Ocean Acidification and the Law: Protecting Natural Resources from the Bottom Up

Ocean Acidification and the Law: Protecting Natural Resources from the Bottom Up

Jaime Neary

The interactions between Earth’s oceans and land bodies make up one of the oldest natural cycles on the planet.[1] Unfortunately, events on land have had a disproportionately negative effect on the oceans since the evolution of humans.[2] One example that demonstrates this interaction is ocean acidification. Over the last 200 years alone, there has been a 30% increase in ocean acidity.[3] This is the greatest increase in acidity since the Early Eocene Epoch,[4] a time best known for high carbon dioxide (CO2) levels, no ice, and surface temperatures 9–14°C higher than today.[5]

While scientists have been aware of ocean acidification for several decades, there is no clear consensus on its long-term ecological effects, and they are only now learning of some of the more detrimental effects.[6] One of the most significant effects is on the health of plankton.[7] Plankton are important to ocean ecosystem health because they form the basis for all marine food webs.[8] This means the prolificacy of food webs is wholly dependent on these little organisms, including the health and well-being of charismatic mega-fauna (such as humpback whales and sea otters) that people normally connect with.[9] These minute organisms also have a widespread impact on numerous economic sectors, e.g. fishing, tourism, birding, and outdoor recreation.[10]

The question is: How can scientists make our country’s politicians and lawmakers aware of the persisting problem and encourage effective action? One way to start is by evaluating existing federal policies that can help combat some of the known causes of ocean acidification in the United States. To date, litigators have turned to the Clean Water Act (CWA) and a state’s Public Trust Doctrine (PTD) to argue for injunctions on actions that contribute to ocean acidification.[11] Thus far, the courts have not been keen on broadening the existing interpretations of these legal frameworks to include ocean acidification.[12] This Note suggests that there is an alternative federal statute advocates have not yet considered—the Coastal Zone Management Act (CZMA).[13]

Part I will provide necessary background information on ocean acidification and its environmental and economic effects. By understanding the connections between these three areas, politics will no longer be the determining factor. Part II will look at the effectiveness of ocean acidification’s current jurisprudence. Part III will provide in-depth detail on the CZMA itself and an analysis of why the CZMA is a better option than the strategies currently pursued. Key sections of the CZMA will be examined and applied—mainly the non-point source pollution regulatory requirement. Part IV will synthesize these findings to support the use of a bottom-up approach to tackle ocean acidification. This synthesis will serve as a guide to the federal and state governments on how to properly utilize the CZMA to address the issue of ocean acidification. Part V will conclude at the largest legal stage—international law. Since the United States plays a pivotal role in ocean management with its vast Exclusive Economic Zone,[14] it is important to understand how this bottom-up approach fits into the bigger picture of combatting ocean acidification effectively, on a global scale.

[1] The History of the Ocean, MarineBio Conservation Soc’y, http://marinebio.org/oceans/history/ (last visited Oct. 2, 2017).

[2] Marine Habitat Destruction, Nat’l Geographic (Apr. 27, 2010), https://www.nationalgeographic.com/environment/oceans/critical-issues-marine-habitat-destruction/.

[3] The Ocean Portal Team, Ocean Acidification, Smithsonian Nat’l Museum of Nat. Hist.: Ocean Portal, http://ocean.si.edu/ocean-acidification (last visited Oct. 2, 2017).

[4] Id.

[5] Early Eocene Period, NOAA: Nat’l Ctrs. for Envtl. Info., https://www.ncdc.noaa.gov/global-warming/early-eocene-period (last visited Oct. 3, 2017).

[6] The Ocean Portal Team, Ocean Acidification, supra note 3.

[7] Id.

[8] Jennifer Kennedy, Understanding the Definition of Plankton, Thought Co., https://www.thoughtco.com/plankton-definition-2291737 (last updated Oct. 6, 2017).

[9] The Ocean Portal Team, Ocean Acidification, supra note 3 (explaining how plankton and other carbonate shelled organisms are most affected by ocean acidification); Robin McKie, How Sea Otters Help Save the Planet, Guardian (July 10, 2016), https://www.theguardian.com/environment/2016/jul/10/sea-otters-global-warming-trophic-cascades-food-chain-kelp (explaining that urchins are a common prey of sea otters); Marine Mammal Laboratory, Humpback Whales, NOAA Fisheries: Alaska Fisheries Sci. Ctr., https://www.afsc.noaa.gov/nmml/education/cetaceans/humpback.php (last visited Nov. 5, 2017) (explaining that humpback whales eat plankton and other organisms that rely directly on plankton).

[10] Noreen Parks, Alaska’s Fisheries at Risk from Ocean Acidification, 12 Frontiers Ecology & Env’t 375, 375 (Sept. 2014), http://www.jstor.org/stable/43187831 (explaining costs to fishing); Cherie Winner, The Socioeconomic Costs of Ocean Acidification, Woods Hole Oceanographic Institution: Oceanus Mag. (Jan. 8, 2010), http://www.whoi.edu/oceanus/feature/the-socioeconomic-costs-of-ocean-acidification (explaining costs to fishing, tourism and other coastal activities); Ocean Acidification, NOAA Fisheries (June 28, 2017), https://www.fisheries.noaa.gov/insight/ocean-acidification (reflecting on how carbonate shelled organisms dissolve in high concentrations of carbon dioxide and in turn affect fish, birds and marine mammals further up the food chain); Nonpoint Source Pollution: Nonpoint Source, NOAA: Ocean Serv. Educ. (July 6, 2017), https://oceanservice.noaa.gov/education/tutorial_pollution/04nonpointsource.html.

[11] See generally Robin Kundis Craig, Dealing with Ocean Acidification: The Problem, the Clean Water Act, and State and Regional Approaches, 6 Wash. J. Envtl. L. & Pol’y 387, 421–28 (2016) [hereinafter Dealing with Ocean Acidification] (detailing how one non-profit alone has attempted to apply the Clean Water Act to Ocean Acidification on multiple occasions and failed); Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088, 1101–02 (Alaska 2014) (noting how the relationship between the atmosphere and ocean can affect the public trust doctrine in terms of pollution); Center for Biological Diversity v. EPA, 90 F. Supp. 3d 1177, 1217 (W.D. Wash. 2015) (holding that the EPA did not act arbitrarily and capriciously in deciding to not apply the Clean Water Act to ocean acidification issues); Juliana v. United States, 217 F. Supp. 3d 1224, 1255–61 (D. Or. 2016) (holding that plaintiffs had a viable complaint alleging harm to the public trust stemming from effects of ocean acidification and that the public trust doctrine can apply to the federal government); Amanda M. Carr, Continuing to Lead: Washington State’s Efforts to Address Ocean Acidification, 6 Wash. J. Envtl. L. & Pol’y 542, 557–62 (2016) [hereinafter Continuing to Lead](providing detailed examples of use under CWA and other statutes).

[12] See generally Dealing with Ocean Acidification, supra note 11 (noting how CBD has attempted to apply the Clean Water Act to Ocean Acidification, but has continually met resistance by the courts); Center for Biological Diversity, 90 F. Supp. 3d at 1217 (giving the EPA Chevron deference in deciding to not extend the CWA to ocean acidification); Continuing to Lead, supra note 11, at 557–62 (2016) (detailing attempts by individuals to apply the CWA and other statutes to ocean acidification).

[13] Coastal Zone Management Act, 16 U.S.C. §§ 1451–1465 (2005) [hereinafter CZMA].

[14] The United States Is an Ocean Nation, NOAA, http://www.gc.noaa.gov/documents/2011/012711_gcil_maritime_eez_map.pdf (last visited Dec. 4, 2017).


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