Saturday, July 11, 2009



By Lawrence A. Kogan

Washington Legal Foundation Legal Backgrounder

Vol. 24 No. 23

July 10, 2009

"As debate continues over whether the United States will accede to the UN Convention on the Law of the Sea (UNCLOS), recent developments in Congress and the Executive Branch indicate a quiet but concerted effort to inject UNCLOS environmental principles into U.S. law. Some, including this author, have argued that U.S. accession to UNCLOS would explicitly usher into the U.S. legal system an aggressive version of Europe’s precautionary approach to regulating economic conduct.1 In advance of accession, though, this “Precautionary Principle” is finding its way into U.S. policy statements and proposed legislation in the more politically palatable and innocuous-sounding, but no less unscientific, form of “ecosystem-based management” (EBM). As this LEGAL BACKGROUNDER will illustrate, application of EBM to use and exploration of the sea, and even land could substantially frustrate critical economic activity such as offshore oil exploration and marine genetic prospecting, while also imperiling U.S. sovereignty.

...The administration and the 111th Congress convey the impression that these proposals do not relate to the UNCLOS.31 Presumably, they wish to avoid a time-consuming and politically risky Senate floor debate that would reveal to an uninformed and economically weary American public the costs, as well as the putative benefits, actually associated with U.S. UNCLOS accession.

The reality, however, is that the U.S. government would be hard pressed to avoid a discussion of how the proposals discussed above, or an even more formal embrace of the ecosystem-based management precaution embodied in UNCLOS, would impair important American economic and sovereignty interests. Such obligations, being consistent with Europe’s Precautionary Principle, would require the strict and costly preservation and protection of the oceans from land, air and water-based sources of pollution within the U.S., without any need to prove or quantify the environmental benefits resulting from government regulation.

Our government is asking the American public to bear the costs which will result from precaution-driven EBM. In turn, we [WE THE PEOPLE] deserve that such measures be examined in venues such as congressional hearings on U.S. UNCLOS accession, rather than disguised via use of obtuse administration policy statements, a raft of amendments to existing federal environmental laws, and arcane regulatory proceedings."

[See also Lawrence A. Kogan, What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as U.S. Law, 7 SANTA CLARA INT’L L. (June 2009), abstract available online at Social Science Research Network (SSRN) at 53, 56-97, at: ].


Two reports issued by the U.S. Joint Oceans Commission Initiative (‘JOCI’), in which former U.S. Admiral James Watkins and new CIA Director Leon Panetta likely participated as Commissioners are illustrate the Obama administration's gameplan concerning how to introduce the matter of ecosystem-based management into U.S. environmental law. An April 6, 2009 report recommended US Congressional accession to the UN Law of the Sea Convention, while a prior June 2006 JOCI report recommended changes to U.S. legislation and regulation to “[e]nable the transition toward an ecosystem-based approach”.

[An excerpt from the 2009 report, entitled, Changing Oceans, Changing World: Ocean Priorities for the Obama Administration and Congress: Recommendations from the Joint Ocean Commission Initiative, the cover of which is reproduced above, states the following:]

"The Administration and Congress have failed to act on most of the core recommendations of the Commissions, including the establishment of a national ocean policy, securing Senate support for U.S. accession to the Convention on the Law of the Sea, codifying and reorganizing the National Oceanic and Atmospheric Administration (NOAA), significantly increasing federal support for regional coordination efforts, and addressing chronic underfunding of ocean and coastal science, management, and conservation. Action on these recommendations is essential if we are to begin the transition toward a more integrated and ecosystem-based approach to management." (p. 8).

"...A catalyst is now needed to take this effort to the next level, and it must come in the form of leadership by the Administration and Congress. Specifically, legislation is needed to identify the goals and objectives of a national ocean policy, and the responsibilities of NOAA must be updated and the agency’s structure reorganized to realize its full potential. There must also be a coherent federal strategy for working with the states and regions, whose work is often stymied by confusion and conflict at the federal level. Oceans and coasts must be fully integrated into national climate and energy strategies, and the United States must reassert international leadership by acceding to the Law of the Sea Convention." (Id., at p. 9).

[An excerpt from the 2006 report, entitled,From Sea to Shining Sea: Priorities for Ocean Policy Reform, Report to the United States Senate, Joint Ocean Commission Initiative(June 2006) at p. 3).states the following:

"...Congress should enact legislation to create incentives for ecosystem-based management that builds on existing regional efforts. The incentives should provide a framework of policies and programs to guide the development and implementation of collaborative efforts that involve federal, state, tribal, and local governments, as well as the private sector, nongovernmental organizations, and academic institutions, working together toward regional actions that advance national ocean and coastal interests. The framework should be flexible in order to promote collaborative efforts that are responsive to regional realities, while ensuring accountability for making meaningful progress toward ecosystem-based management..." (p. 3).


...Management Decisions Grounded in an Ecosystem-based Approach. In carrying out a national ocean policy, we need to implement an ecosystem-based management approach that examines the links among living and nonliving resources. Instead of managing one issue or resource in isolation, we need to move toward a management approach that considers human activities, their benefits, and their potential impacts within the broader context of interconnected social, economic, and ecological factors.

A Stronger NOAA Capable of Implementing an Ecosystem-based Management Approach. Since its creation by a reorganization order in 1970, NOAA has worked to advance the understanding, management, and protection of ocean and atmospheric resources. However, the agency suffers from programmatic and functional overlaps, disconnects among current line offices, and changing organizational priorities. NOAA needs congressional action to codify the agency and thereby enhance its mission, improve its structure, and better enable it to carry out existing and new responsibilities in a manner that is consistent with ecosystem-based management." (Id., at p. 16).

"...Congress should expressly acknowledge that management of all marine resources should be carried out in an ecosystem-based approach. Further, Congress should call upon federal agencies to develop guidelines that enable improved coordination and analysis to assist in the transition toward an integrated management approach that considers the entire ecosystem. Such an express acknowledgment should be part of law currently up for reauthorization, including the Magnuson-Stevens Fishery Conservation and Management Act, the Coastal Zone Management Act (CZMA), the National Marine Sanctuaries Act, the Clean Water Act, and other statutory regimes governing the use and management of ocean and coastal resources. Through reauthorization or passage of these statutes, Congress can provide that the goals for management should be set to ensure that ocean and coastal ecosystems remain productive with respect to all resources.

For example, through language included in the reauthorization of the Magnuson-Stevens Act, Congress can acknowledge that a first step toward effective ecosystem-based management of fisheries is to enable coordinated analysis of cumulative impacts of activities on fishery resources, as well as the impacts of fishing activities on other sectors, by developing guidelines for Regional Fishery Management Councils and other state and federal agencies and management entities to perform such analyses.

Likewise, through reauthorization of the CZMA, Congress can require that state coastal programs work with federal, state, and local agencies to provide for periodic assessments of the state’s natural, cultural, and economic resources, and based on those assessments, set specific, measurable goals that reflect the growing understanding of ocean and coastal environments and the need to manage growth in regions under pressure from coastal development. Congress can also direct that states redefine the landward reach of their coastal zones to include coastal watersheds, thus better enabling coastal programs to look across political boundaries and incorporate a coastal watershed focus and the basic tenets of ecosystem-based management. Statutory acknowledgement of the need to incorporate ecosystem-based management into marine resource management regimes is intended be a first step toward ecosystem-based management by enabling improved coordination and analysis among agencies managing marine resources and providing for a transition toward an integrated management approach that considers the entire ecosystem." (Id., a pp. 19-20).

[These two JOCI reports were discussed in: Lawrence A. Kogan, Polar Sea Ice Melts Away in Time for Antarctic Easter Surprise, Institute for Trade, Standards and Sustainable Development (May 2009) at: p. 2, and accompanying footnotes 19-20, at: ].


Safeguarding our Seas: A strategy for the conservation and sustainable development of our marine environment ((c) 2002)

UK Department for Environment, Food and Rural Affairs (DEFRA)

"This report sets out our vision for the marine environment - clean, healthy, safe, productive and biologically diverse oceans and seas. It is underpinned by the principles of sustainable development, integrated management, the conservation of biological diversity, robust science, the precautionary principle and stakeholder involvement.

It outlines how we are adopting an ecosystem-based approach to marine management to better integrate marine protection objectives with sustainable social and economic goals. It covers the broad spectrum of policies that affect the marine environment. As well as describing past achievements and progress made, it contains new ideas and initiatives to turn our vision into reality.

These include initiatives to improve marine conservation and conserve biodiversity. They will also improve our management of our marine resources and develop scientific research and involve stakeholders. Our initiatives will also streamline regulation affecting development in coastal waters whilst protecting the marine environment. The report is a valuable first step in turning our vision into reality."

"...We need to use the resources and opportunities offered by our oceans and seas while protecting ecological processes and ecosystems. This is the foundation for sustainable development. We can achieve our vision by adopting an ecosystem-based management approach.

...For the UK, and our Overseas Territories and Crown Dependencies, the principles that underpin our policy for the marine environment are:

the precautionary principle – sensibly erring on the side of caution where the scientific evidence is not conclusive;" (Exec. Summ. at p. 3).


1.8 Within the framework of the United Nations Convention on the Law of the Sea (UNCLOS2) and international law, our vision for the marine environment can be summarised as working for clean, healthy, safe, productive and biologically diverse oceans and seas. Within one generation we want to have made a real difference to tackling the threats that marine ecosystems face. This vision covers all oceans and seas and their adjacent coastal areas. It is a long term vision, but one that requires short to medium term outputs, targets and aspirations."

"2UNCLOS came into force in 1994. It contains a legal framework covering navigation, maritime boundaries, fisheries, the marine environment and marine scientific research. To date, 138 states are members, including the UK. We strongly support it and encourage all states to join."

"...1.17 An ecosystem-based approach to management represents a new and more strategic way of thinking. It puts the emphasis on a management regime that maintains the health of ecosystems alongside appropriate human use of the marine environment, for the benefit of current and future generations. This requires setting clear environmental objectives both at the general and specific level, basing management of the marine environment on the principles of sustainable development, integrated management, conservation of biodiversity, robust science, the precautionary principle and stakeholder involvement." (p. 7)

...1.20 Where scientific evidence is not conclusive, we need sensibly to apply the precautionary principle. This means, for example, taking preventive measures where there are reasonable grounds for concern that direct or indirect inputs to the marine environment may harm human health, living resources and marine ecosystems or other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects. (p. 7)


1.41 This chapter has summarised our vision and the key initiatives that will help us to deliver clean, healthy, safe, productive and biologically diverse oceans and seas. It outlines how an ecosystem-based approach can deliver this goal based on the principles of sustainable development, integrated management, conservation of biodiversity, robust science, the precautionary principle and stakeholder involvement. The remainder of the report sets out in more detail what we have already achieved and how we will deliver our vision based on the initiatives summarised in this chapter. (p. 11)

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