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Document Type

Comment

Abstract

Within the world's oceans, the greatest diversity of life is found on coral reefs. Often called "the rainforests of the sea," these amazing living structures play a crucial role in sustaining a thriving ocean habitat, particularly in tropical areas. Although coral reefs comprise less than one percent of the ocean floor, nearly twenty-five percent of all marine life are dependent upon coral reefs for their survival. The many benefits which the reefs offer include food production, coastal protection and immense biodiversity. Unfortunately, it is believed that ten percent of the world's coral reefs have sustained irreversible damage. Over the past two decades, the coral reefs around the world have experienced dramatic change, especially those in the Florida Keys and the Caribbean. In an effort to raise the world's awareness of the threats to coral reefs, more than one hundred governments, nongovernmental organizations, multilateral lending institutions, regional organizations, and United Nations affiliates declared 1997 the Year of the Coral Reef. Coral reefs continue to degrade in response to natural disturbances such as hurricanes, coral bleaching and disease, and human activity, including: reef-destructive fishing, sedimentation from deforestation and development, raw sewage, nutrients and pesticides from agricultural practices, oil from ships and landbased sources, and direct damage from tourism activities, boat anchors, and ship groundings. Ship groundings are one of the most destructive anthropogenic factors, causing substantial localized damage to coral reefs. Throughout the 500- year history of mariners in the New World, thousands of shipwrecks have been documented, including many groundings on coral reefs. In the 1850s, the United States government was concerned about the number of ships running aground on coral reefs off the coast of Florida, so a famous Harvard biologist, L. Agassiz, was given the task of determining what, if anything, the government could do in order to "get rid of" the reefs. Wisely, Agassiz concluded that the reefs were in fact permanent structures and recommended that lighthouses be built to protect shipping activities. One of the most avoidable disturbances is the cumulative damage caused by ships. In U.S. waters alone, millions of gallons of oil have been spilled by ships since 1989. Immediate cleanups typically yield recovery rates that range from ten percent to fifteen percent. Residual oil and the cleanup techniques themselves effect hundreds of miles of shoreline and damage an inestimable amount of natural resources. The spills and subsequent damage to the marine environment that result during the transportation of oil offer impetus and insight to our monetary valuation of nature. To address the degradation of the Nation's natural resources, Congress and the President have enacted a suite of environmental laws. Explicit statutory authority to restore injured resources commenced with the Clean Water Act (CWA) amendments of 1977 and continued with the enactment of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the National Marine Sanctuaries Act (NMSA), and the Oil Pollution Act of 1990 (OPA). As the primary federal trustee for coastal and marine resources, the National Oceanic and Atmospheric Association (NOAA) is responsible for ensuring the restoration of resources injured by releases of hazardous materials and of national marine sanctuary resources injured by physical impacts. The CWA, CERCLA and OPA mandate that parties who release, destroy, cause the loss of, or injure sanctuary resources are responsible for their restoration. The NMSA mandates that parties who spill hazardous materials or oil into the marine environment are responsible for both cleanup and restoration costs. The valuation of natural resources allows the courts to assess damages for environmental harm, resulting in the use of economic models to protect the environment. The natural resource damage provisions of current relevant statutes reflect a novel "hybrid" of economic theory, tort, trust, and administrative law elements. Because the valuation methods of claims brought under the public trust doctrine are essentially similar to the statutory damage provisions, the discussion of common law theories is limited to the public trust doctrine, though several other common law theories have been asserted in a post-spill claim. This Comment will consider the evolving role of nonuse and contingent valuation, and the progression away from an economic pricing theory of the valuation of Nature toward a recognition of the intrinsic value of Nature. The Fifth Circuit's 1970 decision in United States v. Ray recognized the Government's "vital interest ... in preserving the reefs for public use and enjoyment," and declared that "protective action by the Government to prevent despoliation of these unique natural resources is of tantamount importance." The U.S. government's current position toward reefs and marine ecology is evident in the designation of the several National Marine Sanctuaries, and the participation in the International Coral Reefs Initiative. In Agenda 21 of the International Coral Reef Initiative (ICRI), marine ecosystems, including coral reefs, were accorded prominent status. Increasing public and political recognition of the need to protect coral reefs has been the major impetus for nations to preserve reefs. The IRCI objectives call for a strengthened commitment to and implementation of programs to conserve, restore and promote sustainable use of coral reefs, as well as an increased capacity for development and implementation of policies, management, research, and monitoring of reefs.

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