to give legislative pronouncements a greater voice in constitutional interpretation, even where the interpretive questions involve matters like the scope of individual rights or the jurisdiction of the courts.  That's not a new idea; many people have argued that a dialogue between the courts, legislatures, and the general public does and should shape constitutional law.  But I think Justice Kennedy would like to go one step further, and establish a special place for the states in this constitutional dialogue.  He doesn't seem to have figured out how to ground that notion in past precedent, or to articulate language that would turn his constitutional intuition into a set of doctrinal principles applicable in future cases.  Hence the ambiguous and somewhat puzzling opinions (or, in Massachusetts v. EPA, passage of an opinion).  But the intuition nevertheless seems to drive results.

Today, those results are really, really good.  And I think Massachusetts v. EPA was a pretty wonderful outcome as well.  But it's interesting to ponder where else this half-emerged vision of constitutional law would take us.



June 26, 2013 | Permalink | Comments (2) | TrackBack (0)

Tuesday, June 25, 2013

Koontz: 5-4 Supreme Court Sides with Landowner in Takings Case

This morning, the U.S. Supreme Court issued a divided decision in Koontz v. St. John’s River Water Management District that expands Takings Clause protections for landowners.  I raised the possibility last October that the case could serve as a vehicle for the Court to provide some sense of clarity to the field of takings jurisprudence that would benefit both landowners and government regulators alike, yet it appears on my first read of the 5-4 opinion that the Court has failed in this regard.  Moreover, while the decision is undoubtedly a victory for proponents of a conception of property grounded in individual autonomy and control, there may be some silver lining for those who understand property as a socially contingent institution. 

In this post, I will provide some background on the Court’s decision, address some unanswered questions surrounding the Court’s expansion of takings protections, identify some potential points of hope in the opinion for proponents of sensible land use regulation, and offer some brief commentary on the vision of government officials espoused by the majority.

Background on Today’s Decision

Local governments routinely attach conditions, or “exactions,” to development permits in an effort to address the environmental and infrastructural impacts of individual projects. However, to protect landowners from exactions that are either unrelated or disproportionate to the problems caused by their proposed development, the U.S. Supreme Court curtailed the exercise of this power in its conveniently rhyming Nollan and Dolan decisions by establishing a constitutional takings framework unique to exaction disputes. Under this peculiar framework, it is the government—as the defendant— who has the burden of proving that a challenged exaction bears both an “essential nexus” to and “rough proportionality” with the development’s impacts.

Today’s case involves a Florida landowner, Coy Koontz, who hoped to construct a commercial shopping center on his 14.2-acre lot. A discretionary permit from the regional Water Management District was necessary because nearly all of Koontz’s property lies within a protected hydrologic basin.  Construction of the shopping center would require the destruction of 3.4 acres of protected wetlands and 0.3 acres of protected uplands.  In his application, Koontz offered to “mitigate” the wetland loss by preserving the remaining undeveloped portion of his property in its natural state through a conservation easement. 

That the District found Koontz’s self-proposed “mitigating” condition inadequate is quite unremarkable, given that Florida law is premised on avoiding net wetland loss.  While the District could have exercised its authority to deny Koontz’s application outright at that point, it instead identified several possible conditions—including reducing the size of his development or funding offsite wetland improvements—that, if accepted by Koontz, could allow for the development to proceed. Moreover, the District left the door open for Koontz to propose other conditions to offset the wetland loss. 

Koontz, however, refused the District’s proposals and chose not to offer any of his own.  Therefore, the District ultimately denied Koontz’s development application.  Koontz then alleged that the District’s proposed conditions were unconstitutional in light of Nollan and Dolan, even though those conditions were never actually imposed upon him and did not, as was the case in Nollan and Dolan, require public occupation of Koontz's real property.

At the appellate level, Koontz prevailed on the theory that the Nollan/Dolan framework (1) is applicable at the point in time when an exaction is merely proposed, and (2) applies to exactions beyond those that require public occupation of private lands.  The Florida Supreme Court reversed, and, last fall, the U.S. Supreme Court granted Koontz’s petition for certiorari.

In today’s opinion authored by Justice Alito, a five-Justice majority reversed and remanded to the Florida Supreme Court.  Largely agreeing with the state appellate court, Justice Alito wrote that (1) the heightened scrutiny of Nollan and Dolan is applicable at the point in time when a condition is merely proposed, even if the permit ultimately is denied; and (2) Nollan and Dolan apply to conditions beyond those that require public occupation of private lands to include conditions that would require the applicant to fund offsite mitigation. 

In dissent, Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, agreed with the majority that Nollan and Dolan apply not only upon the issuance of a permit conditioned on the owner’s conveyance of a property interest but also when the government denies a permit until the owner conveys a property interest.  However, Justice Kagan forcefully disputed whether any particular condition actually had been proposed here and, even assuming one had, admonished the majority for subjecting conditions requiring the payment of money to Nollan and Dolan, for doing so sets up a situation where lower courts will struggle to distinguish between takings and taxes/fees.

More Muddling of Takings Law

The majority opinion did not provide any guidance on the contours or applicability of the traditional Penn Central framework in permitting cases that fall outside of Nollan and Dolan, and only confused and complicated matters regarding where and when Nollan and Dolan apply.  Here are four examples:

First, the entire Court conceded that no property actually was taken from Koontz and that he therefore is not entitled to just compensation in accord with the Fifth Amendment.  The majority offered that the potentially unconstitutional act here is the government’s “impermissibly burden[ing] the right not to have property taken without just compensation,” but did not discuss what remedy, if any, might be available to a claimant who successfully argues that a proposed exaction does not pass Nollan and Dolan muster. 

(Though not discussed in today’s opinion, the District ultimately issued the permit conditioned only on Koontz’s original, self-proposed conservation of 10.5 acres.  The state appellate court concluded that Koontz was entitled to approximately $400,000 in compensation for lost rents over the period of time between the denial of his original development application and the issuance of the permit.)

Second, the majority acknowledged that some proposed conditions might not be “concrete and specific” enough “to give rise to liability under Nollan and Dolan,” but did not remark on which types of proposed conditions might fit this bill.

Third, the majority said that since the landowner wanted to build a shopping mall on 3.7 acres and one of the government’s proposed conditions was to reduce the size of the mall to 1 acre, the “government benefit” at issue was a “permit to build on … 2.7 acres.”  Justice Alito did not explain why the claimant should be the one to determine the baseline property interest at stake.

Fourth, responding to a concern raised by the dissent, the majority asserted that it has “had little trouble distinguishing between” the power of taxation/fee-imposition and the power of eminent domain.  This claim does not bear out in Supreme Court case law, according to property scholars from markedly different corners.  Moreover, lower courts in some jurisdictions routinely identify as taxes or fees impositions that other jurisdictions consider to be takings.

Silver Lining

There is little doubt that today’s decision will constrain government’s ability to promote some responsible development while ensuring that the public health, public safety, and environmental impacts of new, intensified land uses are equitably born by its developers and users.  Burdening governmental entities with possible takings liability for statements made during pre-decisional negotiation sessions is nearly certain to place a significant chilling effect on regulator-landowner coordination.  Governmental officials may be forced into uncommunicative rejections or unconditioned approvals of development applications when a more amenable compromise may have been available.  As Justice Kagan wrote in dissent, “If every suggestion could become the subject of a lawsuit under Nollan and Dolan, the [District’s] lawyer can give but one recommendation: Deny the permits, without giving Koontz any advice—even if he asks for guidance.”

However, proponents of sensible land use regulation can take some solace in several aspects of the Court’s opinion.  For instance, on a general level, the majority fully endorsed the state’s interest in protecting against wetland loss and acknowledged that “[i]nsisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy.”  These types of statements arguably bode well for the constitutional fate of environmental regulations moving forward. 

More specific to this case, the majority did not decide whether the District’s proposed conditions actually fail to comport with Nollan and Dolan's demands, only that they are subject to those demands (so long as, apparently, the proposed conditions are “concrete and specific” enough).  That the proposed conditions here seemingly result in, as explained in more detail below, a net loss of wetlands offers the Florida Supreme Court a clear path to rule against the landowner on the merits on remand. 

A Certain Vision of Government

The Court’s decision offers a vision of governmental permitting officials as powerful, strategic extortionists.  For instance, the majority, without citing empirical support, referred to the prospect of permitting officials attempting to “circumvent Nollan and Dolan,” “maneuver,” “coerce,” “evade,” make “extortionate demands,” “leverage its legitimate interests,” and “pressure [applicants] into doing [something].”  However, there, of course, is a competing narrative—one long espoused in Takings cases by the likes of former Justices Brennan, Blackmun, and Stevens and regularly asserted in legal scholarship critical of public choice theory—that suggests these officials are not only quite capable of acting but regularly do act in pursuit of the common interest. 

Given the perspective offered by Justice Alito, it seems appropriate to acknowledge its flipside: it is possible—and there is at least some anecdotal evidence to support the idea—that local governmental entities can be overwhelmed by the power of developer interests in certain circumstances.  In this light, while the SCOTUS considered in Koontz whether the Water District asked for too much in wetlands mitigation, it is seems quite possible that the Water District may not have asked for enough. 

Demanding that Koontz conserve 13.2 wetland acres in exchange for destroying 1 acre of wetlands does not “mitigate” the wetland impact but instead results in a net wetland loss. To actually mitigate the destruction of one wetland acre (upon which development is otherwise prohibited), it seems more appropriate that the government demand that an applicant: (1) create a certain multiple number of acres of new wetlands; (2) restore degraded wetlands; (3) enhance the functionality of existing wetlands; or (4) place a conservation restriction on valuable upland wetland buffers or wetlands that for some reason are not protected by existing law.

Of course, if there were a concern that a project might result in an external impact but the government chose not to consider an exaction to offset it (and instead simply chose to issue the permit), current exaction takings law seemingly places no limits on such governmental inaction, despite the ill-effects suffered by the neighbors and nearby residents of the development site and the workers and those who recreate in its vicinity.  But it seems worth asking why we are so focused on what the protesting landowner lost but hardly at all on what the public has lost.  In other words, it seems worth considering not only whether the government has, in Justice Holmes immortal words, gone “too far” in serving the public interest but also whether it has gone far enough.

-Tim Mulvaney ([email protected])

UPDATE, 6/27/13:  Ilya Somin praises the Court’s decision on The Volohk Conspiracy.  Meanwhile, Rick Hills (buttressed by a comment from exaction takings guru Mark Fenster) and Eduardo Penalver are quite critical of the decision on Prawsblawg, as is John Echeverria in a New York Times op-ed.  Somin responds to Hills here.

June 25, 2013 | Permalink | Comments (2) | TrackBack (0)

Wednesday, June 12, 2013

RGGI Reform reflected in June Auction Price

As I discussed here a couple years ago, the Regional Greenhouse Gas Initiative (RGGI) was significantly overallocated.  In its first three-year compliance period (2009-11), the power plants regulated by the program emitted 377 million tons, a mere two-thirds of the total amount allowed under the cap (data generated using the RGGI CO2 Allowance Tracking System).  The oversupply of RGGI allowances resulted in very low allowance prices.  In the quarterly auctions held in 2012, allowances sold at the reserve price of $1.93 per ton, and fewer than two-thirds of available allowances were purchased (data from RGGI’s Market Monitor reports). Similar conditions prevailed at most of the quarterly auctions in 2010 and 2011.  In contrast, in the first auction of 2009, the average bid price was $3.51, and there were offers to buy more than twice the number of allowances available.

Earlier this year, RGGI was reformed to address its overallocation problem.  RGGI released an updated Model Rule that would reduce the 2014 cap from 165 to 91 million tons (the actual 2012 emissions).  As in the original rule, the cap declines by 2.5 percent each year from 2015 to 2020.  The reform was anticipated to increase allowance prices to $4 per ton in 2013 and up to $10 per ton in 2020, and it seems to be working.  In the second quarterly auctions of 2013, held on June 5, allowances sold for $3.21 and all allowances were purchased. 

RGGI deserves a fair bit of credit for reforming the program.  Getting the nine member states to agree to reduce the cap could not have been a simple task politically (though the revenue-raising potential helped, I’m sure).  Yet, it should not be left unsaid that the effectiveness of the program remains in doubt.  Given the changes in the energy sector over the last few years, the program is still not particularly ambitious.  Single-digit allowance prices will not drive an energy sector transition. 

- Lesley McAllister

June 12, 2013 | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 11, 2013

Which Poisoned Places are Near You?

Poisoned Places

Elizabeth Lucas, Center for Public Integrity, and Robert Benincasa, NPR, have analyzed Environmental Protection Agency databases to come up with this highly informative, interactive map of sites that release hazardous pollutants into the air. These sites are "high priority violators" of the Clean Air Act, and have seemingly escaped serious regulatory action to curb their emissions. More from the disturbing report accompanying the map can be read here.

- Blake Hudson

June 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, June 10, 2013

N.Y. Times Article re California Beach Fire Rings

Recently the New York Times, echoing some earlier local media coverage, ran an article about an ongoing regulatory initiative from the South Coast Air Quality Management District (SCAQMD) to close open fire pits on public beaches in Southern California because of air pollutant emissions.  The article begins with descriptions and testimonials to the Southern Californian “dream of the beach as a realm of endless, carefree fun,” which despite its rather overwrought tone resonated with me, as I grew up in Southern California going to many of the beaches mentioned in the article.  I was less moved by the article’s intermingled references to “a blizzard of restrictions,” which seemed like a typical overwrought knee-jerk reaction to regulation.

And indeed, toward the end of the article, when it begins to discuss in earnest some of the beach regulations, they turn out to seem quite wise.  Alcohol was banned, for example, after a drunken brawl on a beach.  The proposed removal of the fire rings also seems well justified.  A recent study prepared for the SCAQMD found that one fire pit in one evening may emit as much particulate matter as a heavy-duty diesel truck driving 564 miles—an astonishing statistic.  In an area struggling to address its persistent and severe air pollution problems, leaving fire pit emissions unregulated would seem foolish.  There are very localized effects as well.  A woman who lives two blocks from the beach says that she has to shut her windows in the evenings to avoid asthma attacks.  These are real and serious impacts, and they make the beginning of the article’s references to the loss of ‘fun’ seem comparatively silly—in addition to playing on its beaches, I also grew up choking on Southern California’s smog.  I wonder whether the advocates for ‘fun’ quoted earlier in the article were aware of these facts when they made their statements.  In the end, the article left me more annoyed than anything—not so much at the advocates for ‘fun,’ but at the New York Times for front-loading its article with overwrought elegies to a lost ideal—environmentalists as killjoys—and burying the serious discussion at the end of the article.

--Todd Aagaard

June 10, 2013 | Permalink | TrackBack (0)

Friday, June 7, 2013

Reflections on the Natural Resource Law Teachers' Institute

Last week, I attended the biannual Natural Resources Law Teachers’ Institute in Flagstaff, Arizona.  It was my first time at the conference, and I’ll definitely go again.  It’s a great conference—well attended, a welcome focus on teaching as well as (and often in combination with) research, a good field trip, and, with one quickly-corrected exception, not a necktie in sight.

A few things in particular struck me about the conference.  In no particular order:

Zyg Plater gave a keynote address based on his new book about the snail darter controversy.  If you ever have a chance to hear him tell the story, don’t miss it.  It’s a fascinating tale even when told by others, but hearing it straight from the source was a true treat.

HAV_untaggedHBC_MTrammell_photo_lightened-1The Colorado River panel brought some interesting news.  The first presentation, from Colorado’s Brad Udall, summarized the future implications of climate change for the basin.  It was scary.  But two other presentations brought surprising glints of hope.  First, Theodore Melis, a scientist from the Grand Canyon Monitoring and Research Center, explained how the much-maligned adaptive management programs on the Colorado River might be creating some measurable successes.   Humpback chub, one of the basin’s many endangered species, seem to be bouncing back, and a new breeding population has been successful established on Havasu Creek.  Second, Robert Snow, an attorney from the Department of the Interior, explained how recent U.S.-Mexico negotiations have produced several breakthroughs, including toward cooperative and more efficient use of storage and delivery infrastructure.  The recent agreements also include measures to return a little bit of water to what used to be the Colorado River Delta.

Picture1Bakken shale at night







Not surprisingly, fracking was the key word of the conference.  Fracking also produced the conference’s two most jarring slides.  The first, from a presentation by Kalyani Robbins, shows the extent of natural gas exploration in a Pennsylvania state forest.  No multiple use here.  The second, which appeared in multiple presentations, was this nighttime satellite photo of the United States.  What looks like a major new metropolitan area in northwestern North Dakota actually is natural gas flaring above the Bakken Formation.

Joe-at-Echo-Lake-Camp-Lodge-9,-2010,-by-Joseph-Holmes-300If fracking was the leading theme of the conference, Joe Feller was its defining personality.  The conference took place under tragic circumstances.  Joe Feller had taken the lead in selecting a site and initiating the planning.  But a few months ago, he was hit by a car while jogging and died.  At the conference, we watched a video tribute to Joe, had a few minutes for remembrances, and took a group run in his honor.  Individual presentations were peppered with stories about Joe.  All of this might sound quite sad, and I suspect for many participants—particularly the many who knew Joe much better than I did—it was.  Yet somehow, Joe’s memory seemed also to bring levity to the conference.  So many of the stories were funny, and Joe clearly took great joy from his life’s work and play.  The shared memories of Joe seemed like a reminder to enjoy having the good fortune to do the work we do, and to get out and explore the places we care most about.  That legacy, I think, signifies a life lived well.

-Dave Owen

June 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 4, 2013

ATA v. City of Los Angeles: Ports, Trucks and the Market Participant Exception Take a Tour of the Supreme Court

Back in mid-April I made my first visit to the Supreme Court of the United States, in order to hear oral argument in American Trucking Associations v. City of Los Angeles. I had written an amicus brief in the case, on behalf of a number of national local government associations, and was interested to see how it would go. As one prominent environmental law scholar/practitioner advised me, “There is nothing quite like seeing Justice Scalia sneer at your favorite argument.” 

The case is one of an emerging category of market participant exception cases that implicate environmental law and policy. Here, ATA challenged certain aspects of the Clean Truck Program enacted by the Port of Los Angeles. The program was created to allay neighboring communities’ and environmental groups’ concerns about air pollution generated in and around the port by drayage trucks – usually old 18-wheelers at the end of their useful life that transport shipping containers from marine terminals to local railyards, truck depots, and other nodes in the intermodal transport network, for long-distance hauling. These groups had previously held up expansion of the Port through litigation and political opposition. The Port, making a business decision, decided it would be more efficient to address the air pollution than to keep fighting the communities and enviros.   

The program requires trucking companies to enter into concession agreements—or contracts—with the Port, which impose a number of requirements on trucks that access port facilities. Two requirements made it through the 9th Circuit and landed before SCOTUS: one requires trucking companies to have off-street parking plans for their trucks, the other requires trucks to post a placard including a number to call to report air pollution problems. ATA’s argument is that these requirements are expressly preempted by the Federal Aviation Administration Authorization Act (which, in addition to deregulating the airline industry also addresses regulation of the trucking industry). The Port’s argument is that the requirements are not preempted because they do not have “the force and effect of law” required under the preemption provision, in large part because they fit under the market participant exception, a doctrine developed at SCOTUS under dormant Commerce Clause and implied preemption cases but never before applied to express preemption under a federal statute. At the risk of grossly oversimplifying the matter: the Port maintains that it is a landlord, operating a business, and that in order to grow its business it has to impose certain limitations on those who enter and use its property.  

As you might imagine, the case is complicated. What I found most interesting about the oral argument was how straightforward the members of the Court appeared to find it. To those who spoke, the case seemed to boil down to the fact that noncompliance with the concession agreements could result in misdemeanor charges. The misdemeanor charges, however, under the terms of the Tariff that governs the Port, could only be applied to the marine terminal operator who leases space from the Port and who contracts with the trucking company, and not to the trucking company itself. The criminal penalty is not a term of the concession agreement between Port and trucking company. This fact, though, did not seem to sway the judges from their primary concern: Criminal penalties can only be enforced by the government acting as a regulator. Therefore, any concession agreement that in any way involves the threat of criminal sanction cannot be market participation.

I have two concerns about what appears to be the likely result, here. First, I think the emphasis on the criminal penalty mistakes a practical irrelevancy for a matter of theoretical or doctrinal importance. The Port’s attorney told the Court that the Port does not and would not seek criminal sanctions against a marine terminal operator for a trucking company's noncompliance with the concession agreement. Second, and perhaps more importantly, the existence of the criminal penalties is a red herring. State and local governments acting as market participants are always wielding a power different from that available to private firms, and they are always pursuing different purposes. Their contracting processes are likely to be dictated by law, rather than best practices or personal preference. Their profits are not distributed to partners or shareholders. And, of particular relevance here, government contracts are subject to the False Claims Act and its state analogs, which threaten criminal penalties. 

Second, ATA’s lawsuit is a Trojan Horse. In addition to the relatively innocuous provisions at issue in the case, the Port of LA’s Clean Truck Program also includes a mandatory phase-out of old, dirty trucks. Similar phase-outs have been adopted by the Port of Seattle and the Port Authority of New York & New Jersey. The trucking association has not challenged these programs, but lawsuits directly challenging these important initiatives will almost certainly follow quickly on the heels of a decision limiting the market participant exception defense to statutory preemption. Of course, the Court can craft an opinion that avoids doing serious damage to ports’ ability to claim the exception in other circumstances unrelated to the FAAAA, such as under the Clean Air Act vehicle emissions standards provisions. Here’s hoping the Court writes with that in mind. 

-- Michael Burger



June 4, 2013 in Air Quality, Constitutional Law, Law, North America, US | Permalink | Comments (0) | TrackBack (0)

Sunday, June 2, 2013

Happy World Oceans Day . . . sort of

World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.

The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at

The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.

If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.

From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.

And law isn't doing a whole lot to stop that process, by the way.

The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.

And we're changing them. If that doesn't scare you, it should.

We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."

We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.

We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.

We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.

Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.

This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.

Happy World Oceans Day!

-- Robin Kundis Craig

June 2, 2013 in Biodiversity, Climate Change, Economics, Food and Drink, Governance/Management, Law, North America, Science, Sustainability, US, Water Resources | Permalink | Comments (0) | TrackBack (0)