In a recent research report published by Ashwin Murthy, Korey Silverman-Roati and Romany M. Webb from the Columbia Law School, Sabin Center for Climate Change Law, the US legal frameworks for the governance of Ocean Alkalinity Enhancement (‘OAE’) has been investigated, which necessitate the diffusion of ground alkaline rock on water surface and the application of electrochemical reactions so as to raise ocean alkalinity.
At the federal level, there is no law that is exclusively dedicated to the governance of OAE. That said, a number of federal environmental laws can apply to the OAE projects depending on factors such as the location of the project, the activities that are carried out as part of the project as well their effects. However, the determination of the manner in which federal laws apply to a given OAE project as well as the implications of such laws upon the state autonomy to regulate can give rise to complexities.
To ascertain the extent to which federal laws trump state laws governing OAE activities, the researchers have examined three federal laws that are of particular relevance: i) the Marine Protection, Research and Sanctuaries Act (“MRPSA”); ii) the Clean Water Act (“CWA”) and iii) the Rivers and Harbors Act (“RHA”).
The MRPSA, which lays down rules concerning the release of waste to oceans, applies to projects that are carried out through the adoption of the mineral-based approach and utilization of vessels. The projects falling within the scope of the MRPSA can only be carried out upon the obtainment of a permit issued by the federal government, obstructing state authority to approve OAE projects. That said, once approved by the federal government, states can regulate certain aspects of the OAE projects.
The CWA that sets rules regarding water pollution may apply to certain projects adopting the mineral based and electrolytic approaches and provides states with a wider regulatory autonomy compared to the MRPSA.
The RHA governs waters that are suitable for navigation and may apply to the objects that impede their use that are utilized by those that engage in OAE. The RHA limits the authority of states to grant permission to OAE projects falling within its scope.
Issues that have not been covered in the report and will be explored later pertain to the regulation of OAE by various states and the extent to which the rights of tribal groups and local communities impact the regulation of coastal waters.
Read the full paper here: State Authority to Regulate Ocean Alkalinity Enhancement