Dealing with Ocean Acidification: The Problem, the Clean Water Act, and State and Regional Approaches

Ocean acidification is often referred to as climate change’s “evil twin.” As the global ocean continually absorbs much of the anthropogenic carbon dioxide produced through the burning of fossil fuels, its pH is dropping, causing a plethora of chemical, biological, and ecological impacts. These impacts immediately threaten local and regional fisheries and marine aquaculture; over the long term, they pose the risk of a global mass extinction event. As with climate change itself, the ultimate solution to ocean acidification is a worldwide reduction in carbon dioxide emissions. In the interim, however, environmental groups such as the Center for Biological Diversity have worked to apply the federal Clean Water Act to ocean acidification, while states and coastal regions are increasingly pursuing more broadly focused responses to ocean acidification’s local and regional impacts. This Article provides a first assessment of these relatively nascent legal efforts to address ocean acidification. It concludes first that ocean acidification should prompt renewed Clean Water Act attention to stormwater runoff and nutrient pollution. However, this Article also demonstrates that improved implementation of the Clean Water Act will not be enough. The realities of ocean acidification require more comprehensive legal and policy innovations so that coastal states and regions can adapt to its impacts now and into the future

Trickster Law: Promoting Resilience and Adaptive Governance by Allowing Other Perspectives on Natural Resource Management

The Anthropocene requires a new approach to natural resources law and policy, an approach that this short article terms trickster law. Trickster law incorporates insights from resilience theory, adaptive governance scholarship, and cultural/anthropological studies of trickster tales to create a legal approach to natural resource management that is precautionary, engaged in proactive planning, based in principled flexibility, and pluralistic. This article focuses on the pluralism component, presenting three examples of how law modified to be more inclusive and respect different value systems has generated new approaches to natural resources management that better promote social-ecological resilience to climate change and other anthropogenic stressors

Water Law and Climate Change in the United States: A Review of the Scholarship

Climate change’s effects on water resources have been some of the first realities of ecological change in the Anthropocene, forcing climate change adaptation efforts even as the international community seeks to mitigate climate change. Water law has thus become one vehicle of climate change adaptation. Research into the intersections between climate change and water law in the United States must contend with the facts that: (1) climate change affects different parts of this large country differently; and (2) United States water law is itself a complicated subject, with each state having its own laws for surface water and groundwater and the federal government playing a significant role in interstate and international waters, in building and managing large water infrastructure, and in creating water rights for Native American tribes and other federal reservations. Within this complexity, legal research to date has tended to focus on the law governing surface water in the American West, enumerating various problems with the prior appropriation doctrine as the West grows hotter and drier and offering multiple suggestions to increase legal flexibility so that western water can be re-allocated to reflect changing social-ecological realities. These suggestions extend to new, more comprehensive, and more adaptive water governance approaches. Far less scholarly attention has focused on eastern riparian rights, the various groundwater doctrines at play in the United States, or the increasing role of tribes in managing water resources, but these areas warrant future attention

Treating Offshore Submerged Lands as Public Lands: A Historical Perspective

When President Harry Truman proclaimed federal control over the United States’ continental shelf in 1945, he did so primarily to secure the energy resources—oil and gas—embedded in those submerged lands. Nevertheless, the mineral wealth of the continental shelf spurred two critical legal battles over their control and disposition: first, whether the federal government had any interest in the first three miles of continental shelf; and second, if so, whether the federal government had authority to regulate the continental shelf under traditional federal public land laws, such as the Minerals Leasing Act. Congress’s reactions to federal courts’ resolutions of these questions, embodied in 1953 in the Submerged Lands Act and the Outer Continental Shelf Lands Act, continue to provide the foundations for state and federal management of the nation’s continental shelf and its energy resources. Nevertheless, the Outer Continental Shelf’s status as federal public lands remains ambiguous. This Article takes a historical approach to assessing that issue, reviewing the traditional definition of federal “public lands” and the historical context of the public lands issues that arose for the Outer Continental Shelf. It concludes that the Outer Continental Shelf, from a natural resources perspective, qualifies as the newest of the federal public lands, but it also acknowledges that—unlike for many other public lands—federal statutes repeatedly and consistently exclude the states from gaining ownership of those submerged lands

George Perkins Marsh: Anticipating the Anthropocene

This chapter, part of the forthcoming volume PIONEERS OF ENVIRONMENTAL LAW, explores the vision of humanity\u27s influence on social-ecological systems that George Perkins Marsh provided to the world in his 1964 work, MAN AND NATURE, OR PHYSICAL GEOGRAPHY AS MODIFIED BY HUMAN ACTION, republished in 1874 as THE EARTH AS MODIFIED THROUGH HUMAN ACTION. In addition to tracing how Marsh and these publications influenced nature resources and environmental law in the United States well into the 20th century, this chapter also argues that Marsh anticipated, in many respects, the environmental legal and policy issues of the Anthropocene by tracing clearly how human development can substantially alter ecological processes at a large geographic scale

Agencies Interpreting Courts Interpreting Statutes: The Deference Conundrum of a Divided Supreme Court

Plurality decisions from the U.S. Supreme Court demand interpretation, especially because they tend to occur when the Court faces important but divisive legal issues. Most courts, agencies, and scholars have assumed that federal agencies are in no better position to interpret plurality decisions than the lower federal courts when confronted with a potentially precedential Supreme Court plurality decision--the agency must construe the Justices--various opinions in search of a controlling rationale

Fostering Adaptive Marine Aquaculture through Procedural Innovation in Marine Spatial Planning

Worldwide, as wild-caught commercial fisheries plateau and human demands for protein increase, marine aquaculture is expanding. Much marine aquaculture is inherently adaptable to changing climatic and chemical conditions. Nevertheless, siting of marine aquaculture operations is subject to competing environmental, economic, and social demands upon and priorities for ocean space, while some forms of marine aquaculture can impose other externalities on marine systems, such as pollution from wastes (nutrients) and antibiotics, consumption of wild fish as food, and introduction of non-native or genetically modified species. As a result, governmental policy decisions to promote both marine aquaculture that can adapt to a changing ocean and adaptive governance for that aquaculture can become contested, requiring attention to their social legitimacy. This article explores how the law can promote the adaptability of marine aquaculture to climate change and ocean acidification — adaptive marine aquaculture — while still preserving key rule-of-law values, such as public participation and accountability. Perhaps most obviously, law can establish substantive requirements for marine aquaculture that minimize its impacts, promoting marine resilience overall. However, to foster truly adaptive marine aquaculture, including adaptive governance institutions, coastal nations should also procedurally reform their marine spatial planning efforts to legally connect the procedures for aquaculture permitting, marine spatial planning (MSP), and adaptive management. One goal of such connections, moreover, should be to mandate new forums for public participation and creative collaboration, promote experimentation with accountability that leads to increased knowledge, and foster the emergence of adaptive governance regarding the use of marine space

The Regulatory Shifting Baseline Syndrome: Public Law as Cultural Memory

In 2013, the U.S. Supreme Court declared unconstitutional the Voting Rights Act’s preclearance requirements for six states’ voting laws, and many of those states almost immediately enacted new voting restrictions, that disparately affected citizens of color. In the 1980s and 1990s, Congress deregulated financial markets, including dismantling protections that had been in place since the New Deal, allowing firms to introduce new forms of derivatives — and systemic risk — into the economy, leading to 2008’s housing crisis. In the early 21st century, state legislatures increasingly enacted exemptions from state vaccination requirements that allowed parents to skip their children’s vaccinations, setting the stage for resurgences of measles in 2015 and 2019. Since at least 2001, courts, federal agencies, citizens, and NGOs have focused on the Clean Water Act’s alleged intrusions into state sovereignty and private property rights in the context of “dredge and fill” permits, undermining the Act’s continuing ability to improve the overall quality of the nation’s waterbodies. All of these seemingly unrelated legal phenomena derive, at least in part, from the regulatory shifting baseline syndrome. In 1995, Dr. Daniel Pauly described the “shifting baseline syndrome” and its problems for fisheries management. Pauly posited that each generation of fishers and fisheries managers forgets what the ocean and its fisheries used to be, instead taking the current state — demonstrably impoverished from a historical perspective — as normal. The forgetting of history, in other words, makes opaque what the goals of fisheries regulation should be, or even could be. This Article brings the shifting baseline concept into public law, identifying for the first time a regulatory shifting baseline syndrome that can undermine the law’s ability to protect society at large. This syndrome arises when a long-existing public legal regime so successfully eliminates a societal problem that citizens, politicians, and lawmakers forget that the regime is in fact still working to keep that problem at bay. The syndrome is especially problematic in areas of public law where curbing human behavioral tendencies remains an important component of protecting public goods, benefits, or amenities, regardless of how secure the relevant public commons now appears. Acknowledging the syndrome thus challenges would-be law reformers to ask whether we should recover the historical lessons about ourselves and our collective abilities to harm society at large before dismantling the legal protections prior generations felt compelled to enact