Environmental Law and Policy Clinic comments on proposed international regulations for mining the ocean floor

October 13, 2017Duke Law News

The Environmental Law and Policy Clinic weighed in on the first-ever regulations proposed for mineral exploitation of the ocean floor in June, emphasizing the need to protect deep-sea biodiversity and ecosystem function.  Little is known about life in the deep sea, a region scientists have only recently begun to explore, but discoveries over the past few years by Duke scientists and others have provided glimpses of an astonishing range of biodiversity — including unique life forms thriving in super-heated thermal vent environments. The clinic urged a conservative approach to opening the ocean floor to mineral mining operations, urging delay pending the development of sound, science-based policies that prioritize preservation and management for the benefit of future generations.

The 49-page discussion paper the clinic submitted to the International Seabed Authority (ISA), an independent entity created by the United Nations, was produced by advanced clinic students under the supervision of Professor of the Practice Stephen Roady ’76 and Clinical Professor Michelle Nowlin JD/MA ’92. Their semester-long examination of the proposed regulations required the team of seven students from Duke Law School and the Nicholas School of the Environment to delve deeply into seabed ecology, the precautionary principle, nuances of international and U.S. environmental regulations, and legislative debates pertaining to the U.N. Convention on the Law of the Sea (UNCLOS), the legal framework governing the regulation of international waters and what lies beneath.

Prof. Steve RoadyProf. Stephen Roady

“The opportunity to study and comment on the ISA’s regulations made for a perfect advanced clinic class,” said Nowlin, the clinic’s supervising attorney. “The pedagogical opportunity was significant, and the issue is profoundly important. The timing was serendipitous — regulations were released at beginning of the spring semester, comments were due at end.”

“Aside from the importance of the issue itself, Michelle and I felt that it was really excellent example of how international environmental law is made,” said Roady, who has focused much of his practice, research, and teaching on ocean and coastal environmental matters. “The whole process of commenting on proposed regulations is a classic piece of administrative law. It happens routinely in the U.S. and not infrequently in the international law framework as well.”

Regulating the unknown

The ISA issued its draft regulations in anticipation of the imminent emergence of technology that will make seabed mineral and metal extraction possible, explained Roady. But while UNCLOS, which entered into force in 1994, extended sovereign rights from three miles (the accepted standard since the 18th century) to 200 miles offshore, it did not address the question of ownership of the floor under the high seas. The ISA’s mandate to create regulations governing the exploitation of resources on the deep sea floor states that it must prioritize the protection and conservation of the undersea environment and that the high seas seabed shall be governed as the common heritage for all humanity.

That concept originated in a stirring speech at the United Nations by the Maltese ambassador prior to the creation of the ISA, in which he proclaimed the deep sea floor “the common heritage of mankind,” Roady said. “By which he meant, ‘Developed countries can’t go out and mine everything to the detriment of undeveloped countries.’ Everybody ought to share it. Language about ‘ensuring effective protection for the marine environment’ from UNCLOS Article 145 was hugely important for our clinic work.”

Students used those principles as a fulcrum to frame their assessment of the draft ISA regulations and their research into domestic and international regulatory analogs, other pertinent law, and scientific knowledge of seabed environment and ecology. They found that little is known, in fact, about the diversity of deep seabed ecosystems, and made the “significant paucity” of information the basis for their central recommendation to the ISA: “…[W]e urge against any exploitation of deep sea mineral resources until the ISA gathers more baseline information and develops robust monitoring and management frameworks.”

“The sea floor is one of the most remote environments on the planet, so for the past 30 or 40 years research has focused on just understanding what’s down there and what the environment looks like,” said Brianna Elliott MEM ’17. “It was only in the past couple of decades that people started thinking about impacts from mineral extraction and even just what moving equipment around down there would look like. There are still huge data gaps in basic seafloor ecology and what the impacts could be.” For example, attempts to model the silt plumes triggered by seabed mining have yielded the possibility the endeavor could devastate some ocean life, but these models are still in their infancy.

“Developing mitigation strategies is difficult when we don’t know enough about what is there in the first place or what the mining activity would look like,” she said, adding that some studies indicate the manganese nodules littering sediment-covered areas of the ocean floor could take up to a million years to regrow. “Those nodules appear to be a crucial part of the ecosystem, but again, we don’t know enough about their function to say much about them.”

Prof. Michelle NowlinProf. Michelle Nowlin

Said Nowlin of the recommendation to put regulations on hold: “You can’t develop regulations that anticipate this level of uncertainty. We had 100 percent consensus that this was not the time to move forward with authorizing exploitation. This was the time to pause and catalogue resources and knowledge and make sure we are conserving our collective future.”

Still, the clinic team offered the ISA a framework for safeguarding biodiversity and ecosystem function and preventing “catastrophic damage to the seabed,” in the event it opted to finalize regulations. To this end, students researched such domestic and international regulatory analogs as the National Environmental Policy Act (NEPA), which requires federal agencies to assess environmental impacts before approving projects, and the 1992 U.N. Rio accords, which addressed global environmental issues such as climate change and biodiversity, as well as the precautionary principle commonly used by European governments in decision making.

Pesticide authorization offers a useful example, said Hayden Hashimoto ’17, who focused his research on the precautionary principle. “If they are considering the use of certain pesticides, they want to be cautious about impacts on the environment and health,” said Hashimoto, now a postdoctoral fellow with the Rethinking Regulation program at the Kenan Institute for Ethics. “Under a form of the precautionary approach, a regulatory system could require an applicant to satisfy the burden of proving a product’s safety before it can be sold. This contrasts with the situation in the U.S., where the burden ends up being placed on the government to prove a product is not safe.”

The clinic recommended the ISA “clarify and expand on the application of the precautionary approach, articulate clear definitions for ‘serious harm’ and ‘substantial evidence,’ devise a rigorous and structured regime for the collection of scientific information prior to resource exploitation, encourage scientific research on the deep-sea environment, further develop management and policy regimes, and improve transparency and data sharing.” The students offered detailed suggestions on each point.

An interdisciplinary learning opportunity

The level of detailed research and analysis the students put into their ISA comments involved developing tools they will use throughout their careers in law and policy, regardless of practice area, Nowlin said. Elliott, who is now a senior analyst on contract with the National Oceanic and Atmospheric Administration’s Office of Protected Resources and a NOAA Sea Grant John A. Knauss Marine Policy Fellow, said she found the interdisciplinary nature of the endeavor, like her other clinic work, to be particularly valuable.

“My time in the clinic working with law students was one of the most formative experiences I had at Duke,” she said. “Both the Nicholas and Law Schools train students to approach issues from very different methods and perspectives, and it was eye-opening to work with law students. Right now I’m working in the federal government with policy staff, scientists, and industry and I really feel prepared to do that work and have those interdisciplinary conversations.”

The sheer novelty of the issue meant they could approach it free of bias, she added. “We really just started off trying to educate ourselves about the issue and bring ourselves up to speed. At some point we realized that we were missing so much crucial information that it warrants taking a step back and pausing before moving forward.”

Hashimoto appreciated the novel opportunity to aid in the creation of new law governing a previously ungoverned area, observing ISA regulations would likely improve considerably with a solid base of scientific knowledge.

“In every legal context the facts and the law both play an important role,” he said. “But when it involves something like this project where the regulations are still being shaped, it emphasizes the importance of the relationship between facts and law and how the facts can actually shape the law. Often in legal contexts the law has been written before the existence of detailed scientific knowledge.”

The clinic remains involved in the ISA regulatory process. Roady is working with clinic students this semester on a series of further discussion papers that will address questions of responsibility and liability for any damage to the deep sea environment that might result from mining. These papers are designed to be submitted to the ISA in March 2018.

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