DEPARTMENT OF PUBLIC POLICY

POL 663: Ocean Policy and Law

Lecture 1: Introduction to the Course Overview of Policy Analysis Applied to Ocean Issues Introduction
This is a course that focuses on ocean and coastal policy. What this means is that we are looking at policy development through a lens of special legal frameworks that apply to large water bodies.1 In other words, we are trying to understand how special legal rules (special because many of them apply only to the oceans) influence the development, implementation, and evaluation of policy issues surrounding the ocean environment. Consider the following diagram as a representation of these different geographical areas of the coast and ocean:

The term water bodies as used here generally refers to the ocean and, in the United States, also to the Great Lakes. For ease of understanding, the term ocean may be used to refer to both kinds of water bodies, whether fresh or salt water in origin.

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In the diagram we see a variety of physical property locations, some of which are land based, some of which straddle between land and sea, and some that are wholly located in the ocean. Depending on what area we are discussing in particular, there are different legal frameworks that can apply. For example, laws dealing with the development of entirely dry land may have requirements that are different from laws that apply to development of unimproved land that is near the ocean (say within so many feet of a coastline). The reasons for these differences can span from the protection of human health and safety to the protection of natural resources connected to the environment (habitat for rare and endangered species as one example). In addition, laws may be developed that are forward-looking and limit coastal land in order to protect against a future threat, such as sea level rise brought on by climate change.2 The creation of coastal and ocean laws are connected to the physical locations of the property in question. For example, if we wanted to site a wind turbine in the waters off of the immediate coastline of the United States, our ability to do so will be impacted by precisely where we choose to site the turbine. If we are within 3 miles of the coastline, then we are likely in state water jurisdiction, meaning we have to comply with state regulatory requirements dealing with the actual placement of the turbine. However, if we are beyond 3 miles offshore, then we are likely only required to deal with federal regulatory requirements. A more extreme example may occur where federal and state interests diverge, such as through the permitting of an offshore oil and gas facility in federal waters that may have the chance of impacting state waters. While the federal government may have the right to utilize waters within its jurisdiction in this manner, that right may be limited by prior agreements between the federal government and coastal states where the federal government has pledged to protect certain coastal state interests and the development of oil and gas offshore may have a reasonable probability of impacting these interests. These questions of federalism highlight yet another important area in understanding the relationships between policy and law that are dependent on location.

It may be that laws are created from a proactive standpoint based on policy directions to adapt to future events, such as sea level rise. In such cases these laws might place limitations on the current use of land (for example, prohibiting development) in order to protect against a future potential harm that might arise on that land (inundation by approaching seas). This may make perfect sense for those of us who believe in policy being used to protect against future threats, but we may find such approaches impinge upon firmly established rights of citizens in the use of their private property: in this case the 5th Amendment of the United States Constitution prohibiting the government from taking private land (including through regulatory actions) without a public purpose and, where a public purpose is shown, without paying just compensation.

Page 3 of 11 We will be discussing a great deal of issues that arise in the coastal and ocean context in this course. However, the context for discussing these issues will adhere to the following conceptual format: We start with understanding the policy picture presented in the subject being discussed or issue being analyzed. Once we understand the policy context, we move on to a discussion of the legal frameworks that apply to the policy question. Without knowing the legal frameworks, we are naked in understanding the potential implications of our proposed policy directions (or in evaluating an already undertaken policy direction). With the policy picture and legal frameworks understood, we then apply analytical tools to the picture so that we might gain a greater sense of understanding about the issue. These analytical tools are ways of understanding and interpreting issues from the policy context. They may include such things as alternatives analysis, benefit-cost analysis, cost effectiveness, and so on.

Most of our interactions in this course will be focused on the first two bullet points above, understanding the policy picture and the legal frameworks. We will get into the analytical review of ocean policies, but this review will be limited to the degree in which we have co-opted such analytical tools from the readings and discussions.3 The goal is to provide each of you with a solid foundation upon which you can understand the major law and policy issues that relate to our oceans and coastal regions. From this starting point you will be equipped to handle a variety of questions, both conceptual and applied, in this field. To being, we look more closely at the introductory materials with a focus on understanding the larger policy context in which ocean law and policy issues arise.

Christie Introductory Materials

As you may have discerned from the introductory materials in the Christie text, there has been a lot of state and federal interaction in the area separating land and water since the 1960s (and actually quite a bit of time before).4 One thing you might get out of these
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There is insufficient time to develop the different analytical tools available in policy and legal analysis that might apply to this course. However, a number of the readings in the course make application of such tools and can be co-opted for this purpose. In addition, students who have (or will) take POL562 (Environmental Policy) will have policy related analytical tools to apply, while students who have taken POL661 (Environmental Law) or POL611 (Administrative Law) will have legal analytical tools developed that can be applied to this course.
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A number of concepts we will be discussing this semester, particularly in relation to the legal doctrines that help to define legal relationships between land and water are derived from Roman legal doctrine that has been inherited through English common law

Page 4 of 11 materials is the need to differentiate between state and federal jurisdiction. This requires some understanding of federalism, a concept that focuses on the power sharing between the states and federal government with respect to the ability to occupy areas of law. We actually discuss this concept in some detail in the Environmental Law course (POL661), and I will borrow some materials to help make the point. The main document regulating power sharing between states and the federal government is the United States Constitution. Under the U.S. Constitution, federal government has a number of enumerated powers (literally powers that are explicitly stated in the words of the Constitution, like the powers to tax and raise and army), while the state has reserved powers under the 10th Amendment. These reserved powers are generally referred to as police powers (the power to regulate the health, safety, and welfare of the citizenry). When Christie mentions the establishment of federal policies (like the creation of the Coastal Zone Management Act as a result of the Stratton Commission report), she is discussing a shift in coastal resource management from state control to federal control. Now, that shift has not been easy for the federal government, mainly because the state has strong constitutional rights (via the 10th Amendment) to regulate coastal areas. However, through the power of the purse (Spending Clause), the federal government has found ways to entice state governments into creating federally accepted plans for managing coastal areas. Thus, where the federal government is able to directly control coastal resources under existing legal frameworks (and limitations), it tends to engage in such controls. However, where the federal governments right to control areas of land and water near the coastline is limited due to constitutional constraints, the federal government tends to need additional means by which to adopt policy directions. The means by which this is done gets us squarely into questions of policy development (strategic thinking) and alternatives analysis (if we can accomplish a task two different ways, is there a superior option between the two?). A clear example of creating incentives as a means of achieving a policy goal was seen in the creation of the Coastal Zone Management Act (CZMA) in 1972. The federal government wanted coastal states to develop coastal management plans that conformed to certain national standards (remind anyone of education policy in the U.S.?). However, the federal government could not simply mandate states create such plans because they would impede traditional state powers under the 10th Amendment. Thus, the feds needed an indirect way of getting states to create such plans. The method finally chosen by Congress was to create a financial incentive (remember Congress does have the power of the purse through the Spending Clause) by financing the creation and implementation of state plans that conformed to national standards. In addition, Congress created an additional enticement of deference: when federal activities might have an impact on an

tradition to our own legal traditions in the United States.

Page 5 of 11 approved coastal management plan, the federal government must review their conduct and, to the extent practicable, diminish the impact on the identified state coastal priority.5 The example of the CZMA provided immediately above helps us better understand the role legal frameworks play in policy at all levels: development, implementation, evaluation, etc. We will constantly be using this conceptual distinction as a means of understanding the law and policy connection as applied to ocean and coastal resources. Of course, in order to make this distinction we need to have some understanding of policy itself, and that understanding comes in large part from the Stone reading.

Stone: Goals of Policy

The Stone reading has been given to introduce each of you to concepts of policy from the perspective of goals. In its simplest form, policy is about achieving some kind of goal. For example, we have a general policy of private ownership of land in this country. This overarching policy goal is supported through a variety of public and private policy mechanisms. There are government funded, subsidized, and operated programs that aim to help people gain homeownership (HUD, Fannie Mae, Freddie Mac, etc.). In addition, our tax code contains provisions that favor private home ownership (the deduction of interest paid on a home loan is a prime example). There are other sub-policies that help to achieve this larger policy goal: government subsidies for development, infrastructure, and insurance are additional examples. The point is that we can often understand the purpose of policy through a close examination of goals. Stone discusses policy goals in about as simple a manner as possible, with excellent examples. As you move through the materials, try and think about how these laws (as they are presented) are being used to implement a particular goal. (If you really want a challenge, after you have determined the particular policy goal, try and determine if that goal is actually being met, or if there is an easier way of meeting the goal many times there is!). To aid you in doing this, I will either: (1) remind you of the policymaking process (if you have already taken POL 500); or (2) introduce you to the concept if you have not (and so you will have a leg-up if and when you take that particular course)! Below is a summary of the policymaking process for your review and understanding:

This deference to approved state coastal management plans is sometimes referred to as a federal consistency provision, meaning the federal government, in many instances, might alter or halt otherwise legitimate federal actions that can have an impact on state coastal resources under the CZMA. For a more detailed (early) look at this interaction between state and federal interests under the CZMA (to place the abstract into context) please see the following article: http://works.bepress.com/chad_mcguire/34/

Page 6 of 11 In summary, the model moves through a chronological progression from Agenda Setting to Policy Change. The purpose of this model is to help us conceptualize the steps involved in the policymaking process. One important point to remember: since this is a conceptual model, it does not always represent the actual manner in which policy is made. However, from an academic standpoint, this model can help us think about the policymaking process in general, and may also offer insights into where problems might arise (outside influences through the political process, special interests, lack of scientific consensus, market forces, etc.). So, let us look at the Policy Process Model and see if we can make conceptual sense of what is going on. Policy Process Model (components): Agenda Setting o This step explains the process whereby a problem has been identified (let us stick with climate change), and a decision has been made to do something about the problem (humans have actually come together and identified the need to do something, instead of simply letting nature take its course). o We may stop and consider what factors can influence this initial stage of the process? Sometimes, there is an acute catastrophic event, like the Exxon Valdez Oil Spill that occurred in Alaska in the late 1980s, Chernobyl, Deep Horizon Oil Spill in 2010, or the Japanese Fukushima nuclear event in 2011. These events have all led to new ways of doing things the specific event triggered the policy making process. For example, Exxon led to new regulations on the hull design of oil tankers geared towards greater stability and strength. o Other times, there is no single event, but rather a number of small events that culminate over time. Climate change, which has been an issue on the public radar for decades is one example of a policy making process that is proceeding slowly, gaining some momentum as more information linking the problem (and maybe more importantly impacts) to human activities. As the information improves on the causes of climate change, and likely as the impacts become more costly, there may be a tipping point reached where there is consensus something must be done, leading to concrete movements in favor of action. Policy Formulation o Formulating policy alternatives is at the heart of policymaking. Think of it this way: once a problem has been identified, potential courses of action to deal with the problem necessarily have to be formulated. This is the work of the policy analyst; armed with scientific and socio-economic information, the analyst crunches the data to develop a list of alternative

Page 7 of 11 actions. The analyst might even rank the alternatives based on a stated preference, but the actual choice of alternatives is generally left to a public official. o The process of analyzing different approaches to a defined problem is, collective, policy formulation. The analyst is aggregating information from various sources to gain a sense of how the problem is occurring, and with this information what might be plausible ways of addressing the problem. Since this stage is critical in setting up the next stage, legitimization, the analyst must be particularly careful in choosing the alternative approaches. Moreover, it may be that the superior approach is not necessarily the most efficient (think cost savings) or sustainable (think green or ecosystem protections), but rather the option that is most likely to receive enough votes to get passed in the legislature.6 Policy Legitimization o This is very much a political part of the policy process, generally where politicians and interest groups engage in lobbying to favor one alternative course of action over another. The reasons for favoring a given alternative are as varied as the interests at stake. For climate change, oil and coal producers may seriously disfavor an immediate halt on hydrocarbon use. The reason? Such a policy response may put them out of business (or at least make their business environment more competitive). Environmental groups might favor harsh reductions because this is in-line with their goals. Auto manufacturers might favor a policy of voluntary measures at improving fuel economy as opposed to federal law that mandates improved fuel economy. o The legitimization prong of the process is important because it usually has a lot to do with what policy actually gets adopted. Moreover, this is the critical stage where the acceptable goal from a political standpoint may deviate from the original goal of the intended policy. Because of the various influences impacting elected officials, the manner in which policy alternatives are finally chosen can vary from the original intention of the policy in the agenda setting and policy formulation stages. To link this point to Stone, we may find that what ends up filtering its way to this stage of the process ends up looking a bit different at the output then it did at the

This presumes the policymaking process goes through legislative adoption. Many policies are developed that do not require legislative approval. However, it is critical to understand that policies requiring such approval must be considered in light of political circumstances (where the makeup of the legislative body matters influences, biases, current economic conditions, etc.).

Page 8 of 11 input (what goes in is not precisely what comes out). o Also, remember, while you may think such a process seems unfair because it may give one group more say than another, it actually is quite the democratic process, because those who vote on a policy (politicians) are being influenced by various groups with varying interests, likely at least one such group carries an interest that conform to your personal thinking. Policy Implementation o Once you have legitimized a policy, it is only as good as how it gets implemented. Mexico is known for having some of the toughest environmental statutes of any country they have on the books some very tough policies protecting against environmental harm. However, its environmental record of enforcing those policies is less than stellar. How can these two facts be reconciled? Simple: the statues in Mexico are rarely enforced, or to use another word, implemented. Through this example, we should clearly see how implementation is a critical component of the policy process. Not only is implementation important to ensure the policy is properly enacted (i.e., it is attempting to do what it was promised to do), but it is also important when the time comes to evaluate the policy, to actually see if the policy was effective at solving the problem it was supposed to fix. Policy and Program Evaluation o This is the logical step where a policy is reviewed to determine if it is actually doing what it is suppose to do. For many federally funded programs, this task goes to the U.S Government Accountability Office (GAO). At the GAO website you can find reports on numerous government projects (policies) attempting to determine whether the program is effective.7 If you had both the time and inclination, then you could scour the site to find reports through its index that do nothing but evaluate federal programs meant to achieve certain policy goals. For example, Statute X is intended to improve water quality in a certain bay. It intends to accomplish this goal by spending money (appropriated by Congress) in certain ways to fund studies and outcome-based solutions. From this starting point (premise) the report attempts to evaluate if the stated goals of the policy have been met. This is an example of where a government office is attempting to ground truth the spending of taxpayers money by evaluating policy goals and actual outcomes (are the outcomes helping to achieve the original stated goals?).

http://www.gao.gov/index.html

Page 9 of 11 o Many government entities function solely, or in part, as evaluators of existing policy. In addition, many private groups and individuals also engage in policy evaluation. Policy evaluation can occur after the policy has been implemented, but also before (with less certainty); for example, a proposed policy direction (alternative) can be assessed with certain assumptions in mind to determine if the alternative is cost effective or otherwise superior to other alternatives in some way. This kind of analysis is more of a forecasting because it judges the policy prior to its enactment, making certain assumptions in its evaluation. One point to remember here is that there is a difference when reviewing a proposed policy before implementation, and reviewing a policy after it has been implemented. The degree of accuracy will likely increase when reviewing an existing policy rather than a proposed policy. Policy Change o When a policy has proven ineffective (or is not performing as well as the decision maker had hoped), there is the need for change. Policies can be changed in several ways. The policy can receive a new objective, new goals, reduced funding, or be completely scrapped. Some may remember the Star Wars program initiated by the US Government; a strategic defense system that would use satellites and lasers as a means of protecting the U.S. from intercontinental missile attack. Such a program represents an example of a policy that was changed due to many causes (technological issues, collapse of Soviet Union, etc.). o Many policies are subject to change based on a variety of criteria. For example, climate change is receiving renewed interest globally due to recent scientific information, and strong episodic weather events (melting of polar ice caps, Hurricane Katrina, Super Storm Sandy of 2012, etc.). A subset of climate change, sea level rise, is also causing a change in policy direction with respect to coastal land use practices; new and updated information is helping to inform current policy and provide for changes to new policy directions. To further aid in understanding the concepts discussed, a visual example of the policymaking process as described above, focusing on the environmental field (ecosystem-based management) is presented here:

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You can see the policymaking process applied here through the steps indicated. The development of a new management plan represents the agenda setting, formulation, and legitimization stages of the process.8 Plan implementation represents the implementation stage, evaluation the evaluation stage, while the learning and adapting aspects represent the policy change stage. This kind of iterative process of trying a policy strategy and then learning from that strategy is often referred to as adaptive management. In this course, we will be seeing how government actors are constantly attempting to adapt strategies to meet policy goals. What is interesting is that we are studying a very dynamic environment in the coastal zone. As we observe the planned changes to policy directions in the area where water meets land, we must take time to understand the impact legal frameworks have on this process; the impact the law has on the capacity of government to adapt to the changing ocean and coastal environment and our planned interactions with that environment. As a final note: those who know me, and my work, may know that I am not a huge fan of defining policymaking as a linear, sequential process. Indeed, I personally believe (especially in the field of environmental policy), that policy moves in fits, or
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Remember, not all policymaking goes through a legislative process. For example, agencies of government often are delegated the responsibility for developing policies to implement legislative intent (The Clean Air Act, a federal law, delegates the responsibility details of cleaning the air to the Environmental Protection Agency, which engages in the creation of policy through rulemaking as a means of carrying out this larger policy goal).

Page 11 of 11 punctuations, where large changes are seen occurring in-between long periods of stability. Those who are interested in how this theory may be applied in the marine environment (or other areas) are encouraged to contact me independently.9 However, you can otherwise rely on this process as a decent framework for analyzing marine policies in context. END OF SECTION.

For an example of what I mean here, please see the following: http://works.bepress.com/chad_mcguire/31/