(February 20, 2009) Congress is considering a new ocean policy that ultimately will have an impact on a wide range of businesses in California. If the legislation becomes law, operations with any sort of discharge — from parking lot drainage to air emissions — would face far stricter requirements than those in current state or federal law.
California Congressman Sam Farr (D-Carmel) is the author of the federal proposal, HR 21, the Ocean Conservation, Education and National Strategy for the 21st Century Act.
Wide-Ranging Impact
The legislation, whose co-sponsors include nine Democratic congressional representatives from California, seeks to implement a sweeping reorganization of the National Oceanographic and Atmospheric Administration (NOAA).
HR 21 may be a backdoor way to regulate air emissions and force revisions to U.S. Environmental Protection Agency rules. Current California law places numeric values on measuring the amount of protection the marine ecosystem receives. HR 21 does away with incremental values and implements a blanket “no harm to the ocean” standard.
The legislation would have a direct effect on companies such as forestry operations in the high country that add to the sediment load in rivers that eventually run into the ocean, as well as chip manufacturers that discharge to sewer or sanitation systems that eventually flow into the ocean.
Many companies could find themselves subject to strict new requirements because any process that results in air emissions could produce material that winds up in the ocean.
For example, oil refineries, pharmaceutical operations and farmers who use tractors (which emit nitrogen oxide) all could be affected. Home builders and contractors for commercial facilities could face new requirements under the disputable theory that construction causes more vehicle miles traveled and as a result, more air emissions.
HR 21 also states “the lack of scientific certainty should not be used as justification for postponing action to prevent negative environmental impacts.”
New Government Entity
HR 21 establishes a new Committee on Ocean Policy (COP) charged with imposing the strict new standards on ocean activities. The legislation raises the status of ocean policy to a national priority, bringing the NOAA and COP under the U.S. Department of Commerce and creating a position for a national ocean advisor with direct access to the President, among other provisions.
Similar legislation was proposed in 2007 under the same name but died in the U.S. House Natural Resources Committee.
In addition to strictly governing activities of companies discharging directly to the oceans, or engaged in activities that result in runoff or other discharges to rivers and streams that empty into oceans, HR 21 applies to companies contributing to air emissions that are alleged to affect ocean temperatures or acidity (the interconnectedness language of the bill includes land and atmosphere/climate).
The centerpiece of the legislation is the Coordination Plan, to be developed by the COP. Ultimately, all federal agencies and private businesses would need to act in “accordance” with the National Ocean Policy outlined in the Coordination Plan.
HR 21 requires that the National Ocean Policy “shall” be implemented to “protect, maintain and restore marine ecosystem health.” The bill defines “marine ecosystem health” as the ability of an ecosystem to sustain a “complete diversity” of species and the “physical, chemical, geological and microbial” environment necessary to maintain that complete diversity—a very high bar to meet.
HR 21 also replaces the more common standard of mitigation “to the fullest extent practicable” by using the phrase “to the fullest extent possible.” This change in effect excludes consideration of adverse impacts to the economy and jobs. The lack of a balancing mechanism allowing such considerations would have a detrimental effect on an already-strapped economy.
Shift in Emphasis
HR 21 explicitly lists six principles strongly emphasizing environmental protection that will have a deep impact on the direction of ocean policy:
- environmental protection,
- generational equity,
- ecosystem management,
- the "precautionary principle,"
- recognition of the interconnectedness of natural processes and
- balancing competing uses of ocean resources without undermining environmental protection.
The precautionary principle shifts to users of ocean resources the burden of proving that environmental impacts do not exist.
California Democrats Support
HR 21 awaits a hearing in the U.S. Science and Technology Committee. The following California representatives are co-sponsors: Bob Filner (D-San Diego); Barbara Lee (D-Oakland); Michael Thompson (D-St. Helena); Brad Sherman (D-Sherman Oaks); Anna Eshoo (D-Palo Alto); Howard Berman (D-Van Nuys); Lois Capps (D-Santa Barbara); Henry Waxman (D-Los Angeles); George Miller (D-Martinez).
Staff Contact: Valerie Nera