Ocean Acidification in litigation, legislation, and research – What’s the status?

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Image courtesy of NOAA

On June 23 CSW attended a panel on Ocean Acidification: Managing the Marine Impacts of Climate Change, at which experts from the scientific, nongovernmental and regulatory communities imparted a greater understanding of the science of ocean acidification, the enormity of the problem, and current action being taken to address the causes and effects of it.

Post by Rebeka Ryvola

The panel – part of Environmental Law Institute’s (ELI) Ocean Seminar Series – was co-sponsored by ELI and the Washington DC Bar Association’s Environment, Energy and Natural Resources Section of the Ocean and Marine Resources Committee.

See ELI’s excellent program of free events and ‘summer school’ lectures here.

Check out speaker PowerPoints and other materials from the panel here.

James Walpole, Chairman of the DC Bar Ocean and Marine Resources Committee (EENR), moderated the panel with the following participants:

William Snape, Senior Counsel at the Center for Biological Diversity;

Dr. Nancy Knowlton, Sant Chair for Marine Science at the Smithsonian Institution;

Dr. Susan Roberts, Director, Ocean Studies Board, National Research Council; and

Christine Ruf, Senior Policy Analyst, Watersheds Branch, US Environmental Protection Agency.

Two scientists, a policy analyst, and a lawyer discussing the impacts of rising ocean acidity made for a comprehensive look at this climate change problem. Each panel participant spoke to how their specific community – scientific, non-governmental, or federal agency – is involved in ocean acidification (OA) research, litigation, or legislation. In the end, the panel participants left us with a greater grasp of the urgency of OA, along with a better sense of the US’s progress on formulating a plan to address it.

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Bleached coral in the Great Barrier Reef (AFP photo)

Dr. Knowlton, an expert on coral reefs, began with a chemistry crash-course on OA, which refers to the ongoing decrease in the pH of the ocean caused by the uptake of anthropogenic CO2 from the atmosphere.  The ocean has absorbed about 30% of CO2 put into the atmosphere by human activity.  The acidification rate is 10-30 times faster than in any known episode in geological time, Dr. Knowlton said,

“even faster than the only known analog we have, about 55 million years ago when there was a big increase in CO2 in the atmosphere – Even then, although the total amount of CO2 in the atmosphere was larger, the rate was much smaller.”

It’s the magnitude of the current rate that has scientists particularly worried, as it doesn’t allow enough time for acidic water to be buffered by seafloor sediments, a lengthy process that returns the ocean to normal pH levels.

The consequences of OA are where the science gets more complex. The repercussions of the changing chemistry of the oceans, Knowlton noted, are extremely difficult to predict. For example, coral reefs may be gone by as early as 2050. However, it’s difficult to know exactly how changes to ecosystem composition will unfold.

Dr. Knowlton discussed the most recent lab studies into OA impacts on marine organisms, the results of which have varied, depending on the organism studied and the level of acidity the organism was exposed to. While most species suffered with increasing acidity, a few were actually seen to increase in growth in the more acidic environment.

While this point is something that denialists could latch on to – Look! The alarmists are wrong, acidification is good for the ocean! – Dr Knowlton made sure it was understood that such a large-scale chemical change is not positive in any way, shape, or form; the disruption that OA could cause, and is causing, to ocean ecosystems negates any minor benefits. In fact, she pointed out, every mass extinction in history has been associated with changes in oceanic chemistry.

And the picture only gets grimmer. Dr. Knowlton reminded us:

“ocean acidification is just one of a whole bunch of things that we’re doing to the global ocean. Not only are we acidifying the ocean, we’re adding massive amounts of nutrients, toxins from industrial activities, sediments from coastal erosion due to deforestation…”

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Slide from Dr. Knowlton’s presentation

Although OA is enough to substantially disrupt marine life on its own, its impacts will be compounded by an environment that is already affected by multiple stressors.

Dr. Susan Roberts then walked the audience through the National Research Council’s (NRC) recently released OA report, National Strategy to meet the Challenges of a Changing Ocean.

Related CSW post here on Ocean acidification: Senate hearing and National Academy of Sciences report.

The report can be purchased or read online for free here.

Dr. Roberts began by sketching out how OA came to be an issue of global concern. She said that OA first came onto the international radar in 2004 at The Ocean in a High CO2 World, a scientific symposium sponsored by the Scientific Committee on Oceanic Research and UNESCO’s International Oceanographic Commission. Since then, the scientific community’s concern has only escalated.

OA went from being a strictly scientific interest to showing up on the policy radar as a result of the 2006 reauthorization of Magnuson-Stevens Fishery Conservation and Management Act. The Act, whose purpose is “to provide for the conservation and management of the fisheries, and for other purposes,” contained a single line calling for an in-depth study into OA by the NRC. The New York Times latched onto this one line, leading to a snowballing of attention directed at OA, which eventually led to the creation of the new NRC report.

In addition to a detailed look at the science, the report includes an analysis of social issues surrounding OA. The report’s social science authors identified fisheries, coral reefs and aquaculture as the most vulnerable sectors – areas where ongoing and increasing acidification will have enormous socioeconomic impacts. Roberts said that not only is a lot of money at stake nationally, but local regions that depend on income from these sectors may be unable to persist. Degradation of marine habitats such as coral reefs and reduced reproductive rates of marine organisms may contribute to a diminished ability to rely on oceans for income.

William Snape with the Center for Biological Diversity gave a lawyer’s summing up: “We’re sure change [in the oceans] is happening. We’re sure it’s not good.”

He then jumped into a look at the legal tools available to deal with OA. The “bevy of tools” we have, specifically naming domestic statutes like the Clean Water Act and Clean Air Act, are at risk of being overshadowed by new mechanisms currently being pushed forward, Snape said. Snape “caution[ed us] to be skeptical when being told by Congress that a new tool is better than a 40 year old statute” like the Clean Water or Air Act. These existing statutes are valuable, Snape said, because at their core they’re science-based, and demand science-based standards. When dealing with climate change, or more specifically OA, we need laws that have that scientific foundation.

He then led us through sections 303D and 304 of the Clean Water Act to give us a sense of how this tool can be used to address OA. 303D sets up the legal duty of the EPA to “look at something like ocean acidification as damaging to water quality … as CO2 in the ocean most certainly is.” Section 304 has to do with water quality standards and the criteria by which those standards are articulated.

The purpose of the act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters, Snape said. It was on this premise that the Center for Biological Diversity filed a petition and sued the EPA for erroneously approving Washington State’s quality of water, when in fact, the state’s waters were negatively impacted by CO2, and thus classifiable as polluted. In March of 2010, those actions led to the EPA being required to evaluate how to regulate OA.

While Snape noted that the EPA is now on the case of OA, knowing that the situation must be addressed, there are still two major challenges the agency will have to grapple with going forward. First, figuring out how to calculate pollution limits for CO2 will be difficult given that CO2 taken up by the ocean is global in scope and origin. Second, the agency will need to assign water quality permits based on an air pollutant – something they haven’t yet had to do.

However, he added, the EPA has the power to handle these issues, no matter how daunting they may seem. And, Snape noted, Congress is starting to get on board: 40 House members have already signed a letter to EPA urging action on OA.

Snape said that, frankly, OA might be the issue that gets us a handle on greenhouse pollutants, the issue that “finally galvanizes our species to actually do something.”

Christine Ruf from the EPA then took over to expand on 303D, the Clean Water Act’s enabling legislation. While specifics of the Clean Water Act won’t be detailed here, it is worth noting that with 303D’s current criteria, coastal monitoring isn’t as thorough as it is for the interior. Ruf noted that to date, no marine waters have been listed as impaired due to a lower than normal pH – clearly, the current criteria for monitoring OA, as noted by Snape, is not addressing the issue effectively.

During the Q & A, an audience member asked whether there are any current opportunities for movement in the international law arena, and whether action on OA could become part of the greater effort to deal with greenhouse gases, or even a separate international effort in itself.

Snape answered that the UN Convention on Biological Diversity (UN CBD) has begun working on OA. The UN CBD, a legally binding treaty which was born out of the UN Environment Programme’s attempt to address global extinction issues in 1988, and was opened up for signature at the United Nations Conference on Environment and Development (the Rio “Earth Summit”) in 1992, has a good framework for addressing OA. However, while the US is a signatory of the UN CBD, it has not yet ratified the treaty. Snape said that an international accord with a focus on OA will be quite necessary to deal with an issue of such magnitude.

Coming away from the panel, it’s clear that steps are being taken to act on OA. OA is now widely recognized as a problem beyond just the scientific community, a necessary prerequisite for action. However, there’s still a long road to massive and dramatic solutions that will enable us to get ahold of this potentially devastating global challenge.

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