Enforcement and Compliance in U.S. Commercial Fisheries
In collaboration with the University of Maryland's Center for Environmental Science (UMCES), the Environmental Law Institute conducted a two-year study of the enforcement of domestic fishing regulations. This project examined whether U.S. fisheries enforcement agencies are achieving their goal of deterring noncompliance with fishing regulations. To accomplish this, the project's partners analyzed over 8,000 historical fisheries enforcement records and conducted a survey of more than 1,200 commercial fishermen, enforcement officers, and other stakeholders from three representative fisheries. We analyzed the results from economic and legal perspectives and interpreted the results to identify and characterize challenges, opportunities, and best practices related to fisheries enforcement. Based on this research, the project team produced a project report and numerous articles published in the peer-reviewed literature. The research and resulting project report and publications have already begun to inform the evolution of fisheries enforcement at the National Marine Fisheries Service, the United States Coast Guard, and state agencies.
The project was chaired by Dr. Dennis King, Research Professor at UMCES, and included collaboration with fisheries experts including Dr. Jon Sutinen, fishery economist at the University of Rhode Island (retired) and Dr. Andrew Rosenberg, Professor at the University of New Hampshire. Dr. Kathryn Mengerink and Read Porter led ELI's efforts. Funding for this project has been provided by the Lenfest Ocean Program, which was established by the Lenfest Foundation at the Pew Charitable Trusts.
Coastal and Marine Spatial Planning: Legal Solutions
The Environmental Law Institute and the Center for Ocean Solutions prepared this Background Paper for a workshop held at the Meridian Institute in Washington, DC on April 29-30, 2010. In the Paper, we summarize some of the major laws that are likely to inform the design and implementation of a coastal and marine spatial planning (CMSP) regime in the United States. The Paper briefly summarizes the CMSP process and examines the legal implications of the use of devices such as interstate compacts and memoranda of understanding to establish and support regional planning bodies. We examine whether CMSP will trigger the application of major procedural and environmental statutes. We explore how federal agencies could use federal authorities to make and implement CMS Plans. Also, we consider how the legal framework that currently defines the federal-state relationship in the marine and coastal environment could facilitate CMSP development.
Marine Spatial Planning in US Waters: An Assessment and Analysis of Existing Legal Mechanisms, Anticipated Barriers, and Future Opportunities
As the Interagency Ocean Policy Task Force releases its recommendations for a comprehensive national policy to protect U.S. oceans and lakes, the Environmental Law Institute issues its review of federal ocean and coastal laws, identifying the obstacles and opportunities that they present for federal marine spatial planning.
Marine spatial planning (MSP) can be an effective tool for implementing ecosystem-based management to protect, maintain, and restore ocean ecosystem health; to reduce user conflicts; and to foster sustainable development. The Commonwealth of Massachusetts and the State of Rhode Island have undertaken MSP processes. MSP has reduced conflicts and improved planning in the North Sea. Now, President Obama’s Interagency Ocean Policy Task Force is poised to present a proposed framework for MSP at the federal level. In this context, Ocean Conservancy commissioned the attached report by the Environmental Law Institute reviewing the U.S. legal framework for ocean management and assessing the most relevant federal statutes to determine how they could encourage or hinder MSP. View the report.
Maryland Offshore Energy Framework
ELI’s Oceans and Land & Biodiversity staff analyze the tools available to Maryland’s Coastal Zone Management Program to address new energy activities in state and federal coastal waters. The report, titled Maryland Offshore Energy Framework, assesses Maryland’s existing laws and policies, interstate agreements, and federal laws, and identifies potential measures that can help Maryland create an Offshore Energy Framework. Among its recommendations are that Maryland form an interagency council to develop policy on offshore energy activities, and that it launch an offshore alternative energy task force under the 2009 federal Minerals Management Service rules to guide research and decisionmaking that may affect leasing of Outer Continental Shelf lands for wind energy. The report also supports marine spatial planning for the uses of federal and state waters off the Atlantic shore. The report makes recommendations relating to protection of submerged lands, aquatic and avian resources, coastal lands, wetlands, and electric power review and regulation.
The report provides information relevant for other states and for policymakers interested in offshore energy activities, including oil and gas exploration and drilling on the outer continental shelf; offshore wind energy; liquefied natural gas facilities; and algal biomass facilities. In an earlier report, ELI reviewed Virginia's options for addressing offshore energy challenges. This report, Virgina Offshore Energy Development Law and Policy Review and Recommendations, includes detailed reviews of wind, wave, and marine spatial planning efforts from many other states.
Integrated Ecosystem-Based Management of the U.S. Arctic Marine Environment
The Arctic faces a growing list of stressors including industrial fishing, oil and gas development, shipping, tourism, air pollution, and severe climate change impacts. While the U.S. Arctic presents many unique challenges and opportunities, at the same time many of its ocean resource management challenges are similar to those identified in other states. U.S. ocean experts, including the Pew Oceans Commission and the U.S. Commission on Ocean Policy, call for ecosystem-based management (EBM) to reduce fragmented laws and institutions, minimize user conflict, and achieve healthy marine and coastal environments. EBM seeks to achieve the long-term conservation and sustainability of natural resources. One way to implement EBM is through development of marine spatial management that identifies important resources and provides a framework to manage different ocean uses in a spatially explicit way. At their core, EBM programs emphasize science-based decision-making, consideration of ecological boundaries, adaptive management, and adoption of the precautionary approach. In practice, effective EBM and marine spatial management efforts are often spearheaded by regional ocean governance bodies. The regional bodies ensure participatory processes that seek to include all stakeholders. Regional ocean governance bodies often develop and implement regional visions and plans.
With support from the Oak Foundation, ELI worked to understand the opportunities and challenges facing the development of a regional ecosystem-based ocean governance program in the U.S. Arctic. We have prepared a feasibility report that, in addition a to review and analysis of legal and institutional documents and publications, reflects interviews with more than fifty people representing federal and state government, environmental organizations, industries, and the Alaska Native community. Our research indicates that the development of a grassroots or local regional ocean governance program in the Beaufort and Chukchi Seas region that would lead to local, state, and federal cooperation is promising. View the report and the appendix.
Legal Drafter’s Handbook on Conservation and Sustainable Use of Marine and Coastal Environments
In partnership with the United Nations Environment Programme’s (UNEP’s) Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, the Environmental Law Institute is developing a Legal Drafter’s Handbook on Conservation and Sustainable Use of Marine and Coastal Environments. The goals of the handbook are to introduce stakeholders to major marine and coastal anthropogenic threats including nutrient loading, sea level rise, coastal development, and biological resource extraction; and to describe international and national legal and institutional mechanisms to diminish such threats. The concise handbook provides readers with a summary of issues as well as examples of laws, regulations, and policies that a country may adapt to its particular needs and capacity. It also provides additional references for those seeking more in-depth information. This handbook will be useful for the marine law, policy, and management community to explore options for the conservation and sustainable use of marine and coastal environments. It will also serve as an awareness-raising tool, providing readers with a basic understanding of the major marine and coastal threats along with examples of laws and policies to address these threats.
With support from the David and Lucile Packard Foundation, the Environmental Law Institute has launched a new project: Implementing Ecosystem-Based Management: Governance Conflicts, Gaps, and Needs. To provide key actors with the tools necessary to achieve long-lasting implementation of ocean and coastal EBM, ELI is drawing from the extensive experience of EBM scientists, managers, and stakeholders; making use of existing research; and performing in-depth evaluations of current EBM projects and programs. The project has four phases, to be completed over a two-year period:
- identification and assessment of laws, institutions, and actors surrounding EBM;
- identification and assessment of opportunities, obstacles, and practical approaches;
- building ocean and coastal EBM frameworks; and
- enabling key actors to implement EBM.
The primary goal of the project is to promote the effective implementation of EBM in new and existing projects and programs through the wide distribution of EBM governance tools. A key component of this project will be the EBM Expert Working Group. Led by ELI’s Kathryn Mengerink and Jay Austin, the group is comprised of scientists and legal and policy experts who will provide advice and contribute to the development of practical materials that will aid in EBM implementation. The working group members include: Katherine Andrews, Executive Director of the Coastal States Organization; Jessica Landman, Environmental Attorney, Pew Fellow and former Senior Counsel for Science and Policy at COMPASS; Richard McLaughlin, Endowed Chair for Coastal and Marine Policy and Law at Harte Research Institute, Texas A&M University, Corpus Christi; Peyton Robertson, Director of the NOAA Chesapeake Bay Office; Andrew A. Rosenberg, Professor at the University of New Hampshire; Mary Ruckelshaus, Chair of the Puget Sound Technical Recovery Team, NOAA, Northwest Fisheries Science Center; Dean Wendt, Associate Professor at the Center for Coastal Marine Sciences.
In partnership with The Ocean Foundation and with support from The Curtis and Edith Munson Foundation and The Keith Campbell Foundation for the Environment, ELI has initiated a project to produce a gold standard for sustainable aquaculture practices that will launch a national dialogue on aquaculture certification and encourage adoption of sustainable practices by the expanding aquaculture industry. The gold standard will serve as a framework against which specific certification schemes may be measured in each of three crucial categories of concern: food safety, animal and human welfare (including economic, social, and cultural protections), and ecosystem-based management. To develop the gold standard, the project partners will undertake a comprehensive literature review of laws, regulations, policies, and existing certification programs and conduct in-depth interviews with certification experts, accreditors, and those seeking certification. To the extent possible, we will build relationships, achieve credibility, and conduct outreach from the beginning of our project, by engaging key aquaculture regulators, certifiers, and other interested parties in the research at the very inception of the project.
The final report will include a legal and policy framework for the gold standard, the rationale supporting the elements of the gold standard, and a step-wise implementation process to help certifiers upgrade their standards to achieve sustainable aquaculture programs. It will summarize aquaculture challenges and the strengths and weaknesses of existing certification programs. It will also describe the existing legal and regulatory landscape within which aquaculture facilities must operate. The published report will be used as a teaching tool and a policy resource service for aquaculture regulators, certifiers, and other interested parties.
Baseline Law, Policy, and Institutional Assessment for the Development of a Seascape Strategy in the Hawaiian Islands
The Environmental Law Institute (ELI) is partnering with Conservation International, with support from the Harold K.L. Castle Foundation, to assess the existing laws, policies, and institutions governing the seascape of the Hawaiian Islands to achieve better protection and sustainable management of the area. Seascapes are large, multiple-use marine areas, defined both scientifically and strategically. Government authorities, environmental organizations, citizen’s groups, native Hawaiians, local communities, businesses, and other stakeholders must work cooperatively to effectively manage Hawai’i’s seascape. The assessment will include identification and evaluation of the legal and institutional capacity of regional, national, state, island, and local authorities, as well as communities, businesses, non-governmental institutions, and others, to implement marine management, foster stewardship, address threats to marine biodiversity, and maintain or enhance ecosystem services. ELI is seeking input from Hawai’i’s coastal and marine communities to identify stakeholder conservation priorities, operational constraints, and opportunities for achieving marine conservation objectives. This assessment is part of a larger initiative that is primarily employing participatory process methods to identify marine conservation goals for the Hawaiian Islands and define the activities needed to achieve these goals. These activities will form the basis of a multi-stakeholder Seascape Strategy to be implemented in the region.