11-2014 NEWS & ANALYSIS 44 ELR 10933
dations: the U.S. Commission on Ocean Policy, mandated
by Congress; and the Pew Oceans Commission, funded
by the Pew Charitable Trusts.5 Two national ocean poli-
cies under two dierent Administrations have sought to
coordinate ocean governance within the federal fam-
ily: the U.S. Ocean Action Plan by the George W. Bush
Administration; and the National Ocean Policy by the
Barack Obama Administration.6 Using the authority of the
Antiquities Act,7 President Bush established three marine
national monuments, including the world’s largest marine
protected area (MPA) at the time. Using the same author-
ity, President Obama recently announced an expansion of
one of those national monuments to establish once again,
within the U.S. Exclusive Economic Zone, the world’s
Within t hese administrative achie vements, one aspect
of ocea n governanc e has witnessed slow but steady prog-
ress, but has generally gone unnoticed. e National Oce-
anic and Atmospheric Administration (NOAA) Oce
of National Ma rine Sanctu aries has advance d a number
of rulemakings to expand the size of existing national
marine sanct uaries, and has nalized a rulemaking to
allow, for the r st time in t wo decades, the consideration
of new designations of national marine sanctuaries.8 In
addition, Sen. Ca rl Levin (D. Mich.) announced last
June that he is introducing a bill to spur the establish-
ment of ne w national marine sanctuar ies in the Great
Lakes. ese actions may cha nge the entire landscape—
or seascape, more appropriately—of ocean governance
over the coming decade s.
is Article analyzes the legal underpinnings of the cen-
terpiece of the National Marine Sanctuaries Act (NMSA),9
and compares the NMSA to other federal and state legal
authorities that govern ocean ecosystems and resources.
e analysis begins, in Part I, with a discussion of the cur-
rent threats facing the ocean, and why protections are so
important to ensure that ocean resources are managed
sustainably. is part further discusses the merits of pro-
tecting these resources through a rea-based management
schemes, such a s MPAs. Part II describes the NMSA and
5. U.S. C’ O P, A O B 21
C (Final Report) (2004), available at http://govinfo.library.unt.
edu/oce ancommissi on/documen ts/full_co lor_rpt/we lcome.html ; P
O C’, A’ L O: C C
S C (2003), available at http://www.pewtrusts.org/our_work_re-
6. Exec. Order No. 1354 7, §2, 75 Fed. Reg. 43023 , 4 3023 (July 19,
2010) (Obam a Ad ministra tion’s Na tional Ocean Policy) ; W
H C E. Q , U.S. O A P
(2004) (Bush Ad ministra tion).
7. Antiquities Act, 16 U.S.C. §§431-443.
8. Re-Establishing the Sanctuary Nomination Process, 79 Fed. Reg. 33851 et
seq. (June 13, 2014).
assesses the law’s strengths and weaknesses. Part III then
examines other domestic legal mechanisms for preserv-
ing marine ecosystems, including federal authorities, state
laws, and the common law of torts. While the Article does
not constitute an exhaustive analysis of laws governing the
marine environment, it does look at the most important
domestic laws today.10
In comparing the NMSA to other existing laws in the
United States, Part IV argues that the NMSA deserves
renewed attention as a unique and powerful ocean gover-
nance tool. Part V envisions the dawn of a new era in ocean
governance in light of NOAA’s recently promulgated rule
and the opportunity it presents to expand the national
marine sanctuar y system.
I. Importance of Area-Based, Ecosystem-
America’s ocea n covers almost 4.5 million squa re miles,
an area 23% larger than the nation’s landma ss. Its rich
bounty has integrally shaped our nation and the planet.
at bounty, however, is being degraded and depleted.
Once considered too vast to be impacted by human activ-
ity, the ocean now faces a myriad of local and global threats
due to human activities. Fish stocks, d irectly or indirectly,
are exploited to the point of depletion. Coastal and marine
habitat is sacriced for development. Land-based pollution
and runo cause uninhabitable dead zones and harmful
algal blooms.11 A changing climate is poised to wreak havoc
on the marine environment, with rising temperatures, ris-
ing sea levels, and rising acidity levels.12 While this Article
focuses on one law in particular, the NMSA, it is impor-
tant to rst consider the background and importance of
area-based management of marine resources.
10. While various international laws and treaties also are relevant to ocean pro-
tection, international law is beyond the scope of this Article. Similarly, al-
though federal and state pollution laws such as the Clean Water Act (CWA),
to protect the ocean environment, the Article is not intended to include a
comprehensive analysis of pollution laws.
11. More than 20,000 acres of sensitive marine habitat disappear each year as
a result of coastal development, pollution and nutrient runo, and other
human activities. P O C’, A’ L O, supra
note 5, at vi.
12. Kevin E. Trenberth et al.,
Change, in C C 2007: T P S B, C-
W G I F A R
I P C C 237 (S. Solomon
et al. eds., 2007). Nathaniel L. Bindo et al.,
, in C C 2007, supra, at 387.
Between 1961 and 2003, global ocean temperatures rose by 0.10°C, and
sea levels increased by an average of 1.8 millimeters per year. Id. Even slight
changes in the marine environment have profound impacts on marine life.
V S. K ., C M E G
C C: P E U.S. R 7 (2002).
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.