Environmental Law Series: The Marine Protection, Research and Sanctuaries Act & our Oceans

As we near the end of our environmental law series, we turn to our beloved oceans. The Marine Protection, Research and Sanctuaries Act of 1972 also known as MPRSA, is one of several key environmental laws passed by the US Congress in 1972. The Act regulates the disposition of any material into ocean waters, unless expressly excluded under the MPRSA. 

In this episode of our Environmental Law series, host Craig Williams is joined by Professor Robin Craig, the Robert C. Packard Trustee Chair in Law from USC Gould School of Law, as they discuss MPRSA, its origin & history, purpose, and impact.

Transcript

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Robin Craig: Part of what we’re learning is coming from incidents like the Fukushima Plant and all of the waste, solid and otherwise that were released into the ocean, do they disperse do they stay concentrated in currents? How long do they remain recognizable? This is all stuff we are still learning about how the ocean functions and how we can affect that functioning.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network, I am Craig Williams coming to you from Southern California.  I have two books out titled ‘How to Get Sued’ and ‘The Sled.’ Well today on Lawyer 2 Lawyer, we are continuing our series on environmental law where we cover cradle-to-grave treatment of chemicals and our laws on environmental biology. As we near the end of our environmental law series this year, we are going to turn to our beloved oceans.

You may not know it but the ocean covers 71% of the Earth’s surface holding about 96.5% of all of the Earth’s water. So it’s pretty important. Well, the Marine Protection Research and Sanctuaries Act of 1972 also known as MPRSA or the Ocean Dumping Act is one of several key environmental laws passed by the US Congress in 1972. The Act regulates the disposition of any material, any material into ocean waters, unless expressly excluded under the Act.

Well in this episode, we’re going to spotlight the marine protection research and sanctuaries act focusing on its origin history, purpose and impact and to speak more on this topic, we are joined today by our guest, Professor Robin Craig of Robert C. Packard Trustee Chair in Law from USC Gould School of Law. Robin Craig specializes in all things water, including the relationships between climate change and water, water energy food nexus the Clean Water Act, the intersection of water issues and land issues ocean and coastal law marine biodiversity, marine protected areas, water law ecological resilience in the law, climate change adaptation and the relationships between environmental law and public health and welcome to the show Robin.

Robin Craig: Thank you. Nice to be here. 

J. Craig Williams: Well, how did you end up studying environmental law and getting involved in water? Did you jump in?

Robin Craig: I jumped in, I had a long time of figuring out what I wanted to be when I grow up, but I figured out that law school is a good place to be. I ended up at Lewis and Clark School of Law, and I was doing environmental law from day one and then really lucked out and got to work for the Oregon Department of Justice for the attorneys that represented Oregon’s environmental agencies. And immediately jumped into coastal zone management issues and water issues for the state. So was hooked from then on.

J. Craig Williams: Well, tell us a little bit about the water involvement that you have in terms of this particular act that we’re discussing today, the Marine Protection Research and Sanctuaries Act.

Robin Craig: Well, the Marine Protection Research and Sanctuaries Act of 1972 is one of the first round of environmental statutes that congress passed and it’s one of the few that’s really directed toward protecting the marine environment. So if you’ve got the Clean Air Act in 1970, Clean Water Act in 1972, The Endangered Species Act in 1973. This is the ocean part of that series of statutes that are very prolific set of congress’ were passing in the 1970s. And the Marine Protection Research and Sanctuaries Act is a little interesting because it’s got two distinct parts to it. Title 1 and Title 2 are basically the ocean dumping act and title 3 is the national marine sanctuaries act. So as you related, one of the things I do is Marine protected areas, but I also do ocean water quality and this act is related to both.

J. Craig Williams: Let’s talk about the marine protected areas. I think as a scuba diver, I’ve been in several of those over the years. How do we identify those and where are they?

Robin Craig: Well, we actually have 15 national marine sanctuaries right now. There are another five that are going through the process of being designated. So this is a very active time for national marine sanctuaries and then we have to marine national monuments that were designated through the Antiquities Act that are managed as part of the National Marine Sanctuary system. And those are the Papahanaumokuakea Marine National monument in Northwestern Hawaii and the Rose Atoll Marine National Monument.

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These National Marine sanctuaries are on every coast including the Great Lakes. The most recent one was the Mallows Bay Potomac River National Marine Sanctuary. And as I said, we’ve got five more in the process, so these protect environmental issues or environmental ecosystems that we care about and that’s what the Papahanaumokuakea Marine National Monument is doing but they also protect things that we care about in terms of cultural heritage. So, the monitor National Marine Sanctuary protects sunken civil of worship.

J. Craig Williams: Wow, and what protections are afforded to these marine sanctuaries?

Robin Craig: Well, that’s part of the fun of the designation process is they can actually vary quite a lot from Marine Sanctuary to Marine Sanctuary, it’s a very long designation process usually. And the regulations that come out, take account of what’s important about that particular marine sanctuary. So for example, the Flower Gardens Bank National Marine Sanctuary in the Gulf of Mexico was put in after there were already oil rigs out there. And so there are oil rigs in the middle of that National Marine Sanctuary.

J. Craig Williams: That seems kind of odd.

Robin Craig: It does. It’s a very flexible Act in the sense of it can protect what we are looking to protect and allow the uses that NOAA and Congress wanted to continue to allow in a particular area. But a lot of the more recent ones have actually been nominated by their surrounding communities and that’s an exciting part about this act is that the process allows for coastal communities to say “Hey we want this part of our great lake” or our coast protected as a National Marine Sanctuary because we find these things and they list what they find valuable important to protect.

J. Craig Williams: Why are these nominated? I mean what is it that they’re trying to protect?

Robin Craig: Sometimes it’s an important deep-sea feature. So one of the nominations that’s in process or one of the sanctuaries it’s in the process of being designated right now would be the New Hudson Canyon National Marine Sanctuary and that protects the submarine canyon. So one of the deep canyons off the Atlantic Coast that starts about 100 miles Southeast of New York City. So that’s to protect Marine geological feature that’s got some special species, special ecosystems that we want to keep safe. On the other hand, one of the processes that started on the West Coast is the Chumash Heritage National Marine Sanctuary. That process started in November 2021. It was nominated in July 2015 by the various Chumash tribes but specifically the Northern Chumash Tribal Council and that’s going to protect 134 miles of California coastline and about 5,600 square miles of California ocean that are important cultural heritage sites and resource sites for the Chumash tribes in Southern California.

So just in those two, you can see the great variety there. There are national marine sanctuaries being designated in the Great Lakes, some of those protecting shipwrecks, some of those protecting the ecosystems of the great lakes the Papahanaumokuakea Marine National Monument as I mentioned protects coral reefs as do most of the national marine sanctuaries in the Pacific Ocean. So there’s just a variety of things that national marine sanctuaries protect.

J. Craig Williams: Let’s say that I’m a surfer down here at trestles, which I’m not but let’s say that somebody says I want to protect trestles. I wanted just an individual, regular old everyday person, can they start one of these marine sanctuaries?

Robin Craig: They can start the proposal process certainly.  They can nominate it through NOAA’s nomination process and then that will be reviewed through NOAA. As I mentioned, it’s a fairly long and public process. So NOAA has to decide that this was worth designating and there are steps it has to take to come up with a proposal including defining what the Marine Sanctuary would be and why it’s being designated.

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It’s going to have to go through an environmental impact statement under the National Environmental Policy Act or NEPA. There’s going to be time and opportunity for public consultation and public comments on that process and eventually, it goes through an approval either by NOAA or by congress depending on how important it gets and how thorny it gets to be designated. So, yes, you can start the process but as I mentioned, some of the newest ones were nominated in 2015 and are just now going through the last phases of the designation process.

J. Craig Williams: It sounds like it’s an amazing and kind of complicated process. When did this, so in the last, they’ve been the last 50 years that these 15 marine sanctuaries have been created?

Robin Craig: Correct. Yeah, since 1972 and that kind of went in phases. So there was a spate of them early on and then it got very difficult to get National Marine Sanctuaries designated and in fact, the one in Florida and the Florida Keys finally had to go through congress because NOAA know it was having a hard time getting it done because of various public participation and various public controversies over how it should be used and as a result for a couple of decades now since President George W. Bush, presidents have been relying on the Antiquities Act and going through the Marine National Monuments route, which a president can just designate and that’s how we got a lot of the big Pacific coral reef National Marine Monuments and that’s how we got the first one off the coast of the Atlantic Ocean.

So it’s nice to see that the process for designating National Marine sanctuaries, which is in fact more public, more participatory, more voices get to have their say about what the sanctuary should be and what it should protect and what it should allow. It’s nice to see that that got a jump start again in the last decade or so.

J. Craig Williams: Let’s talk about what happens after it gets designated. How does the laws that affect that particular marine sanctuary get enforced?

Robin Craig: That enforcement is done primarily through NOAA and the coast guard and there are regulations for each sanctuary about what is allowed and what’s not. But in general, you’re not allowed to take sanctuary resources out of the National Marine Sanctuary. You’re not allowed to destroy the sanctuary resources. Recreation is almost always allowed. Sometimes you need permits for it, sometimes you need a guide. Fishing may or may not be allowed depending on what the sanctuary is for and then there’s some special things like I mentioned, the Flower Garden Banks, you have oil platforms out there and they’re allowed to continue to operate.

So there are some general prohibitions in the statute but then really it is a process of formulating what’s going to be allowed or not in each sanctuary with various levels of enforcement, sometimes states help out. So, you know, sometimes it’s the coast guard, sometimes it’s NOAA. There’s just a variety of people involved in the enforcement.

J. Craig Williams: You know, we heard a lot about climate change and coral bleaching. Is there anything in the marine sanctuaries that protect the coral?

Robin Craig: Well, that’s some of the reasons for designating those big ones in the Pacific. So the Florida Keys National Marine Sanctuary was the first National Marine Sanctuary to protect tropical corals, but Florida is already being hard hit by climate change and warming oceans that cause bleaching and a lot of those corals are being listed under the Endangered Species Act. In contrast, some of the Pacific tropical coral reefs are in better shape and the sanctuaries and National Marine Monuments are bigger. So they allow for some adaptation within the sanctuary itself as various coral spawns can spread throughout the sanctuary and other places as well.

And one of the important parts of the Papahanaumokuakea Marine National Monument was that tropical coral reef was already on the cold temperature edge of where tropical coral reefs can survive. So as the oceans warm, that Marine National Monument, which is part of the National Sanctuary System may be one of the last healthy tropical coral reefs on the planet.

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And so it’s very much a Stewardship Act on the part of the United States for the world. You know, things in that coral reef may help to keep, to replenish and support the reefs all around the tropical Pacific.

J. Craig Williams: All right. Well, Robin, at this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back.

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J. Craig Williams: And welcome back to the Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Professor Robin Craig, the Robert C. Packard trustee Chair in Law from USC Gould School of Law. We’ve been talking about the Marine Protection and Sanctuaries Act. Robin, let’s talk a little bit about the National Coastal Monitoring System. How does that work?

Robin Craig: The National Coastal Monitoring System is there to help give early warning to help scientists figure out what’s going on in our coasts and it’s run through NOAA and its part of the science part of the Marine Protection Research and Sanctuary Act.

J. Craig Williams: So that’s what gives us warnings about tsunamis after there’s been an earthquake in the ocean?

Robin Craig: As one thing, yes. It helps with hurricanes, other major storms.

J. Craig Williams: And wave heights if I remember correctly. So buoys are out there to tell us how bad and how high the waves are.

Robin Craig: Exactly. Exactly. So it’s part of our weather system, part of our coastal warning system for many, many things.

J. Craig Williams: Do you think this act has been overly successful or do you think we have a long way to go?

Robin Craig: In terms of, well, it’s very sparse. We haven’t talked about the Ocean Dumping Act did. I think the Ocean Dumping Act part of it has been incredibly successful.

J. Craig Williams: Well, let’s jump into that. Can you describe what it covers?

Robin Craig: Yeah, so the Ocean Dumping Act is pretty much exactly what it sounds like, covers dumping of almost anything into the ocean. As I said, the act came in to being in 1972. Part of what prompted the Ocean Dumping Act parts of it was in 1968 there was a National Academy of Sciences’ report that detailed just how much junk we have disposed of into the ocean, particularly in the aftermath of World War II and the Cold War and that included things like 55,000 drums of nuclear waste still out there in the ocean. You may remember some of that was just recently discovered off the coast of California.

So these things come back to haunt us and that report was kind of a wakeup call. Now, this was an international issue as well. So our Ocean Dumping Act is our way of implementing the, was known as the London Convention of 1972. So this is an international treaty. Its full title is the Convention on the Prevention of Marine Pollution by Dumping Waste and other Matter which is why everybody refers to it as the London Convention.

And so, we are a party to that treaty and the Ocean Dumping Act is in part our way of implementing that treaty but it prohibits the transportation of material from the United States out to be dumbed in the ocean and it prohibits dumping of waste from other place in the US territorial sea. And so, it ends all of that view of the ocean as the world’s garbage disposal and realizes that putting toxic waste, hazardous waste, nuclear waste into the ocean does actually not get rid of the problem.

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So, it’s been very successful. It ended pretty much immediately the toxic dumping and then put in some regulations for things that are more benign like dumping of clean dredged materials out at sea for example.

J. Craig Williams: Right. Well, this would also apply to harbors and pleasure boats and cruise ships and the like, is that right?

Robin Craig: It does. It applies to anybody who wants to dump anything including trash. My personal favorite part of the Act is it actually does cover burials at sea. So, there is a general permit you can get from the EPA if you want to do a burial at sea, but that technically is ocean dumping. So, it is covered by the Act. It covers disposal of vessels at sea. So, if you want to create an artificial reef, that’s covered under the Ocean Dumping Act. It covers disposal of marine mammal carcasses. It technically applies to disposal of fish waste but there’s an exception for that, but you do, it is regulated inside harbors or other enclosed areas. So, it really is a broad Act.

J. Craig Williams: So it also applies to help — actually, I guess the question is how far out does it apply? We have this famous 12-mile limitation or we are now out 200 miles, are we in international waters? How far do we claim this kind of goes?

Robin Craig: The dumping from outside is limited to the US territorial sea, which in 1972 was only 3 miles off the coast of the ocean. But in terms of taking stuff out to sea, the United States can regulate under international law out to 200 nautical miles from our coast and we regulate pollution of the ocean through that full 200 nautical miles. Now, obviously we care about things the closer they are to shore, but in terms of our own ways going out to sea, we protect pretty much the whole 200 nautical miles.

J. Craig Williams: You mentioned getting a permit to have a burial at sea. There’s a lot of people that go out to the ocean and dump ashes. Is that permitted?

Robin Craig: It would be covered by general permit, yes.

J. Craig Williams: So a general permit means you’re allowed to do it or you have to go to the EPA and get one?

Robin Craig: It means that there is a permit in place that if you comply with the the general conditions of that permit, which almost any dumping of ashes would, your dumping of ashes is covered. You are technically permitted.

J. Craig Williams: Excellent. Well, that’s good to know. And you said you can’t dump fish waste but there’s an exception. How does that exception work? I mean, is this for lobstermen and fishing vessels that are out working?

Robin Craig: Pretty much. Yeah, the recognition was if you’re a working fishing vessel, you know, you’re going to be dumping fish or parts of fish back into the ocean. It’s organic. It will decompose. It’s particularly if you’re not in an enclosed space and that is the exception where you do need a permit to be able to do it. The recognition was just made although that even though this is technically ocean dumping, it’s not going to be as harmful. Particularly if you’re a ways out from shore and a lot of the big fishing vessels do go a ways from shore.

So, like I said, no permit required for dumping a fish waste unless you’re in an enclosed space or it’s a particularly ecologically sensitive area that the EPA has designated as such.

J. Craig Williams: So the end of a fish pier is okay?

Robin Craig: Yeah, probably don’t want to be doing a whole lot of fish waste at the end of a fish pier, but you might get in trouble with with local officials as well.

J. Craig Williams: Right. Well Robin, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back.

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J. Craig Williams: Welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Professor Robin Craig the Robert C Packard Trustee Chair from the USC Gould School of Law. We’ve been talking about the Ocean Dumping Act portion of the case we’ve been talking about today. Let’s talk about enforcement. Again, it’s Coast Guard that’s out there doing this?

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Robin Craig: Pretty much, yeah, on the Ocean Dumping Act, you’re going to be dealing with the Coast Guard.

J. Craig Williams: And what’s the idea behind the ocean dumping, I mean obviously keeping pollution out of the water, but you talked about things that are in the water like nuclear waste and I think recently we discovered 55-gallon drums of DDT off the coast of California. How does that go about getting cleaned up?

Robin Craig: Well, that’s a different issue. Cleaning up the stuff that’s already there is not covered by the Ocean Dumping Act and how to do it effectively is actually a bit of a can of worms because the problem with 55-gallon drums and saltwater is they start to decompose. Salt water is good at eating up just about anything. I asked the US Navy about protecting their ships from saltwater. And so, getting it cleaned up again is one of the concerns that the world is facing. As I noted, this was an international issue, not just the United States. You know retrieving those drums, and we know there’s even on land if you’re talking about sites on land where 55-gallon drums have been disposed of, this is one reason why we have Superfund and CERCLA, the Comprehensive Environmental Response Compensation and Liability Act is that they’ve been there for decades.

They’re starting to fall apart and you’ve got contaminated soils. In the ocean, you know, you not only can have contaminated soils and leaking 55-gallon drums, you’ve got an entire water column to worry about. So, if you suspect these drums are leaking, is it better to try pulling them up through 3,000 feet off water or we may be better trying to figure out some way to dispose of them in place or contain them in place, and this is a very big quandary for what to do with that legacy pollution. But in general, that’s one of the things that the 1972 environmental statutes did not address very well, and that’s why we got on land CERCLA in 1980 at the very end of it, is what to do with those legacy pollution problems.

J. Craig Williams: So we still haven’t solved that issue and nobody knows what to do with the nuclear waste and the drums yet. They’re still there rotting away?

Robin Craig: They’re there rotting away, many of them in very, very deep water. So even getting to them is problematic. If you remember the Deepwater Horizon oil spill and the problems getting that oil contained at depth or the incredible technology it took to get down to the Titanic, for some of these waste were in similar depths and it’s just difficult to work in that environment.

J. Craig Williams: Realistically, what effect does that have on us? I mean, should we worry?

Robin Craig: Well, we kind of don’t know. Thankfully, many of those barrels are still intact. So, whatever’s in them, the DDT, the nuclear waste, the other toxics, have been contained for now. There is an old saying in water pollution law of all sorts that dilution is the solution to pollution and the ocean is the world’s largest diluting bin, but we don’t know. And you know, part of what we’re learning is coming from incidents like the Fukushima Plant and all of the waste, solid and otherwise that were released into the ocean, do they disperse? Do they stay concentrated in currents? How long do they remain recognizable? This is all stuff we are still learning about how the ocean functions and how we can affect that functioning.

J. Craig Williams: You hear about microplastics in the ocean. Is there anything that we can do about that?

Robin Craig: That’s another good one. So, the microplastics you’re talking about things that are very small to begin with — to the point where even physically filtering them out, assuming you could do that at scale in the ocean, would be difficult. To add to the fun, a lot of the plastics in the ocean have an affinity for attracting some of the other toxics. So the plastic itself becomes more toxic over time, and of course, it looks like food and that gets in the food chain in the water.

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The bigger plastics, if you see the great Pacific Garbage Dump, for example, the bigger plastics people are coming up with creative ways for both getting it back out of the ocean once it’s in, but keeping it from reaching the ocean in the first place. But when you’re starting talking about microplastics, anything you would do to filter out the microplastic would also filter out the microscopic plankton, which are the basis of the food chain in the ocean. So how to separate the two when they’re both floating near the surface or just below the surface, for the most part, is an incredibly difficult problem and witness to that is that most of us have microplastics in our bodies.

J. Craig Williams: I just read that there was a cave, they had been sealed for 30 years, and they found microplastics in the air inside the cave.

Robin Craig: Yeah, so we’ve gotten them everywhere and the problem with them being so small is it’s hard to find. I mean plastic, by definition, isn’t magnetic. It doesn’t have great chemical affinities that you could pull it out of the water and leave the stuff you want to leave in the water. So that is one of the great pollution conundrums of our time. The statutes like the Ocean Dumping Act and the Clean Water Act and the Clean Air Act, they did a great job of taking care of the big, obvious, low hanging fruit pollution problems and now we’re finding all of the tough, hard to solve, smaller pollution problems that are cumulatively destructive.

J. Craig Williams: And killing ourselves.

Robin Craig: And killing ourselves. Yes.

J. Craig Williams: Well, Robin, we’ve just about reached the end of our program, so it’s time to wrap up and get your final thoughts along with your contact information. And if you could talk about what it is that we can do as individuals here.

Robin Craig: Well, remember that the ocean is not away. If I had one message to convey, that is it. Anything that reaches the ocean comes back to haunt us eventually. We are highly dependent on the ocean. Half of the oxygen we breathe is produced in the ocean. A great deal of the world’s food security depends on the plants and animals that grow in the ocean and so we need to treat it with a little more respect, and so try to limit your plastic use. Think about the fish that you eat. But thanks to the Marine Protection Research and Sanctuaries Act, you’re not allowed to dump toxics anymore and you have some very beautiful national Marine Sanctuaries to go visit. I’m at the USC Gould School of Law. You’re welcome to contact me by email. My email is [email protected].

J. Craig Williams: Wonderful. Well, thank you very much, Robin. It’s been a pleasure having you on the show.

Robin Craig: Thank you, Craig.

J. Craig Williams: Well, here are a few of my thoughts about today’s topic. The oceans are tremendously important to us, and we have been treating them as our dumping ground for almost all of our existence with the exception, perhaps the last 50 years, and even then, we’ve been trying to get away with dumping crap into the oceans. Well, as we said at the end of the program, we’re killing ourselves. We’ve put toxic waste into the oceans, and it’s now attaching itself to the microplastics that are floating around the ocean and floating into our food chain. That’s a tough one. Along with everything else that’s going on in the earth’s atmospheres and on its land and everything else we’ve talked about this year, it seems somewhat of a dire picture. The Paris Accords on the climate change have just been violated. The temperature for the earth has just now gone over that amount. Our corals are bleaching, our food supplies are dwindling, and we need to get on and do something about it.

I gave a speech in 2009 at James Madison University at its graduation titled “We didn’t Start the Fire.” Well, my generation didn’t. Generation before didn’t. It’s just been going since then, and in a way, our oceans are on fire now, and we’re handing this mess to a younger generation that’s coming up and perhaps not caring as much as it needs to about what’s happening. It’s time to get out there and do something about it.

Well, that’s my rant for today, and let me know what you think for the podcast. If you like what you heard today, please rate us on Apple Podcast or your favorite podcasting app. You can also visit us at the legaltalknetwork.com or you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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