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Clean Oceans Laws: Conservation Or Confrontation?

Environmental Law360

Law360, New York (December 15, 2008) -- If enacted, the Ocean Conservation Act, or H.R. 21, would have significant economic and social consequences for businesses and individual citizens throughout the United States.

H.R. 21, formally titled the Ocean Conservation, Education and National Strategy for the 21st Century Act, was introduced in the U.S. House of Representatives on Jan. 4, 2007.

Title I provides a sweeping conservation program requiring every federal agency to ensure that any activity it authorizes, funds or carries out does not adversely affect the oceans. Adverse effects are defined to include impacts on biological diversity, starting at the genome level, making H.R. 21's reach enormous.

Think about any activity occurring in any watershed delivering waters to the oceans or the Great Lakes which are included in the legislation. As the U.S. Environmental Protection Agency said in its 2001 report titled Protecting and Restoring America's Watersheds: "No matter where you live, you live in a watershed."

For example, the report notes that 40 percent of the land in the lower 48 states drains to the Mississippi River alone. Then think about any activity that might contribute to ocean warming or acidification through air emissions of any description — and about regulating air emissions via an ocean conservation bill.

H.R. 21 did not make it through the current Congress, although a slightly modified version was approved by a House Subcommittee. But H.R. 21 will be reintroduced when a new Congress convenes in January.

Once reintroduced, this bill will be a top priority of key Members of Congress. It will also be a top priority for the environmental community – a community that, after surveying the post-election political landscape, may be less willing to compromise than was the case in 2007 and 2008.

What The Bill Does

H.R. 21 sets out eight purposes, chief among which is "requiring" that all "covered actions" be consistent with H.R. 21's standards. Under the standard set out in the bill, there is no federal permit or activity that is not an "action."

For an action to be a "covered action" regulated by H.R. 21, it must "affect" the oceans. The effect need not be significant or even major. Any effect, no matter how minimal, is sufficient.

To place this lower threshold into perspective, recall that even the National Environmental Policy Act ("NEPA") that requires environmental impact statements ("EIS") only applies to "major Federal actions significantly affecting" the environment. 42 U.S.C. § 4332.

Anyone with NEPA experience knows the courts have required EISs for a multitude of activities. Reducing the already low NEPA standard means there will be almost no federal permit or activity that is not a "covered action" subject to H.R. 21.

For every covered action, federal agencies are directed "to the fullest extent possible" to carry out the policy and standards of H.R. 21. The bill does not use words such as "to the extent practicable" which would allow for some balancing of competing objectives and interests.

Rather, H.R. 21 says "to the fullest extent possible." This standard effectively excludes from consideration any adverse impacts on the economy or jobs when conservation restrictions are imposed under H.R. 21.

Just to be clear, H.R. 21 then requires that every covered action "must" be conducted so that it is "consistent with the protection, maintenance and restoration of healthy ecosystems." H.R. 21 does not define the term "healthy ecosystems."

However, it does define a "healthy marine ecosystem" as "a productive and resilient community of organisms having a species composition, diversity and functional organization resulting from the natural habitat of the region, such that it provides a complete range of ecological benefits, including

(A) a complete diversity of native species and habitats wherein each native species [can be maintained]; and

(B) a physical, chemical, geological, and microbial environment that is supportive of the requirements of this paragraph."

Three things stand out in this definition.

First, oceans must be protected down to the chemical and microbial level.

Second, there must be a "complete diversity" of species. While H.R. 21 does not define the word "diversity," it does define the term "biological diversity" as including genomes.

Third, the requirement to maintain a functioning community resulting from the "natural habitat of the region" suggests that the benchmark objective is the natural habitat existing before human influence.

The Ocean Conservation Act then addresses how its standards are to be applied when there is "incomplete or inconclusive information as to the effects of a covered action ..."

Given that we lack information on many elements of the marine ecosystem, there is likely to be incomplete or inconclusive information in many, if not most, circumstances. And this issue of incomplete and inconclusive information is greatly complicated by the fact that what constitutes an "ecosystem" is far from clear.

As many experts have noted, an ecosystem is a leaky thing. Species, energy, and nutrients move in and out. All species are part of multiple "ecosystems" because ecosystems do not have fixed geographic boundaries but rather are interconnected things. Taking the concept of interconnected ecosystems to its logical end, the entire ocean becomes one interconnected ecosystem.

Thus, the "incomplete or inconclusive information" threshold can easily be triggered by anyone pointing out the fact that we lack complete or definitive information on all aspects of oceanic biology, chemistry, physiology, etc. and therefore do not know with certainty the actual or potential effects of a "covered action."

Once the threshold of incomplete or inconclusive information is crossed, H.R. 21 provides that decisions regarding the covered action "shall" be made using the "precautionary approach" in order "to ensure" the protection, maintenance, and restoration of a healthy marine ecosystem, a term discussed above.

Focus first on the word "ensure." When the Supreme Court considered what is required by the "insure" no harm to protected species standard in the Endangered Species Act, 16 U.S.C. § 1536(a)(2), the Court said this was an absolute standard that "admits of no exception." Tennessee Valley Authority v. Hill, 437 U.S. 153, 173 (1978).

As if one ensure no harm to the oceans standard is not enough, H.R. 21 goes on to define the required "precautionary approach" as one that will "ensure" the health of marine ecosystems such that the "lack of full scientific certainty shall not be used as a justification for postponing action to prevent environmental degradation."

Consider for a moment the tools given by this language to opponents of any "covered action." Opponents can first raise all manner of questions to meet the threshold of "incomplete or inconclusive" information.

Once crossing that threshold, project opponents switch positions employing the definition of "precautionary approach" to assert now that the presence of incomplete or inconclusive information is no obstacle to imposing restrictive conditions on the "covered action" – conditions that must ensure no harm to the oceans

In case any Federal agency has thus far misunderstood its obligations under H.R. 21, Title I concludes by directing that each Federal agency "shall ensure" that any covered action complies with the policies and standards set forth in H.R. 21.

Agency heads are required to certify that any covered action complies with the standards of H.R. 21.

That certification must be submitted to the Administrator of the National Oceanic and Atmospheric Administration who must then issue an opinion, stating if he or she concurs, together with any recommendations for remedying "any identified deficiencies" in compliance with H.R. 21.

And just to be sure, H.R. 21 provides that any determination regarding covered actions is subject to judicial review.

In April 2008, the Subcommittee on Fisheries, Wildlife and Oceans of the House of Representatives Committee on Natural Resources approved a modified version of H.R. 21.

Although the subcommittee approved bill uses different words and attempts to clean up some of the language in H.R. 21, the net effect is not much different from the bill as introduced.

Although Congress took no further action on H.R. 21, environmental organizations have this bill on their priority action list for the new Congress that will convene in January 2009.

What Does H.R. 21 Mean For Business And For Individual Citizens?

Remember two things. First, H.R. 21 regulates any federal action (including permits) that might adversely affect the oceans, including the Great Lakes.

Second, oceans are affected by land run-off, discharges into waterways that directly (or via tributaries) flow into oceans, air emissions that can cause acidification and anything that may contribute to ocean warming.

Chemicals reach the oceans by countless sources including factories, wastewater treatment plants, cars, boats, lawns and crop fields. Homeowners, commercial properties, golf courses, churches and others who apply lawn care or insecticide products are probably contributing to ocean degradation.

Congress is now actively considering economic stimulus legislation, a large part of which may be infrastructure development, including important highway projects. But such projects bring automobile usage and alleged ocean impacts via global warming – impacts that would now be evaluated under H.R. 21's "precautionary approach."

While everyone is focused on the proposed provisions of pending global warming legislation, if H.R. 21 passes, the need for clean air legislation diminishes dramatically because H.R. 21 provides a back door route to regulate virtually all air emissions.

To fully understand the impact of H.R. 21, consider how it attempts to balance the inevitable economic and social consequences of its requirement to "ensure" the health of marine ecosystems. Recall that the word "ensure" represents the highest standard of care that can be awarded by Congress. The policy objective to be ensured becomes the pre-eminent objective, trumping all others.

This reality is reflected in H.R. 21 which provides that the "adverse social and economic impacts" of any restrictions required to meet H.R. 21's ensure no harm objective shall be minimized only "to the extent practicable."

Thus, while H.R. 21 requires that its conservation goals be implemented "to the fullest extent possible" and that we "ensure" healthy marine ecosystems, any adverse economic and social consequences of these protective actions are to be minimized only "to the extent practicable."

It is all too likely that when regulators and courts review the requirements of H.R. 21 the economic and social impacts of ocean conservation actions will receive little consideration because it is not "practicable" to consider such impacts given the absolute mandate to "ensure" the protection of marine ecosystems "to the fullest extent possible."

Moreover, H.R. 21 requires that economic and social impacts be given consideration only as to "communities that are significantly resource dependent."

There is no requirement to consider the economic and social impact of H.R. 21's protective policies for any community falling outside the significantly resource dependent standard.

No one quarrels with the goal of conserving the oceans. The issue is one of balance. Will the town council of a small city in America's heartland, or the mayor of a great urban metropolis, each seeking to create jobs and economic growth through a redevelopment project requiring federal approvals or funding be able to "ensure" no adverse impacts under the "precautionary approach" of H.R. 21?

Will a homebuilder or a church needing a federal Clean Water Act permit to build homes for young families or a new sanctuary so that they may worship be able to meet the requirements of H.R. 21?

On a larger stage, will America's goals of energy independence and rebuilding our infrastructure be impeded or stopped because these important goals conflict with the absolute ensure no harm requirement of H.R. 21?

The purpose of this article is not to advocate that one goal is more or less important than others. The point is that placing one goal above all others has consequences. Such national policy deserves careful consideration before it is adopted.

George J. Mannina is a partner with Nossaman in the firm's Washington, D.C., office.

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