Our Corrosive Oceans: Exploring Regulatory Responses and a Possible Role for Tribes

• Publication year: 2021

OUR CORROSIVE OCEANS: EXPLORING REGULATORY RESPONSES AND A POSSIBLE ROLE FOR TRIBES

Weston R. LeMay(fn*)

Abstract: The world's oceans act as a carbon sink, absorbing roughly twenty-five percent of humanity's carbon dioxide emissions. As a result, ocean acidity has increased sixty percent since the beginning of the industrial era. Acidification is a burgeoning ocean health crisis-present levels of acidity already threaten species of oyster, plankton, and salmon. Disturbingly, the capacity of the American legal system to respond is unclear: the complexity of climate change-related harms typically precludes a remedy at common law. With respect to mitigating near-shore acidification, this Comment argues that a regulatory strategy utilizing the Clean Water Act's Total Maximum Daily Load (TMDL) regime holds more promise than a tort response. Furthermore, in the Pacific Northwest, it may be possible to bolster TMDL regulation of non-point pollution through engagement with often-overlooked stakeholders: the Stevens Treaties tribes.

INTRODUCTION

In the summer of 2007, oyster larvae at the Whiskey Creek Hatchery began dying by the millions.(fn1) Located on Netarts Bay in Oregon, the Whiskey Creek Shellfish Hatchery raised larvae (also known as "seed") for shellfish growers along the Pacific Coast.(fn2) Hatchery managers, scrambling to find the cause of the die off, quickly eliminated bacteria or disease in their tanks-other private growers had also suffered significant losses that year, as did wild larvae in Washington's Willapa Bay.(fn3) After two years of research, National Oceanic and Atmospheric Administration (NOAA) scientists suggested a culprit: the rising acidity of seawater.(fn4) Under laboratory conditions, studies showed that exposure to increasingly acidic water negatively impacted shell-forming marine organisms, including oysters.(fn5) One study specifically investigated the vulnerability of the Pacific oyster (Cassostrea Gigas, a species grown by Whiskey Creek) and found that ninety-five percent of the larvae in acidified water developed malformed shells-or grew no shells at all.(fn6) NOAA scientists, including Dr. Richard Feely, Ph.D., later replicated these results under real world conditions at the Whiskey Creek Hatchery.(fn7) By testing the water flowing into the hatchery during a period of naturally higher acidity, Dr. Feely confirmed that ocean acidification is-at minimum-a contributing factor to oyster seed mortality.(fn8)

Ocean acidification is the process by which seawater becomes more acidic through the absorption of atmospheric carbon dioxide (CO2).(fn9) Acidification is a global concern, creating risks for shellfish and corals-economically and ecologically important organisms which may struggle to survive in increasingly acidic ocean environments.(fn10) If scientists' acidification projections are correct, by the year 2100 seawater will be so corrosive that some organisms may simply dissolve.(fn11) Simultaneously, the same chemical reaction increasing seawater acidity also reduces the availability of minerals used by shellfish and other organisms to build their shells and skeletal structures.(fn12)

Although ocean acidification is a global problem, this Comment focuses on acidification in the context of the Pacific Northwest. This region is uniquely vulnerable to acidification, in part because losses to fish and shellfish harvests could significantly impact the regional economy-shellfish aquaculture alone represents over $100 million in annual regional revenue.(fn13) The Pacific Northwest is also home to a number of fish and shellfish-dependent Native American tribes, including the Swinomish, the Makah, and the Suquamish.(fn14) These coastal tribes may be disproportionately impacted by acidification due to their higher per capita fish consumption. Members of the Suquamish tribe, for example, consume up to 800 grams of fish per day,(fn15) compared to the national average of roughly nineteen grams.(fn16) Furthermore, ocean acidification has the potential to negatively impact tribal treaty rights,aspects of tribal culture, and spiritual traditions by further depressing salmon and shellfish populations.(fn17)

While the full extent of harm caused by ocean acidification is unknown, NOAA's research shows that acidification has already contributed to millions of dollars in lost revenue by shellfish producers like the Whiskey Creek Hatchery.(fn18) However, the traditional recourse in American law for recovering damages-the tort system-has proven to be an unreliable mechanism for remedying climate change-related harms.(fn19) In short, the complexity of climate change-related harms is ill-suited to the tort system's rigid model of "duty, breach, . . . causation, and harm."(fn20) There is little reason to expect that the outcome would be any different in the context of ocean acidification. For example, a shellfish producer harmed by acidification might step forward to bring a claim. Her losses would be reasonably easy to calculate-the known monetary value of farmed shellfish makes it straightforward to express damages as a dollar amount.(fn21) Nevertheless, sustaining a tort claim for acidification would be an uphill battle. Duty and breach, for example, are difficult to establish when every human alive contributes to the problem simply by breathing.(fn22) More fundamentally, the primary cause of ocean acidification (excessive CO2 pollution)(fn23) is far removed from the harm (change to seawater chemistry). Accordingly, our hypothetical plaintiff is likely to find her causal burden insurmountable.(fn24) The study of acidification is a science, and scientific conclusions about complex global phenomena are invariably subject to doubt, uncertainty, and disagreement-all of which heavily favor tort defendants.(fn25) Tort law, as David Kysar observes, appears "fundamentally ill-equipped to address the causes and impacts of climate change."(fn26)

Similarly, the current political system is unlikely to provide an effective legislative solution to ocean acidification. Governments are aware of climate risks: the Intergovernmental Panel on Climate Change (IPCC) recently repeated its warning that without significant mitigation of global emissions, the long-term consequences of climate change become inevitable.(fn27) The IPCC warnings depict shifting climate patterns, massive losses of species biodiversity, and increasingly frequent extreme weather events.(fn28) Eighty-one percent of the American public(fn29) and ninety-seven percent of climate scientists agree that climate change is real and impacted by human activity.(fn30) Nevertheless, effective legislative engagement has yet to occur.(fn31) Instead, the nation's most senior legislative body appears to be in "climate change denial": the Senate recently voted down a non-binding resolution simply recognizing that climate change exists and is human-influenced.(fn32) Given the lackluster governmental response to climate change in general, a legislative solution to ocean acidification (a newer, less understood manifestation of broader climate change) seems unlikely.

The tort system's incompatibility and the political system's incapacitation indicate that ocean health advocates should look for remedies in existing environmental laws. Many of these statutes date back to the pro-environment legislative era of the 1970s-the challenge is thus to apply the laws of yesterday to the ocean acidification crisis of today.(fn33) This Comment argues that our nation's most powerful water quality law, the Clean Water Act (CWA),(fn34) is the best available tool for ocean acidification mitigation. In particular, this Comment demonstrates that modernizing the CWA's water quality standards (§ 303) could bring ocean acidification within the Act's regulatory scope. Waters already burdened by acidification would fail modern, scientifically defensible water quality standards.(fn35) Under the requirements of the Act, impacted waters would then be listed as "impaired" under CWA § 303(d). This impairment finding would, in turn, trigger the statutory obligation to develop a TMDL for acidification.(fn36) Because TMDLs focus on holistic water quality, they require regulation of both point and non-point (i.e., diffuse) sources of pollution-thereby providing the legal authority and regulatory framework necessary to address the diffuse carbon sources contributing to ocean acidification.(fn37) However, TMDL-based strategies may be undermined by poor non-point source enforcement. Nevertheless, in the specific context of acidification-impacted waters in the Pacific Northwest, this Comment argues that involving local tribal stakeholders could bolster TMDL enforcement.

The purpose of this Comment is not to argue that TMDLs will fix ocean acidification. Acidification is a global problem; it will require a global solution. This Comment argues that TMDL regulation of local waters should be part of that solution. Although the CWA can (and should) regulate airborne pollutants that impair protected waters, other statutes are already positioned to regulate atmospheric CO2-most obviously, the Clean Air Act. The strength of the CWA in this context is the ability of TMDLs to catalogue and regulate individual point and non-point pollution sources. TMDLs represent the opportunity to slow or mitigate the impact of ocean acidification in local waters by these local contributors to acidification.

Setting...