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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 1 U.S. Jurisdictional Waters Beveridge & Diamond, PC 2 U.S. Exclusive Economic Zone Beveridge & Diamond, PC 3 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. ~ ~ ~ ~ ~ ~ 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 Beveridge & Diamond, PC 4 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 Beveridge & Diamond, PC 5 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 Beveridge & Diamond, PC 6 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) Beveridge & Diamond, PC 7 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? Beveridge & Diamond, PC 8 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? Beveridge & Diamond, PC 9 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 Beveridge & Diamond, PC 10 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” Beveridge & Diamond, PC 11 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 Beveridge & Diamond, PC 12 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 Beveridge & Diamond, PC 13 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? Beveridge & Diamond, PC 14 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 Beveridge & Diamond, PC 15 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 Beveridge & Diamond, PC 16 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? Beveridge & Diamond, PC 17 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 Beveridge & Diamond, PC 18 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) Beveridge & Diamond, PC 19 Other Themes… These cases will be increasingly “political” – ~ National/international re GHG issues ~ Local/NIMBY ~ State activism/leadership on issues ahead of federal government Beveridge & Diamond, PC 20 More Themes… Ocean litigation will increase ~ ~ ~ ~ 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 Beveridge & Diamond, PC 21 ~ 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 22