A downloadable PDF of my most recent CV is available here.
I began my career in Washington, D.C., as a law clerk in the Office of General Counsel for Water at the U.S. Environmental Protection Agency. There I worked on regional water quality planning and coordination under the Coastal Zone Management Act of 1972. I provided litigation support for cases challenging EPA’s authority to influence local land use decisions in order to achieve the “fishable, swimmable” goals of the Clean Water Act in marine waters. I also tracked the progress of environmental bills in the Congress, including H.R. 200, a bill to establish a 200-mile fishery conservation zone for the U.S. After H.R. 200 became the Fishery Conservation and Management Act of 1976, I then served as an attorney-advisor for fisheries for the Office of General Counsel at the National Oceanic and Atmospheric Administration (NOAA). In this capacity I helped NOAA prepare to implement the new law in light of NEPA, the law requiring federal agencies to assess the environmental impacts of their actions and programs. I also grappled with statutory language creating scientific standards for fisheries management and for the tuna-dolphin conflict under the Marine Mammal Protection Act of 1972. The requirement that agencies use the “best scientific information available” to implement the fisheries and marine mammal protection acts has been an interest of mine since that time. Read more about “Ethics, values, and the ‘best available science’ in marine conservation” on the research page.
During my post-doctoral fellowship at the Woods Hole Oceanographic Institution, I studied the use of available science to set pollution control standards for offshore oil and gas drilling with an emphasis on the operational discharge of waste drilling muds. Working with marine geologist, Judith Spiller, I developed recommended discharge standards for the New England states to propose during consultations under the Outer Continental Shelf Lands Act Amendments of 1978. Judy and I also began a study of the influence of conflicting social values in scientific discourse on ocean waste disposal. (Policy Studies Review article)
After the Exxon Valdez oil spill, I teamed up with professors Zygmunt Plater, Ralph Johnson, and Harry Bader to provide policy and legal advice to the Alaska Oil Spill Commission on how to prevent future oil spills from the operation of the Trans-Alaskan pipeline. Our work led to provisions in the Oil Pollution Act of 1990 authorizing citizens’ councils for Prince William Sound and Cook Inlet to combat regulatory complacency, the root cause of the Exxon Valdez oil disaster.
The inner boundary of the United States’ 200-mile zone established in 1976 is the seaward boundary of the coastal states, referred to as the “three-mile limit” because most state waters extend three nautical miles from the coastline. I became interested in the relationship between state and federal marine authority while an attorney for NOAA. Because the habitats of fish and other marine species are found on both sides of the three-mile limit, government agencies must coordinate how they regulate the industrial and recreational activities that affect the marine environment. At the Marine Law Institute in Maine, I started a newsletter, The Territorial Sea, to report on the Institute’s Sea Grant-supported research on conflict and cooperation in the management of coastal lands and waters. The newsletter evolved into the Territorial Sea Journal and ultimately the Ocean and Coastal Law Journal, which continues to be published by the University of Maine School of Law (available at their website) Archived issues of the Territorial Sea Journal and newsletter are online at http://home.heinonline.org/
In 1977 both the United States and Canada extended their exclusive fisheries jurisdiction to a distance 200 nautical miles from the low tide line along their respective coasts (in the U.S., this distance was 197 nautical miles from the three-mile limit of state authority). These extended fishery zones overlapped in the Gulf of Maine where both nations had historically important commercial fisheries and plans to develop energy resources found in the region. At the Marine Law Institute, I coordinated a series of studies of how the U.S. and Canada agreed to disagree on the management of fisheries, tidal power, oil terminals, and seabed oil and gas reserves in this transboundary region, both before and after the World Court’s 1984 decision establishing the US-Canada maritime boundary in the Gulf of Maine. A boom in the farming of salmon in pens along the coast of Maine led to a study of the legal framework for offshore aquaculture, and to a case study on the listing of the Atlantic salmon (Salmo salar) as an endangered species.
Another boundary critical to marine governance is the high tide line, an ephemeral line along the shore which serves to define areas of public and private ownership in most U.S. coastal states. The public trust doctrine is a principle of common law with roots in Roman law which holds that the public has inalienable rights to use tidal lands and waters for navigation and fishing that are held in trust for the people by the sovereign. This area of public ownership and rights of use generally begins at an invisible line along the coast that corresponds to mark of the average high tide. The law of each state defines the location of this boundary between public and private property. Only a handful of states use the low tide line as the seaward limit of private property, including the two New England states of Maine and Massachusetts. Their version of the public trust doctrine dates from the colonial ordinances of 1640-47 when the Massachusetts Bay legislators sought to encourage economic development by giving private ownership of tidal lands to owners of wharves and piers. If sand beaches are along the shoreline this property boundary is usually hotly contested. With rising sea level, the line will gradually move inland.
By the late 20th century, the public trust doctrine was the legal notion at the center of coastal land use control and the definition of who controlled access to the shoreline. When the issue arose in the State of Maine, the Marine Law Institute prepared a ‘friend of the court’ brief in support of public rights to use the land below the high tide line at Moody Beach, for beachcombing, sunbathing and recreation. These rights had been codified in a bill drafted by Mary Najarian, a student in the Marine Law Institute’s coastal law clinic who was also a state legislator. After Maine’s highest court ruled that such public rights did not exist at common law and that the Public Trust in Intertidal Lands Act was an unconstitutional taking of private property, the Marine Law Institute researched and wrote handbooks showing citizens and municipalities how to use other legal theories to vindicate public rights along the shoreline. We also identified legal tools to preserve working waterfronts through municipal zoning ordinances and tax policies that towns could use to prevent residential condominiums and hotels from crowding out traditional water-dependent industries such as commercial fishing and boat-building. In 2012, the town of Kennebunkport, Maine used these theories successfully to preserve public rights to use a two-mile stretch of sand known as Goose Rocks Beach.
My law review article analyzing the Moody Beach case and the regulatory takings doctrine (download the PDF here) was published in a symposium volume of the Maine Law Review along with several other papers on public rights to the shoreline (available here.)
While at Yale Law School I studied under Carol Rose, a leading property law scholar and theorist, who helped me to think about the larger significance of the public trust doctrine and the meaning of property. I wrote a paper on the theoretical underpinnings of public trust doctrine and explained why the doctrine, at least in some jurisdictions, now includes a public property right in ecological integrity of water bodies. This paper was selected as one of the ten best papers in environmental law for the year and reprinted in a legal anthology.
Carol Rose also helped me to think about the potential use of property-like regulatory instruments for the governance of marine resources. In 1996 I was selected to serve on a National Academy of Sciences committee to study individual fishing quotas and to make recommendations to Congress on their potential use under the Fishery Conservation and Management Act . My own thinking about fishing quotas is presented in an article published in the Harvard Environmental Law Review and was reprinted in an anthology on the philosophy of environmental law as a counter-voice to the value of so-called ‘free-market environmentalism’ in ocean fisheries. I raised questions respecting how compatible individual fishing quotas are with an ecosystem approach to fisheries. Non-governmental organizations working on the reauthorization of the Fishery Act used my ideas to help shape the 2006 amendments to that act requiring that “catch shares” have a sunset and review provision, can be allocated to fishing communities as well as companies, and should be renegotiated based on achieving ecosystem goals.
In the course of the various projects I became convinced that someone should write the history of marine policy decisions and the role of changing social values and of scientists who become involved with the policy-making process. My first work of this type of marine environmental history, The Case of the Green Turtle: An Uncensored History of a Conservation Icon, was published by The Johns Hopkins University Press in June 2012. I’m currently researching the history of ocean waste disposal policy and science, including the ideas that oceans have an assimilative capacity for pollution, can absorb radioactivity and safely store nuclear wastes, and sequester atmospheric carbon dioxide.