A Higher Ocean Already Menaces Gulf, East Coasts
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue

We tend to think of climate migration due to sea-level rise as a phenomenon eventually affecting low-lying island states in the Pacific or delta dwellers in Bangladesh. But it will come to the United States too, as a rising ocean threatens homes and workplaces and infrastructure. Indeed, the human impacts of rising ocean levels will be felt in the near future, or are already underway, along the Gulf Coast and Eastern Seaboard.

Some 650,000 American homes could be inundated by 2050, according to an analysis by a research group called Climate Central. As reported in the Washington Post in 2022, “Rising seas could swallow millions of U.S. acres within decades,” the newspaper said in summarizing the data. It gets worse: “Properties with a collective assessed value of $108 billion could be affected by the end of the century, based on current emissions.” Further, the data likely underestimate real-world impacts, Climate Central stated, so the cost in the end will be much higher.

Unfortunately, the damage is already underway. According to the American Meteorological Society’s website, “Both the century-long tide gauge data and the more recent altimetry data reveal a rapid decadal acceleration” of sea-level rise starting in 2010, most prominently along the southern Atlantic and Gulf of Mexico coasts. The Washington Post picked up on the story last year and then launched its own investigation of tidal gauge and satellite data and on the threat facing its readership.

“Where Seas Are Rising at Alarming Speed” headlines the resulting article, published April 29 of this year. Alongside is a color map of the southern United States, with dots representing tidal gauges ranging along the Gulf of Mexico and the southern half of the Atlantic coast. The dots go as far inland as Washington, D.C., key parts of which are built on a floodplain adjacent to a tidal estuary.

“One of the most rapid sea level surges on Earth is besieging the American South, forcing a reckoning for coastal communities across eight U.S. states,” the newspaper reports. “At more than a dozen tide gauges . . . sea levels are at least six inches higher than they were in 2010—a change similar to what occurred over the previous five decades.” A dot in Lake Pontchartrain, next to New Orleans, shows the level there has gone up eight inches since Hurricane Katrina.

But it’s not only the southern states. Five days later came a similar article from the Boston Globe. “Sea-level rise in Boston broke a record in 2023. It’s expected to get worse,” the headline declares. According to the newspaper, “Last year, sea levels along the Boston coastline were, on average, higher than at any other point in recorded history: about 14 inches above levels in 1921, when records began.” This localized impact would appear as worrisome as that affecting the coastal U.S. South.

Indeed, “the record-breaking sea level is yet another data point showcasing a decades-long trend that is accelerating at a startling pace,” the Globe reports. “As climate change worsens, the shoreline along much of the city will need new flood protections, such as berms, sea walls, and restored marshlands, as early as 2030, the latest available data provided by Boston plainly show.” Unfortunately, “As sea-level rise accelerates, Boston is ‘deep into overtime’ to build coastal protections by 2030,” says the Globe, quoting city planners.

As that year approaches, “climate resilience experts told the Globe, the rapidly accelerating pace of sea-level rise necessitates rapid action. Bud Ris, a senior adviser for Boston’s Green Ribbon Commission who advised the city’s climate resilience plan, said Boston is . . . moving from conceptual flood protection plans to specific and concrete ones. ‘It’s really important that we get a continuous line of defense along the waterfront and that all these properties are in sync.’” A map of the proposed flood infrastructure needed for Boston in the next few years looks like the vast system of dikes and levees surrounding New Orleans.

IN many communities along the Atlantic and Gulf coasts, the effects of sea-level rise are already prominent. Damage of course occurs to coastal cities during worsening storm events, from Nor’easters to hurricanes to massive rains. But sea-level rise means just as much economic damage may come in future years from so-called “high tide flooding,” already in progress in many communities. Some low-lying roads are inundated now twice a day. Storm drains are backing up during daily peaks, sending rainwater from minor storms into homes and businesses.

The American Society of Civil Engineers published what it calls “the first study to estimate [high tide flooding] economic impacts for varying levels of intervention.” The numbers build up quickly. “The 2020 annual national-level costs of $1.3 to $1.5 billion will increase to $28 to $37 billion in 2050 and $220 to $260 billion in 2100 for medium to high greenhouse gas emissions scenarios, respectively.”

According to the National Oceanic and Atmospheric Administration, sea levels will rise an additional 10 to 14 inches along the Eastern Seaboard in the next 30 years.

Notice & Comment is the editor’s column and represents his views.

A “staggering” number of workers, amounting to more than 70 percent of the global workforce, are likely to be exposed to climate-change-related health hazards, and existing occupational safety and health protections are struggling to keep up with the resulting risks, according to a new report by the International Labour Organization.

The report, “Ensuring Safety and Health at Work in a Changing Climate,” says that climate change is already having a serious impact on the safety and health of workers in all regions of the world. The ILO estimates that more than 2.4 billion workers (out of a global workforce of 3.4 billion) are likely to be exposed to excessive heat at some point during their work. . . .

In addition, the report estimates that 18,970 lives and 2.09 million disability-adjusted life years are lost annually due to the 22.87 million occupational injuries which are attributable to excessive heat. This is not to mention the 26.2 million people worldwide living with chronic kidney disease linked to workplace heat stress (2020 figures).

—International Labour Organization statement

The Federal Energy Regulatory Commission [in April] rejected a massive pumped hydropower proposal on the Navajo Nation in Arizona, cementing a new agency policy to no longer advance energy projects opposed by tribes whose land would be affected.

The Navajo Nation filed comments last month opposing the proposed Big Canyon Pumped Hydro project. . . . The tribe warned that the storage project could create “adverse impacts” to water and cultural resources, as well as the tribe’s water rights.


A Climate of Concern

For my money, the absolute best environmental magazine in the English language is New Scientist—the cheeky weekly British publication that is to Scientific American what the Economist is to Time. Just in its March 23 issue alone there were four separate articles on climate change, each reporting alarming new research at first hand.

The least worrisome is a short article reporting that “many ski resorts [will] lack snow by 2100.” Veronika Mitterwallner at the University of Bayreuth in Germany and colleagues “modelled greenhouse gas emissions scenarios for the rest of this century to predict future changes in snowfall in seven regions across the world.”

The result was that 13 percent of existing ski resorts will face total loss of snow cover by the end of the century. 20 percent will lose half their days of snow-covered slopes suitable for skiing as early as 2071.

More alarming news is a story reporting, “Major oil- and gas-producing regions in the U.S. are leaking much more methane than current estimates suggest.” The research was performed by a team led by Evan Sherwin of Lawrence Berkeley National Laboratory.

“He and his colleagues combined data from numerous aerial surveys that used infrared sensors to measure methane leaking from wells, pipelines, and other infrastructure,” the magazine reports. “On average across the regions surveyed, they found methane leaking at a rate of 2.95 percent of total natural gas production, a number three times what the U.S. Environmental Protection Agency estimates.”

The research, which covered 29 percent of U.S. onshore natural gas production and a smaller fraction of oil infrastructure, estimated $3 billion in annual revenue losses of the valuable fuels and $9 billion in yearly climate damages from their roles as pollutants.

Next, the magazine states, “Fears grow over Antarctic ice loss.” The news is alarming: “The sea ice that encircles Antarctica has reached near-record low levels for the third year in a row, raising concerns that the ice has undergone a permanent ‘regime shift’ driven by climate change.”

Starting in 2017, sea ice surrounding the continent has been falling alarmingly. “Researchers were shocked when the ice failed to recover during the Antarctic winter last year, remaining so far below average that ‘our statistical models didn’t work any more,’” according to Edward Doddridge of the University of Tasmania. However, Catherine Walker of the Woods Hole Oceanographic Institution says any climate change signal in the ice data is still unclear. “Is it a trend, or is it an elongated blip, or a regime shift?” she asks.

Another winter this year without sea ice recovery would convince many “that Antarctic sea ice has changed, potentially irreversibly,” according to Doddrige. Whatever—sea ice hit a record low in February, the peak of the 2024 summer ice season. The winter ice recovery, or lack, is underway now.

Finally, New Scientist reports economic news: “Extreme heat could trigger the worst global financial crisis we have seen.” The lead is ominous: even higher-latitude countries will be impacted by climate change that affects global supply chains.

Dabo Guan at Tsinghua University in Beijing modeled the global financial system under three emissions scenarios. Under the low-emissions scenario, Guan found that there would be 600,000 annual global deaths due to extreme heat by 2060, with economic losses projected as $3.75 trillion per year in 2020 prices. Total annual losses could hit a quarter of global GDP by that date under the high-emissions scenario, reflecting 1.1 million extra deaths to excessive heat.

On Rising Seas Menacing U.S. Coastlines.


Plastic use is ubiquitous in modern life, but so is the associated pollutionwhich impact human health, the environment, climate change, and more. ELI is working to address these problems by identifying actionable law and policy tools that can be used to regulate plastic at every stage of its life cycle and convening stakeholders to prioritize and advance these solutions.

Report Highlights: Existing U.S. Federal Authorities to Address Plastic Pollution
Monterey Bay Aquarium
Environmental Law Institute
Date Released
March 2024
Cover page of report featuring an underwater photo with plastic pollution on the surface. Report is titled "Existing U.S. Federal Authorities to Address Plastic Pollution: A Synopsis for Decision Makers."

This brief summarizes Existing U.S. Federal Authorities to Address Plastic Pollution: A Synopsis for Decision Makers, a report which identifies federal authorities—spanning executive orders, legislation, regulations, and associated programs—that can be used to address plastic pollution through interventions identified across the plastic life cycle. 

Existing U.S. Federal Authorities to Address Plastic Pollution: A Synopsis for Decision Makers
Margaret Spring
Cecilia Diedrich
Therese Wilkerson
Jack Schnettler
Date Released
March 2024
Cover page of report featuring an underwater photo with plastic pollution on the surface. Report is titled "Existing U.S. Federal Authorities to Address Plastic Pollution: A Synopsis for Decision Makers."

The report provides a comprehensive overview of the existing legal authorities the U.S. federal government can leverage to achieve the national goal of eliminating plastic release into the environment by 2040 while safeguarding human health and the environment. Building on the legal framework established by a Congressionally-mandated report from the National Academies of Science, Engineering, and Medicine, the report categorizes federal authorities—spanning executive orders, legislation, regulations, and associated programs—into specific "intervention areas" across the plastic life cycle.

Don't Shade the Ocean
Madeline Warner - The Ocean Foundation
Bobbi-Jo Dobush - The Ocean Foundation
Mark J. Spalding - The Ocean Foundation
The Ocean Foundation
The Ocean Foundation
The Ocean Foundation
Current Issue
Don't Shade the Ocean

The novel Ministry of the Future opens with the death of more than twenty million people in India as a result of an intense heat wave. To prevent further loss of life, the national government sprays sulfate particles into the stratosphere to reflect sunlight back into space and lower the subcontinent’s surface temperature. Ministry of the Future is science fiction, but the technology, known as Solar Radiation Modification, is increasingly real. SRM proposes shading the planet to decrease global temperatures, but there are a host of unknowns about the positive, negative, or mixed effects on land and ocean. Meanwhile, the National Academy of Sciences published a report in 2021 stating that SRM is the only way to cool the planet. In 2022, Congress appropriated money for the White House Office of Science and Technology Policy and the National Oceanic and Atmospheric Administration to study SRM applications. Two attempts at deploying the technology have been started and stopped by governments in the last few years—one in Sweden and one in Mexico. A robust code of conduct to govern SRM research that considers ocean health and related equity issues cannot come soon enough.

Emissions of carbon dioxide and other greenhouse gases must be drastically reduced to moderate global temperature increases. To date, the rate of reductions has not been fast enough to prevent such effects as changes in the ocean’s depth, chemistry, and temperature, and in turn, its role in moderating the global climate. For example, the summer 2023 average daily global sea surface temperature reached 69.73 degrees Fahrenheit (over 100 degrees off Florida)—both far above the average. Warmer waters can accelerate the melting of glaciers and thus sea-level rise, while also reducing the ocean’s ability to absorb carbon dioxide. Instead of embracing a critically needed systems change, one that would drastically reduce greenhouse gas emissions—with numerous ancillary benefits, such as huge reductions in criteria pollutants and the millions of annual deaths those emissions entail worldwide—many are looking for ways to perpetuate the economic and social status quo. Enter climate geoengineering—an attempt to reverse, stall, or mitigate GHG impacts, primarily excess heating. By redirecting incoming radiation to decrease planetary temperatures, SRM and other techniques attempt to partially mask symptoms of human-caused climate change rather than address its drivers.

Through natural systems, the Earth both reflects and absorbs sunlight to maintain a stable climate. SRM is based on the idea that increasing reflectivity will decrease the amount of sunlight that makes it through the atmosphere to the Earth’s surface, artificially reducing the warming that is underway. However, this proposal has the potential to upset natural processes that depend on direct sunlight—such as photosynthesis by all ocean and terrestrial plants. In addition to spraying reflective particles, there are also SRM strategies to change or increase cloud cover, threatening natural precipitation patterns on which many nations’ food supplies depend. Common sense dictates careful consideration of any potential human activity that affects the life-support roles of the ocean to generate oxygen, absorb carbon dioxide emissions, and moderate the climate.

As in Ministry of the Future, the real world aim of SRM is to increase the amount of sunlight reflected back into space to slow the warming of the planet. The technology’s apologists reason that the limited global action on reducing carbon emissions necessitates speedy approval of SRM research proposals and deployment. However, geoengineering methods can have wildly uneven effects on the ocean and, in turn, on individual countries and regions. They also pose a moral hazard if they reduce the urgency to transition away from fossil fuels and divert effort away from the necessary GHG emission-reduction strategies. This moral hazard problem has particular resonance for the marine ecosystem, which is quietly absorbing excess carbon and altering seawater’s chemical balance in the process, threatening numerous unseen animals and plants at the base of the food chain. Without dramatic GHG reductions, the future of the oceanic environment—and all that means for humanity—is at stake.

Currently proposed SRM projects range from using particulate matter to reflect sunlight to the installation of mirrors in space. Stratospheric Aerosol Injection, the tech used in the novel, is the targeted release of airborne sulfate particles to increase the reflectivity of the Earth, reducing the amount of sunlight that reaches the ground and the heat trapped in the atmosphere. It is, theoretically, similar to a huge, semi-transparent sun umbrella. SAI is not the only type of SRM that would directly reflect sunlight and solar radiation. Another proposes to increase the ability of the surface of the Earth to reflect radiation back into space. Surface-Based Brightening/Albedo Modification aims to decrease the amount of solar radiation that remains in Earth’s atmosphere. Rather than using chemistry or molecular methods, surface-based brightening seeks to increase the reflectivity of the planet’s surface through physical alterations to urban areas, roads, agricultural land, polar regions—and the ocean. This may include covering these areas with reflective materials to redirect sunlight back out to space—in many cases wiping out the local ecology.

Two other methods propose to alter cloud cover. One seeks to thicken lower clouds to prevent radiation from reaching the land and sea, while the other aims to thin high-level clouds to increase the escape of radiation. Marine Cloud Brightening pumps sea spray to seed low-level clouds over the ocean, intending to catalyze a brighter and thicker cloud layer. These low clouds prevent incoming radiation from reaching the land or sea below. The second involves upper-level cirrus clouds, which absorb and reflect heat back to the Earth. Scientists have proposed such Cirrus Cloud Thinning to reduce the thermal energy reflected by these clouds and allow more heat to exit the atmosphere. CCT means spraying these kinds of clouds with particles to reduce their life-span and thickness.

There are methods that are outliers even in the science-fiction-like SRM arena. The Space Mirrors proposal would place highly reflective objects in orbit to redirect incoming sunlight. Moon Dust is a newly proposed method that works in a similar method to SAI. Rather than injecting particles into the atmosphere to reflect sunlight, this concept suggests sending mined particles from the Moon into orbit well above Earth’s atmosphere.

All of these proposals represent the diversion of significant funds away from research and deployment of known strategies to reduce GHGs through renewable energy powering an electric economy.

Apart from the fundamental need to continue reducing carbon emissions, climate geoengineering projects must be tested with an eye to ensuring their safety for all life on Earth. SRM will have effects that extend beyond any nation’s borders. Important to our discussion, any of these methods, if deployed, would also affect the ocean and thus the terrestrial biosphere as a whole. Yet the ocean is absent from most conversations about SRM (and climate geoengineering generally). Many of these proposed projects would, at the very least, dump particles of foreign matter into the marine environment at scale. Further, if functional, all would cause the ocean to receive less sunlight. Less sunlight may reduce photosynthesis, and in turn, affect carbon uptake and storage, oxygen production, and the ocean food web. If some larger nations were to deploy SRM projects to shade their lands, the ocean will continue to get warmer, helping one part of the globe while hurting the other. Consequences may disproportionately fall on small island nations threatened by sea-level rise, now also challenged by shifting nutrient loads, changing precipitation patterns, and exacerbating changes in ocean chemistry.

The ocean is a natural carbon sink, capturing 25 percent of atmospheric carbon dioxide emissions. It is also a heat sink, retaining 90 percent of the Earth’s excess heat. However, fossil fuel emissions and other human activities are disrupting these critical ocean services. SRM strategies conceal the non-heat-related effects of climate emissions and may actually increase GHG totals through their construction and deployment. Because the technology remains speculative and ill-defined, the consequences remain unknown. Thus, it is impossible to fully evaluate the side effects, particularly of the impact of proposed SRM deployments on the oceanic and land-based environments. But the seas’ interconnectedness makes it likely that any SRM impacts on the marine environment would be transboundary and global.

Last June, the White House issued a report to respond to a congressional mandate calling for a research plan for SRM and an initial research governance framework. The report highlights the risks and unknowns about this technology as well as the supposed benefits. It details the major gaps on which to focus research and confirms that a question about SRM is not just one of science efficacy or unintended environmental harm. It is also a question that must encompass societal dimensions, including environmental justice, public perceptions, human health and well-being, food and water systems, ecosystem services, economic infrastructure, and geopolitics. The White House report stresses the need for a comparative analysis to identify the differences between the risks associated with SRM compared with the risks of climate change in the absence of geoengineering.

The report misses a key point on evaluation and the potential for termination shock. In addition, it does not explicitly address the potential that SRM will reduce incentives to cut carbon emissions, which will have a huge negative effect on the marine environment. It does speak to intergenerational equity, which might open the door to examining the risk posed by such a moral hazard. Overall, the White House emphasizes the need for transparency in SRM research for the sake of the public’s trust, whether or not that research transitions into deployment.

Such transparency can be gained through the development of a legal framework to govern the research and deployment of any geoengineering technology. Such a system must take into account the security and well-being of individual nations as well as the global ocean on which all life depends. It thus should include consideration of the risk to the natural environment and the exacerbation of geopolitical tensions and global inequities.

Physical and environmental repercussions exist for each SRM method that has been proposed. Whether it is the introduction of sulfate or calcium carbonate particles into the atmosphere (and thus into the ocean) or shifting cloud (and precipitation) patterns, impacts on land-based and marine ecosystems and food systems are likely. At the same time, such effects cannot be fully anticipated, and experience counsels they are likely to be underestimated. Only the most precautionary legal regime can mitigate harm.

Beyond physical risk, the many unknowns regarding positive or negative impacts of SRM introduce actual and perceived equity risks that may exacerbate geopolitical tensions. There is currently no international governance regime for geoengineering. Indeed, discussions on such an agreement have yet to begin. In this regulatory vacuum, countries and other entities have space for unilateral action that could result in unjust or inequitable outcomes. In fact, SRM actions to date have lacked the foresight for the needed consultation on this global problem. Without this consultation, the potential for spillover effects is high, and much larger with anticipated action on a national level. On a country-by-country scale, the world’s political borders would do little to stop positive or negative overflow effects into neighboring countries or environments. The Earth’s land, sea, and sky are intrinsically connected through many natural systems that supersede human governance.

As work continues on SRM, the countries with the ability to research and develop projects are likely to be those wealthy and powerful nations with the greatest responsibility for historic carbon emissions. Any individual country’s ability to address negative effects from other nations’ SRM projects would depend on its wealth and the extent to which those negative effects harm that country’s human communities and natural resources. There would be no viable means of redress for injured private parties, communities, or governments. Rather, harm from SRM projects may result in diplomatic tensions and, possibly, military conflicts. Even in the absence of real effects, tensions could arise over perceived negative impacts. SRM—or the threat thereof—could thus be weaponized.

If climate geoengineering projects were to go forward, the side effects would be far reaching, affected by the complex interactions of systems—both human and natural. For this reason and others, SRM research must be guided by a code of conduct to ensure equitable solutions to the climate crisis—and be governed by enforceable law that prioritizes environmental justice and conservation of natural resources. Thus, a priority must be placed on protecting the marine systems and restoring abundance to help the ocean heal itself. All potential interventions should be considered in the context of free, prior informed consent by stakeholders at all stages —including extraction, transport, and implementation. Additionally, the ability of projects to measure, monitor, verify, and report their successes or failures, and promise equitable benefit sharing must be taken into account.

Decisionmakers can rely on well-established legal principles to inform governance on climate geoengineering proposals. These include the precautionary principle, the polluter-pays principle, the do-no-harm expectation, and all three considered through an ecosystem approach.

The precautionary principle requires the party seeking to test the proposed SRM activity to prove it will cause no harm. As the ocean’s currents connect all waters and continents, applying this principle would require research to determine how any physically released particulate matter (as an example) would affect biodiversity, ocean functions such as oxygen production and carbon and heat uptake, and the downstream or upstream impacts of shading one region of the world over another.

The polluter-pays principle requires consideration of the potential harm from and liability for introducing any substances to the ocean as part of a climate geoengineering activity. Similar to when applying the precautionary principle, the polluter-pays principle must underpin permissions for any projects that release foreign substances into the atmosphere or Earth orbit.

The do-no-harm expectation is customary under international law and, in the context of the ocean, this principle would require projects to ensure the safety of marine life, ocean ecosystems, and human-ocean relationships.

Finally, an ecosystem approach would require any climate geoengineering activity to not endanger marine life or the ecological relationship as a whole among living marine resources, coastal systems, and the ocean’s life-giving global functions.

Governance can also begin with existing international frameworks for promoting human rights, security, and healthy ecosystems. Given the unknowns posed by SRM, international treaties offer opportunities to mitigate the impact of climate geoengineering at a global level even as more specific agreements are negotiated. Multiple international treaties include provisions to protect the ocean and its co-benefits for ecosystems and humans.

The UN 2030 Agenda for Sustainable Development is the “shared blueprint” that recognizes that ending poverty and other deprivations must go hand-in-hand with strategies that improve health and education, reduce inequality, and spur economic growth—all while tackling climate change and working to preserve our ocean and forests. The guidance offered by the 17 associated Sustainable Development Goals can be broadly applied to SRM. In particular, SDG 14 requires that we “conserve and sustainably use the ocean, seas, and marine resources for sustainable development” by reducing pollution, protecting and strengthening resources, and minimizing ocean acidification. Reducing greenhouse gas emissions certainly supports those strategies. SRM does not.

The 1992 Convention on Biological Diversity (and its 2022 agreement) establishes a de facto moratorium on ocean climate geoengineering unless various preconditions have been met. The 1991 Espoo Convention established rules for transboundary environmental impacts and may provide an example of one or more methods to govern and enforce transboundary impacts from SRM projects. The Antarctic Treaty System creates an obligation to avoid significant changes to the Earth’s atmospheric, terrestrial, oceanic, or glacial environments.

The United Nations Convention on the Law of the Sea mandates protection and preservation of the marine environment. With the release of particulate matter or other SRM methods, that mandate may be applied to international discussions guiding SRM activities. The Commission of Small Islands States on Climate Change and International Law has petitioned the International Tribunal of the Law of the Sea on the obligation of UNCLOS parties to protect the ocean from climate change. Decisionmakers will need to consider SRM in this context, within a just transition to economies that no longer rely on fossil fuels.

The United Nations Framework Convention on Climate Change began hosting Ocean and Climate Change Dialogues in 2022, providing space for countries around the world to discuss impacts on the ocean and consider the best marine-based solutions to climate change. While it is currently unknown to what extent SRM projects will change the Earth’s environments, it is clear that these protective frameworks should be used to guide research, testing, and deployment.

Beyond environmental considerations, SRM may adversely affect human rights, raising justice and equity concerns for developing nations and minority communities. In March, the UN General Assembly submitted a request for an advisory opinion of the International Court of Justice, essentially requesting the court render an opinion on the obligations of states under international law to ensure the protection of the climate system from anthropogenic emissions of greenhouse gasses.

SRM also may present a variety of security concerns. International precedent on the militarization of such technology is currently covered under the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. The modification of a neighboring country’s immediate atmosphere, land, or sea may be seen as aggressive. Both the liability for such negative impacts and the process for establishing the degree of harm need to be incorporated into any process for reviewing SRM research and testing.

Within the United States, decisionmakers could look to the precautions under the Marine Mammal Protection Act, the Wilderness Act, and the Endangered Species Act or the pollution prevention frameworks under Clean Water Act and Clean Air Act, as well as Superfund and other toxics laws to anticipate and address some effects of SRM. Policy could further be informed by the White House Environmental Justice Interagency Council, the administration’s Justice40 Initiative, and the EJ Screening Tool & Scorecard.

SRM should be also evaluated through the lens of a growing body of nature- and climate-positive financial and investment decisionmaking tools such as the Task Force on Climate-related Financial Disclosure, known as TCFD, and the Task Force on Nature-Related Financial Disclosure, TNFD. Public and private financiers should consider whether and, if so, with what qualifiers, geoengineering projects would comply with their lending policies.

Despite the array of forums where discussions on climate geoengineering and governance may be relevant, none is an exact fit for the questions posed by SRM projects. Efforts are underway to develop more tailored frameworks to address the legal issues raised by climate geoengineering.

In 2021, the Aspen Institute issued “Guidance for Ocean-Based Carbon Dioxide Removal Projects: A Pathway to Developing a Code of Conduct” and expects to release such a code in the coming months. Parallel to the Aspen effort, the Sabin Center at Columbia University School of Law and Climate recently published model federal legislation to govern ocean Carbon Dioxide Removal. While the model does not cover SRM, it is a welcome addition to this field, and an analogous document focused on SRM to consider potential effects on the ocean would be a major step forward. Both the Aspen Institute and the Sabin Center argue for a code of conduct or legislation to govern ocean climate geoengineering, in support of equity in impact, outcome, and benefits, as well as to prevent harm to life on Earth.

The Aspen Institute guidance argues that a code of conduct created to manage geoengineering projects and protect life on Earth must include three main considerations. First, stakeholders must give prior informed consent at all stages of a project. Second, SRM projects must be transparent: sharing monitoring, verification, and reporting on outcomes and effects, with independent observers in place to ensure that these activities meet consistent standards. Third, any project must also have equitable benefit-sharing, including co-benefits, for those affected by the project. The potential widespread impact of SRM projects must allow for the equitable distribution of any positive benefits.

An effective SRM code of conduct must incorporate the voices of all stakeholders. Black, Indigenous, and other people of color, the small island developing states, and other climate-vulnerable communities must be engaged and heard. Ethical concerns may improve the precautionary element. For example, in 2021, an SAI project in Sweden was paused following concerns raised about human intervention in the climate by the Saami Council, a representative body of Indigenous people of arctic Sweden, Norway, Finland, and Russia. The council’s vice president, Åsa Larsson Blind, stated that solar engineering clashed with the values of the Saami to respect natural processes.

The principles of the UN’s sustainability goals must underpin the design of SRM policy. Within these conversations, the source-to-deployment costs, energy and environmental footprint, and realistic potential of SRM needs to be carefully evaluated with an eye toward preventing harm and ensuring equity while pursuing sustainable economic development.

SRM proposals and processes should be transparent so decisionmakers can be well informed about its risks. The time to acknowledge and fight the potential for SRM greenwashing is now, with all the legal tools that can be deployed. SRM proposals should not be presented to investors as the new shiny Environment-Social-Governance gambit. From a financial perspective, it must be made clear that mechanical and chemical climate geoengineering like SRM does not fit in a sustainable blue economy portfolio for investment, lending, or other finance. Financial disclosure requirements should be designed to require evaluation of the potential downsides of projects posited as climate solutions.

SRM advocates propose such projects as the key to solving the climate change crisis by trying to mitigate its effects rather than addressing its known causes. The very real potential that manipulating Earth’s atmosphere will cause far more harm than good necessitates a strong national and international legal framework at every level. The environmental law community can draw on its unique skills to support the development of a code of conduct, alongside laws, policies, and international agreements, that prioritize precaution, global and intergenerational equity, and protection of the ocean’s life-support systems.

COVER STORY We need sound legal tools to address side effects from climate geoengineering projects that could endanger the marine environment. These unwanted impacts include the ability of the seas to produce food and oxygen and absorb carbon dioxide and excess heat.

ELI Report
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue

ELI at the UN Institute advances rule of law, peacebuilding, and ocean conservation at key international conferences last summer

Fifty years after the United Nations’ first global Conference on the Human Environment, world leaders convened in Sweden this past June to take stock of environmental governance achievements and work toward the next era of sustainable development. At this year’s Stockholm+50 conference, ELI played a key role in two official side events and engaged in several other panels to promote environmental peacebuilding and environmental rule of law.

On June 2, ELI partnered with the Environmental Peacebuilding Association, Geneva Peacebuilding Platform, and PeaceNexus to convene an official side event on Improving Sustainable Development by Integrating Peace. The panel was moderated by ELI Senior Attorney Carl Bruch and featured Research Associate Shehla Chowdhury. Speaking to a full house, panelists discussed the connections among peacebuilding, sustainable development, and conservation by highlighting illustrative case studies and initiatives.

On the same day, ELI also co-sponsored an official side event on Judges, the Environmental Rule of Law, and a Healthy Planet Since the 1972 Stockholm Declaration. Participating judges included several long-time partners of ELI, including Justice Antonio Benjamin of Brazil, head of the Global Judicial Institute on the Environment, Justice Brian Preston of New South Wales, Australia, Justice Mansoor Ali-Shah of Pakistan, and Justice Michael Wilson of Hawaii—all leading champions of climate action.

Prior to the official Stockholm+50 conference, the Institute also co-sponsored a two-day Symposium on Judges and the Environment: The Impact of the Stockholm Declaration in Shaping Global Environmental Law and Jurisprudence. At the event, President Emeritus and International Envoy Scott Fulton presented ELI’s Climate Judiciary Project. The program is the only one in the world working to equip judges with the basic climate science education needed to administer justice in climate-related cases. Fulton shared that the project is now looking to pivot internationally, with the goal of sharing the same knowledge base with justices around the world.

Later in the summer, ELI Oceans Program Director Xiao Recio-Blanco and Visiting Attorney Patience Whitten joined the UN Ocean Conference in Lisbon, Portugal, from June 27 to July 1. As part of the summit’s events, ELI hosted the Future of Food Is Blue panel, in partnership with the Environmental Defense Fund, World Wildlife Fund, Rare, the Government of Iceland, and others. The event formally launched the Aquatic Blue Food Coalition, which promotes fish, shellfish, plants, and other aquatic foods to address food security and climate.

Recio-Blanco spoke at a reception immediately following to share ELI’s research on sustainable fisheries, highlighting the Law and Governance Toolkit for Sustainable Small-Scale Fisheries, published in 2020. The toolkit helps legal drafters develop effective policy mechanisms to sustainably manage small-scale fisheries.

Advancing migration with dignity through innovative research

Climate change, war, economic insecurity, and a myriad of other global issues have accelerated internal displacement and global migration. Yet migrants typically suffer many indignities during their transition to a new place, and existing institutions often fail to recognize their basic human rights. In response to this challenge, ELI and its partners have undertaken groundbreaking work on Migration With Dignity, a framework that offers legal and policy options for governments, policymakers, and nonprofits to uphold the dignity of migrants. The concept builds upon the policies of former President of Kiribati Anote Tong, who asserted the need for the people of Kiribati to maintain their autonomy and standard of living throughout the migration experience.

A recent special issue of the Journal of Disaster Research reflects a collaboration between ELI and the Dignity Rights Initiative, the Delaware Law School, the UN International Organization for Migration, and the Ocean Policy Research Institute. ELI Senior Attorney Carl Bruch co-authored two articles, Migration With Dignity: A Legal and Policy Framework, and The Methodology and Application of a Migration With Dignity Framework, along with Shanna N. McClain, NASA disasters program manager and former ELI visiting scientist.

Migration With Dignity: A Legal and Policy Framework considers a variety of migration contexts and identifies policies that work and gaps that exist for considering the dignity of migrants. Meanwhile, The Methodology and Application of a Migration With Dignity Framework provides a methodology for considering the social and legal dimensions of the Migration With Dignity framework. The issue also discusses the intergenerationality of immigrants in adapting or assimilating into their new environment, and how mass media affects perceptions of migrants in host countries.

ELI is continuing its work on Migration With Dignity through a new grant from the United Institute of Peace, which explores the potential of the framework to prevent and mitigate conflicts. Through research, dialogue, technical assistance, and capacity-building, the Institute seeks to strengthen legal protections for people displaced across national borders through its Environmental Displacement and Migration program.

Report on mining in Amazon identifies major corruption risks

In July, ELI and its partners contributed to Corruption in Artisanal and Small-Scale Mining in the Peruvian Amazon, a study prepared for USAID as part of the agency’s Prevenir Amazonías project. The Prevenir project aims to prevent and reduce the three greatest threats to the Peruvian Amazon: wildlife trafficking, illegal logging, and illegal mining. According to USAID, the project “works with the Government of Peru and civil society to improve the enabling conditions to prevent and combat environmental crimes.”

The guide represents the third in a series of reports developed by ELI for the project. The first, published in 2021, discussed the incorporation of wildlife trafficking into Peru’s organized crime law. Another, released in 2022, detailed best practices for prosecuting and sanctioning wildlife trafficking crimes.

The new report identifies corruption risks in the value chain of the gold derived from artisanal and small-scale mining in the Peruvian Amazon. In doing so, the report addresses the complex reality of mining in an analytical and evidence-based manner. Collaborating with local experts and professors, ELI analyzed interviews and conducted surveys of stakeholders involved in the gold mining value chain, including government officials, specialized prosecutors in environmental matters, and the chiefs of Amazonian Natural Reserves in which illegal mining often takes place.

The report then proposes regulations and governance mechanisms to mitigate these risks.

Sandra Nichols Thiam, ELI associate vice president of research and policy, served as project manager, and Elissa Torres-Soto, staff attorney, served as principal researcher and writer. Research Associate Georgia Ray, Staff Attorney Kristine Perry, and Visiting Attorney Vera Morveli also contributed to the research.

Geared toward policymakers, the study pinpoints the incidents where corruption is more likely to occur, and the factors that make corruption more likely. The Prevenir project is now focused on conducting outreach to spur dialogue and action on the report’s recommendations, especially to members of the Peruvian Congress who are beginning to address these issues.

ELI’s work on the Prevenir project situates within the Institute’s longstanding Inter-American Program. Since 1989, the program has worked in more than 20 countries in the region, with an extensive network of local partners to promote strategies of sustainable development and the conservation of natural resources.

In coming years, ELI plans to release another report under the Prevenir project on the use of amicus curiae in environmental crime cases in Peru, aimed at law students and members of NGOs.


ELI in Action Dialogue on the right to a healthy environment

In July, ELI partnered with Delaware Law’s Global Environmental Rights Institute, Barry University’s Center for Earth Jurisprudence, the American Bar Association Section of Environment, Energy, and Resources, the ABA Section of Civil Rights and Social Justice, and the ABA Center for Human Rights to produce a series of webinars about the right to a healthy environment.

Last year, the United Nations Human Rights Council in Geneva formally recognized the right to a “clean, healthy and sustainable environment” and recommended that the UN General Assembly do the same. In the first webinar of the series, a panel of international leaders from the United Nations and the Sabin Center for Climate Change Law at Columbia University discussed what it might mean for the UN General Assembly to adopt such a resolution. In the second installment, human rights practitioners reviewed the United States’ position on the issue, which continues to evolve. And finally, the third webinar, featuring experts in environmental rights and justice, examined the extent to which states in the United States have recognized or might recognize a right to a healthy environment.

ELI’s Food Waste Initiative is publishing a series of research briefs to present takeaways from the Initiative’s research, spanning a range of topics important to food waste prevention, recovery, and recycling. In May, the Initiative released Social Science Literature Review on Value of Measuring and Reporting Food Waste, authored by Research Associate Margaret Badding and Senior Attorney Linda Breggin. The brief provides an overview of relevant social science literature on the behavioral implications of measuring waste or emissions. Research indicates that simply measuring these components can motivate behavior change, due to increased awareness as well as reputational and financial concerns of measuring entities.

In June, the Initiative also published An Overview of Multilingual Outreach, Translation, and Language Justice Resources. Implementing environmental initiatives requires clear communication with affected communities—including those that speak languages other than English. Written by Research Associate Jordan Perry and Senior Attorney Linda Breggin, the brief highlights best practices for effective and inclusive multilingual outreach and document translation. To be most helpful to organizations with limited time and funds, these best practices are pulled from ready-to-use resources such as checklists and toolkits.

Under the Clean Water Act, states, territories, and tribes restore water quality in part by implementing Total Maximum Daily Loads (TMDLs), which set a maximum level of a pollutant allowed in a given body of water. Evaluating the effectiveness of TMDLs is challenging, yet vital for revealing whether a TMDL and implementation actions are working or should be revised.

In June, ELI published Evaluating the Water Quality Effects of TMDL Implementation: How States Have Done It and the Lessons Learned, a report highlighting the diversity of approaches to evaluating the water quality effects of TMDL implementation. The document explains some of those methods and conveys lessons learned. It also details terminology challenges and identifies relevant resource materials. By facilitating communication among water quality programs, the document aims to generate new ideas and ensure that future TMDL restoration efforts are more effective and efficient.

This past year, ELI hosted a workshop series on Communicating Complex Science: The Challenge of Sea-Level Rise. Funded by the National Science Foundation’s Paleoclimate Program and co-hosted with George Washington University Law School, these discussions brought together scientists, lawyers, and policy professionals to examine opportunities in communicating the science of sea-level rise.

The initial session, focused on explaining the science and attributing the impacts of sea-level rise, was held in November. The panel featured presentations by scientists Andrea Dutton from the University of Wisconsin-Madison and Ben Strauss from Climate Central. Robin Craig from the University of Southern California Gould School of Law facilitated a conversation to set the stage for subsequent sessions on the implications for law and policy.

In May, a follow-up session focused on the legal and policy landscape of sea-level rise included presentations from Astrid Caldas from the Union of Concerned Scientists, Jeffrey Peterson, author of A New Coast, Thomas Ruppert from Florida Sea Grant, and Robin Craig.

ELI Advances Peacebuilding, Ocean Conservation at UN.

Sea Emergency: Climate Change, Trade Subsidies, Small Fisheries
Bruce Rich - Attorney & Author
Attorney & Author
Current Issue
Bruce Rich

Last June, UN Secretary-General António Guterres stood beforemore than 6,000 delegates from 150 nations in Lisbon to open the second UN Oceans Conference. “Sadly,” he lamented, “we have taken the ocean for granted and today we face what I would call an ocean emergency.” There have been some positive developments: more nations declaring coastal marine protected areas, and a few successes in promoting sustainable fishing regimes. But overall the trends are alarming.

More than a third of all wild ocean fish stocks are overharvested—a proportion that has increased over past decades—and much of the remainder is close to the limits of biological sustainability. Perverse financial incentives and regulatory failures are depleting world fisheries further. Plastic pollution is a global crisis. The president of Palau, representing Pacific small island states, warned that by 2050 the weight of plastic in the seas will exceed the biomass of all the fish in the ocean.

Climate change is increasing acidification of the oceans, deoxygenation of marine waters, and the impoverishment of marine biodiversity. It is accelerating the world-wide death of coral reefs, as well as the disruption of other critical marine ecosystems such as the coastal spawning grounds of numerous species. The interrelated dynamics of these changes include the warming of ocean waters, the increased absorption of CO2 (forming carbonic acid when dissolved in water), and rising sea levels inundating mangroves and other biologically critical areas. Many nations have fallen short in implementing national commitments under the UN 2015 Paris climate agreement to reduce carbon emissions and to provide financial support for climate mitigation.

The Oceans Conference illuminated not just the interconnectedness of global environmental crises, but also the links of the ocean emergency to perverse incentives embedded in the world political economy. The financial subsidization of the construction and operation of fleets by the world’s major fishing nations has been for decades the single most important driver of overfishing. Too many subsidized trawlers are chasing too few fish.

Subsidies to increase, modernize, and operate fishing fleets account for over $22 billion of the estimated $35 billion of these subventions, and some 80 percent goes to large fishing concerns, enabling activities that otherwise would not be profitable. According to a 2018 paper published by researchers at the University of British Columbia and the University of California at Santa Barbara, without “large government subsidies. . . 54 percent of the present high-seas fishing grounds would be unprofitable.” A form of de facto subsidization involves extremely low wages paid to fish workers in the fleets of some countries, and even the use of forced labor on trawlers.

Days before the Lisbon Oceans Conference, 166 nations in the World Trade Organization finally agreed to reduce some subsidies supporting illegal, unreported, and unregulated fishing, and financial support for harvesting depleted fish populations. But the much larger government aid for capital and operating costs (including fossil fuel subsidies) remains. A French environmental organization summarized the WTO slight of hand: “They closed subsidies for overfished stocks but not for overfishing.”

Many sessions at the Lisbon Conference urged greater support for sustainable management of community-based, small-scale fisheries. SSFs account for over half of the wild fish sold directly for human consumption. Of the 120 million people working in fisheries world-wide, 90 percent are in SSFs. In July, a UN report on the “Sustainable Use of Wild Species,” in preparation for four years by 85 experts from 33 countries, released its summary conclusion. It emphasized two recommendations for fisheries: ending subsidies and providing more support to build up sustainable management of SSFs.

In 2014, the UN Food and Agriculture Organization issued guidelines for sustainable management of SSFs. Subsequently the Ocean Program of the Environmental Law Institute completed a “Law and Governance Toolkit” to help implement the FAO guidelines at the local level. ELI is already working to promote the use of the toolkit by governments in the Pacific through the regional Pacific Community organization of nations, and through partnerships with fishing communities in Mozambique and South Africa.

Helping SSFs addresses both the environmental and social equity objectives of the UN Sustainable Development Goal 14, “to conserve and sustainably use the ocean seas and marine environment for sustainable development.” UN Secretary-General Guterres cited SDG 14 as a raison d’être of the Lisbon Conference, and he deplored that it is the most underfunded of all the UN Sustainable Development Goals.

Sea Emergency: Climate Change, Trade Subsidies, Small Fisheries.

ELI Report
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue

Wetland Woes: Institute publishes a series of guides on improving the restoration of vital aquatic ecosystems in the U.S.

Wetlands perform irreplaceable ecosystem services, from improving water quality, preventing shoreline erosion, to providing habitat for threatened and endangered species. Since 1990, the Clean Water Act’s Section 404 program has aimed to achieve a “no net loss” of aquatic ecosystems in the United States. Any project that will result in fill or disturbance to a wetland or stream—for example, constructing a neighborhood or a store, or building a road or bridge—must obtain a permit from the U.S. Army Corps of Engineers. To issue that permit, the Corps must first determine that any potential impacts have been avoided or minimized as much as possible. And for the unavoidable impacts that remain, developers must then offset them through restoration activities.

This practice of offsetting the remaining impacts is called compensatory mitigation. Permittees restore any lost acres and functions by conducting projects to restore, rehabilitate, establish, or enhance wetlands, streams, and other aquatic resources. Permittees can either implement these activities on their own, or pay a mitigation bank or in-lieu fee (ILF) program to offset impacts on their behalf—an option called third-party compensatory mitigation.

Many are surprised to learn that compensatory mitigation is a multi-billion dollar market. Under these programs, tens of thousands of wetlands and streams are restored each year. ELI has been studying the compensatory mitigation program for decades, producing numerous resources designed to improve the implementation of the program.

In August 2021, the Institute released a series of comprehensive guides in partnership with the Institute for Biodiversity Law and Policy at Stetson University College of Law on improving implementation of ILF programs—one of two third-party compensatory mitigation options. The guides cover some of the most challenging components of ILF program implementation identified through extensive research and interviews with ILF programs and other stakeholders. They help address a number of perennial problems by identifying specific challenges, providing detailed recommendations on ways to meet these challenges, and highlighting case studies to illustrate effective approaches.

Each of the four guides explores a regulatory requirement that programs need to fulfill. One is “full-cost accounting”—regulations stipulate that ILF providers must set fees in a way that proactively anticipates and accounts for all costs associated with mitigation. Many programs face challenges in determining these costs, due in part to a lack of information on what costs to include and how to estimate them.

Another guide addresses common delays in project approval processes, which are required for third-party mitigation options like ILF programs. A third guide covers long-term management, a practice in which ILF programs are required to sustain mitigation projects in perpetuity once completed. The report covers strategies for the effective planning and implementation that these long-term sites require.

Finally, a fourth guide provides information on what to expect from programmatic audits, which help provide confidence to regulators, purchasers, and the public that a given ILF program is meeting its requirements and successfully offsetting permitted impacts. The report includes guidance on what information programs should include in their program instruments, model language for audit provisions, and how programs can prepare for such audits.

ILF programs account for close to 20 percent of the nation’s compensatory mitigation. Together with other third-party options, ILF programs oversee some of the nation’s largest, most ecologically valuable sites. ELI continues to work closely with compensatory mitigation practitioners and regulators to research best practices and strengthen the protection of U.S. wetlands, streams, and aquatic ecosystems.

Report on high-seas regulations provides input to UN treaty

The vast majority of the world’s oceans, including the high seas and deep seabed, are areas beyond national jurisdiction—meaning no one nation holds sole authority. As advances in technology open up possibilities for commercial activities in the high seas, concern is growing that these areas will experience rapid industrialization. One way to ensure that development is conducted in an environmentally sustainable manner is to establish regulatory procedures for ocean industries.

The United Nations draft agreement for the protection of marine biodiversity in areas beyond national jurisdiction, or the UN BBNJ treaty, aims to do just that. The treaty proposes to, among other things, implement requirements for developers to conduct environmental impact assessments (EIA) on proposed industrial facilities in the high seas so that the significant biodiversity of these areas will be protected. But as the treaty itself moves beyond initial development to implementation of EIA and other protections, practitioners around the world remain wondering: “How can we ensure that EIA is done effectively once the BBNJ language is signed into international law?”

In December 2021, ELI published Implementation of EIA in Areas Beyond National Jurisdiction Under the UN BBNJ Agreement: Next Steps in EIA Guidelines, a report to help illuminate the practitioner’s perspective to the UN BBNJ process. The report synthesizes the discussions of a working group convened by ELI, composed of more than 25 senior officials with expertise in international law and ocean policy, environmental management, and EIA.

The document, authored by ELI Visiting Scholar Patience Whitten as part of the Institute’s Blue Growth Law and Governance Initiative, identifies key challenges to the successful implementation of an EIA regime as proposed under the UN draft agreement, and provides input to further the goals of the treaty.

ELI is developing this work as part of a multi-year research and collaboration effort to ensure a meaningful implementation of EIA principles in the high seas.

Clearinghouse connects communities with pro bono legal services

In February, ELI launched its Pro Bono Clearinghouse, an initiative that connects communities experiencing environmental injustices with attorneys who can provide pro bono legal services. ELI’s Pro Bono Clearinghouse is a venue for sharing opportunities and identifying expertise to support communities with pressing environmental problems. The Clearinghouse works to ensure that communities with viable environmental legal matters get the representation they need—whether in a courtroom, in front of an agency, or in a more facilitative or consultative fashion.

Environmental clinics are forced to turn down countless cases each year due to a lack of resources. At the Clearinghouse, clinics, partner NGOs, or ELI staff post a community’s request for a pro bono attorney with the right qualifications and notify environmental lawyers about ongoing pro bono opportunities. Law clinics can also create postings to find local counsel or legal support on specialized issues to expand internal capacity. Attorneys can in turn search for opportunities that match with their time availability, legal expertise, and jurisdiction of practice.

All attorneys who are ELI members can opt in to access the Clearinghouse and posted matters. Each attorney is required to review the available courses from the ELI Continuing Legal Education on Community Lawyering for Environmental Justice program, an ongoing series of training sessions provided in conjunction with the Clearinghouse. The classes enable attorneys opting into the platform to gain skills in community lawyering, a key practice in meaningful EJ-oriented pro bono work. Community lawyering centers on prioritizing the needs of communities and collaborating with individuals and groups as facilitative partners.

Law firms with ELI membership can opt in to the Clearinghouse, and non-lawyers and students are encouraged to contribute research, writing, scientific expertise, and other skills in conjunction with pro bono attorneys. All clinics and communities that post matters can also access the Clearinghouse to reach thousands of environmental practitioners within ELI’s network and collaborating partners.

The Clearinghouse partners with groups including the American Bar Association’s Section of Environment, Energy, and Resources, the American College of Environmental Lawyers, the Environmental Protection Network, and the Chesapeake Legal Alliance. The Clearinghouse also partners with two world-class, community-focused nonprofits: the Anthropocene Alliance, the country’s largest coalition of communities on the frontline of environmental justice, and the Thriving Earth Exchange, which connects communities with pro bono scientists.

Law clinics in the United States and around the world are welcome to join. Lawyers, law students, environmental experts, and advocates may connect with the Clearinghouse at probono@eli.org and at eli.org/probono.

Institute Published Guide on Restoring Wetlands

A National Strategy for Ocean Plastics
Margaret Spring - Monterey Bay Aquarium
Monterey Bay Aquarium
Current Issue
Parent Article
drawing of Margaret Spring

The 20th century invention of plastics has produced a 21st century deluge of plastic pollution. This global problem spans from increased production of the materials to their problematic disposal. From 2020 to 2021, I chaired a National Academies of Sciences, Engineering, and Medicine expert committee, charged by Congress—pursuant to the bipartisan Save Our Seas 2.0 Act and funded by the National Oceanic and Atmospheric Administration—to determine the U.S. role in global ocean plastic pollution.

Our committee concluded that the United States must substantially decrease our contribution to global plastic waste, including by producing less plastic. To do so, the nation needs a comprehensive federal policy and research strategy, with interventions at every stage of the plastic lifecycle.

This recommendation is supported by the report’s findings, which showed the United States is a major contributor to global plastic pollution. In addition to being the largest generator of solid waste, in 2016, we were the top generator of plastic waste, responsible for about 42 million metric tons. While the United States has a strong waste management system relative to many countries, a 2020 study in Science Advances by Law, et. al, estimated that plastic solid waste still “leaks” from municipal solid waste at a rate of 1.13-2.24 MMT per year as of 2016. This places our nation as the third to twelfth largest contributor of plastic pollution in the coastal environment. These are likely conservative estimates, as the country lacks data to quantify plastic pollution from transportation, stormwater, and industrial discharges.

The United States also contributes to plastic pollution as a producer and exporter. In 2019, North America produced almost 20 percent of total global plastic, second to Asia, with U.S. production capacity projected to increase. Since the 1990s, U.S. exports of plastic products have been increasing, and we continue to export plastic waste.

This waste is also found across the country in lakes, rivers, in the air, and on land, harming both wildlife and people. The vast majority of plastics lost to the natural environment are persistent contaminants, because they do not readily biodegrade. Additionally, plastic debris can kill or injure wildlife that ingest or become entangled in it. We are learning more about the impacts of microplastics—small plastic particles that travel through air, water, and the food web—on ecosystems and human health. If the amount of plastic pollution continues to increase, these negative consequences will worsen.

There is no single solution, and current federal action is insufficient. We cannot continue to rely on an overwhelmed waste management system or highly inefficient efforts to clean up plastic waste in the marine environment. Nor can we recycle our way out of this growing problem. Today the United States recycles less than 9 percent of its plastic waste. There is limited demand for recycled materials, and current processes and infrastructure are grossly inadequate for the overwhelming volume and complexity of plastics discarded, typically after a brief use.

The path forward is a national systemic strategy designed to address all six stages of the plastic lifecycle:

1) reduce plastic production; 2) innovate in materials and product design; 3) produce less plastic waste; 4) upgrade waste, recycling, and composting programs and infrastructure; 5) increase capture of plastic waste before and after it enters the environment; and 6) decrease direct dumping of plastic waste into the ocean.

A national plastic waste reduction strategy will require high-level federal leadership and coordination. Existing laws and programs, including many at EPA and NOAA, can form the backbone, but the strategy must prioritize actions around all six intervention areas, set national goals, and fill knowledge and policy gaps. Federal leadership is critical to mobilize cross-sectoral collaboration and gather ideas from state and local policy laboratories, which have enacted innovative measures to reduce plastic waste.

Reducing plastic pollution provides co-benefits beyond decreasing waste. It supports innovation and economic opportunity and addresses unequal economic burdens. It also helps achieve U.S. and global climate goals—according to the UN Environment Programme, emissions from plastic production and waste generation are projected to account for at least 15 percent of the global carbon budget by 2050 if current practices continue. Cutting pollution also helps mitigate the disproportionate impacts of plastic production on BIPOC (Black, Indigenous, and people of color) communities, and advances justice.

The time to act is now, and momentum is building. Congress has demonstrated bipartisan support, government and multisector plans are under development, and global treaty discussions on plastic pollution are underway, with the United States finally at the table. We need a national strategy to support negotiations with G7 nations that already have plans of action. The European Union recently banned 10 single-use plastic products under its plastic strategy, and both the EU and Canada have embraced a circular economy approach to address climate change and plastic pollution.

If the United States takes leadership on ocean plastic waste now, Americans can benefit economically from innovation, help shape global design and production trends, and achieve an enormous environmental benefit for generations to come.

Margaret Spring is chief conservation and science officer at Monterey Bay Aquarium. She chaired the Committee on U.S. Contributions to Global Ocean Plastic Waste convened by the National Academies of Science, Engineering and Medicine.