Building Bridges: Connecting the Overlapping Goals, Resources, and Institutions of Gulf of Mexico Restoration and Conservation (Federal Programs)
Author
David Roche, Jay Austin, Teresa Chan, Jordan Diamond
Date Released
April 2014
A silhouette of a pelican on top of a pole next to a marina

On April 20, 2010, an explosion rocked the Deepwater Horizon mobile offshore drilling unit. Eleven crewmen lost their lives in the blast, and the rig burned for the next thirty-six hours. Then, forty-one miles off the southeast coast of Louisiana, the Deepwater Horizon sank. Back at the wellhead, a quarter-mile away and 5,000 feet beneath the surface of the Gulf of Mexico, the environmental disaster was just beginning.

Executive Summary of Building Bridges: Connecting the Overlapping Goals, Resources, and Institutions for Gulf of Mexico Restoration and Conservation (State Plans and Programs)
Date Released
January 2016

On April 20, 2010, a blowout occurred on the Deepwater Horizon drilling rig located off of the coast of Louisiana, triggering one of the worst oil spills in the nation’s history. Before the well was capped 87 days later, millions of barrels of oil would flow into the Gulf of Mexico. Nearly six years later, the economic and environmental impacts of the spill are still being determined. Several restoration and recovery processes have been initiated in order to address these impacts. Billions of dollars have already been obligated to these processes, and billions more are expected.

Building Bridges: Connecting the Overlapping Goals, Resources, and Institutions of Gulf of Mexico Restoration and Conservation (State Plans and Programs)
Author
David Roche, Teresa Chan, Jay Austin, Elana Harrison
Date Released
January 2016
Bridge on Route 10 outside New Orleans, Louisiana

In an effort to link the spill-related processes with the existing framework, we released a report in April 2014 entitled “Building Bridges: Connecting the Overlapping Goals, Resources, and Institutions of Gulf of Mexico Restoration and Conservation (Federal Programs).” That report addressed opportunities to link existing federal programs with the processes initiated in response to the spill, identifying dozens of existing federal programs with goals and objectives that overlap with the oil spill restoration processes.

Good Project Checklist: Important Elements for Gulf Restoration Projects
Author
David Roche, Teresa Chan, Azi Akpan
Date Released
May 2017
Long grass and a tree overlooking a water with land in the distance

In the coming decades, billions of dollars will go to Gulf of Mexico restoration projects through processes set up after the Deepwater Horizon (DWH) oil spill. Hundreds of projects have already been approved, and many more are on the way. As the deluge of projects begins, it’s essential to take a step back and ask a simple question: What makes for a “good” restoration project?

Fast Tracking Restoration: Addressing Resource Constraints in Federal Agencies
Author
Teresa Chan, Amy Streitwieser, Jay Austin, Benjamin Solomon-Schwartz, Azi Akpan
Date Released
December 2017
Pink birds flying over wetland grass

In February 2017, ELI released a background paper on “Fast-Tracking ‘Good’ Restoration Projects in the Gulf of Mexico,” which focused on mechanisms that are available to fast-track restoration projects that are subject to federal environmental compliance requirements (e.g., review of environmental impacts under the National Environmental Policy Act). In that paper, we noted that constraints on federal agency resources may become a significant barrier to timely action.

Coordination in the Natural Resource Damage Assessment Process: Project Planning and Selection
Author
Amy Streitwieser, Teresa Chan, Jay Austin
Date Released
June 2018
Cloudy sky above marsh environment

In March 2018, we released a paper on “Coordination in the Natural Resource Damage Assessment Process: General Tools and Mechanisms,” which surveyed some of the general tools and mechanisms available to the Deepwater Horizon natural resource damage assessment (NRDA) trustees to help coordinate their activities. This paper builds on that work: it describes some additional tools that are available during project planning and selection that could help coordinate the trustees’ activities internally within the NRDA program and with external entities.

The City of Portland Streamlining Team: A Case Study in Coordinating Environmental Compliance
Date Released
August 2018

In February 2017, ELI released a background paper on “Fast-Tracking ‘Good’ Restoration Projects in the Gulf of Mexico,” which focused on mechanisms that are available to fast-track restoration projects that are subject to federal environmental compliance requirements. In that paper, we noted that environmental compliance often requires the participation of several government agencies – federal, state, and local – and the efficiency of compliance procedures can be improved by early, effective coordination among the various agencies involved.

How Small-Scale Fisheries Can Become a Huge Success
Author
Xiao Recio-Blanco - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2
Xiao Recio-Blanco

Nothing about small-scale fisheries is actually small. About 90 percent of the world’s 120 million capture fishers are involved in what we’ll call SSF, making it the world’s largest creator of marine jobs, as well as an economic activity that supports the food security of millions.

As the human population living by or near the coast continues to increase, the role of SSF is becoming even more important. Small-scale fisheries are extremely diverse, ranging from traditional, customary, and indigenous fishing practices to near-shore, semi-industrialized fishing. For the most part, fishers are members of coastal communities, and spend their earnings in the same places they live.

The governance problems affecting the SSF sector are not small either. The most common challenges relate to a lack of financial and legal certainty, training, adequate data to improve management, and commercial know-how, as well as an absence of funding for addressing reforms.

Seeking to provide guidance on how to promote a more sustainable SSF sector, the Food and Agriculture Organization of the United Nations published the “Voluntary Guidelines for Sustainable Small-Scale Fisheries.” This document stresses the close connection among ocean governance, environmental stewardship, and the central role of fisheries for protecting the human rights and economic security of tens of thousands of small-scale fishing communities around the world.

Building on this connection between environmental sustainability and human rights in the SSF context, ELI developed the Small Scale-Fisheries Law and Governance Toolkit, implemented in partnership with Parliamentarians for Global Action, a global network of policymakers focused on promoting human rights.

In many instances, a knowledge gap exists between promoting sustainability practices and implementing these goals on the ground through regulatory procedures. The toolkit bridges this divide by identifying useful regulatory approaches for SSF governance, with a special focus on fisheries co-management, and provides this information in the form of model legal language so that others may review and adapt provisions to the legal framework of a specific country or region.

For this project, ELI draws from its experience reviewing environmental laws around the world for the “First Environmental Rule of Law” report, published in 2019 in partnership with UN Environment. The report found that most laws that promote sustainability struggle with implementation and enforcement. Laws lack clear mandates, insert concepts that are not developed, or introduce policy approaches that are not tailored to the needs and conditions on the ground.

Zooming in on the management of fisheries reveals similar challenges. Many fisheries laws have inserted the concept of “sustainability” without elaborating on how to translate that concept into governance institutions and regulatory procedures. Although a fisheries act may mention, for example, “community participation in governance,” the local community may not know how to exercise that right, and the government agent does not know how to enable that process. This is where legal analysis can prove useful by generating actionable rules and identifiable processes based on research.

The toolkit starts by presenting a methodology for assessing the need for regulatory reforms with a specific lens on the challenges and needs of the SSF community. Given the central role of co-management in sustainable SSF governance, the toolkit focuses on creating and implementing co-management systems, along with two basic governance elements that strengthen them: exclusive fishing rights for SSF communities and the creation of exclusive zones for SSF. Remaining sections address fundamental elements for enhancing the likelihood of success for a sustainable SSF co-management scheme: strengthening compliance, overcoming the conceptual opposition between fisheries and marine protected areas, and making SSF governance compatible with other area-based ocean management approaches.

The ELI team’s goal was to make the model legal language included in the toolkit specific enough to help advance the issue of sustainable governance with detailed models, yet general enough so that the language can be applied to different contexts and legal systems. In other words, the toolkit should help policymakers answer the question, Can my country’s legal framework provide better guidance to achieve these objectives? The resource then provides a few examples on how to operationalize that governance challenge.

How Small-Scale Fisheries Can Become a Huge Success.

ELI Report
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2

Making Law Work Institute guides countries on drafting marine spatial planning legislation with new handbook, implementing ideas

The ocean is significantly altered by human activities, such as fishing, offshore oil and gas development, and plastic use. Future uses such as deep seabed mining have potential to even further affect the marine ecosystem.

As commercial activities in the “blue economy” expand, so too will ocean governance. In order to sustain resources while maintaining long-term growth of economies, countries are increasingly turning to marine spatial planning to manage ocean environments.

MSP allocates the “spatial and temporal distribution of human activities in marine areas,” organizing these different uses to achieve both ecological and economic goals. Although many resources describe how to create a plan, none show how to incorporate MSP into law.

Recognizing this need, ELI, in partnership with Animals | Environment PLLC and under the Blue Prosperity Coalition, published Designing Marine Spatial Planning Legislation for Implementation: A Guide for Legal Drafters in May 2020. The document provides guidance to the busy government lawyer tasked with drafting an MSP law. The guide was followed by a webinar in December and a series of accompanying videos detailing each section of the resource.

The guide draws upon the knowledge and contributions of participants at a 2019 MSP workshop in New Zealand, hosted by ELI in collaboration with the Waitt Institute and IUCN. The four-day event marked the first of a series of workshops by the Blue Prosperity Coalition, a global network of ocean experts working to assist governments in developing MSPs.

Workshop members representing over 16 different countries, primarily from island states in the Pacific region, including Fiji, Niue, Samoa, Tonga, and others, convened to discuss lessons learned and guiding principles for drafting legislation.

Building off these discussions, the guide supports legal drafters from ocean and coastal states where the development of MSP legislation is under consideration. The handbook highlights the essential components and subcomponents of legislation, and explains each feature’s role and significance. It also provides sample text provisions, prepared by the guide’s authors and drawn from existing MSP laws, to address each component. Finally, the guide provides tips for legal drafters. ELI Staff Attorney Sofia O’Connor serves as lead author of the guide.

A follow-up webinar hosted in December was attended by legal drafters, nonprofits, and philanthropy groups. Speakers, including César Toro, head of the Subcommission for the Caribbean and Adjacent Regions of the Intergovernmental Oceanographic Commission of UNESCO, noted the particular significance of planning for island nations that manage ocean territories several hundred times larger than their sovereign land. Maria-Goreti Muavesi, senior environmental legal officer at IUCN Oceania, provided case studies of MSP processes in Pacific Island nations, including Vanuatu, Fiji, and Tonga.

Speakers discussed the importance of understanding a country’s current legal framework to identify gaps and opportunities as well as the need to periodically review plans based on new scientific data and other developments.

This guide marks a significant milestone in ELI’s long-term cooperation with the Waitt Institute on the implementation of MSP, which has included legal assessments in Bermuda, Montserrat, Curacao, and Barbuda. Over more than a decade, ELI has developed a number of publications on MSP and coastal zone management for the Caribbean region, the Pacific, and the United States.

Legal ed course still helping new professionals, but virtually

The 29th Annual Eastern Boot Camp on Environmental Law, ELI’s signature legal education course for environmental professionals, was offered virtually last November. For more than thirty years now, the Eastern Boot Camp has educated new and experienced lawyers, consultants, government officials, and nonprofit and advocacy professionals on the substance and practice of environmental law. The intensive course provides about 20 hours of continuing legal education credits. ELI also offers the Western Boot Camp on Environmental Law, a similar course held on the left coast each spring.

Efforts were of course made to accommodate the unique challenges of hosting a live course online to ensure an optimal experience for both faculty and participants. The program was spread over three consecutive Thursdays, and incorporated more frequent breaks and multiple virtual networking receptions. Brenda Mallory, nominated to be chair of the White House Council on Environmental Quality and an ELI board member, gave opening remarks at the first networking reception, describing her career and trajectory in environmental law. The second networking reception featured Ruth Ann Castro, senior environmental health and safety counsel at Google and ELI board member.

The Eastern Boot Camp holds a reputation as an effective course for preparing professionals beginning or seeking a refresher in the area of environmental law, due in part to its outstanding faculty. Instructors for this year’s National Environmental Policy Act session included leading NEPA experts such as Edward Boling, former associate director at the Council on Environmental Quality, as well as Stacey Bosshardt, former assistant section chief and senior trial attorney in the Justice Department’s Environment and Natural Resources Division.

This year, the timing of the session on environmental justice was extended to reflect growing interest and the need for additional content. Other notable highlights include successful efforts to achieve gender parity within the faculty and participants, and to reflect the diversity of the environmental profession. In the end, the course saw record attendance in its virtual format.

New initiative aims to encourage sustainable growth of high seas

Advances in technology have opened up new possibilities for commercial activities in previously inaccessible areas of the high seas — including shipping, wind and energy development, and marine mining. As a result, concern is growing that these areas beyond national jurisdiction will experience rapid industrialization. The concept of blue growth refers to the expansion of maritime industries and the need to ensure that this new development is conducted in an environmentally sustainable manner.

One way to achieve blue growth is to establish regulatory procedures for ocean industries in the high seas. The Institute’s Blue Growth Law and Governance Initiative, led by ELI Visiting Scholar Patience Whitten and supported by the Leaves of Grass Foundation, was created in August to address these emerging issues and play a leading role in the global discussion on the development of the marine economy.

Whitten, a veteran federal regulator with over twenty years of experience at agencies including EPA and the National Oceanic and Atmospheric Administration, leverages her expertise in environmental impact analyses for large-scale industrial projects and her training in international finance to engage in discussions surrounding blue growth.

In the near term, the initiative will participate in negotiations to develop legal requirements for environmental impact assessments in areas beyond national jurisdiction, part of a larger UN effort known as the BBNJ process. The initiative will also provide input on the next stage of negotiations, when UN members will decide how to operationalize these procedures.

Another area of interest is financing for ocean projects. Recognizing a growing portfolio of economic mechanisms that incorporate social and environmental objectives, the initiative hopes to explore how sustainable financing for high seas projects can influence the environmental outcomes of blue growth.

On a broader level, the initiative seeks to engage both regulators and the regulated community in discussions around sustainable growth. The program intends to not only analyze best practices and contribute to policy outcomes, but also address specific regulatory challenges from the ocean industry community and reflect common interests among a diverse range of stakeholders.

ELI in Action EJ clerkship will support diversity in law profession

In November, ELI and Howard University School of Law announced the formation of the Environmental Justice Clerkship at ELI, a new program designed to train, mentor, and ultimately retain more students of color in environmental law while advancing environmental justice efforts.

Each semester and summer, one Howard law student will work closely with ELI experts on a variety of projects with an emphasis on environmental justice. These may include researching and drafting model bills, assisting overburdened communities with sustainable development planning, and writing reports to support community-driven environmental justice goals. With the support of the True Costs Initiative, each clerk will receive a stipend to ensure that socioeconomic background does not limit the clerkship’s reach.

A considerable number of dry cleaners in the United States use a chemical called perchloroethylene (perc or PCE). PCE releases pose a potential health risk for children and staff at nearby child care facilities. An ELI report titled Federal, State, and Local Policies Addressing Chemical Emissions from Dry Cleaners: Opportunities for Reducing Exposure at Child Care Facilities, released last July, describes some of the laws and regulations that have been established to address this ongoing public health issue. The report discusses air quality regulations, land use and zoning ordinances, and child care licensing regulations. The text supports decisionmakers in developing policies to reduce environmental exposures related to dry cleaners.

Environmental racism refers to the institutional laws and policies that create and perpetuate disproportionate impacts of environmental hazards in marginalized communities. An ELI webinar held in November convened environmental justice experts to discuss opportunities for dismantling environmentally racist practices.

Speaker Carlton Waterhouse, professor of law at Howard University and an ELI Board member, emphasized that white supremacy and racial discrimination are the roots of environmental racial disparities.

Vernice Miller-Travis, executive vice president of Metropolitan Group, highlighted the importance of using both civil rights law and environmental law to guide environmental justice policies and decisionmaking.

Jason Travis Hauter, partner at Akin Gump Strauss Hauer & Feld LLP, described strategies used by American Indian and Alaska Native tribes to address environmental racism. On opportunities for moving forward, Jacqui Patterson, director of the Environmental and Climate Justice Program at the NAACP, emphasized that solutions to environmental racism need to address multiple facets of discrimination, including sexism, ableism, and other forms of oppression.

The Climate Judiciary Project, led in collaboration with the American Association for the Advancement of Science and the Federal Judicial Center, educates judges on the science underpinning arguments in climate cases. Having completed its first year of pilot seminars, the project will now focus on developing an online curriculum that provides recorded lectures and background information on climate science and its application to legal cases.

The curriculum will be composed of 14 different modules prepared by top-tier climate scholars and law experts. An advisory committee of scientists, judges, and legal scholars will provide input on the development of the curriculum. In addition, the project aims to hold a series of live seminars with the judicial community, continuing to expand its efforts to engage judges in discussions around the application of climate science in the law.

In 2019, ELI hosted the inaugural GreenTech Conference in Seattle, convening technology companies, policymakers, young innovators, NGOs, and academia to discuss the future of environmental protection in an era of rapid advances in technology.

This past year, the Institute launched a free, virtual GreenTech webinar series. The first installment, “Digital Solutions to Climate and Water Challenges,” took place in November to discuss how digitizing energy and water services can help reduce the climate and water footprint of sectors like transportation and manufacturing.

Future webinars will explore the environmental applications and implications of artificial intelligence and how tech can support environmental justice and renewable technology.

ELI's New Handbook Guides Marine Spatial Planners