The Illegal Discharge of Oil on the High Seas: The U.S. Coast Guard's Ongoing Battle Against Vessel Polluters and a New Approach Toward Establishing Environmental Compliance

• Author: Benedict S. Gullo
• Position: Judge Advocate, U. S. Coast Guard
• Pages: 122-185

122 MILITARY LAW REVIEW [Vol. 209

THE ILLEGAL DISCHARGE OF OIL ON THE HIGH SEAS:

THE U.S. COAST GUARD’S ONGOING BATTLE AGAINST

VESSEL POLLUTERS AND A NEW APPROACH TOWARD

ESTABLISHING ENVIRONMENTAL COMPLIANCE

LIEUTENANT BENEDICT S. GULLO

Our oceans and coasts are among the chief pillars of our nation’s wealth

and economic well-being. Yet our lack of full understanding of the

complexity of marine ecosystems, and our failure to properly manage the

human activities that affect them, are compromising the health of these

systems and diminishing our ability to fully realize their potential.1

I. Introduction

Each year, up to 810,000 tons of oily waste are intentionally and

illegally dumped into the world’s oceans by commercial vessels.2 As a

consequence, seabird populations are reduced,3 the habitats for slow-

 Judge Advocate, U. S. Coast Guard. Presently assigned as U.S. Coast Guard Advanced

Operational Law Fellow at the Center for Law and Military Operations, The Judge

Advocate General’s School, U.S. Army, Charlottesville, Virginia. This article was

submitted in partial completion of the Master of Laws requirements of the 59th Judge

Advocate Officer Graduate Course. The views expressed in this article are exclusively

those of the author and do not reflect the official policy or position of the U.S. Coast

Guard or the U.S. Government. I would like to thank all of the persons I interviewed and

received guidance from while writing this article, including but not limited to Coast

Guard judge advocate and prevention staff, CG-09412, and finally, Major Derek Brown,

U.S. Army.

1 UNITED STATES COMM’N ON OCEAN POL’Y, AN OCEAN BLUEPRINT FOR THE 21ST

CENTURY 32 (2004) [hereinafter OCEAN COMM’N].

2 See JOINT GRP. OF EXPERTS ON THE SCIENTIFIC ASPECTS OF MARINE ENVTL. PROT.,

REPORT AND STUDIES NO. 75: ESTIMATES OF OIL ENTERING THE MARINE ENVIRONMENT

FROM SEA-BASED ACTIVITIES 15 (2007); David P. Kehoe, United States v. Abrogar: Did

the Third Circuit Miss the Boat?, 39 ENV’T LEWIS & CLARK L. REV. 1, 3 (2009); cf.

OCEANA, THE DUMPING OF HYDROCARBONS FROM SHIPS INTO THE SEAS AND OCEANS OF

EUROPE—THE OTHER SIDE OF OIL SLICKS 3 (2003) [hereinafter OIL SLICKS] (estimating

that approximately 666,000 tons of oil are illegally dumped each year).

3 See Kees (C.J.) Camphuysen, INT'L FUND FOR ANIMAL WELFARE, CHRONIC OIL

POLLUTION IN EUROPE 6, 21 (2007) (explaining how hundreds of thousands of untreated

seabirds, including penguins, can die from a “small spot of oil on their feathers” since oil

reduces the insulating properties of feathers and ultimately causes hypothermia); FRANCIS

WIESE, WORLD WILDLIFE FUND CAN., SEABIRDS AND ATLANTIC CANADA’S SHIP-SOURCE

OIL POLLUTION 3 (2002) (noting that an estimated 300,000 birds are killed each year in

the Atlantic Canada waters from illegal oil pollution); see also Lieutenant Commander

David O’Connell, Port State Control–International Cooperation on Marine Pollution

Enforcement, PROCEEDINGS OF THE MARINE SAFETY & SECURITY COUNCIL, COAST GUARD

2011] THE ILLEGAL DISCHARGE OF OIL AT SEA 123

moving shellfish such as clams, oysters, and mussels are poisoned,4 and

fish—if not killed by the harmful toxins of the oil—lose the ability to

reproduce, reproduce deformed offspring, or upon ingestion of the oil,

create even more toxic substances.5 Separately, mammals, reptiles, and

amphibians whose natural habitats are either in or close to coastal waters

either suffocate to death from oil ingestion or die from eating wildlife

previously poisoned by oily waste.6

For the human population, the decline of biodiversity in the marine

environment cannot be overstated.7 In the United States, millions of

people rely on the marine environment for employment in commercial

fishing,8 tourism, and recreation.9 In fact, it is estimated that “[m]ore than

$1 trillion, or one-tenth, of the nation’s gross domestic product (GDP) is

generated within nearshore areas . . . .”10 Worldwide, the marine

environment serves as an important indicator of water quality and

ecosystem health.11 Most importantly, the marine environment—of

which it is estimated that 95% remains unexplored12—contains

organisms vital to conducting scientific research and producing

J. OF SAFETY AND SEC. AT SEA 60 (Summer 2009); Andrea Thompson, The Science and

History of Oil Spills, LIVESCIENCE.COM (Apr. 23, 2010, 11:54 AM),

http://www.livescience.com/environment/oil-spill-faq-100423.html (“[S]ea otters, which

depend on their clean fur coats to stay warm, can also become hypothermic . . . .”);

Kehoe, supra note 2, at 3.

4 See Illegal Oil Discharge in European Seas, U.N. ENVTL. PROGRAMME BULL., No. 7

(Feb. 2006), available at http://www.grid.unep.ch/product/publication/download/ew_oil

discharge.en.pdf [hereinafter UNEP BULL.].

5 See id.; see also Oil Spills: Impact on the Ocean, WATERENCLYCOPEDIA.COM,

http://www.waterencyclopedia.com/Oc-Po/Oil-Spills-Impact-on-the-Ocean.html (last

visited Jan. 24, 2012) [hereinafter Oil Impact] (oil pollution causes declines in marine

biodiversity because it interrupts the food chain to both marine and land-based life).

6 See Oil Impact, supra note 5.

7 See Louis A. Helfrich et al., Sustaining America’s Aquatic Biodiversity—Why Is

Aquatic Biodiversity Declining?, VA. COOP. EXTENSION (May 1, 2009), http://jpubs.ext.

vt.edu/420/420-521/420-521.html (discussing how “[a]though aquatic biodiversity has

been declining . . . species extinction rates have gone from about one species per year

over the past 600 million years to hundreds of species per year in recent times”).

8 See OCEAN COMM’N, supra note 1, at 31–32 (noting that the U.S. commercial fishing

industry’s total value exceeds $28 billion annually; Americans consume more than four

billion pounds of seafood per year).

9 Id. at 31 (over two million jobs exist in tourism and recreation near U.S. coasts).

10 Id.

11 See Helfrich et al., supra note 7 (noting that a fishery’s decline could indicate a water

pollution problem).

12 See OCEAN COMM’N, supra note 1, at 35.

124 MILITARY LAW REVIEW [Vol. 209

pharmaceutical products that presently treat human diseases and illnesses

such as cancer, osteoporosis, and liver failure.13

To stop the devastating effects of intentional and illegal vessel

pollution, during the past two decades the Coast Guard, in conjunction

with the Department of Justice (DOJ), has launched an ambitious crusade

against parties responsible for such acts.14 In fact, DOJ estimates that

within the last ten years vessel owners, operators, and crew members

have been sentenced to over $216 million in fines and twenty years of

total incarceration.15 But despite the Coast Guard and DOJ’s best efforts,

the number of environmental crimes involving illegal vessel pollution is

not declining.16 Rather, as global seaborne commerce continues to

increase,17 so too does the number of vessels that intentionally and

13 Id. at 32–35. A multitude of other scientific applications presently exist for marine

organisms, including the production of nutritional supplements, medical diagnostics,

cosmetics, agricultural chemicals (pesticides and herbicides), enzymes, and chemical

probes for disease research. See id. at 338–42.

14 See U.S. COAST GUARD MARITIME LAW ENFORCEMENT MANUAL, COMDTINST

M16247, series, para. 9.A (2010) [hereinafter MLEM] (For Official Use Only manual)

(copy on file with author) (stating that the Coast Guard, working in concert with DOJ, is

dedicated to “vigorous enforcement of environmental laws”); see also Raymond W.

Mushal, Up from the Sewers: A Perspective on the Evolution of the Federal

Environmental Crimes Program, 2009 UTAH L. REV. 1103, 1124 (2009) (detailing DOJ’s

prosecution of vessel pollution cases); Andrew W. Homer, Comment, Red Sky at

Morning: The Horizon for Corporations, Crew Members, and Corporate Officers as the

United States Continues Aggressive Criminal Prosecution of Intentional Pollution from

Ships, 32 TUL. MAR. L.J. 149, 150 (2007) (discussing DOJ’s aggressive criminal

prosecution of vessel pollution cases to “cast as broad a net as possible in bringing such

charges” against noncompliant vessel owners, operators, and crew members).

15 See Ignacia Moreno, Assistant Attorney Gen., U.S. Dep’t of Justice, Remarks at the

2011 Priorities for the Environmental and Resource Division in Washington, D.C. (Jan.

13, 2011) (transcript available at http://www.justice.gov/enrd/opa/pr/speeches/2011/enrd-

speech-110113.html); cf. Lieutenant Commander John Reardon, CG-0941, U.S. Coast

Guard & Lieutenant Commander David O’Connell, CG-0941, U.S. Coast Guard,

Presentation at the U.S. Naval Justice School: Environmental Crimes for the Missions

Lawyer 10 (Sept. 16, 2010) (noting that since the Coast Guard began referring vessel

pollution cases to DOJ, an estimated $300 million in criminal fines and thirty-eight years

of jail time have been awarded to offenders).

16 See Mushal, supra note 14, at 1124 (“The [vessel pollution] cases do tend to be rather

similar to one another, but they just keep coming.”); Kehoe, supra note 2, at 41 (“Despite

. . . substantial criminal fines and the publicity that accompanies them, the Coast Guard

continues to discover and refer new vessel cases on a steady and frequent basis . . . .

Unfortunately, the level of noncompliance . . . remains high . . . .”).

17 See RESEARCH AND INNOVATIVE TECH. ADMIN., U.S. DEP’T OF TRANSP., FREIGHT

TRANSPORTATION: GLOBAL HIGHLIGHTS 46 (2010) (discussing how global maritime trade

grew about three percent each year in the last decade—partly due to the increase in

internet shoppers and implementation of just-in-time inventory practices—which led to