DEALING WITH OCEAN ACIDIFICATION: THE PROBLEM, THE CLEAN WATER ACT, AND STATE AND REGIONAL APPROACHES

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1 DEALING WITH OCEAN ACIDIFICATION: THE PROBLEM, THE CLEAN WATER ACT, AND STATE AND REGIONAL APPROACHES Robin Kundis Craig * ABSTRACT Ocean acidification is often referred to as climate change s evil twin. As the global ocean continually absorbs much of the anthropogenic carbon dioxide produced through the burning of fossil fuels, its ph is dropping, causing a plethora of chemical, biological, and ecological impacts. These impacts immediately threaten local and regional fisheries and marine aquaculture and pose a longer- term risk of a global mass extinction event. As with climate change itself, the ultimate solution to ocean acidification is a world- wide reduction in carbon dioxide emissions. In the interim, however, the Center for Biological Diversity has worked long and hard to apply the federal Clean Water Act to ocean acidification, while states and coastal regions are increasingly pursuing more broadly focused responses to its local and regional impacts. This Article provides a first assessment of these relatively nascent legal efforts to address ocean acidification, concluding that ocean acidification should prompt renewed Clean Water Act attention to stormwater runoff and nutrient pollution but also that more comprehensive adaptation law and policy will become and increasingly necessary part of coastal state and regional responses to ocean acidification. I. INTRODUCTION Ocean acidification is often referred to as climate change s evil twin. 1 As a natural part of the Earth s carbon dioxide (also referred to as CO2) cycle, the * William H. Leary Professor of Law, University of Utah S.J. Quinney College of Law, Salt Lake City, UT. My thanks to the editors of the University of Washington Law Review for inviting me to contribute this article. I may be reached at: robin.craig@law.utah.edu. Electronic copy available at:

2 2 WASHINGTON LAW REVIEW [DRAFT world s ocean 2 has been absorbing much of the extra carbon dioxide that humans have been producing, especially since the Industrial Revolution and the large- scale burning of fossil fuels. 3 However, once absorbed into the ocean, carbon dioxide chemically reacts to form, essentially, carbonic acid 4 the same reaction that gives sodas both their fizz and their ability to dissolve tooth enamel. This acid- forming reaction is lowering the ocean s ph. 5 The result, potentially, is world- wide marine ecological havoc. 6 Most life on Earth is sensitive to small changes in ph. In humans, for example, a change in blood ph outside of our very narrow healthy range (7.35 to ) leads to disease acidiosis when blood ph goes below 7.4 and alkalosis when it rises above 1 E.g., ARC Center of Excellence in Coral Reef Studies, Ocean acidification: Evil twin threatens world s oceans, scientists warn, ScienceDaily, (April 1, 2010). 2 While people, both laypeople and scientists, commonly divide the world s ocean into five geographic regions the Pacific Ocean, the Atlantic Ocean, the Indian Ocean, the Arctic Ocean, and the Southern Ocean it is increasingly recognized that all of the world s marine realms are physically, chemically, and biologically interconnected. For example, the National Ocean Service of the National Oceanic and Atmospheric Administration (NOAA) declares that [t]here is only one global ocean. National Ocean Service, NOAA, How many oceans are there?, (as revised April 13, 2015 and viewed June 29, 2015) (emphasis in original). To emphasize this interconnectedness, this Article purposely refers to the world s ocean in the singular unless specific research results are restricted to particular geographic regions of that ocean. 3 Peter M. Cox, Richard A. Betts, Chris D. Jones, Steven A. Spall, & Ian J. Totterdell, Acceleration of global warming due to carbon- cycle feedbacks in a coupled climate model, 408 NATURE 184, 184 (Nov. 9, 2000). 4 National Geographic, Ocean Acidification: Carbon Dioxide Is Putting Shelled Animals at Risk, issues- ocean- acidification/ (as viewed Feb. 14, 2015). 5 See discussion infra Part II.A. 6 See discussion infra Part II.C. 7 MedicineNet.com, Definition of Blood ph, (as viewed June 26, 2015). Electronic copy available at:

3 2015] Dealing with Ocean Acidification At the levels of ph change projected for the oceans 0.3 to 0.4 ph units on average by the end of the century 9 humans die. 10 Ocean life is similarly sensitive to the changes in ph that ocean acidification is causing, 11 especially because that change is not uniform; some places are ocean acidification hot spots. 12 Indeed, ocean acidification has already become a problem for commercial fishing and shellfish aquaculture enterprises around the world, including in the United States in Maine and all along the West Coast. 13 The question, of course, is what the law can do to address ocean acidification. Most of the cause of ocean acidification is emissions of anthropogenic carbon dioxide into the air. 14 Moreover, like climate change itself, ocean acidification occurs in response to carbon dioxide emissions from all over the world. 15 Ultimately, therefore, the solution to ocean acidification is largely the same as the solution to climate change: a world- wide reduction in anthropogenic carbon dioxide emissions Harper College, Blood ph, ps/chm/100/dgodambe/thedisk/bloodbuf/zback.htm (as viewed June 26, 2015). 9 The Ocean Acidification Network, How is ocean acidity changing?, acidification.net (last viewed March 9, 2009). 10 Harper College, Blood ph, ps/chm/100/dgodambe/thedisk/bloodbuf/zback.htm (as viewed June 26, 2015). 11 For example, in the lab, a decrease of 0.2 to 0.3 units in seawater ph inhibits or slows calcification in many marine organisms, including corals, foraminifera, and some calcareous plankton. Richard E. Zeebe, et al., Carbon Emissions and Acidification, 321 SCIENCE 51, 52 (4 July 2008). 12 For example, The rate of acidification is 50% faster at high latitudes compared to sub- tropical waters because of the effects of temperature on ocean chemistry. INTERNATIONAL PROGRAMME ON THE STATE OF THE OCEAN, INTERNATIONAL UNION FOR THE CONSERVATION OF NATURE, THE STATE OF THE OCEAN 2013: PERILS, PROGNOSES AND PROPOSALS 3 (3 Oct. 2013), available at Summary- Oct13- FINAL.pdf [hereinafter 2013 IPSO STATE OF THE OCEAN REPORT]. 13 See infra Part IV. 14 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2013: THE PHYSICAL SCIENCE BASIS 294 (2013), available at [hereinafter 2013 IPCC PHYSICAL SCIENCE REPORT]. 15 Id. 16 Notably, however, climate change is a response to an increasing concentration of a variety of greenhouse gases in the atmosphere, including methane and water Electronic copy available at:

4 4 WASHINGTON LAW REVIEW [DRAFT Nevertheless, while we wait for an effective global treaty to reduce those carbon dioxide emissions, coastal states and environmental organizations are pursuing local, regional, and national legal means of addressing ocean acidification, and the goal of this Article is to describe and begin to assess those emerging legal approaches. The Article begins in Part II by more thoroughly describing ocean acidification itself, concentrating on the basics of the carbon cycle, the chemistry of ocean acidification, the biological and ecological impacts of ocean acidification, projections for the future, and current impacts on marine fisheries and aquaculture. Part III then examines the Center for Biological Diversity s (CBD s) pursuit of a national and federally- driven approach to ocean acidification through the Clean Water Act, focusing on the Section 304 national recommended (reference) marine ph water quality criterion and the Section 303 programs for water quality standards, identification and listing of impaired waters, and total maximum daily loads, or TMDLs. Part IV, in turn, examines nascent state and regional responses to ocean acidification, focusing on the states of Washington and Maine and the growing collection of regional ocean acidification programs along the West Coast. The Article concludes that ocean acidification should in fact spur renewed Clean Water Act interest in stormwater runoff and nutrient pollution control, particularly along the East Coast and Gulf of Mexico, but also that as the acting states have recognized the global causes of most ocean acidification demand creative adaptation law and policy, the ocean acidification equivalent of climate change adaptation efforts. II. OCEAN ACIDIFICATION, CLIMATE CHANGE, MARINE ECOSYSTEMS, AND MARINE AQUACULTURE To understand the legal importance of ocean acidification, it is necessary first to understand what ocean acidification is and why it matters to marine environments (and human uses of those environments). This Part begins by explaining what role the ocean plays in the global carbon cycle and how human burning of fossil fuels is affecting the ocean s role as a carbon sink. It then examines the chemistry of ocean acidification before translating that chemistry into biological and ecological consequences for marine ecosystems, both short- term and long- term. A. The Earth s Carbon Cycle, the Oceans, and Absorption of Carbon Dioxide vapor. Ocean acidification, in contrast, is driven almost entirely by increasing concentrations of carbon dioxide.

5 2015] Dealing with Ocean Acidification 5 The ocean is the world s largest carbon sink for carbon dioxide gas. 17 However, it is also important to remember that the ocean is part of the Earth s larger carbon cycle, different components of which operate on a variety of time scales. 18 Fast components of this cycle move carbon biologically through life forms and ecosystems, while the slowest components take millions to tens of millions of years to cycle carbon through rocks and the planetary crust and then into volcanoes, which return the carbon to the atmosphere. 19 The ocean s gas exchange with the atmosphere and its absorption of carbon dioxide is one of the faster elements of the slow carbon cycle: At the surface, where air meets water, carbon dioxide gas dissolves in and ventilates out of the ocean in a steady exchange with the atmosphere. 20 Rocks, the ocean, and the atmosphere are all carbon reservoirs, balancing the location and reactivity of carbon on Earth at any given time. Importantly, [a]ny change in the cycle that shifts carbon out of one reservoir puts more carbon in the other reservoirs. Changes that put carbon gases into the atmosphere result in warmer temperatures on Earth. 21 Viewed from this global earth science perspective, the human burning of fossil fuels actively disrupts the normal balance of carbon cycle components, accelerating the return of carbon to the atmosphere from oil and coal deposits through the very fast processes of mining, drilling, and burning, compared to the very slow geological processes that would normally govern those deposits. In terms of anthropogenic climate change, therefore, the ocean is important because it absorbs the carbon dioxide prematurely returned to the atmosphere and sequesters it in slower carbon cycle component processes. As the National Aeronautics and Space Administration (NASA) has explained, Before the industrial age, the ocean vented carbon dioxide to the atmosphere in balance with the carbon the ocean received during rock weathering. However, since carbon concentrations in the atmosphere have increased, the ocean now takes more carbon from 17 FRED PEARCE, WITH SPEED AND VIOLENCE: WHY SCIENTISTS FEAR TIPPING POINTS IN CLIMATE CHANGE 86 (2007). 18 Holli Riebeek, Earth Observatory, National Aeronautics & Space Administration (NASA), The Carbon Cycle, (June 16, 2011). 19 Id. 20 Id. 21 Id.

6 6 WASHINGTON LAW REVIEW [DRAFT the atmosphere than it releases. Over millennia, the ocean will absorb up to 85 percent of the extra carbon people have put into the atmosphere by burning fossil fuels, but the process is slow because it is tied to the movement of water from the ocean s surface to its depths. In the meantime, winds, currents, and temperature control the rate at which the ocean takes carbon dioxide from the atmosphere. 22 At the beginning of the 21st century, the ocean and land ecosystems (mostly plants) were absorbing about half of the anthropogenic emissions of carbon dioxide 23 roughly 25% by land plants and 25% by the ocean. 24 According to oceanographers at the National Oceanic and Atmospheric Administration (NOAA) in 2006, Over the past 200 years the oceans have absorbed 525 billion tons of carbon dioxide from the atmosphere, or nearly half of the fossil fuel carbon emissions over this period. The oceans continue to uptake about 22 million tons of carbon dioxide per day. 25 However, because of continuing and increasing climate change impacts, the ocean appears to be losing its immediate ability to act as a carbon sink. As a general matter, the cold water at ocean depths can sequester more carbon dioxide than warmer waters at the surface. 26 As a result, any process that circulates cold water to the surface reduces the ocean s ability to act as a carbon sink. Research published in 2009 indicates that, as a result of climate change, the Southern Indian 22 Id. 23 Cox, et al., supra note 3, at The Ocean Carbon Cycle, Harvard Magazine (Nov.- Dec. 2002), as published at ocean- carbon- cycle.html. Some scientists, however, conclude that the ocean s absorption contribution is even greater: Over the past 200 years, the oceans have taken up ~40% of the anthropogenic CO2 emissions. Zeebe, et al., supra note 11, at 52. The most recent summary report published in Science declares that the global ocean has captured 28% of anthropogenic CO2 emissions since 1750, leading to ocean acidification.... J.P. Gattuso, et al., Contrasting futures for ocean and society from difference CO2 emissions scenarios, 349 SCIENCE 45, 46 (3 July 2015). 25 Richard A. Feely, Christopher L. Sabine, & Victoria J. Fabry, NOAA, Carbon Dioxide and Our Ocean Legacy 1 (April 2006), available at 26 The Ocean Carbon Cycle, Harvard Magazine (Nov.- Dec. 2002), as published at ocean- carbon- cycle.html.

7 2015] Dealing with Ocean Acidification 7 Ocean is being subjected to stronger winds. The winds, in turn, mix the ocean waters, bringing up carbon dioxide from the depths and preventing the ocean from absorbing more carbon dioxide from the atmosphere. 27 For similar reasons, the CO2 sink diminished by 50% between 1996 and 2005 in the North Atlantic. 28 Overall, the open ocean is projected to absorb a decreasing fraction of anthropogenic CO2 emissions as those emissions increase, leaving 30% to 69% of 21st- century emissions of CO2 in the atmosphere, depending on future emissions scenario. 29 The loss of the ocean s full capacity as a carbon sink, at least in the short term, could have significant implications for the progress of climate change everywhere. If the ocean reaches its immediate capacity as a carbon reservoir, carbon dioxide will accumulate more quickly in the atmosphere over the next decades, potentially accelerating the process of climate change even from what has been observed to date. B. The Chemistry of Ocean Acidification While important to the progress of climate change generally, the ocean s absorption of anthropogenic carbon dioxide comes at a price: Absorbed carbon dioxide changes the ocean s chemistry, a process known colloquially as ocean acidification. The absorbed carbon dioxide undergoes a series of complex chemical reactions in ocean waters, essentially becoming carbonic acid. 30 More specifically, Once in the ocean, carbon dioxide gas reacts with water molecules to release hydrogen, making the ocean more acidic. The hydrogen reacts with carbonate from rock weathering to produce bicarbonate ions. 31 Three chemical results of the ocean s absorption of carbon dioxide are critically important: (1) the 27 CNRS (Délégation Paris Michel- Ange), Ocean Less Effective At Absorbing Carbon Dioxide Emitted By Human Activity, ScienceDaily (Feb. 23, 2009), available at /releases/2009/02/ htm. 28 Id. 29 Gattuso, et al., supra note 24, at National Geographic, Ocean Acidification: Carbon Dioxide Is Putting Shelled Animals at Risk, issues- ocean- acidification/ (as viewed Feb. 14, 2015). More specifically, as the IPCC explains, Dissolved CO2 forms a weak acid (H2CO3) and, as CO2 in seawater increases, the ph, carbonate ion (CO3 2 ), and calcium carbonate (CaCO3) saturation state of seawater decrease while bicarbonate ion (HCO3 ) increases IPCC PHYSICAL SCIENCE REPORT, supra note 14, at 293 (2013). 31 Riebeek, supra note 18.

8 8 WASHINGTON LAW REVIEW [DRAFT ocean s ph drops; (2) the concentration of carbonate ions in seawater drops; and (3) saturation states of biologically important calcium carbonate minerals such as calcite and aragonite are reduced. 32 The ocean is naturally basic, with an average ph of about 8.16, and that ph level has been remarkably stable over geological time. 33 However, since the Industrial Revolution, the average ocean surface water ph has dropped by 0.1 unit; 34 the largest changes in ph, according to the IPCC in 2013, have been in the northern North Atlantic Ocean, while the smallest have been in the subtropical South Pacific Ocean. 35 While this change may seem small, the ph scale is logarithmic, so that a ph decrease of 0.1 unit means that the oceans have become 26% more acidic in the last 250 years. 36 The problem is only likely to become worse over time. The IPCC reported in 2014 that the ocean s average ph is expected to drop by 0.13 to 0.42 ph units by the end of the century, depending on emissions scenario, 37 while NOAA reports that [e]stimates of future carbon dioxide levels, based on business as usual emission scenarios, indicate that by the end of this century the surface waters of the ocean could be nearly 150 percent more acidic, resulting in a ph that the oceans haven t experienced for more than 20 million years Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, (as viewed June 29, 2015). 33 Ocean Acidification: Another Undesired Side Effect of Fossil Fuel- burning, Science Daily, (May 24, 2008). However, ph does vary from location to location. According to the IPCC, for example, the mean ph (total scale) of surface waters [currently] ranges between 7.8 and 8.4 in the open ocean IPCC PHYSICAL SCIENCE REPORT, supra note 14, at Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, (as viewed June 29, 2015) IPCC PHYSICAL SCIENCE REPORT, supra note 14, at Id. 37 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2014: IMPACTS, ADAPTATION, AND VULNERABILITY 418 (2014), available at [hereinafter 2014 IPCC ADAPTATION REPORT]. 38 Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, (as viewed June 29, 2015).

9 2015] Dealing with Ocean Acidification 9 The ocean, therefore, is approaching a chemical state of being unprecedented in human experience and it is changing quickly. According to NOAA scientists, [a]t present, ocean chemistry is changing at least 100 times more rapidly than it has changed during the 650,000 years preceding our industrial era. 39 Moreover, this altered chemical state is likely to be of long duration at least from a human and ecological perspective. As reported in Science, It takes the ocean about 1000 years to flush carbon dioxide added to surface waters into the deep sea where sediments can eventually neutralize the added acid. 40 C. Biological and Ecological Impacts from Ocean Acidification Such unprecedented changes in ocean chemistry, especially when combined with the other impacts on the ocean from climate change like rising water temperatures, have significant negative implications for marine life, biodiversity, and ecosystems. Of course, not every species will react to ocean acidification the same way. As NOAA has summarized: Photosynthetic algae and seagrasses may benefit from higher CO2 conditions in the ocean, as they require CO2 to live just like plants on land. On the other hand, studies have shown that a more acidic environment has a dramatic effect on some calcifying species, including oysters, clams, sea urchins, shallow water corals, deep sea corals, and calcareous plankton. When shelled organisms are at risk, the entire food web may also be at risk. Today, more than a billion people worldwide rely on food from the ocean as their primary source of protein Feely, Sabine, & Fabry, supra note 25, at 2. See also Richard A. Kerr, Ocean Acidification Unprecedented, Unsettling, 328 SCIENCE 1500, 1500 (18 June 2010) (emphasizing the speed of current ocean acidification). 40 Richard A. Kerr, Ocean Acidification Unprecedented, Unsettling, 328 SCIENCE 1500, (18 June 2010). 41 Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, (as viewed June 29, 2015).

10 10 WASHINGTON LAW REVIEW [DRAFT There are also considerable uncertainties regarding how various forms of marine life will respond to ocean acidification, 42 and research lags regarding the effects of ocean acidification on communities and ecosystems. 43 Nevertheless, even under low- emissions scenarios, and taking into account all of the impacts of climate change, warm- water corals and mid- latitude bivalves [two- shelled shellfish like clams and oysters] will be at high risk by Moreover, a variety of marine organisms have already been affected by the combination of ocean acidification and warming ocean waters, including warm- water corals, mid- latitude seagrass, high- latitude pteropods and krill, mid- latitude bivalves, and fin fishes. 45 Scientific research regarding the impacts of ocean acidification tends to concentrate on various kinds of shell- forming animals, especially pteropods, shellfish, and coral reefs. These animals build their shells from calcium carbonate and hence are directly impacted by the chemical effects of ocean acidification, particularly in terms of reduced saturation of calcium carbonate minerals in seawater. As NOAA explains: Calcium carbonate minerals are the building blocks for the skeletons and shells of many marine organisms. In areas where most life now congregates in the ocean, the seawater is supersaturated with respect to calcium carbonate minerals. This means there are abundant building blocks for calcifying organisms to build their skeletons and shells. However, continued ocean acidification is causing many parts of the ocean to become undersaturated with these minerals, which is likely to affect the ability of some organisms to produce and maintain their shells Roger Harrabin, Shortages: Fisheries on the slide, BBC NEWS Science & Environment, 17 June 2012, environment See also 2013 IPSO STATE OF THE OCEAN REPORT, supra note 12, at 3 ( Biological impacts are already being observed as acidification is a direct threat to all marine organisms that build their skeletons out of calcium carbonate, including reef- forming corals, crustaceans, molluscs and other planktonic species that are at the lower levels of pelagic food webs. ). 43 Gattuso, et al., supra note 24, at Id. at Id. 46 Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, (as viewed June 29, 2015).

11 2015] Dealing with Ocean Acidification 11 Decreasing ph is projected to reduce the availability of calcium carbonate by about 60% by the end of the century. 47 As one example of the biological impacts of reduced calcium carbonate, pteropods (also known as sea butterflies) are small (pea- sized) shelled sea creatures that serve as a food source for everything from krill to North Pacific juvenile salmon to mighty whales. 48 In laboratory experiments, pteropods subjected to seawater at the ph levels projected for the ocean by the end of the 21st century dissolved in 45 days. 49 Field studies, in turn, have revealed dissolution of live pteropod shells in the California Current system and Southern Ocean, both areas that experience significant anthropogenic acidification. 50 As the BBC has summarized the potential widespread problems resulting from pteropod sensitivity to ph, [s]tudies suggest that pteropods tiny swimming snails will be badly hit because they need alkaline water to make their shells. That could matter to us because pteropods feed the salmon, herring, mackerel and cod that we like to eat. 51 Shellfish, especially bivalves like clams and oysters, are also victims of ocean acidification, and effects on shellfish have been documented in the wild. 52 Specifically, ocean acidification and the resulting undersaturation of calcium carbonate minerals and aragonite interferes with the ability of young oysters and clams to form shells. 53 Beyond clams and oysters, a number of other marine organisms such as mussels, snails, sea urchins, and certain types of microscopic plants and animals (calcareous phytoplankton and zooplankton, respectively) use calcium carbonate to build their shells, and lab testing has demonstrated that IPSO STATE OF THE OCEAN REPORT, supra note 12, at Id. 49 Id. 50 Gattuso, et al., supra note 24, at Harrabin, supra note 42. See also 2013 IPSO STATE OF THE OCEAN REPORT, supra note 12, at 3 ( Biological impacts are already being observed as acidification is a direct threat to all marine organisms that build their skeletons out of calcium carbonate, including reef- forming corals, crustaceans, molluscs and other planktonic species that are at the lower levels of pelagic food webs. ). 52 Pacific Marine Environmental Laboratory, NOAA, What Is Ocean Acidification?, (as viewed June 29, 2015). 53 Id.

12 12 WASHINGTON LAW REVIEW [DRAFT many species cannot survive well in water at ph levels equal to the projected decreases. 54 Coral reefs and the highly productive ecosystems that they support are at particularly high risk. 55 Coral reefs occupy a small part of the world s oceans yet harbor a hugely disproportionate amount of its biodiversity. 56 They suffer particularly acutely in this climate change era because of past abuses and a sensitivity to rising sea temperatures, 57 but tropical corals are also shell- forming organisms harmed by decreasing concentrations of carbonate ions. 58 As a result, within decades, rates of reef erosion will exceed rates of reef accretion across much of the tropics and subtropics. 59 While coral species exhibit considerable variation in their ability to build shells despite ocean acidification and to adapt to warming waters, 60 giving some cause for hope, the future of the world s coral reefs is far from certain. As marine biologists summarized in a 2011 article in Science, [t]he most pessimistic projection is for global- scale losses of coral reefs resulting from annual mass bleaching events, and both the corals own adaptation abilities and aggressive emissions reduction will be necessary to avoid extended declines in coral cover to very low levels. 61 More recently, however, many corals appear to be losing the battle: Scientists have noted that [d]ecreases in net calcification, at least partly because of ocean acidification, have... been observed in a coral reef cover over 1975 to 2008, and conditions are already shifting some coral reefs to net erosion. 62 As the connections to marine food production noted above suggest, the impacts of ocean acidification on marine ecosystems and human well- being are likely to be much broader than just the effects on shell- forming organisms. Recent 54 Ocean Acidification Network, How will ecosystems be affected?, acidification.net IPSO STATE OF THE OCEAN REPORT, supra note 12, at 3-4; Joan A. Kleypas & Kimberly K. Yates, Coral Reefs and Ocean Acidification, OCEANOGRAPHY, Dec. 2009, at 108, John M. Pandolfi, et al., Projecting Coral Reef Futures Under Global Warming and Ocean Acidification, 333 SCIENCE 418, 418 (22 July 2011). 57 Id. at 418, Id. at Id. 60 Id. at Id. at Gattuso, et al., supra note 24, at 50.

13 2015] Dealing with Ocean Acidification 13 scientific studies have begun to report community- level responses [to ocean acidification] in phytoplanktonic, bacterial, seagrass, and algal communities. 63 At the biological level, ocean acidification can cause acidosis, the buildup of carbonic acid in organisms bodily fluids, which in turn can cause lowered immune response, metabolic depression, behavioural depression, affecting physical activity and reproduction, and asphyxiation. 64 At the level of marine biochemistry, the ph gradient across cell membranes is coupled to numerous critical physiological/biochemical reactions within marine organisms, ranging from such diverse processes as photosynthesis, to nutrient transport, to respiratory metabolism. 65 At the physical level, decreasing ph levels decrease the ocean s ability to absorb sound, and the resulting increased noise in the ocean may impact acoustically sensitive whales and dolphins, while decreasing concentrations of calcium carbonate allow for more light penetration, with unknown impacts. 66 Given emerging marine community responses to ocean acidification and its multitude of ancillary impacts, the marine ecosystem impacts from ocean acidification could be tremendous, resulting in loss of commercially important fisheries, locally important fisheries, and coastal protection from storms. 67 The economic and cultural costs for humans, especially those in developing nations or coastal countries, could be enormous. 68 In addition, as with coral reefs, ocean acidification is likely to interact synergistically with other impacts of climate change on the oceans to multiply harms to marine ecosystems. Given all of these impacts, moreover, it is entirely possible that ocean acidification could also cause or at least contribute significantly to the next global mass extinction event. As reported in Science, [t]he closest analog in the geologic record to the present acidification appears to be the Paleocene- Eocene Thermal Maximum (PETM) 55.8 million years ago. 69 The International 63 Id. (citations omitted) IPSO STATE OF THE OCEAN REPORT, supra note 12, at Scott C. Doney et al., Ocean Acidification: A Critical Emerging Problem for the Ocean Sciences, Oceanography, Dec. 2009, at 16, Id. 67 Id.; see also Sarah R. Cooley, Hauke L. Kite- Powell & Scott C. Doney, Ocean Acidification s Potential to Alter Global Marine Ecosystem Services, OCEANOGRAPHY, Dec. 2009, at 172, (detailing these ecosystem impacts); Gattuso, et al., supra note 24, at See generally Cooley, Kite- Powell, & Doney, supra note 67, at (detailing the value of marine ecosystem services that could be impacted by ocean acidification). 69 Kerr, supra note 39, at 1500.

14 14 WASHINGTON LAW REVIEW [DRAFT Programme for the State of the Ocean (IPSO) made the same connection in its 2013 State of the Ocean report: [T]he scale and rate of the present day carbon perturbation, and resulting ocean acidification, is unprecedented in Earth s known history. Today s rate of carbon release, at approximately 30 Gt [gigtons] of CO2 per year, is at least 10 times faster than that which preceded the last major species extinction (the Paleocene Eocene Thermal Maximum extinction, or PETM, ca. 55 million years ago), while geological records indicate that the current acidification is unparalleled in at least the last 300 million years. We are entering an unknown territory of marine ecosystem change, and exposing organisms to intolerable evolutionary pressure. The next mass extinction event may have already begun. 70 Multiple scientific studies, therefore, conclude that ocean acidification is both an immediate and long- term threat to both marine and human life, warranting a much stronger global commitment to reducing anthropogenic emissions of carbon dioxide. 71 Until that global legal commitment is in place, however, coastal states and regions must pursue more limited legal responses. D. Ocean Acidification, Marine Food Supply, and Marine Aquaculture While a global mass extinction event remains ocean acidification s ultimate threat, it is ocean acidification s more immediate impacts on marine life that are driving interest in more creative legal approaches to the problem. In particular, ocean acidification is immediately threatening marine food supplies, in terms both of natural stocks and marine aquaculture. As noted, the effects of ocean acidification on shell- forming organisms like bivalves and coral reefs has already been documented. In 2012, environmental NGO Oceana published a report on how ocean acidification and climate change are impacting global food security as a result of the impacts on marine organisms. It noted that [m]any coastal and small island developing nations depend more heavily on fish and seafood for protein than developed nations. In some places, such as the Maldives, well over half of the available food protein comes from seafood. Other countries in which people eat large amounts of fish and seafood IPSO STATE OF THE OCEAN REPORT, supra note 12, at E.g., Gattuso, et al., supra note 24, at 45.

15 2015] Dealing with Ocean Acidification 15 include Iceland, Japan, Kiribati and the Seychelles. 72 Ocean acidification poses a threat to many of these nations. As one example, The decline of coral reefs threatens many fish species and the people that depend on those fish for food and livelihoods. About a quarter of all marine fish species live on coral reefs and about 30 million people around the world depend heavily on these fish as a stable source of protein. 73 Similarly, shellfish mollusks may represent only a small fraction of all available protein on a global scale, they can provide 50 percent or more of the available protein in places like Aruba, Turks and Caicos Islands and the Cook Islands. Losses in mollusk populations could impact many jobs and the global economy, but the most significant hardships may be felt by nations that are most heavily reliant on mollusks for food. 74 Oceana concluded that the ten nations most threatened by ocean acidification are the Cooks Islands (South Pacific Ocean), New Caledonia (Southwest Pacific Ocean), Turks and Caicos Islands (Caribbean), Comoros (Indian Ocean), Kiribati (Central Tropical Pacific Ocean), Aruba (southern Caribbean), Faroe Islands (North Atlantic Ocean), Pakistan (Arabian Sea), Eritrea (Red Sea), and Madagascar (Indian Ocean). 75 However, ocean acidification impacts on fisheries and food supply do not need to rise to the level of existential vulnerability for nations to notice them. As the United Nations Environment Programme (UNEP) observed in 2010: Productivity hotspots such as upwelling regions where cold water is rich in both nutrients and CO2, coastal seas, fronts, estuaries and sub- polar regions often supply the main protein source for coastal communities. However, many of these areas are also projected to be very vulnerable to ocean acidification this century. As world populations rise alongside a predicted growth in coastal populations due to internal migration, the demand for ocean protein products is also likely to rise. Fish stocks, already declining in many areas due to 72 Matthew Huelsenbeck, Oceana, Ocean- Based Food Security Threatened in a High CO2 World: A Ranking of Nations Vulnerability to Climate Change and Ocean Acidification 3 (Sept. 2012) (citations omitted), available at Based_Food_Security_Threatened_in_a_High_CO2_World.pdf. 73 Id. at 6 (citations omitted). 74 Id. (citations omitted). 75 Id. at 8 tbl. 3.

16 16 WASHINGTON LAW REVIEW [DRAFT over- fishing and habitat destruction, now face the new threats posed by ocean acidification. 76 In the United States, for example, fisheries in Alaska, which accounted for 50% of the United States total catch in 2009, are notably vulnerable to ocean acidification. 77 Specifically, the ph levels in the four seas that ring Alaska the Chukchi, Beaufort, Bering, and Gulf of Alaska has dropped by 0.1 units since the Industrial Revolution and is forecast to lower about another 0.4 units by the end of the century. Alaska s cold waters naturally absorb more carbon dioxide from the atmosphere than warmer waters do, and its upwelling currents bring more acidic waters to the surface, making it harder for organisms like mollusks to form their shells. 78 The effects on commercially important marine species are already occurring. Studies have found that more acidic water in Alaska is stunting the growth of red king crabs and tanner crabs. 79 A more recent NOAA study found rural areas in southern Alaska are at high risk of losing hundreds of millions of dollars in commercial and subsistence fishing stocks. Declining seafood harvests will impact about 20 percent of Alaska s population, which relies on subsistence fishing for significant amounts of their diet On the East Coast, runoff of nutrients from land is accelerating ocean acidification, and [t]he Chesapeake Bay, which receives runoff from one of the most densely populated watersheds in the United States, is acidifying three times faster than the rest of the world s oceans. Long Island Sound, Narragansett Bay and 76 United Nations Environment Programme (UNEP), Environmental Consequences of Ocean Acidification: A Threat to Food Security 4 (2010), available at 77 Xochiti Rojas- Rochas, Worsening ocean acidification threatens Alaska fisheries, Science Insider Daily News, ocean- acidification- threatens- alaska- fisheries (29 July 2014). 78 Id. 79 Reid Wilson, Marine industries at risk on both coasts as oceans acidify, Washington Post, July 30, 2014, industries- at- risk- on- both- coasts- as- oceans- acidify/. 80 Id.

17 2015] Dealing with Ocean Acidification 17 the Gulf of Mexico are all showing signs of rapid acidification. 81 This long- term acidification may be contributing to the drop in oyster harvests from the coastal Atlantic Ocean. 82 In addition, mudflats in Maine have become acidic enough in some spots to kill young clams. 83 Ocean acidification hot spots are also proving troubling to shellfish aquaculture. In the Pacific Northwest, for example, Puget Sound has some of the world s most corrosive waters. Scientists are finding that marine waters in the Northwest have become so corrosive that they are eating away at oyster shells before they can form. 84 Natural upwelling patterns in this region exacerbate the ocean acidification occurring in Puget Sound and off the coast of Oregon. 85 Beginning in 2008, oyster aquaculture facilities in Puget Sound began experiencing drops in larvae production, from 7 billion larvae in 2006 and 2007 to half that in 2008 and one- third in 2009, and similar drops occurred in Oregon facilities. 86 The Seattle Times reported in 2013 that oyster aquaculturists are moving their 81 Id. 82 Id. 83 Natural Resources Defense Council, Gulf of Maine: Ocean Acidification 1 (2008), available at acidification- maine.pdf. 84 Pacific Marine Environmental Laboratory, NOAA, Acidifying Water Takes Toll on Northwest Shellfish, est+shellfish (as viewed June 29, 2015). 85 Specifically, Regional marine processes including coastal upwelling exacerbate the acidifying effects of global carbon dioxide emissions. Coastal upwelling brings deep ocean water, which is rich in carbon dioxide and low in ph, up into the coastal zone. This upwelled water has spent decades circulating deep in the ocean, out of contact with the atmosphere for 30 to 50 years. This means that the waters currently upwelled onto the coast of the Pacific Northwest reflect the atmospheric carbon dioxide concentrations of the 1970s and 1980s. Northwest Association of Networked Ocean Observing Systems (NANOOS), Ocean Acidification: What Is Ocean Acidification?, (as viewed June 29, 2015). 86 Id.

18 18 WASHINGTON LAW REVIEW [DRAFT facilities to Hawai i because young Pacific oysters in Washington stopped growing. 87 III. THE CLEAN WATER ACT AND OCEAN ACIDIFICATION As the IPCC noted in 2013, Uptake of anthropogenic CO2 is the dominant cause of observed changes in the carbonate chemistry of surface waters. 88 Because ocean acidification is thus largely the result of emissions of carbon dioxide into the air, the United States source- based approach to environmental regulation underscores the domestic need to use the Clean Air Act 89 to address ocean acidification. As such, the Environmental Protection Agency s (EPA s) increasing efforts to address greenhouse gas emissions through the Clean Air Act may eventually help to address the ocean acidification problem. Indeed, many of the EPA s recent greenhouse gas regulations and proposed regulations explicitly mention ocean acidification as one reason for imposing increased emissions controls. 90 Nevertheless, there is no disputing the fact that the effects of ocean acidification occur in the water, meaning that ocean acidification can be fairly characterized as a water pollution problem. Moreover, in some places other forms of water pollution like, as noted, the nutrient runoff pollution into Chesapeake Bay can exacerbate ocean acidification. Thus, the federal Clean Water Act 91 would also seem to be relevant. The Center for Biological Diversity (CBD) has certainly been agitating for the Clean Water Act to play a larger role in addressing ocean acidification, and on January 16, 2009, the EPA agreed to respond to the CBD s December 2007 petition requesting that the EPA revise its water quality 87 Craig Welch, Sea Change: Oysters dying as coast is hit hard, The Seattle Times, Sept. 12, 2013, change/2013/sep/11/oysters- hit- hard/ IPCC PHYSICAL SCIENCE REPORT, supra note 14, at 294 (2013) U.S.C q (2012). 90 See, e.g., U.S. EPA, Carbon Pollution Standards for Modified and Reconstructed Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34,960, 34,967 (June 18, 2014) (referencing the National Research Council s 2010 report, Ocean Acidification: A National Strategy to Meet the Challenges of a Changing Ocean ); U.S. EPA, Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1439 (Jan. 8, 2014) (noting that ocean acidification is one reason for pursuing reductions in carbon dioxide emissions and climate stabilization) U.S.C (2012).

19 2015] Dealing with Ocean Acidification 19 criteria for marine ph pursuant to the federal Clean Water Act 92 to reflect current knowledge about ocean acidification. 93 The CBD has also invoked the Clean Water Act s impaired waters listing process as being relevant to ocean acidification, leading to a recent federal district court decision. Nevertheless, the EPA has done little to expand the role of the Clean Water Act in addressing ocean acidification, citing natural variability and lack of baseline data as complicating issues. The question, of course, is what the Clean Water Act can actually contribute to any resolution of the ocean acidification problem. This Part begins by providing an overview of the Clean Water Act s regulatory provisions in light of the CBD s 2007 petition. It then reviews subsequent administrative responses to ocean acidification and the ocean acidification litigation that has occurred in the United States, emphasizing the 2015 federal district court decision denying the CBD s challenge to the EPA s approval of Washington s and Oregon s 2010 impaired waters lists. A. An Overview of the Clean Water Act s Regulatory Regime in Light of the Center for Biological Diversity s 2007 Petition to the EPA The CBD has spearheaded a multi- faceted effort to bring ocean acidification within the ambit of state and federal law. For example, acknowledging the role of states in protecting water quality, on February 28, 2007, the CBD petitioned the State of California to regulate carbon dioxide pollution under the Clean Water Act. 94 Beginning in 2009, moreover, the CBD began working to have many species of coral listed for protection under the federal Endangered Species Act (ESA) 95 because of the twin threats of ocean acidification and climate change. 96 The CBD U.S.C (2012). 93 Letter from Benjamin H. Grumbles, Assistant Administrator, U.S. Environmental Protection Agency, to Ms. Miyoko Sakashita, Attorney, Center for Biological Diversity, dated Jan. 16, 2009, at 1 available at ponse_to_ CBD_Ocean_ Acidification_Petition.pdf. 94 Center for Biological Diversity, Conservation Group Petitions to Regulate Carbon Dioxide Under Clean Water Act, acidification html (Feb. 28, 2007). The petition itself is available at tion- cwa- petition.pdf U.S.C (2012). 96 Center for Biological Diversity, Suit Will Be Filed to Protect 83 Corals Threatened by Global Warming, Ocean Acidification,

20 20 WASHINGTON LAW REVIEW [DRAFT later also pursued ESA protections for black abalone, orange clownfish, and seven species of damselfish. 97 With respect to federal efforts under the Clean Water Act, however, the CBD has concentrated its attention on the EPA s criteria for marine ph and alleged violations of ocean water quality standards in Washington and Oregon. These efforts formally began on December 18, 2007, when the CBD formally petitioned the EPA to strengthen the federal national recommended (or reference) water quality criterion under the Clean Water Act for ocean ph and to provide guidance to the states regarding ocean acidification and water quality. 98 More specifically, the CBD petitioned the EPA to revise, pursuant to Section 304 of the Clean Water Act, 99 the EPA s water quality criterion for ph to acknowledge and address ocean acidification. 100 The CBD s petition acknowledged that ocean acidification is primarily a result of carbon dioxide emissions into the air, but it also stressed how significant a water quality problem that ocean acidification could become: Carbon dioxide pollution has already lowered average ocean ph by 0.11 units, with a ph change of 0.5 units projected by the end of the century under current emission trajectories. These changes are likely to have devastating impacts on the entire ocean ecosystem. The primary known impact of acidification is impairment of calcification, the process whereby corals, crabs, abalone, oysters, sea urchins, and other animals make shells and skeletons. Many species html (Jan. 20, 2010). 97 Center for Biological Diversity, Endangered Oceans: Ocean Acidification Action Timeline, ne.html (as viewed July 3, 2015). 98 Center for Biological Diversity, Lax Standard Fails to Prevent Souring Seas; Group Petitions EPA to Address the Threat of Ocean Acidification, acidification html (Dec. 18, 2007) U.S.C (2012). 100 Center for Biological Diversity, Before the Environmental Protection Agency: Petition for Revised ph Water Quality Criteria under Section 304 of the Clean Water Act, 33 U.S.C. 1314, to Address Ocean Acidification i, ii (Dec. 18, 2007), available at petition pdf.

21 2015] Dealing with Ocean Acidification 21 of phytoplankton and zooplankton, which form the basis of the marine food web, are also particularly vulnerable to ocean acidification. Laboratory studies have shown that at carbon dioxide concentrations likely to occur in the ocean in the next few decades, the shells of many marine species deform or dissolve. Scientists predict that the majority of coral reefs will turn to rubble before the end of the century. Absent significant reductions in carbon dioxide emissions, ocean acidification will accelerate, likely ultimately leading to the collapse of oceanic food webs and catastrophic impacts on the global environment. 101 The petition also emphasized that the Clean Water Act is the nation s strongest law protecting water quality and that [b]ecause ocean acidification is changing seawater chemistry and degrading water quality, EPA needs to address this threat before it harms marine life and resources. 102 It argued that, in light of ocean acidification, the EPA s national recommended water quality criterion for ocean ph did not reflect the latest scientific knowledge. 103 Under the Clean Water Act, the EPA s Section 304 nationally recommended (reference) water quality criteria have very little direct legal force of their own; instead, they function primarily to provide information and suggested criteria to states that states can then incorporate into their own Section 303(c) water quality standards. 104 Nevertheless, the Act specifies that the EPA s criteria must reflect: the latest scientific knowledge (A) on the kind and extent of all identifiable effects on health and welfare, including, but not limited to, plankton, fish, shellfish, wildlife, plant life, shorelines, beaches, esthetics, and recreation which may be expected from the presence of pollutants in any body of water, including ground water, (B) on the concentration and dispersal of pollutants, or their byproducts, through biological, physical, and chemical processes, and (C) on the effects of pollutants on biological community diversity, productivity, and stability, including information on the factors affecting rates of eutrophication and rates of organic and inorganic sedimentation for varying types of receiving waters Id. at ii (emphasis added). 102 Id. 103 Id. at ii- iii. 104 See 33 U.S.C. 1313(c) (2012). 105 Id. 1314(a)(1).