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"Oceans 21" – A New Way to Regulate Air Emissions and Land Use?


01/21/09

On January 6, 2009, Congressman Farr (D. Cal.) introduced H.R. 21. Dubbed "Oceans 21" by its supporters, this bill directs federal agencies to (1) implement the National Ocean Policy established in H.R. 21 "to the fullest extent possible" and (2) within two years issue regulations to "ensure" that actions authorized, funded, carried out, permitted, or licensed by such agencies are consistent with H.R. 21's National Ocean Policy.

H.R. 21 states that the National Ocean Policy "shall" be implemented to "protect, maintain, and restore marine ecosystem health." The bill defines "marine ecosystem health" as the ability of an ecosystem to sustain a "complete diversity" of species and the "physical, chemical, geological, and microbial" environment necessary to maintain that complete diversity. H.R. 21 also provides that the National Ocean Policy "shall" be implemented such that "the lack of scientific certainty should not be used as justification for postponing action to prevent negative environmental impacts." Finally, H.R. 21 directs that the National Ocean Policy "shall' be implemented such that federal agencies recognize (1) the "interconnectedness of the land, atmosphere including climate, and oceans," and (2) "that actions affecting one of these, such as climate, are likely to affect another, such as ocean resources."

Companies discharging directly to the oceans, or engaged in activities that result in runoff or other discharges to rivers and streams that empty into oceans, will be regulated under H.R. 21's strict prohibitions. So too will companies contributing to air emissions that are alleged to affect ocean temperatures or ocean acidification. While legislators and lobbyists are focused on global warming legislation, H.R. 21 provides federal agencies with a backdoor way to regulate air emissions and to force revisions to EPA regulations, using what amounts to an "ensure no harm to the oceans" standard. H.R. 21 may also be a way to establish a federal zoning program to regulate any land use in a watershed that empties into an ocean. Given that 40% of the land mass in the lower 48 states drains into the Mississippi River alone, the potential regulatory reach of H.R. 21 cannot be overstated.

H.R. 21 was introduced with 18 co-sponsors. The environmental community has made this bill a top legislative priority and the bill sponsors are pushing for quick Congressional action.

George Mannina is a Partner in Nossaman's Washington, DC office who has more than three decades experience with environmental litigation and government relations. He has demonstrated expertise with oceans and fisheries law, the Endangered Species Act (ESA), the Superfund Natural Resource Damages and the Clean Water Act (CWA). He can be reached at 202.887.1491 or gmannina@nossaman.com.

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