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

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

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

Does the Endangered Species Act Preempt State Water Law?

This is the published version

Re-Tooling Marine Food Supply Resilience in a Climate Change Era: Some Needed Reforms

Ocean fisheries and marine aquaculture are an important but often overlooked component of world food security. For example, of the seven billion (and counting) people on the planet, over one billion depend on fish as their primary source of protein, and fish is a primary source of protein (30 percent or more of protein consumed) in many countries around the world, including Japan, Greenland, Taiwan, Indonesia, several countries in Africa, and several South Pacific island nations. Marine fisheries and marine aquaculture have been subject to a number of stressors that can undermine world food security, including overfishing, habitat destruction, and pollution. However, climate change poses new and significant threats to marine fisheries and aquaculture that could both reduce the global marine food resource base and render ineffective current fisheries management. As a result, the resilience of the marine food supply into the future is very much in question, threatening food security in sometimes insidious ways. This Article first explores humans’ dependence on wild-caught marine fish and marine aquaculture before examining the emerging threats that climate change poses to wild fish stocks, marine aquaculture, and fisheries management. It then examines six ways that governments could internationally and individually re-tool marine-related governance systems to adapt to this climate change era, particularly by recognizing that fish stocks are increasingly likely to shift their ranges from historical norms and by recognizing that marine aquaculture may not be possible in all places. The Article concludes, however, that while productive re-tooling is still possible, the world also needs to face the probability that marine fish and marine aquaculture will become increasingly unreliable sources of food and that resilience-focused governance policies for marine aquaculture in particular will become increasingly important

Zero Sum Games in Pollution Control: The Games We Create versus the Games We Discover

Environmental pollution lands us in zero-sum games. The more interesting question is: Do we discover these games? Or do we invent them? In other words, are there hard environmental limits on how much anthropogenic pollution natural systems can absorb, which we eventually discover? Or do we create zero-sum games for pollution purely as a result of our own goals for both ecosystems and social-ecological systems (SESs, a recognition that human societies are both part of and depend upon functioning ecosystems)? In fact, we do both, and the intersection of the two in a climate change era is worth examination