Environmental Federalism and the Protection and Preservation of Florida’s Coral Reefs

By: Charlee Fox, federal judicial clerk for the United States Court of Appeals

This commentary is an excerpt of a longer paper written for an environmental law course. 

Ten percent of the world’s coral reefs, including those found in Florida, have been destroyed beyond restoration.[1] It was estimated in 2000 that thirty percent of the world’s reefs were in critical condition.[2] Causes of corral reef depletion include: pollution, over-fishing and over-exploitation of resources, destructive fishing practices (e.g. dynamite fishing), dredging and shoreline modification (e.g. coastal development), vessel groundings and anchoring, disease outbreaks, and global climate change causing effects such as bleaching and mortality.[3] The coral reefs are protected by both state and federal regulations. Thus, it is relevant to analyze whether state regulations or environmental federalism have a greater impact on the conservation and protection of the United States coral reefs. Environmental federalism is a collaborative system of government in which national and subnational (state and local) governments work together in addressing national issues in the environment. Florida provides a useful framework for discussing environmental federalism, driving conservation and protection of coral reefs.

The Florida Department of Environmental Protection states that Florida is “the only state in the continental United States to have extensive shallow coral reef formations near its coasts.”[4] The Florida Reef Tract spans 358 miles along the coasts of Florida. The National Oceanic and Atmospheric Administration estimates that the coral reefs off the coasts of southeast Florida generate $8.5 billion in asset value, $4.4 billion in local sales, $2 billion in local income, and provide 70,400 jobs.[5] Coral reefs play a key role in economic development, food security, human health, and biodiversity both domestically and internationally.

State and local governments may argue that environmental federalism takes too much authority from subnational governments and puts it in the hands of the national government. Topics including climate change and emissions standards continue to be contested amongst the national and subnational governments. Most recently, the United States Supreme Court temporarily blocked President Obama’s coal-fired power plant emission regulations after an expedited challenge from twenty-nine states and dozens of corporations and industry groups.[6] Ultimately, individual state governments will be more compelled to enact environmental regulations that are specific to natural resources found within the state.

Florida has only one statute expressly regarding the protection of coral reefs. The statute was passed only within the last decade. Similar to the federal Coral Reef Protection Act, Florida’s Coral Reef Protection Act (“FCRPA”) became effective on July 1, 2009.[7] The Florida Department of Environmental Protection states that the FCRPA was created “to respond to stakeholder recommendations from a 2006 public workshop[8].”[9] The FCRPA “applies to . . .  lands that contain coral reefs as defined in [the] act off the coasts of Broward, Martin, Miami-Dade, Monroe, and Palm Beach Counties.”[10] Under the FCRPA, coral reefs are defined as:

  • “Limestone structures composed wholly or partially of living corals, their skeletal remains, or both, and hosting other coral, associated benthic invertebrates, and plants; or
  • Hard-bottom communities, also known as live bottom habitat or colonized pavement, characterized by the presence of coral and associated reef organisms or worm reefs created by the phragmatopoma species.”[11][12]

While Florida’s Coral Reef Protection Act is the only governing law specifically aimed at the protection of coral reefs, Florida has many additional state and local organizations and agencies that achieve coral reef protection and conservation both individually and via collaborations with the federal government. The Coral Reef Evaluation and Monitoring Project (“CREMP”) is an excellent example. CREMP is derived from the Florida Fish and Wildlife Conservation Commission and is funded by the EPA and the National Oceanic and Atmospheric Administration.[13]

Additionally, Florida’s Coral Reef Conservation Program and partners from the Florida Reef Resilience Program (“FRRP”) released a statement in October of 2015 stating that they planned to address coral deterioration by implementing Disturbance Response Monitoring, additional monitoring efforts, and by conducting coral tissue samples.[14] Further, the FRRP recommended that boaters, divers and snorkelers in Florida use mooring buoys instead of anchoring to reduce damage to coral reefs.

Moreover, Florida’s Southeast Florida Action Network (“SEAFAN”) is “designed to improve the protection and management of southeast Florida’s coral reefs by enhancing marine debris clean-up efforts, increasing response to vessel groundings and anchor damage, and providing early detection of potentially harmful biological disturbances.”[15] The network includes snorkelers, divers, fishermen and other environmental and community members that spend time in the water. SEAFAN’s website, phone number, and online report form allow community members an easy way to report harms to the coral reefs in Florida. Accordingly, Florida sufficiently tracks damages to its coral reefs.

Environmental federalism is effective because it can provide a clear regulation that is supported by multi-disciplinary collaborations. Regarding environmental federalism and coral reef regulations, collaborators include the National Oceanic and Atmospheric Administration, the Endangered Species Act, state environmental agencies, state coral reef task forces, local coral reef BleachWatch Observer programs (such as that in Florida), and even the United States Constitution. There are at least three approaches the United States may take in utilizing environmental federalism to safeguard the coral reefs in Florida from further decline: financial and regulatory incentives, cooperative practices, and preemption, the invalidation of state law that conflicts with federal law.

Financial and regulatory incentives give rise to environmental federalism because the funds provide a state with money to supplement the environmental regulations it seeks to enforce. States individually struggle with calculating an efficient budget that provides for essentials (e.g. education, transportation, health and social services, etc). Moreover, it was reported in early 2016 that sixteen states had a state budget deficit or shortfall (although Florida was not listed as one). Consequently, federal incentives regarding environmental regulations relieve at least some of the burden while still achieving environmental goals. Cooperative federalism is said to be the most predominant approach to environmental federalism.[16] Under cooperative federalism, there is a “sharing of regulatory authority between the federal government and the states that allows states to regulate within a framework delineated by federal law.”[17] For example, a state may retain the choice to regulate in accordance to a federal minimum standard, or have the state law pre-empted by the federal regulation. Thus, when a federal minimum standard is set, a state may: (1) adopt the same standard, (2) adopt a more stringent standard, or (3) risk pre-emption. In theory, this gives states greater incentive to adopt and expand upon federal framework and minimum standards in order to achieve greater autonomy and environmental protection. Cooperative federalism approach to environmental federalism is effective, but must take into account state funding.

A third method of environmental federalism should be used sparingly. Under preemption of inconsistent state law, the state administration of a federal standard is avoided and the federal control is favored. For example, the Toxic Substances Control Act (“TSCA”) was established in 1976 to ensure that, among other policies, “adequate data [is] developed with respect to the effect of chemical substances and mixtures on health and the environment and that the development of such data should be the responsibility of those who manufacture and those who process such chemical substances and mixtures. . . .”[18] The TSCA addresses production, importation, use and disposal of chemicals within the act. Therefore, under the preemption of inconsistent state law method of environmental federalism, environmental goals are achieved with less state autonomy and greater federal oversight.

Arguably, the environmental federalism and subnational approaches to the protection and conservation of coral reefs have a gap when enforcing accountability against those who damage the coral reefs in Florida. As described previously, environmental federalism does more than an adequate job of generating and funding agencies and organizations that provide scientific data regarding Florida’s coral reefs. The data collected by the collaboration of scientists and community members is relevant for Florida as well as coral reef observations world wide. The funds granted by the government to these subnational organizations and agencies has led to an abundance of reliable, peer-reviewed data that could lead to well supported rules that focus on liability.

However, rule-making has not happened. While the data on coral reef decline has been collected, there is little to no enforcement of accountability at the federal level for damage to coral reefs. Although this may prove difficult, it would be greatly beneficial to have minimum “bright line” standards regarding interactions with coral reefs that were applicable to all United States coral reefs. Examples of these standards could include limits on tourism, limits on commercial fishing, restrictions on areas of travel where coral reef is found, establishment of a water patrolling sector at state levels, and stricter fines for damage. States could be free to enforce higher standards, but would have to at least abide by these minimums.

The federal government (in conjunction with states such as Florida) could cover more corals under the Endangered Species Act. Florida has eleven common corals in its reefs, but only two are protected under the ESA.[19] Thus, despite an initial push back from states, enforcing more accountability through regulations and the Endangered Species Act would likely produce greater results in the protection and conservation of United States coral reefs, including those in Florida.

The state level protection of coral reefs is also flawed. The subnational level lacks enforcement of accountability as shown in Florida’s Coral Reef Protection Act. It would behoove Florida to adopt a stricter enforcement of accountability similar to those recommended for the federal level. This is especially convenient, plausible, and beneficial at state and local levels because of their access to the source of the problem (i.e., the alleged damages to the coral reefs).

Although Florida addresses the protection of coral reefs in state law, that law lacks strength in enforcement and violator accountability. The Florida Coral Reef Protection Act brings various civil charges against those who damage coral reef based upon: (1) whether it is a first offense, and (2) the area of reef damaged. While this fee schedule is seemingly adequate, what is worrisome is that the burden is on the violator to report themselves. In essence, the fishermen, boaters, divers, and all others who may damage the coral reefs must police themselves.

While the numerous agencies and organizations in Florida provide useful data, mapping, and pollution control measures, they all lack enforcement and accountability. Many of the local groups, although they are able to keep a watchful eye on the reefs, are unable to enforce the protection of them adequately without support from the government (both financially and through agency creation). Consequently, the state and local organizations in Florida are valuable in that they provide relevant scientific knowledge of the coral reefs, but there remains a serious lack in accountability measures at the state level in actual protection of the coral reef.

Both environmental federalism and state government action are crucial in the documentation of the decline in Florida’s coral reefs, but both national and subnational governments lack enforcement of accountability. This disparity is particularly apparent when comparing environmental federalism and state government action in Florida. Although many of Florida’s state agencies and organizations are successful in the production of relevant scientific data concerning the coral reefs, they do so with funding by the federal government. Equally, environmental federalism alone is valuable but also lacks the force of liability. Thus, both environmental federalism and state action are adequate means of protection for the coral reefs in Florida, but a disparity of how to place blame on those who do damage corals could hinder those protective efforts.

Charlee Fox is a graduate of Wake Forest University School of Law. She is a federal judicial clerk for the United States Court of Appeals.

References

[1] Coral Reef Destruction and Conservation, Texas A&M University, available at http://oceanworld.tamu.edu/students/coral/coral5.htm.

[2] The National Action Plan to Conserve Coral Reefs, United States Coral Reef Task Force (March 2, 2000), available at http://www.coralreef.gov/about/CRTFAxnPlan9.pdf.

[3] See USCRTF, supra note 2.

[4] Florida’s Coral Reefs, Florida Department of Environmental Protection (July 19, 2011), available at http://www.dep.state.fl.us/coastal/habitats/coral/.

[5] Coral Reefs Support Jobs, Tourism, and Fisheries, Florida Keys National Marine Sanctuary (Dec. 8. 2011), available at http://floridakeys.noaa.gov/corals/economy.html.

[6] Adam Liptak and Coral Davenport, Supreme Court Deals Blow to Obama’s Efforts to Regulate Coal Emissions, The New York Times, Feb. 9, 2016, http://www.nytimes.com/2016/02/10/us/politics/supreme-court-blocks-obama-epa-coal-emissions-regulations.html?_r=0.

[7] H.B. 1423 (2009).

[8] This workshop focused on four areas: (1) land-based sources of pollution, (2) fishing, diving, etc., (3) awareness and appreciation, and (4) maritime industry and coastal construction impacts. These projects provided valuable maps, scientific data and social perceptions on reef conditions, best management practices for artificial reef siting, construction and anchoring, and educational products that promoted awareness of Florida’s coral reefs. See http://www.dep.state.fl.us/coastal/programs/coral/documents/2006/LBSP/23May/02-SEFCRI_Update.pdf.

[9] Questions & Answers About the Coral Reef Protection Act of 2009, Dept. of Envi. Protection, available at https://www.dep.state.fl.us/coastal/programs/coral/pub/Coral_Reef_Protection_Act_Q&A.pdf.

[10] H.R. 1423 § 403.9335(2) (2009).

[11] H.R. 1423 § 403.9335(3)(C) (2009).

[12] It should be noted that this definition of “coral reef” is more narrow the definition provided by EO 13089.

[13] Coral Reef Evaluation & Monitoring Project, Fish and Wildlife Conservation Commission (2009), available at http://myfwc.com/media/1253152/2009_cremp_final_report.pdf.

[14] Coral Disease Summary, Fla. Dept. of Envi. Protection (Oct. 2015).

[15] Southeast Florida Action Network, Fla Dept. of Envi. Protection (May 25, 2014), available at http://www.dep.state.fl.us/coastal/programs/coral/seafan.htm.

[16] Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 Md. L. Rev. 4, 34 (1995).

[17] 45 Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. Rev. 663, 720 (2000-2001).

[18] Summary of the Toxic Substances Control Act, EPA (Nov. 16, 2015), available at https://www.epa.gov/laws-regulations/summary-toxic-substances-control-act.

[19] Coral Species Profiles, Florida Museum of Natural History, available at https://www.flmnh.ufl.edu/southflorida/habitats/corals/species-profiles/.

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s