Striking the Maritime-Environmental Balance

Anthony “Anton” DeStefano
It is necessary and difficult to balance public interests with the needs of lawful commerce.

It is necessary and difficult to balance public interests with the needs of lawful commerce.

Thomas Winz via GettyImages

Judge advocates (JAGs) in the US Coast Guard serve a unique function among the US Armed Forces. They represent an Armed Force that is also a law enforcement and regulatory agency tasked with preserving maritime safety and security in US and international waters. As a JAG at an operational district in New Orleans and later at the Office of Maritime and International Law in Washington, DC, I found myself engaged in regulatory and enforcement matters regarding commercial shipping. As a young attorney, I learned two critical lessons: (1) the need to balance the public interests with the needs of lawful commerce; and (2) the difficulty of striking that balance. This article offers the upshots from my experience advising marine inspectors and working with the Department of Justice (DOJ) prosecutors to enforce vessel pollution laws for more than 20 federal criminal cases.

Federal attorneys are mindful that effective enforcement is critical to ensuring a level playing field for regulated shippers. The shipping industry is keenly aware that between 2 and 9 percent of a ship’s operating budget goes toward environmental compliance. Most companies willingly comply because following the law provides certainty. Yet, studies consistently show that roughly 8.5 percent of ships have a culture of noncompliance, dumping illegally to defray costs. Casual enforcement risks putting the law-abiding shippers out of business in a race to the bottom. The environmental consequence would be significant; errant vessels introduce an estimated 31 percent of oil and 20 percent of plastics into the ocean.

Marine inspectors employ their expertise to enforce technical regulations. In contrast, I found the federal attorney’s role is to help fashion a holistic, balanced enforcement regime. Environmental statutes strive to prevent violations at their source. Graduated enforcement seeks fair accountability while avoiding crushing liability. At the lowest end, international and federal laws prescribe regulations, such as mandating pollution control equipment and recordkeeping. Next, administrative controls are available to stop pollution. For instance, the Coast Guard may detain ships presenting a substantial environmental danger. Civil penalties offset the economic benefits of noncompliance. Finally, criminal prosecution addresses culpable violators (e.g., those who intentionally discharge pollutants and falsify records). Conviction typically includes the installation of new equipment and court-monitored corporate compliance plans. With the DOJ, I would write and oversee those plans valued at tens of millions of dollars.

These laws facilitate commerce by reducing unnecessary delays at port. Generally, under international and federal regulations, routine inspections of visiting foreign ships are limited in scope unless there are clear grounds of a violation. This avoids time-consuming stem-to-stern inspections. Even ships in violation may post a bond permitting the ship and its cargo to depart in lieu of delays awaiting a trial that may take months. As a JAG, I would frequently negotiate bonds of millions of dollars.

Federal attorneys cooperate with a host of various interagency partners given the complexity of regulatory and enforcement matters. Enforcing vessel pollution requires interagency coordination with the DOJ for prosecution, the Department of State for foreign affairs, and Customs and Border Protection for border issues. DOJ prosecutors rely on JAG to write briefs for intricate maritime laws. As a JAG, I advised and appeared with DOJ litigators in various district courts and the Court of Appeals for the District of Columbia.

Consistent with the integrity of investigations and internal deliberations, federal attorneys must be transparent with the regulated communities. Enforcing agencies promulgate regulations and post manuals on procedures to avoid a gotcha-game and to promote fact-based responses. As a JAG, I would work on cases where companies voluntarily disclosed infractions to promote timely remediation. At public conferences, I would explain the Coast Guard’s goals of ensuring a level playing field for a law-abiding industry.

The core attributes for federal attorneys working in this area are temperance and patience. This bedrock protocol is memorialized in Alexander Hamilton’s admonition to the Revenue Cutter Service, the forbearer to the modern Coast Guard: “[s]ome mariners will dislike their duties . . . [but officers should] strive to overcome difficulties by a cool and even-tempered perseverance . . . using conversation and moderation, rather than anger and violence.”

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Anthony “Anton” DeStefano is a judge advocate and lieutenant commander at the Coast Guard Legal Service Command in Alameda, California. He may be reached at anthony.m.destefano@uscg.mil. The views expressed are those of the author and are not to be construed as expressing the views of the United States, the Department of Homeland Security, or its agencies.