October 01, 2015

Literary Resources

JoAnne L. Dunec

BOOKS

Ocean and Coastal Law and Policy

Donald C. Baur, Tim Eichenberg, Georgia Hancock Snusz, and Michael Sutton, eds.
ABA Section of Environment, Energy, and Resources, Second Edition, 2015

With every drop of water you drink, every breath you take, you’re connected to the sea. No matter where on Earth you live. Most of the oxygen in the atmosphere is generated by the sea.
—Sylvia Earle, Oceanographer

The legal landscape is fluid. Never has there been a more important time in our society for attorneys who know and understand the complex laws governing ocean resources activities and for coastal zone management, here and abroad.
--University of Oregon School of Law

Ocean and Coastal Law and Policy is an excellent resource for understanding the complex array of laws and policies governing ocean and coastal resources. Spanning more than 800 pages, the newly updated, peer-reviewed second edition reflects the collective contribution of nearly fifty scholars and practitioners in the field.

The book opens with a chapter on national and international jurisdiction and boundaries. As noted by the chapter author, “[a] survey of ocean and coastal law begins with an understanding of national jurisdiction offshore.” Next, the sometimes controversial, Public Trust Doctrine is addressed, which as described by the chapter author, “springs from ancient law concepts that treated certain lands and waters as belonging to the public for public benefit—and therefore guaranteed public access and use.”

Ensuing chapters address the role of the states, regulation of coastal wetlands and other waters in the United States, as well as coastal development management. Federal laws, including the National Environmental Policy Act, Clean Water Act, Oil Pollution Act, Outer Continental Shelf Lands Act, Endangered Species Act, and the Marine Mammal Protection Act, as well as international laws are covered in several chapters. Fisheries management and trade in fish and fisheries products are also addressed.

Energy concerns are explored in chapters addressing oil spill liability and offshore renewable energy. In addition, a chapter is devoted to offshore mineral development, including changes in response to the Deepwater Horizon tragedy, although the chapter authors caution, “the Gulf Oil Spill has not seen its final chapter written or its fallout fully played out in the courts.”

Emerging ocean uses, including marine aquaculture (mariculture), liquefied natural gas, ocean carbon sequestration, bioprospecting, and exploitation of deep sea resources are covered. One of the final chapters explores “smart ocean planning.” The chapter authors introduce the topic as follows:

A variety of drivers, impacts, challenges, and opportunities surround the topic of coastal and marine spatial planning (CMSP) in the United States and Internationally, including those that emphasize economic, environmental, and social values. The nation’s economy, national security, public health, food, culture, and recreation all depend on a healthy ocean, and therefore the following discussion contextualizes CMSP using an assumption that ocean health is a foundational goal. In order to better understand the opportunities and challenges of implementing CMSP in the United States, this chapter describes how marine planning processes have been developed and implemented globally through a variety of both U.S. and international case studies. . . .

The concluding chapter explores reforms in U.S. ocean policy and law in response to calls for urgent action and describes the work of two national commissions, the independent Pew Oceans Commission and the congressionally established U.S. Commission on Ocean Policy, together with administrative and legislative response. “Our oceans are important to our livelihoods and our lives. As the U.S. Commission found,” notes the chapter author, “the U.S. ocean economy is larger than the entire farm economy and employs more people.” She continues, “[w]e need to continue to make progress in implementing the recommendations of the two commissions so that we have a healthy and productive ocean now and into the future.”

Principles of Caribbean Environmental Law

Justice Winston Anderson

Environmental Law Institute, 2012

Principle of Caribbean Environmental Law is a coursebook that has been described as providing:

the basic rules of governing the environment in the jurisdictions of the 15-member states of the Caribbean Community [and] undertakes a detailed examination of such specific topics as town and country planning, environmental impact assessments, pollution regulation, management of wastes, protection of endangered species and habitats, and coastal zone management.

Prior to addressing such topics, the first six chapters provide an introductory framework by exploring preliminary Caribbean environmental law, the relationship between international environmental law and the Caribbean environment, environmental law principles, the constitution and the environment, legislative regulation of the environment, and administrative environmental law. Property and tort law are also addressed in subsequent chapters. The coursebook concludes with a chapter on trade and environment.

PERIODICALS

Historic Preservation/Zoning

DeVoe, G. A., “A Tale of Two Cities’ Preservation Laws,” 50 Real Property, Trust and Estate Law Journal No. 1 (Spring 2015), “highlights the age-old struggle of weighing a city’s need for preserving its unique physical identity against its desire for economic development” according to the editor’s synopsis. The article, notes the editor, “examines key zoning law cases surrounding [New Orleans’ Vieux Carre and Charleston, South Carolina’s historic district] and suggests ways other cities can protect their distinctive identity.” According to author, Garreth DeVoe,

[a]n analysis of past zoning decisions of the New Orleans City Council and Louisiana courts reveals a widespread desire in Louisiana to preserve historic buildings. This desire becomes more apparent when contrasted with the case law of South Carolina, which demonstrates a desire for modern economic development at the expense of historic preservation.

DeVoe first provides the preservation legal framework for New Orleans’ Vieux Carre, also known as the French Quarter, which is “the oldest section of New Orleans . . . and has been considered the heart of the city’s expansive tourist industry for decades.” Comprised primarily of French or Spanish origin architecture, “[t]he protection of the Vieux Carre’s ‘distinctive charm, character, and economic vitality’ is,” according to De Voe, “embedded in the Louisiana Constitution,” which authorized the establishment of the Vieux Carre Commission (VCC) “to preserve ‘buildings in the Vieux Carre section of the City of New Orleans as, in the opinion of said Commission, shall be deemed to have architectural and historical value . . . for the benefit of the people of the City of New Orleans and the State of Louisiana.’”

The constitutional provisions, as amended, have been upheld in several cases described by DeVoe. “Further,” notes the author, “despite repeatedly—passed versions of the city ordinance laying out the specifics of the VCC’s functions, the modern ordinance has retained the same substance of authority as the original ordinance,” which includes upholding the historic preservation requirements of the Vieux Carre and review and permitting of exterior alterations and other improvements within the Vieux Carre.

“Similar to New Orlean’s French Quarter,” notes DeVoe,

Charleston has a historic residential area containing walled gardens, artistic gateways, and stately houses. Many of the structures predate the American Revolution, and the city may be called the cradle of history of South Carolina. Further the Charleston Historic District is a national tourist attraction because of its historic architecture.

The author also notes that “[t]he first historic preservation ordinance in the United States was passed in 1931 in South Carolina.” The law authorized the creation of a Board of Architectural Review, the purpose of which is “the preservation and protection of the old historic or architecturally worth structures and quaint neighborhoods which impart a distinct aspect to the city and which serve as visible reminders of the historical and cultural heritage of the city, the state, and the nation.”

However, unlike cases involving the Vieux Carre, through a series of “significant historic district preservation cases” described by DeVoe, the South Carolina courts have upheld variances from the related zoning restrictions. The author observes,

Louisiana courts have shown an increased willingness to preserve the historic architecture and pedestrian scale of the Vieux Carre of New Orleans while South Carolina courts have been less willing to preserve those aspects of the Old and Historic District of Charleston. This is likely the result of intuitively opposite policies used to encourage economic development. In historic preservation and land use cases, Louisiana courts repeatedly state that the uniqueness of the French Quarter as a whole contributes to the district’s status as an economic engine. On the other hand, South Carolina courts have emphasized the particular facts surrounding a potential economic development in land use cases to generally find in favor of, rather than restrain, development.

Although “South Carolina enacted historic preservation laws before Louisiana,” DeVoe concludes, “South Carolina appears prone to exempt specific properties at the risk of diluting its architecture.” Whereas, “Louisiana, for better or worse, recognizes its history as an integral part of its future.”

JoAnne L. Dunec

JoAnne L. Dunec is vice president and underwriting counsel at Old Republic Title in San Francisco.