Gavel and law book symbolize the U.S. justice system

A University of Oregon (UO) law professor and three law students have built a "road map" of legal analyses showing how global-scale environmental issues can be addressed through an ecosystem based management (EBM) approach that includes local laws.

To protect ecosystems, EBM employs an array of laws—from international law of the sea to the U.S. Clean Air and Clean Water Acts to state land-use laws. Oregon Sea Grant's strategic plan supports EBM as a means of overcoming political and jurisdictional challenges that can get in the way of keeping entire coastal ecosystems healthy.

With funding from OSG, UO law professor Richard Hildreth and his students chose as their test case the growing problem of ocean acidification. This shift in ocean chemistry—caused by increases in atmospheric carbon dioxide and other greenhouse gases—is produced mainly by human activity, including industrialization and the burning of fossil fuels. As more carbon dioxide is absorbed into the oceans, it reduces the water's pH, making many ocean ecosystems inhospitable to coral reefs, commercially important shellfish, and other marine life.

From a legal standpoint, Hildreth said, acidification is challenging because laws are written jurisdiction by jurisdiction but the causes and effects of acidification are global. Fossil-fuel emissions from one country, for instance, can affect seawater chemistry and ecosystem health in another far away.

"Ocean acidification is a byproduct of the larger climate change issue. But it's one we can use as a legal starting point for looking at the bigger picture," said Hildreth, the director of the UO School of Law's ocean and coastal program.

As case studies, Hildreth's law students examined two proposals in Oregon to transport fossil fuels:

  • The Jordan Cove liquefied natural gas export terminal proposed for Coos Bay. In March 2016, the Federal Energy Regulatory Commission denied permits for the Jordan Cove facility and a connecting pipeline.
  • The Coyote Island coal export facility proposed in Boardman along the Columbia River, some 250 miles east of where the river empties into the Pacific Ocean.

Ally Hoffman, a Sea Grant Fellow and third-year UO law student, presented her research on the proposed Boardman terminal at an environmental sustainability conference in Portland earlier this year. A paper she wrote about the project has been accepted for publication in the International Journal of Environmental Sustainability.

Hoffman's draft manuscript points out that the National Environmental Policy Act allows decision makers to integrate EBM into their rulings. In Oregon, she wrote, the existing state laws covering a variety of existing and potential ocean resource management issues "effectively apply EBM to very large areas of the state."

She analyzed how multiple federal and state laws, from the Endangered Species Act to Oregon's land-use planning system, can be used together as EBM tools—if obstacles involving regulatory power, interagency coordination, and adequate funding can be overcome.

Brent Sutten and Libby Pettit, both second-year law students, studied the proposed Jordan Cove terminal to determine whether existing permit processes provide sufficient legal framework to address environmental and economic issues connected with ocean acidification.

Sutten examined U.S. federal and state laws and case law, and Pettit tracked international law, including the United Nations Framework Convention on Climate Change. In February, all three students presented their own legal analyses at the annual UO Climate Change Research Symposium.

"We're watching the courts, the legislatures, and the treaty negotiators for responses to ocean acidification," Hildreth said, "and there's chatter, but nothing we can point to as a major response."

Meanwhile, he said, "we're trying to raise consciousness [within the legal profession] about ocean acidification. The excellent work these students have done demonstrates that EBM is a good tool for approaching ocean acidification."

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