Donald Trump isn’t a big fan of laws. Those annoying byproducts of democratic society get in the way of rule by fiat — or Twitter, as it were. Donald Trump isn’t a big fan of the environment either. Combining these two proclivities, Trump has charted a course to destroy the Environmental Protection Agency, to gut the Endangered Species Act, and to renounce any responsibility to take action on climate change.
Trump also has a discordant position on monuments: If they are memorials to Confederate leaders, removing them is “so foolish!” Yet, if the monuments set aside land, water, and oceans for conservation, Trump can’t wait to blast them out of existence.
Trump does not limit his plan to destroy or reduce conservation monuments to terrestrial parks like the Bears Ears National Monument in Utah. Rather, as a product of Trump’s Executive Order 13795, “Implementing an America-First Offshore Energy Strategy,” Trump seeks to “review” (i.e., reduce or eliminate) 11 National Marine Sanctuaries and Marine National Monuments designated or expanded since April 28, 2007. The goal is, quite clearly, to open these spaces up for potential oil and gas operations.
Among the monuments and sanctuaries on the chopping block are the Papahanaumokuakea Marine National Monument off Hawaii, Rose Atoll Marine National Monument off American Samoa, Monterey Bay National Marine Sanctuary off California, and the Thunder Bay Marine Sanctuary off Michigan.
Here at Sea Shepherd Legal, we are calling out this nonsense and fighting back in the name of conservation and the rule of law.
Our first step was to file comprehensive comments with the National Oceanic and Atmospheric Administration (NOAA) in opposition to Trump’s plan. See SSL Comments on E.O. 13795 Review. More steps will follow. We will not go down without a fight. To quote the former reality television star turned President, “It’s going to be beautiful. Believe me.” Despite Trump’s all-out-assault on the crown jewels of our national (and natural) heritage, we have good reason to be optimistic. The results of a recent analysis demonstrated that, of the approximately 53,000 official comments submitted to NOAA on this topic, 99% were in favor of preserving our national monuments and sanctuaries.
For those interested in some of the finer legal aspects of this issue, we encourage you to read our comments in full. We also offer the following additional thoughts on how the President’s approach clashes with environmental and constitutional law.
The epitome of back-sliding
There is an emerging principle in global environmental law known as the principle of non-regression. At its core, the non-regression principle stands for the common-sense proposition that environmental law should operate as one-way ratchet. While lawmakers can and should improve environmental laws to meet new challenges, they should not use legislative power to roll back protections. This principle “is based on the assumption that environmental law seeks to prevent the degradation of the environment by constantly improving environmental quality.” Lia Helena Monteiro de Lima Demange, The Principle of Resilience, 30 Pace Envtl. L. Rev. 695, 724 (2013). While this principle may still be in its “embryonic” stage, as Brazilian Justice Antonio Benjamin phrases it, there is no question that this principle is urgently needed in the Anthropocene. See Antonio Herman Benjamin, Environmental Courts and Tribunals: Improving Access to Justice and Protection of the Environment around the World, 29 Pace Envtl. L. Rev. 582, 589 (2012).
“Mr. Trump, the Framers called. They suggest you take a look at the Constitution.”
In U.S. constitutional and administrative law, there is a far more familiar principle: that of limited executive authority. Any power that the President has must arise from either an Act of Congress or the Constitution. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). Although the President has authority to communicate his policy preferences to an executive agency, and agencies often have latitude to administer legislation, agency action is still confined by the boundaries of the law. The President cannot simply undo the work of previous Administrations by saying, in effect, “There’s a new sheriff in town.”
As you read this, the Trump Administration is doing its best to smash both of these principles by laying the groundwork for erasing protections in 11 duly designated and/or expanded Marine National Monuments and National Marine Sanctuaries.
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