The United States is not a party to the UN Convention on the Law of the Sea, a treaty it rejected in 1982 after having taken a key role in the years of negotiations leading up to a consensus text. In the nearly four decades since, the accord has been agreed to by most nations and has become customary international law, in many ways obligating or restricting the United States despite its outsider status.

This Debate addresses implementation of the UNCLOS accord’s environmental and natural resource provisions. It takes place 40 years after the incoming Reagan administration in March 1981 tipped its hand over that language by abruptly dismissing the U.S. delegation to the treaty talks. Elliott Richardson, the former attorney general famously fired by President Nixon and recently head of the American UNCLOS team, called the episode “a second Saturday Night Massacre.”

The new White House was bothered by provisions designating the seabed in Areas Beyond National Jurisdiction “the common heritage of mankind” and providing for an international Enterprise that was to mine the deep ocean bottom and funnel proceeds to parties. Reagan wanted to better secure rights of private U.S. firms to the resources.

With another new administration taking over, joining this critical worldwide accord would help the U.S. ensure rights of passage for military and commercial vessels under the U.S. flag, rights for private parties to mine the seabed — and achievement of the convention’s natural resources and environmenntal mandates that would benefit all Americans. Ongoing talks and possible action on UNCLOS could also open the door to achieving the goals of related treaties like the Biodiversity Convention and the Basel Convention on ocean dumping.

Meanwhile, the ocean faces worsening threats, including acidification and temperature changes due to greenhouse gas emissions, overfishing and biodiversity collapse, and an increasing load of pollution.

In 2005, ELI President Leslie Carothers tasked staff professionals with addressing a concern she had about an environmental problem that was receiving little attention despite its severity and global impact — the degradation of the planet’s ocean, which covers two thirds of the globe and is in deep distress. Depleted fish stocks, massive decline in coral reefs, loss of coastal habitats, rising seas, increasing temperatures, and ocean acidification are some of the most pressing problems that are only growing in severity.

In response to these myriad issues, the Institute adopted a wide-angle approach. Staff lawyers and scientists arrived at Marine Spatial Planning as a key tool to achieve ecosystem-based management and address the ocean stresses caused by humanity. More than 60 countries around the world now engage in MSP, with more coming on line every year.

The ELI Ocean Program became a leader in the law and governance of MSP, working on efforts in the United States as well as working with what are known as Small Island Developing States. Today, with support from the Waitt Institute and National Geographic’s Pristine Seas Program, the ELI Ocean Program continues to focus on supporting the analysis of legal frameworks for MSP and the design of laws to operationalize plans.

Significant to the Ocean Program portfolio is the focus on restoration of the Gulf of Mexico as a result of one of history’s largest global environmental disasters, the Deepwater Horizon oil spill. In partnership with the Walton Family Foundation, the Ocean Program has built and managed a major project to help gulf communities engage in the numerous public processes that aim to restore the body of water and the people who depend on it.

This work has led to innovation in communicating law and policy to the public, tracking and sharing information, and working effectively with a large group of actors ranging from indigenous peoples to fishers to scientists to agency decisionmakers. Only an organization with the expertise and networking and convening experience of ELI could work effectively in this legal space.

The Institute has had the invaluable opportunity to undertake a wide range of other projects in support of the planet’s ocean environment.

For instance, ELI scientists and attorneys have supported the role and rights of Alaska Native communities in managing their ocean resources. The Institute has evaluated U.S. fisheries’ compliance and enforcement systems and examined legal frameworks for deep seabed mining with a focus on addressing significant impacts. ELI has explored the potential to use environmental DNA in decisionmaking. The Institute has supported the National Oceanic and Atmospheric Administration in the design of social impact assessments for U.S. fisheries management. And ELI has designed legal guidance on managing marine debris.

Why “Ocean” and not “Oceans”? While we have many ocean basins, with romantic names and a deep history, the planetary ocean is one interconnected earth system that requires legal and governance systems that account for these connections. To that end, one of our initial projects focused on the design of governance systems for marine ecosystem-based management — a sprawling concept that calls for management of the ecosystem as a whole rather than concentrating on key species or habitats.

The globe-girdling ocean is the tie that binds these individual projects together. But more than that, it is the Ocean Program’s participants, staff, and invaluable partners who share a vision of supporting communities and the marine environment, innovating in project design, and working as a cohesive team to advance ocean conservation using the laws on the books and implementing new measures that may be necessary.

50th Anniversary | Technology, even more than regulation, will lead the next half century of environmental improvement

Beginning with passage of the National Environmental Policy Act, followed a few months later by establishment of the Environmental Protection Agency, the last 50 years have reflected the growing need for regulation to protect human lives and livelihoods as well as the planetary ecosystem that supports them. However, it seems that each success, and there have been many, has been followed by news of other challenges that are often even more dire.

The Environmental Law Institute, established in December 1969 alongside these events, has grown to become a leader in analyzing — and shaping — developments in the burgeoning field that grew following passage of NEPA and the other foundational statutes. Over the last 50 years, the Institute has fostered innovative, just, and practical law and policy solutions to ensure environmental legislation and regulation adequately defends the earth’s natural resources at a price society can afford.

The experience of a half century makes it apparent that regulation alone will no longer drive environmental protection. Technology has grown to become a powerful tool in implementing the rapid changes that are needed to avoid the worst effects of climate change and biodiversity collapse.

And technology has also significantly changed the landscape of methods addressing environmental issues. Drones, artificial intelligence, and advanced sensor networks are changing the way pollution and natural resources are monitored and assessed. Emerging technologies are now managing and reducing the environmental impacts of the manufacturing, energy consumption, and services sectors. Bioengineering and biotechnology could change the way that food is produced, such as lab-grown meat or seafood.

In early October, ELI and innovative companies such as Intel, Amazon, BNSF Railway, First Solar, Google, Microsoft, Apple, bp, Exelon, and Bayeco as well as law firms, nonprofits, and law schools held the inaugural GreenTech Conference in Seattle, Washington. The conference explored innovative and transformative technologies influencing environmental sectors, and discussed the unique opportunities and challenges they present for protecting the planetary ecosystem.

Experts from diverse business sectors spoke on the role of law and public policy in facilitating the development and deployment of emerging technologies, their societal benefits and costs, and public reaction to some of these technologies and the management of change. Speakers also shared their experiences and successes through case studies and demonstrations. Additionally, the discussions highlighted opportunities for cross-cutting technological applications, particularly with advancing a circular economy that eliminates waste and reduces resource extraction.

ELI President Scott Fulton gave opening remarks to the conference, followed by keynote speaker William K. Reilly, a former EPA administrator. The workshop spanned three days, with six panel discussions on eliminating waste from the manufacturing economy, the food industry, and energy systems.

A panel titled “The Evolution of e-Services” explored technology as an integral part of the service sector. The service sector accounts for around 80 percent of the United States’ GDP and comprises around 70 percent of the U.S. workforce, thus has large implications for the environment.

The panelists debated how the service sector can harness data services such as cloud computing and blockchain, as well as make effective efforts in reducing their energy and environmental footprints. The panel, moderated by Kathryn B. Thomson of Amazon, also included IBM Lead Counsel on Blockchain Ecosytems Joan Burns Brown, Google Staff Software Engineer Eddie Pettis, and Amazon Director of Energy and Web Services Nat Sahlstrom.

The workshop concluded with a group discussion on legal models for change in tandem with the growth of technology, as well as a colloquium moderated by Fulton on planning for the future.

New Zealand workshop schools ocean protection professionals

Area-based management and Marine Spatial Planning are important ocean resources management techniques. They are essential to separate marine uses, find opportunities for compatible uses, and establish protected areas. Many countries have expressed interest in developing MSP through legal reform. There is also a growing international community of legal experts that work on drafting laws to implement MSP. However, as far as we know, there are no guidance documents to help these professionals do their work.

In continuing a partnership with the Waitt Institute on supporting legal guidance for drafting MSPs, in early September, ELI, Waitt Institute, and IUCN conducted a four-day MSP workshop in Auckland, New Zealand. The workshop brought together legal drafters for MSPs and identified best practices and guidance for developing MSPs within the region and beyond.

The workshop was attended by 24 representatives from 14 different nations, mostly small island nations in the Pacific region. The workshop also hosted participants from ocean resources management organizations such as Conservation International and The Pacific Community, as well as a number of scholars who focus on MSP issues.

The workshop covered an overview of global MSP legislation. Participants also discussed how MSP fits into a nation’s legal landscape.

Topics discussed included the use of legal provisions addressing preliminary matter and definitions for MSP legislation, the scope of an MSP law and ocean jurisdiction, ocean spatial planning and zoning processes, public participation and access to information for MSP, and sustainable funding mechanisms for ocean management.

The Blue Prosperity Coalition led the final day of the workshop on maritime security and implementation of Maritime Domain Awareness, as well as provided updates and news from the National Maritime Intelligence Integration Office.

Session explores tech solutions to Colorado basin water needs

The Colorado River basin, a historically stressed riparian system, is facing a critical water shortage. California, Arizona, Nevada, Utah, Colorado, New Mexico, and Wyoming depend on its water supplies, generating $1.4 trillion in annual economic activity and 16 million jobs, equivalent to 1/12 of the total U.S. domestic product. With an anticipated shortage looming by 2020, the states have been tasked until January 31 to develop a plan before federal intervention. Given the wide geographic, financial, and political contexts within this region, tackling this issue is complicated and requires cooperation among many stakeholders.

One promising potential solution for managing water scarcity in the region is the use of transformative digital technology solutions, such as blockchain or artificial intelligence.

In late October, ELI and Water Foundry held a workshop in Denver, Colorado, that brought together public, private, and nonprofit actors to work together on developing and mapping feasible technological solutions for the basin. Ultimately, the goal of the workshop was to ensure the more efficient, effective, and resilient stewardship of water in the region through technological innovation.

The workshop and associated research builds upon a recent report by the World Economic Forum, which explored a number of technologies that could address challenges in the water sector. The workshop featured technologies of blockchain, sensor nets, and AI, delving into the nuances for each for participants to capture a deeper understanding of their implications for public policy in the context of the region, in addition to identifying the barriers and potential solutions for commercialization and scaling.

AI and blockchain are useful in targeting the traceability of water from the watershed to users such as cities, agriculture, and consumers. Moreover, AI-enabled technologies have great potential to manage water supply and demand.

Areas explored during the workshop included the use of blockchain tokens to reward water conservation efforts at a household or business level, combined blockchain and sensor technologies to monitor and report water quality in municipal water systems, or sensor and AI networks to better measure and predict seasonal fluctuations in water availability.

By pinpointing the current water use and supply challenges and the dynamics of water management in the Colorado River Basin, the workshop participants worked to prioritize two digital technology pilot projects to implement in the region, as well as established a long-term collaboration for the pilot projects.

Field Notes: Ex EPA Chief Reilly keynotes ELI Press book launch

“It’s an extraordinarily consequential piece of work,” said former EPA Administrator William Reilly to kick off the book launch of Legal Pathways to Deep Decarbonization in the United States, published by ELI Press.

“The kinds of approaches that the book describes are attractive, practical, and cost effective and can be undertaken well before we reach a climate crisis,” said Reilly.

The Institute also presented a panel to discuss proposed legal methods to rapidly reduce greenhouse gas emissions, as well as efforts already underway to put these recommendations into action.

The panel included book editors Michael B. Gerrard of Columbia Law School and John C. Dernbach of Widener University Commonwealth Law School. Commentary came from NRDC’s Kit Kennedy, Earthjustice’s Peter Lehner, and Charles Sensiba of Troutman Sanders LLP.

59 authors contributed to the book, and with 35 chapters of over 1,000 legal tools and recommendations to choose from, the report is instrumental in providing policymakers and lawyers the best legal tools for reducing carbon emissions within the federal, state, tribal, local, and private sectors.

Although the goal of an 80 percent reduction in carbon emissions by 2050 is indeed a challenge, Dernbach contended that the concrete recommendations show that the goal is technically feasible and would only cost 1 percent of national income.

The panelists dove into debates about pathways to carbon=neutral agriculture, clean energy technologies, and lower-emission transportation options.

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With the generous support of the Hewlett Foundation, ELI and the China Environmental Protection Foundation have published Environmental Public Interest Litigation: Selected Cases. This casebook, published in Chinese with an English version following, features 120 environmental public interest litigation cases decided by Chinese courts in recent years. The cases include those filed by NGOs and prosecutors and cover a broad range of issues.

The book conducts a systematic examination of the legal issues arising out of environmental public interest litigation in China, and couples the primary sources with in-depth legal analysis.

This new enforcement tool came into broad use only in recent years, specifically due to the implementation of the new Environmental Protection Law in 2015. The publication will be a valuable resource for environmental lawyers at both enforcement agencies and private practice, environmental judges, and NGO workers who are interested in environmental public interest litigation.

ELI expects this book will help to build the capacity of Chinese environmental law communities and promote a more transparent, fair, and predictable environmental rule of law system in China.

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In April, ELI hosted a public webinar featuring the article Managing the Future of the Electricity Grid: Energy Storage and Greenhouse Gas Emissions, included in this year’s ELR Environmental Law and Policy Annual Review. The article, written by NYU Law Professor Richard L. Revesz and Burcin Unel of NYU Institute of Policy Integrity, challenges the conventional wisdom that utilization of energy storage systems will reduce greenhouse gas emissions, and proposes that state and federal regulators adopt policy reforms that internalize emission externalities, eliminate entry barriers, and modify market rules to guarantee accurate price signals that value the benefits of clean energy storage.

The webinar hosted an interesting discussion among the authors and industry experts as they weighed the feasibility and direction of Revesz and Unel’s proposal.

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ELI hosted a special seminar in May to explore the implications of Rapanos v. U.S. and the proposed new jurisdictional rule for the future of wetlands. The panel was moderated by Amanda Waters of the National Association of Clean Water Agencies and featured National Wetlands Awards winners Greg Sutter, Joel Gerwein, and Angela Waupochick.

We live on a blue planet. The ocean covers nearly three-quarters of the Earth’s surface. The prevailing theory for the origin of life points to hydrothermal vents deep beneath the ocean’s surface as the home of the first single-celled organisms.

Today, nearly forty percent of the world’s population lives within sixty miles of a coastline. More than three billion people rely on seafood as a significant source of protein in their diet. And, perhaps most importantly, the ocean plays a central role in shaping our planet’s climate. Currents in the ocean drive weather patterns on land, making otherwise inhospitable geographies livable for humans.

Given the strong links between the ocean, the climate system, and our overall environment, it comes as no surprise that the seas have been steadfastly responding to human activities over the last two centuries. At present, one third of the world’s fisheries are overexploited, and populations of critically important species like sharks have sharply declined in many parts of the world.

Coral reefs, some of the most biodiverse habitats on the planet, are dying off so quickly that they could disappear by midcentury. The ocean has absorbed nearly all the excess heat caused by increasing concentrations of greenhouse gases in the atmosphere. The impacts of this are clear: climate-related disasters are on the rise and marine fish and wildlife populations are shifting toward the poles.

Since the ocean has shaped both our past and our present, we should also look to the sea to answer questions about our future. And while the state of the ocean today may seem grim, there are countless reasons for optimism about our ocean and our planet as we look ahead to 2069.

In the United States, in the last two decades alone, we’ve recovered more than forty fish stocks, and overexploitation of stocks is at an all-time low thanks to our strong fisheries management law. On coral reefs throughout the world, incredible scientific advances in our ability to grow and transplant coral fragments mean we can now restore dying reefs with more resilient, temperature-resistant corals. We’re also at the beginning of a green energy revolution, with much of that future renewable power slated to come from offshore wind facilities being carefully planned in U.S. waters.

And on the largest of scales — though addressing the climate crisis in the timeframe necessary to avoid catastrophic consequences is a daunting task — there are fundamental governance changes on the horizon that I believe will tip the scales in favor of climate action. In 2015, the Financial Stability Board, an international body created after the 2008 financial crisis to monitor and provide recommendations about the global financial system, launched the Task Force on Climate-Related Financial Disclosures.

The TCFD was asked to provide recommendations for how the world’s companies should assess and disclose the material risks that climate change poses to their bottom line, thus allowing investors to make more informed decisions. The TCFD issued its final recommendations in 2017, and since then shareholders of several major energy, utility, chemical, and technology companies have filed dozens of resolutions to require disclosures according to the TCFD’s recommendations.

Many of us know intuitively that climate change will have monumental costs, both economic and social. Some have even pointed to global warming as an example of why capitalist economic structures are inherently flawed. But regardless of your perspective, the economic costs of climate change must be formally recognized by the financial sector before the policy needle will move. And sure enough, in the wake of the TCFD recommendations and related shareholder resolutions, U.S. lawmakers in both chambers of Congress have introduced legislation and held committee hearings around the idea of requiring companies to publicly disclose the risks they face from a changing climate.

The world will be a very different place in 2069, but these are heartening signs that we are marching in the right direction for our ocean and our planet. More promising still, the positive environmental outcomes described above represent a combination of public- and private-sector action, harnessing the power of both science and policy. These institutions must continue to work together to keep shifting the needle on environmental governance in the United States and globally.

Perhaps my favorite sign of hope for our planet in 2069 comes from opinion polling. Americans in record numbers are concerned about climate change and the overall state of the environment, and these trends are especially pronounced among members of my generation. Though polls can only tell us so much, these numbers herald a bright environmental future. And with our ongoing stewardship, the ocean — which has shaped our existence for millennia — will be there through it all.