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~ Ocean Litigation 2008 ~
Who is in Court and
What are they Fighting About?
© Karen M. Hansen
Beveridge & Diamond, P.C.
Washington, DC
[email protected]
Ocean Law Conference
Law Seminars International
May 22 & 23, 2008
Seattle, WA
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U.S. Jurisdictional Waters
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U.S. Exclusive Economic Zone
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Some Economic Data
 The ocean economy is valued at $117B
while the coastal economy is valued at >
$1T, or 10% of GDP. The coastal
watershed economy is over $4.5T, or
half of GDP.
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Ports: $700B in goods
Offshore oil and gas $25-40B
Recreational boating/retail: $30B
Commercial fishing: $28B
Recreational Saltwater fishing: $20B
Cruise industry/tourism: $11
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And Unmeasured Value
 There is much we do not know:
~ Do not collect meaningful data
• lack information on the full economic
value of our coasts and oceans
• or intangibles such as healthy
ecosystems, clean water, safe seafood,
healthy habitats, and desirable living and
recreational places.
– Cf. $100M/year on agricultural economic
research
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Add Legal Uncertainty
 Expansion of jurisdiction since 1970s
 Definitions, terminology of domestic laws
are imprecise, inconsistent and/or
undefined
 Many federal laws’ jurisdictional reach
unclear and subject to dispute
 LOS Convention allows continental shelf
claims past 200 NM but US has nonparty status
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Piecemeal, “silo” laws and
regulations
 “Fragmented” and “hodgepodge” (Pew)
 “Byzantine” and “confusing” (US Comm.)
 Roughly organize into coastal zones,
fisheries, marine mammals, water
quality, resource development,
vessels/commerce
 Federal laws supplemented at state,
local and tribal levels
 No overarching Oceans Act (HR 21)
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Add Scientific Uncertainty
 What data do we look at in environmental review –
human economic/subsistence impacts, marine life,
ocean/coastal safety, global warming?
 How do we establish thresholds of significance when
ocean issues/activities are mobile and global?
 How address wide variety of ecosystems,
uses/potential uses, and new and emerging
technologies?
 Should we have ocean “zoning” to site new uses, e.g.
marine spatial planning and GIS tools?
 Do we employ precautionary principle? Adaptive
management? What risk framework?
 How does science get used in species protection and
energy political debates?
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Add Scientific Uncertainty
 Which boils down to….
~ Is there ever enough data?
~ How do decisions get made when
there is no “proof”?
~ What legal standards apply?
~ Who decides?
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Do Courts Help Clarify Matters?
 Energy Litigation
~ OCS Oil & Gas Activities
~ LNG Terminals
 Pollution Cases
~ Storm water, vessel discharges
~ Air emissions targeted under RCRA, CWA
 Species Litigation
~ Polar bear – climate change
~ Navy sonar – noise pollution
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OCS Energy Litigation
 Oil & Gas Leases
~ CA OCS Lease Suspension: Adequacy of
NEPA Analysis; direct/indirect effects that
are “reasonably foreseeable”
~ LA/Gulf Sales: Post-Katrina NEPA Analysis
~ Alaska Beaufort and Chukchi Sea Lease
Sales and Exploration Activities: Scope and
timing of NEPA analysis, MMPA “incidental
harassment” authorizations for seismic
surveys; “Polar Bear Seas”
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More Energy Litigation
 LNG Terminals
~ Jurisdictional disputes
• State v. Feds (Long Beach, Weaver’s Cove)
• State v. State (Crown Landing, Islander)
• Fed v. Fed (FERC, Corps, Coast Guard)
~ Regulatory Layers
• Fed, state and local requirements
~ Legislative Responses
• FERC, Sparrow’s Point
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Pollution Cases
 Storm water: LA County/Malibu Suit
~ LA Region Basin Plan water quality
standards for several pollutants (CWA)
~ CA State water quality plan for ocean waters
(CA coastal waters and Areas of Biological
Significance)
~ MS4 Discharge Systems (but dry and wet
weather flows allegedly violate permits)
~ “Cause or contribute” to WQS problems
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Pollution Cases
 Vessel discharges: ballast and beyond
~ Court found EPA’s 30+ year exemption for
ballast water and other incidental operational
discharges “ultra vires”
~ Sept. 2008 “drop dead” for exemption
~ Status of EPA Rulemaking
~ Appeal before 9th Circuit pending
~ State initiatives ahead of federal programs?
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Pollution Cases
 Air Emissions affecting coastal/ocean waters: Novel
RCRA, CWA theories
~ Notice of RCRA citizen suit Port of Long Beach
alleging “imminent and substantial endangerment”
from alleged disposal of “solid waste”
• Metals attached to diesel particulates from
shipping and other transport in/around Port end up
in water, on land
~ Petition to Coastal States and EPA to list ocean
waters as impaired for pH (ocean acidification) due to
emissions from GHG and to develop TMDLs under
CWA to address sources of impairment
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Species Litigation
 Polar bear
~ Petition to list under ESA
~ Litigation over deadlines
~ Listing decision May 14, 2008
• Listed as threatened, not endangered
• Habitat loss due to global climate change, oil &
gas development, contaminants, hunting,
poaching
• Triggers designation of critical habitat,
consultations, etc. under ESA
• Simultaneous but “separate” 4(d) decision
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Species Litigation
 Polar bear
~ What does the 4(d) decision mean?
~ Suit filed by CBD, NRDC May 16 to challenge 4(d)
decision under NEPA and APA and Notice to Sec’y of
intent to sue under ESA regarding listing as
threatened not endangered (best available science
issue), failure to designate critical habitat, etc.
~ Pacific Legal Foundation may sue on grounds polar
bear population is stable and to challenge climate
change basis for listing decision
~ Effect on Beaufort/Chukchi Sea OCS issues?
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Species Litigation
 Navy Sonar/Noise Pollution Cases
~ Earlier case led to agreed mitigation measures
~ Navy then sought additional SOCAL activities without
mitigation despite reports, science re harm
~ Feb 2008 injunction upheld at 9th Circuit
~ Intervening action by CEQ, White House to exempt
from NEPA and CZMA rejected by district and Circuit
courts (“no emergency”)
~ Supreme Court next step?
~ Military preparedness v. species protection
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Some Take Aways?
 Federal laws matter and federal courts
are being used to hold decision makers
accountable
 State laws will always matter in coastal
waters (e.g., Cape Wind)
 States can make a difference even
where federal laws predominate (e.g.,
NY/CT in Broadwater LNG)
 Arcane laws sometimes matter (e.g.,
DE/NJ, Makah Tribe and Alaska
disputes)
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Other Themes…
 These cases will be increasingly
“political” –
~ National/international re GHG issues
~ Local/NIMBY
~ State activism/leadership on issues
ahead of federal government
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More Themes…
 Ocean litigation will increase
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Technology advancements
Changed circumstances
Lack of coordinated legal framework
Mobile/international nature of ocean uses,
resources
~ Limited data/knowledge
~ Increase in competing uses
~ Price of oil raises stakes for some issues
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~ Ocean Litigation 2008 ~
Who is in Court and
What are they Fighting About?
Karen M. Hansen
Beveridge & Diamond, P.C.
Washington, DC
[email protected]
Ocean Law Conference
Law Seminars International
May 22 & 23, 2008
Seattle, WA
Beveridge & Diamond, PC
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