In response to the growing demand for unbiased answers and analysis on how deregulatory initiatives by the new Administration and Congress will impact environmental protection, governance, and the rule of law, the Environmental Law Institute (ELI) has released Regulatory Reform in the Trump Era. The report explains the legal mechanisms and processes that may get deployed, how they work, and the effect on the current regulatory landscape. It responds to the questions that are increasingly being asked of ELI: What are the pathways and impacts of regulatory reform efforts likely to be undertaken? What are the opportunities for the public and other stakeholders to engage relative to reform initiatives?
Governance and Legal Frameworks
In 2004, the UN General Assembly resolved to establish a working group to consider issues pertaining to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ). The group met nine times between 2006 and 2015 before concluding its mandate by recommending the development of an international legally binding instrument on BBNJ under the United Nations Convention on the Law of the Sea. Based on in-depth interviews with working group participants, this research examines how NGOs contributed to the working group process. Respondents from government delegations highlighted the usefulness of workshops and side events convened by NGOs, and the role of NGOs in bringing experts on technical issues – particularly marine genetic resources and the sharing of benefits – into the BBNJ negotiations. Respondents from both NGOs and government delegations emphasized the importance of fostering personal relationships in order to ensure a steady and constructive information flow. Social media efforts by NGOs were considered by some government representatives to have occasionally hampered open discussion, although they noted that conditions have improved. The lengthy working group process was marked by substantial fluctuation in participation, particularly within government delegations from developing states. Of 1523 individuals who participated in at least one of the working group meetings, only 45 attended more than half of the meetings, and 80% of these were representing NGOs or highly industrialized countries. Respondents felt that this comparatively small number of individuals provided a source of continuity that was crucial for moving the discussions forward.
Guatemala's rich coastal and marine biodiversity provides essential ecosystem goods and services to local residents and the national economy through artisanal and commercial fisheries, aquaculture, port exports and, to a lesser extent, tourism. As in many other countries, national policies emphasise the significance of marine conservation and marine resources, primarily through implementing marine protected areas (MPAs). However, this assumes that governance, as reflected in legal, institutional and organizational frameworks, political capacity and human resources is sufficiently developed to ensure MPAs meet these goals. These issues are explored through presenting the first detailed analysis of coastal and marine governance in Guatemala. The research highlights a range of barriers to good governance which restrict the extent to which MPAs can function effectively. Recommendations are made which can capitalise upon the potential for locally managed marine areas as a means to facilitate the improved governance of coastal and marine resources in Guatemala.
In 2016, countries began meeting at the United Nations (UN) to prepare for negotiations to develop an international legally binding instrument on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (ABNJ). How the instrument will relate to submarine cables, if at all, remains to be decided. The preparatory committee will address a “package” of issues, among them the application of area-based management tools, including marine protected areas (MPAs) and environmental impact assessments (EIAs) to activities in ABNJ. EIAs and MPAs already affect submarine cable operations in national jurisdictions. In ABNJ, a new instrument should formalize a cooperative framework with the cable industry to provide limited environmental management where necessary without over-burdening cable operations. This approach would be consistent with the UN Convention on the Law of the Sea and could also inform governance with respect to other activities likely to be benign in ABNJ.
Because seas and coastlines are shared between states, the formulation and implementation of marine spatial planning (MSP) should be transboundary by nature. The main argument of this paper is that MSP should be organized as a transboundary policy-making process, but this is hampered by the conceptual and institutional fragmentation MSP is facing. Based on an analysis of four transboundary planning processes in different European seas, the paper gives insight into the possibilities to develop and implement transboundary marine spatial planning (TMSP). To overcome the conceptual and institutional challenges, TMSP should be developed as a reflexive governance arrangement, in which the actors involved are able to change the rules of the game and to challenge the existing (national-oriented) MSP discourses. The paper develops four forms of reflexivity (unreflectiveness; performative reflectiveness; structural reflectiveness; and reflexivity) to assess TMSP processes and to formulate conditions which are crucial to develop TMSP as a reflexive marine governance arrangement.
This paper presents a preliminary attempt to estimate the awareness and value that society gives to the maintenance and protection of marine protected areas, linking the ecological and economic value scale assigned to the study. To accomplish this, we took as illustrative example the Biophysical Interest Zone of Avencas (ZIBA), in Portugal. The ZIBA spans over one ha and its coastal ecosystems present a very rich biodiversity, providing several socio-economic opportunities to society. To estimate the value that society attributes to this area we conducted a contingent valuation exercise, considering two different aspects: 1) the direct economic value that people state to conserve the ecosystem and 2) the willingness to contribute through the allocation of hours of voluntary work to its conservation. The values obtained indicate the dependence and importance of this ecosystem to local population (willing to pay to conserve it of 60 € per household per year and willing to give 3 h of voluntary work per year). The proximity of the local population to the protected area increases the willing to pay for its conservation; this could reveal a good local indicator of ecosystem valuation. This valuation exercise highlights the importance of coastal ecosystem services to society and draws attention to the benefits that local populations derive from those systems. These results have also implications in future governance actions regarding protected areas, as well as to justify for sustainable investments in coastal management efforts, to sustain the flow of coastal ecosystem services for current and future generations.
Recent additions to marine environmental legislation are usually designed to fill gaps in protection and management, build on existing practices or correct deficiencies in previous instruments. Article 13 of the European Marine Strategy Framework Directive (MSFD) requires Member States to develop a Programme of Measures (PoM) by 2015, to meet the objective of Good Environmental Status (GES) for their waters by 2020. This review explores key maritime-related policies with the aim to identify the opportunities and threats that they pose for the achievement of GES. It specifically examines how Member States have relied on and will integrate existing legislation and policies to implement their PoM and the potential opportunities and difficulties associated with this. Using case studies of three Member States, other external impediments to achieving GES are discussed including uses and users of the marine environment who are not governed by the MSFD, and gives recommendations for overcoming barriers.
The overarching goal of Ecosystem Based Management (EBM) is to sustain the long-term capacity of marine ecosystems to deliver a range of ecosystem services (ES). Marine Protected Areas (MPAs) can be considered as a part of the efforts made towards EBM focusing in area planning. The implementation of MPAs with the objective of assuring the flow of ES and its benefits towards society is currently in its initial stages due to lack of specific information about the operation and value of the ES offered by MPAs. In Mexico, MPAs represent one of the main conservation and management tools of the territory and its resources. In order to identify the level of legal protection of ES provided by the federal decrees that create MPAs, in this article we present as a case study the analysis of the specific protection of ES in MPAs in this country. We compiled the creation decrees of the 66 Mexican MPAs. Our analysis adopted three perspectives: ES explicitly mentioned in the decrees, ES indirectly mentioned in the decrees, and ES actually present in each MPA. The analyzed MPA decrees recognize that these areas provide four types of ecosystem functions (provision services, regulation services, support services, and cultural services). Of all existing Mexican MPAs, more than half of them (54.5%) have decrees of creation in which an ES is directly mentioned as a cause of their creation. 39.3% of the MPAs decrees contain paragraphs or words describing an ES. All the MPA categories actually provide a larger number of ES than those mentioned or alluded to in official decrees. We conclude that although there are legal frameworks for the protection of specific elements of marine and coastal ecosystems, MPAs represent the legal tool allowing for their integration under the ecosystem approach. In the Mexican case, there are voids to be filled in order for MPAs to fulfill the function assigned to them by Mexican laws.
Mangrove forests have been considered as potentially suitable for PES, though few mangrove PES schemes exist worldwide, suggesting they - and the broader social-ecological and governance systems in which they sit - may not be as conducive to PES as first thought. This study assesses economic, social, and governance challenges to implementing PES in mangroves. It draws on empirical evidence from two prospective community-level mangrove carbon PES schemes in the Philippines, where fishing and aquaculture are major livelihoods. We conducted (1) policy reviews and interviews with local communities, government, and NGOs to investigate governability; (2) village income accounting to determine the extra income that participants could receive through PES; and (3) a choice ranking exercise to elicit preferences on how payments could best be spent to enhance participant wellbeing. The latter approach identifies key gender differences, and enables potential PES-induced social-ecological trade-offs to be pre-empted. Blue carbon PES can contribute an additional 2.3–5.8% of current village incomes, while villagers would prefer to spend the monies on more effective fishing equipment, which could perversely jeopardize fishery sustainability. To be most successful, coastal PES schemes in the Philippines need to be managed through a multi-level governance regime involving co-management and local participation.
The fishing industry has been facing problems related to catch yields, predatory competition and economic collapse. Management should be based on substantial scientific studies and the state's ability to implement these. In Brazil, the surface longline fishery has been in existence since the 1950s, and remains of great economic importance. This study analyzes 179 legal instruments (1934–2014), divided into restrictive, administrative and promotional, comparing with catches landed (1996–2011). The results show that there was a complete disrespect for the regulations, wherein fleets continued landing prohibited or size limited species, such as Kajikia albida, Makaira nigricans, Alopias superciliosus, A. vulpinus, Carcharhinus longimanus, Galeorhinus galeus and Xiphias gladius. Furthermore, divergent regulatory provisions have hindered understanding/implementation of regulations by all those involved. Being a country of continental proportions and with different longline fisheries along the coast, conducting scientific studies and the development of normative approaches becomes a huge challenge. In a dynamic activity such as fishing, the constant review of these regulations will allow fisheries management to become more accurate and in accordance with the aspirations of the different interests involved. Despite the surface longline fishery having operated for 60 years in Brazil, the existence of incongruous laws makes the management and control of this activity incompatible with the conservation of species. The lack of regulations governing this fishery creates a "gap", increasing the risk of extinction of species (target and bycatch) and the future collapse of this activity.