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Precautionary Ocean Policy Order Will Impact Land-Based Activity

Washington Legal Foundation, Legal Opinion Letter (Vol. 19 No. 17)

The Obama Administration on July 19, 2010 issued Executive Order 13547 to implement the recommendation of its Interagency Ocean Policy Task Force, chaired by the Council on Environmental Quality. This Executive Order will likely have far reaching consequences for all activities occurring in watersheds that drain to the ocean or that affect the ocean via air emissions. The Administration's documents freely admit its new policies will affect land-based activities "hundreds" of miles from the ocean.

The Administration's policy is that there should be no adverse impact on the oceans from any activity that (1) generates greenhouse gases that contribute to ocean warming or acidification, or (2) adds pollutants to the ocean via any watershed drainage. But there is a special twist to this new policy. The twist is that in implementing the no harm to the oceans policy, agency officials are to be guided by the precautionary principle identified in the 1992 Rio Declaration. That principle states: "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."

The 1992 Rio Declaration raises important legal issues. The first issue is what constitutes a "serious" threat of environmental damage. Webster's Dictionary defines "serious" as "relating to a matter of importance" or "having important or dangerous possible consequences." Thus, the word "serious" has some meaning greater than detectable or known. There must be some consequential impact that rises to a level of significance or substantiality. However, the word "serious" is not a commonly used term in environmental statutes. The National Environment Policy Act speaks of "major" actions "significantly affecting" the environment. In the Resource Conservation and Recovery Act, the operative words are "imminent and substantial" endangerment. The Endangered Species Act focuses on jeopardy to the very survival of the species. Which of these standards, or what other standard, is the proper frame of reference for the legally untested regulatory concept of "serious?" Alternatively, and absent statutory precedent, are we to employ the well understood judicial injunction standard of irreparable harm? This question is not addressed in the Administration's policy documents. Further, how to resolve this question would seem to be a congressional function to be carried out via a duly enacted statute and not something to be done by Executive Order.

The second issue is the factors that are to be weighed in determining if a proposal presents a "serious" threat to the environment. Is the impact on fish and wildlife or natural processes the only measure of "serious" damage or is that evaluation to be made in a larger context of the entire human environment? That larger context would include benefits to humans, including economic or similar benefits that result in an overall balancing of interests to determine what is "serious." A proposal may appear "serious" only if a larger context is not provided.

Third, in addressing the risk assessment threshold, what does the Rio Declaration mean when it states "the lack of scientific certainty" shall not be a reason for postponing actions? What level of scientific certainty is to be applied in making the "serious" determination? American jurisprudence is based on the principles of preponderance of evidence and beyond a reasonable doubt. Is it the intent of the Executive Order to establish a new evidentiary standard that is less than the preponderance of evidence? If so, is the standard to be a plausible belief, or something else? If the great weight of evidence says there is no "serious" issue but a few minority opinions hold to the contrary, does this constitute scientific uncertainty justifying regulatory action? Such a principle runs contrary to well established legal standards.

Finally, who has the burden of proof regarding whether there is a "serious" effect? Does the opponent of an action bear that burden or must the proponent prove by some unknown evidentiary standard that there is no "serious" impact? Placement of the burden of proof is a significant legal matter. It is also inextricably intertwined with the issue of what level of proof is required. Assuming these issues are somehow resolved, as the Rio Declaration is now implemented, agencies must recognize and fully implement the standard in that Declaration that only "cost-effective" measures may be adopted "to prevent environmental degradation."

The Administration's national ocean policy of "ensure no harm" to the oceans, coupled with implementing the 1992 Rio Declaration precautionary principle will, via Executive Order 13547, impose new requirements on federal agencies undertaking actions, approving permits, or funding projects. These new requirements will have far reaching consequences for activities occurring in or on the oceans as well as for activities that affect the oceans via drainage from watersheds or air emissions.

George J. Mannina, Jr. is a partner in the Washington, D.C. office of the law firm Nossaman LLP.

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