As argued in Dave Owen’s case note “The Disappointing History of the National Marine Sanctuaries Act,” our marine resources are inadequately protected by federal law in the United States.[1] Since the publication of Owen’s piece in 2003, the threats to these resources have intensified at a worrisome scale and the resources themselves have simultaneously become significantly more vulnerable to those threats.[2] In the last few years alone, for example, large swaths of the reef tract protected by the Florida Keys National Marine Sanctuary have been decimated by disease.[3] At present, researchers continue to study the causes and impacts of this disease, but the current federal laws designated to protect these resources in the first place only scantily do the job of protecting them; changes are required to the NMSA and other federal laws to address these impacts.
As the human stressors to reefs continue unabated in both the developed and developing world, it is clear that the United States and the international community have long since passed the point in time to reconsider the role of the government’s approach to ocean resource management. In the meantime, the National Marine Sanctuaries Act should be viewed as a symbolic program rather than a mechanism that will help with the effective management of the United States’ “special areas” of the ocean and should be used as a vehicle to increase public awareness around the importance of preserving these resources. Rather than continue to attempt to protect our ocean resources through this demonstrably ineffective framework, policy makers should instead look to historically successful means of regulating the onshore human activities that are proven to significantly impact our reefs and use the NMSA as a vehicle for educating the public about the consequences of not protecting the resources.
At the heart of the ineffectiveness of the current national framework for protecting these resources is the tension that exists within a sectoral-based approach to resource management, a theme that is discussed throughout different areas of ocean policy. As noted in the Owen piece, “almost all of the bill’s proponents emphasized the importance of allowing both preservation and exploitation,” and “[d]esignation was to be the beginning of a process of developing a broad-based management scheme rather than the culmination of attempts to create prohibitions.”[4] Owen’s argument goes too far in its flair by asserting that the provisions of the Act “ensured that sanctuary designation would be a complicated and difficult process.”[5] While it is true that the processes involved in designation are onerous, so are many legal processes. The procedural conditions Owen lays out, including “substantial input from the public,” are essential, if admittedly arduous, processes that are included in the designation criteria that help guard against potential challenges in the courts.
By the time a new administration enters the Oval Office, the aforementioned challenges to the “special areas” of the United States’ national waters will likely be at an all-time high. As the research into scientific solutions continue, the best way forward to combat these challenges is to manage them from a conservation approach at the local and state levels while continuing to advocate for effective regulation at the federal level, using whatever avenue is necessary and will withstand a reasonableness challenge in potential litigation.
[1] Dave Owen, The Disappointing History of the National Marine Sanctuaries Act,” 11 N.Y.U. Envtl. L. J. 711 (2003).
[2] Roger Bradbury, A World Without Coral Reefs, NYTIMES (July 13, 2012).
[3] Florida Keys National Marine Sanctuary, Florida Reef Tract Coral Disease Outbreak: Disease, Nat’l. Oceanic and Atmospheric Admin. 2019.
[4] Owen, supra note 1 at 717-18.
[5] Id. at 718
