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More on the Proposed Monk Seal Critical Habitat - Civil Beat Article

Civil Beat had a great article in today's edition on the proposed designation of critical habitat for the Monk Seal (for more on the regulation, see my earlier post here). 

 
Photo courtesy of NOAA.

Sophie Cocke does a great job outlining the proposed habitat designation and then identifying the issues associated with the rulemaking. To date, the monk seal critical habitat was limited to the uninhabited Northwestern Hawaiian Islands.  This proposed rule brings the habitat to the Main Hawaiian Islands:

Specific areas proposed for the MHI include terrestrial and marine habitat from 5 m inland from the shoreline extending seaward to the 500-m depth contour around: Kaula Island, Niihau, Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), and Hawaii (except those areas that have been identified as not included in the designation).

Stay tuned. 

New Hawaii Lawsuit Challenging Open-Ocean Aquaculture Permit

 

An environmental group has brought a federal court lawsuit against various federal officials seeking to enjoin the issuance of permits to the Kona Blue Water Fish aquaculture operation.  The complaint can be downloaded here.

The complaint alleges that the issuance of permits for the aquaculture operation violates the Marine Sanctuaries Act, the National Environmental Policy Act and the Administrative Procedures Act.

Stay tuned.

Thanks to Civil Beat for the tip.

New Cert Petition from 9th Circuit - Submerged Lands Act - Pacific Merchant Shipping Association v. James Goldstene

Among the cases in my queue awaiting my analysis is Pacific Merchant Shipping Association v. Goldstene, which can be downloaded here.  It relates to the Submerged Lands Act and whether it preempts state regulation of marine fuels.  Not a simple topic to blog about, hence Apparently a Petition for a Writ of Certiorari was filed and it made SCOTUSBLOG's Petition of the Day.

What are the boundaries of State regulation?

This case involves the State of California's attempt to regulate the types of fuels ships use off the California coast.  There was an earlier iteration of the case, posted in 2008, here where California tried to regulate ship emissions offshore.  The Ninth Circuit found those regulations to be preempted by the Clean Air Act.

In response, in 2009, the California Air Resources Board passed regulations requiring ocean-going vessels to use cleaner marine fuels.  The requirement applied within 24 nautical miles of the state's shoreline. [My federalism alarm bell just started ringing.] The Pacific Merchant Shipping Association challenged the regulations and lost its motion for summary judgment and appealed.  The Ninth Circuit affirmed the denial of summary judgment and PMSA is now seeking Supreme Court review.

Acknowledging that when federal statutes collide with the overarching federalism and preemption principles embodied in the Constitution, it is a tough call:

This appeal presents the Court with a highly unusual and challenging set of circumstances. Given the circumstances, we do believe that the regulatory scheme at issue here pushes a state’s legal authority to its very limits, although the state had clear justifications for doing so. More generally, we must take into account such fundamental considerations as, on the one hand, the supremacy of federal law, the various limitations on state regulations arising out of the dormant Commerce Clause and general maritime law preemption doctrines, and the federal government’s unquestioned authority over this nation’s relations with foreign countries, and, on the other hand, the sovereign police powers retained by California allowing the state to adopt a wide range of laws in order to protect the health, safety, and welfare of its own residents.

I'll end now and digest this case more as the briefs come in.

Update: Environmental Groups Seek Regulations to Prevent Whale Strikes

In reference to my earlier post regarding the environmental lawsuit to stop whale strikes, here is the Petition compiled by several environmental groups to regulate ship speed off the coast of California to prevent whale strikes.

From the Petition:

Pursuant to the Administrative Procedure Act, 5 U.S.C. § 553(e), the Center for Biological Diversity, Environmental Defense Center, Friends of the Earth, and Pacific Environment (collectively “Petitioners”) hereby petition the Secretary of Commerce, through the National Oceanic and Atmospheric Administration, National Ocean Service, and Office of National Marine Sanctuaries (“ONMS”) (collectively, “NOAA”) to establish a 10-knot speed limit for large commercial vessels within the national marine sanctuaries off the California coast.

The purpose of this action is to reduce and avoid significant threats to sanctuary resources, including protected species, due to ship strikes, noise pollution, air pollution, and greenhouse gas emissions. Because NOAA manages the national marine sanctuaries and has jurisdiction over marine mammals, sea turtles, and other marine species in ocean waters under the National Marine Sanctuaries Act, Endangered Species Act, and Marine Mammal Protection Act, NOAA is the proper agency to process this petition.

We recognize the ONMS has undertaken significant research regarding ship traffic impacts to sanctuary resources, particularly with respect to ship strikes on blue whales and other species in and around the Channel Islands National Marine Sanctuary. We submit this petition with the goal of building upon and furthering these important efforts to protect sanctuary resources.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Feds Hold Public Hearings for Critical Habitat Designation for Monk Seals

The National Marine Fisheries Service is holding a series of public meetings to discuss its proposed rule regarding Hawaiian Monk Seal critical habitat.  The proposed rule is here.  The rule's background is:

In the notice of the proposed rulemaking, we propose to revise the current critical habitat for the Hawaiian monk seal (Monachus schauinslandi) by extending the current designation in the Northwestern Hawaiian Islands (NWHI) out to the 500-meter (m) depth contour and including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands (MHI), pursuant to section 4 of the Endangered Species Act (ESA). Specific areas proposed for the MHI include terrestrial and marine habitat from 5 m inland from the shoreline extending seaward to the 500-m depth contour around: Kaula Island, Niihau, Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), and Hawaii (except those areas that have been identified as not included in the designation). We propose to exclude the following areas from designation because the national security benefits of exclusion outweigh the benefits of inclusion, and exclusion will not result in extinction of the species: Kingfisher Underwater Training area in marine areas off the northeast coast of Niihau; Pacific Missile Range Facility Main Base at Barking Sands, Kauai; Pacific Missile Range Facility Offshore Areas in marine areas off the western coast of Kauai; the Naval Defensive Sea Area and Puuloa Underwater Training Range in marine areas outside Pearl Harbor, Oahu; and the Shallow Water Minefield Sonar Training Range off the western coast of Kahoolawe in the Maui Nui area. In addition we are soliciting comments on all aspects of the proposal, including information on the economic, national security, and other relevant impacts. We will consider additional information received prior to making a final decision on critical habitat designation.

The schedule for the hearings is:

Moloka’i
Monday, August 8 5:30-8 pm
Mitchell Pauole Center
90 Ainoa Street
Kaunakakai, HI 96748

Maui
Tuesday, August 9 5:30-8 pm
Kihei Community Center
303 E. Lipoa St.
Kihei, HI 96753

Kaua’i
Wednesday, August 10 5:30-8 pm
Kaua’i War Memorial Convention Hall
4191 Hardy St., Exhibit Hall B
Lihu’e, HI 96766

O’ahu
Thursday, August 11 5:30-8 pm
McCoy Pavilion at Ala Moana Park
1201 Ala Moana Blvd.
Honolulu, HI 96814

Hawai’i
Monday, August 15 5:30-8 pm
Mokupapapa Discovery Center
308 Kamehameha Ave., 109
Hilo, HI 96720

Tuesday, August 16 6:30-9 pm
Kahakai Elementary School
76-147 Royal Poinciana Drive
Kailua Kona, HI 96740

Written comments must be received before August 31, 2011 or you can submit them at www.regulations.gov. 

New Clean Water Act Case From Court of Appeals for the D.C. - Lake Carriers' Association v. EPA

The Court of Appeals for the District of Columbia Circuit just handed down its decision in the case of Lake Carriers' Association v. EPA, 2011 U.S. App. LEXIS 14996 which can be found here.

Summary:  This case involved several maritime trade associations bringing a challenge to a nationwide permit for the discharge of pollutants under the Clean Water Act.  The associations asserted procedural challenges stemming from conditions sought by various States.  The court rejected the petition.

Facts:  The Clean Water Act prohibits discharges of pollutants without a NPDES permit.  For those discharges into the waters of a State, the Clean Water Act provides that the States to review such permit application before issuance.  Further, states can put conditions on the federal permit through the review process, also known as certification process.

When the Clean Water Act was first enacted, the EPA exempted gray water from the requirement to obtain a permit (and State certification).  Gray water is effluent from laundries, sinks, showers, etc.  The Ninth Circuit vacated the regulation in 2008, giving the EPA until 2009 to develop a means to implement the permit process.

EPA developed the process, promulgated the rule and received numerous comments. Several states commented that they sought differing standards to address unique, local environmental conditions.  Others sought a uniform standard.  EPA eventually passed the permit, with approximately 100 state specific conditions.

Various maritime trade associations brought suit under the Administrative Procedures Act.  They argued:

First, they contend that EPA erred in failing to provide notice and an opportunity for comment on the final [Vessel General Permit], which contained the state certification conditions.  Second, they charge that it was arbitrary and capricious for EPA to issue the permit without considering the possible ill-effects of the state certification conditions.  Finally, they allege that EPA failed to consider the costs of compliance with state conditions in assessing the impact of the permit on small businesses....

On the notice and opportunity to comment, the EPA did provide notice of the rule, but the Associations challenge the rule because the States conditions were not also disclosed.  EPA's chief response was that no notice was required, because EPA had no authority to reject the State's conditions.  The court rejected this argument as waived for not raising it before the EPA.

The court rejected the other arguments along similar lines.  The court did mention that the Associations could challenge the States' conditions in the relevant state court. 

New Law Review Article on Marine Spatial Planning and Ocean Governance

Marine spatial planning and ocean governance is a very hot issue these days.  Professor Robin Craig from Florida State University College of Law posted an upcoming law review article on the subject, entitled: Ocean Governance for the 21st Century:  Making Marine Zoning Climate Change Adaptable.  It is available on SSRN here.

More and more Americans are living near the coastline.  Those coastlines are prone to shifting boundaries, erosion and are susceptible to changes in the climate.  There are increasing uses of the oceans, both in terms of global trade and in terms of natural resource utilization.  As such, the United Nations and the federal government are interested in better governance mechanisms to manage those uses and resources.  One such effort is the President's Interagency Ocean Policy Task Force.

Professor Craig's article reviews both international and national level ocean governance trends and provides examples of marine spatial planning.  The well thought-out and in depth article is a must for policy makers.

Pacific Ocean Environmental Issues in the News - Rare Earth and Plastics

Lots of ocean environmental issues in the news today. 

The Star Advertiser reports that Japanese researchers discovered rare earth minerals in the Pacific Ocean, apparently beyond the U.S. Exclusive Economic Zone.  Several interviewed, including my former colleague Robert Harris, have expressed some concerns about the environmental impacts of such action.  This is an interesting discovery - stay tuned for my thoughts on the legal issues, like Law of the Sea, Global Commons, and the Precautionary Principle.

Separately, the Christian Science Monitor reports on the impact of the plastic-laden garbage patch in the North Pacific. To date, news reports are focused on the impact of the garbage patch on seabirds, as bird carcasses full of plastic are regularly found on the Northwestern Hawaiian Islands.  This was an interesting report on the impact of the plastics on the fish which are more commonly part of the food chain that can impact humans.  The Scripps release is here.

Ninth Circuit Decision on Intervention in Groundfishery Rulemaking Litigation

The Ninth Circuit just released its decision in a lawsuit regarding groundfish regulations on the West Coast.  The case is West Coast Seafood Processors Association ("Association") v. Natural Resources Defense Council, Inc. and the decision can be downloaded here.

The Natural Resources Defense Council filed a lawsuit against the National Marine Fisheries Service challenging aspects of the Pacific Coast Groundfish Fishery Management Plan.  At first, the Association participated as an amicus party.  NMFS published various amendments to the Plan year after year and NRDC amended its complaint to challenge the new plans.  The Association sought to intervene at several points after amendment of NRDC's complaint.  The trial court denied intervention, noting the age of the litigation (eight years), discounting the time from the intervention motion from the filing of the amended complaint (two days).  The Association appealed to the Ninth Circuit Court of Appeals.  Pending the appeal, the trial court partially ruled for NRDC and partially for NMFS and the parties apparently settled the dispute thereafter.

The issue for the appeals court is whether the Association's appeal was mooted by the underlying settlement.  The Ninth Circuit held that it was.  Under federal law, a case is not moot if the controversy is capable of repetition yet evade judicial review.  The majority opinion found that it was not capable of repetition because NMFS fisheries regulations are only good for two years, ergo a challenge to those regulations was not capable of repetition.

Judge Bea dissented (in an opinion that was double the length of the majority).  Judge Bea found the case entirely likely to repeat yet evade judicial review, noting that the action challenged by NRDC was too short in duration to be fully litigated on appeal.

Intervention can be a potent device to shape litigation, particularly in environmental litigation.  There are procedural hurdles, as this opinion demonstrated, but the only true way to have a seat at the table is to intervene.

Environmental Groups File Federal Lawsuit to Stop Cruise Ship Whale Strikes

Per Cruise Law News, environmental groups filed a federal lawsuit seeking to require cruise ships to slow down in order to avoid whale strikes.  Apparently, the suit seeks to compel the government to regulate ship speed in California's four national marine sanctuaries.

I'll post the complaint when it is available from the court.