In 2009, as renowned oceanographer Sylvia Earle accepted an award at the TED Conference, she described the ocean as “the blue heart of the planet” and implored the audience to support efforts to restore the oceans with “all means at our disposal.” The Obama administration has made ocean protection a priority for the United States, launching a new National Ocean Policy (NOP) in July of 2010 to unify management of the nation’s coasts and waters. In an era that demands both protection and productivity of our nation’s oceans, this is exactly what is needed: a strong, coherent national policy based on science and informed by local stakeholders. The NOP was the culmination of over six decades of concerted ocean planning and protection. The language of the policy starts out by recognizing the value of our coasts: “The oceans, our coasts, and the Great Lakes provide jobs, food, energy resources, ecological services, recreation, and tourism opportunities, and play critical roles in our Nation’s transportation, economy, and trade, as well as the global mobility of our Armed Forces and the maintenance of international peace and security.” Historically, ocean management has been focused on individual sectors and separate regulations for each ocean activity. The NOP is a response to the Byzantine patchwork of federal, state, and local authorities that guide ocean policy, which has become such a quagmire that it hardly allows for “smooth sailing” for the ocean law regulators or those being regulated. In the United States, which has the largest ocean area of any country in the world, spanning over 3.4 million square nautical miles,6 there are at least 20 federal agencies and 140 federal statutes concerning ocean management. This poses a significant challenge to dealing with the cumulative impacts and cross-sectorial harms that are affecting our oceans. For example, one ocean activity may be regulated by a plethora of overlapping laws and overseen by several different agencies with differing agency mandates. Even governmental agencies that regulate ocean activity have been challenged when trying to decipher which legal standards apply to new ocean activities, such as a new wave energy project. While the ocean is facing a death by a thousand cuts, the federal government has been trying to put a thousand small bandages on the problems one-by-one, instead of taking a step back to try to cure the disease. An overarching law or legal framework is needed to deal with ocean issues. The problem of fragmented ocean governance has become more apparent and critical in recent years as new ocean activities have emerged, such as renewable offshore energy, aquaculture, and liquefied natural gas terminals. These location specific activities pose potential conflicts across sectors with varying severity. Just as Americans enjoy the Clean Water Act for protection of water and the Clean Air Act for protection of air, there is now a bedrock environmental policy for oceans. But we have yet to see the NOP be used as a management tool for our oceans. “If not now, when?” asked retired U.S. Coast Guard Admiral Thad Allen, the man in charge of the Deepwater Horizon oil spill response and an active player in the ocean policy formulation, at the marine conservation community’s Blue Vision Summit in Washington D.C. in May 2011. To that end, this Article explores how the new NOP can best fix the gaps in the existing legal framework and solve the most pressing problems of ocean management in the United States. The purpose of this Article is to inform the audience of the nature, history, and promulgation of the nation’s first NOP, address the challenges to implementing the NOP, and offer recommendations that will help lead to the success of the NOP. Specifically, this Article sets out by discussing the public trust doctrine as a foundation for managing our common public trust properties in the coasts and oceans; offers a history of national ocean governance, including a review of the work of the Stratton Commission, U.S. Commission on Ocean Policy, Pew Oceans Commission, and Joint Ocean Commission Initiative; this Article then analyzes the NOP as an executive order and compares it to past executive orders dealing with the nation’s oceans, namely the establishment of the Papahanaumokuakea Marine National Monument and the Federal Presidential Oil Drilling Moratorium; and it subsequently discusses potential applications of the NOP through coastal and marine spatial planning and wave energy. For illustrative purposes, coastal and marine spatial planning is discussed using ocean management plans recently established in Massachusetts and Rhode Island, while offshore energy progress and challenges are explained through the Cape Cod Wind and Reedsport, Oregon Wave Energy projects. The cutting edge coastal and marine spatial planning framework, activated through the Massachusetts and Rhode Island Plans, demonstrates how the priority objectives of the NOP can be used at the state level. This Article culminates in a discussion of the challenges that the NOP will surely face: the need to reconcile the top-down policy with the most effective local and regional form of policy refinement and implementation, the need to fund the national objectives of the policy, and the need for political will to codify and support the NOP. For those working to implement the NOP and ensure its success in securing the health and productivity of our oceans, the more profound part of this Article can be found in the recommendations section which covers the need for public outreach, the need for measured progress with adaptive management, and the need to take cues from regional and local stakeholders.
Angela T. Howe,
The U.S. National Ocean Policy: One Small Step For National Waters, But Will It Be The Giant Leap Needed For Our Blue Planet?,
Ocean & Coastal L.J.
Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol17/iss1/4