Domestic perspectives and regulations in protecting the polar marine environment - Australia, Canada and the United States

* The protection of the marine polar environment has increasingly become a matter of concern for Antarctic Treaty Consultative Parties and Arctic states alike, as evident in the de

protecting the polar marine environment: Australia, Canada and the United States

     .

*

The protection of the marine polar environment has increasingly become

a matter of concern for Antarctic Treaty Consultative Parties and Arctic states alike,

as evident in the developments in the legal regimes which apply to the polarregions In the case of the Antarctic Treaty System, attention has focused on theprotection of the marine environment of the Southern Ocean through a combina-tion of measures adopted at Antarctic Treaty Consultative Meetings and alsothrough the 1991 Protocol on Environmental Protection to the Antarctic Treaty.1Inthe Arctic, concerns over the protection of the marine environment have beendriven by the present and possible environmental consequences of land-basedmarine pollution, nuclear waste and the potentials for increased oil and gasexploitation as well as navigation through Arctic waters, especially by theNorthwest Passage and the Northern Sea Route.2Particular emphasis has beenplaced on Arctic marine environmental protection in the process of developmentand implementation of the Arctic Environmental Protection Strategy (AEPS),3since 1991, and, since 1996, within the Arctic Council.4

This chapter addresses these issues by considering how prominent polarstates have influenced developments on the international scene while also seeking

to implement through domestic policy and law a range of international responsesaimed at protecting the polar marine environment The aim is thus to demonstratethe importance of the domestic level, in both initiative-giving and in implementingcommitments agreed through international cooperative fora or processes

Three states have been selected for this comparative assessment:Australia, Canada and the United States In selecting these countries, we were led

2 See, respectively, the discussions by VanderZwaag, Chapter 8; Stokke, Chapter 9; Brubaker, Chapter 10; and Brigham, Chapter 11 in this book.

3 ILM, Vol 30, 1991, pp 1,624ff 4 For an overview, see Vidas, Chapter 4 in this book.

by several criteria: leadership or importance in recent initiatives for the protection

of the polar marine environment, elaboration of the relevant domestic menting legislation, and geographic placement We have thus included one ‘uni-polar’ case each: Australia, with its interests and legislation linked primarily to theAntarctic and, correspondingly, Canada for the Arctic There is also the ‘bi-polar’case of the United States, with interests present in, and legislation adopted for, bothpolar regions All three have substantial territorial and maritime claims in either ofthe polar regions, and have been leaders in the development of Arctic and Antarcticlaw and policy Australia, the chief initiator of the Antarctic EnvironmentalProtocol, asserts the largest territorial claim in Antarctica.5Canada, the originaladvocate of the Arctic Council, has one of the longest-standing and largest Arcticclaims, with Canadian territory extending beyond the Arctic Circle as far as 83°North The United States, current chair country of the Arctic Council andsimultaneously an original Antarctic Treaty Consultative Party, has multiple polarinterests These interests apply appropriately, yet differently, to the Arctic region inthe near north of the continental USA, but also in Antarctica, where the USA haslong-standing foreign policy interests and has been present in the region ever sincethe expeditions of the nineteenth century

imple-     

Canada’s initiatives to protect the Arctic Ocean are an interesting mix of

unilateral action (as in the case of the response to the voyage of the SS Manhattan),

bilateral and regional initiatives with neighbouring states and other Arctic nations,and global initiatives like the campaign to have Article 234 adopted as part of theLOS Convention This trend, initiated in the 1970s, has continued throughoutthe 1980s and 1990s, and demonstrates Canada’s commitment to the protection ofthe Arctic marine environment

The Manhattan incident

The catalyst for the eventual development of thefirst specific provisionfor the polar marine environment in the international law of the sea was the 1969

voyage of the Manhattan through the Northwest Passage The incident arose when the Manhattan, carrying a small cargo of oil, was intentionally sent through the

Northwest Passage byits US owners to demonstrate that an icebreaking bulkcarrier was capable of year-round sailings between Alaska and the east coast of theUnited States The voyage was only the eleventh complete transit of the NorthwestPassage, and thefirst since the end of World War II bya non-government vessel.6

5 While this claim is not conclusive, some authors argue that it is probably stronger in international

law than those which any other state may assert: see the discussion in G D Triggs, International

Law and Australian Sovereignty in Antarctica (Sydney: Legal Books, 1986).

6T C Pullen, ‘What Price Canadian Sovereignty?’, Proceedings of the US Naval Institute, Vol 113,

Although the voyage was innocent enough, it had great implications in Canada.Even though a representative of the Canadian government was on board the

tanker during the passage, and the Canadian Coast Guard vessel J A Macdonald accompanied the Manhattan,7the voyage created considerable public contro-versyin Canada However, anyCanadian response to the voyage was hampered bythe fact that at that time Canada had claimed onlya three-mile territorial seaaround the islands of the Canadian Arctic Archipelago: as a consequence, apartfrom where Canadian territorial waters overlapped in the narrow McClure Strait,

the Manhattan was passing through high seas during its navigation of the

Passage.8

Canada responded to the voyage of the Manhattan in 1970 First, the

Arctic Waters Pollution Prevention Act was adopted, extending Canadian tion to proclaimed ‘Arctic waters’ 100 miles out into the Beaufort Sea and ArcticOcean along the coastlines of the Yukon and Northwest Territories, including theislands of the Arctic Archipelago.9Under this Act, pollution control regulations –including standards for vessel construction, navigation and operation – wereimposed on all ships passing through these Canadian waters Failure to complywould result in passage bysuch vessels being prohibited A Shipping SafetyControl Zones Order was also issued under the Act which established sixteenzones in the 100 nautical mile offshore area within which navigational restrictionsapplied, including earliest and latest navigation dates for each particular type orclass of ship.10

jurisdic-Secondly, Canada extended its territorial sea from three to twelve cal miles,11including the waters around the Canadian Arctic mainland and theislands This extension of the territorial sea resulted in a great deal of the NorthwestPassage becoming enclosed within Canadian territorial sea, so that any vessels intransit would come more frequently under Canadian jurisdiction

nauti-Thirdly, Canada varied its acceptance of the compulsory jurisdiction ofthe International Court of Justice in regard to matters dealing with Canadianjurisdiction in the Arctic.12The effect was to ensure that no challenge could bebrought before the Court as to the validity in international law of the Arctic WatersPollution Prevention Act without Canada accepting the Court’s jurisdiction in thematter In justifying these initiatives, Canada relied upon the growing concern for

10 R S Reid, ‘The Canadian Claim to Sovereignty over the Waters of the Arctic’, Canadian Yearbook

of International Law, Vol 12, 1974, pp 117–29; and D A VanderZwaag, Canada and Marine Environmental Protection: Charting a Legal Course Towards Sustainable Development (London:

Kluwer Law International, 1995), pp 340–1.

11 Act to Amend the Territorial Sea and Fishing Zones Act, Statutes of Canada, Vol II, Chapter 68,

1970.

12 Canadian Declaration Concerning the Compulsory Jurisdiction of the International Court of Justice, ILM, Vol 9, 1970, pp 598 ff.

Arctic environmental protection It argued that as international law had yet todevelop sufficient measures to protect the area from the dangers of pollution, itwas appropriate for Canada to take unilateral action.13The USA did not welcomethese initiatives, noting that: ‘International law provides no basis for these pro-posed unilateral extensions of jurisdiction on the high seas, and the United Statescan neither accept nor acquiesce in the assertion of such jurisdiction.’14

The Manhattan incident was an important milestone in polar state

ini-tiatives for the protection of the marine environment Regardless of its underlyingmotives for enacting the Arctic Waters Pollution Prevention Act, Canada justifiedits action to the international community with reference to protection of the fragileArctic marine environment from pollution impacts This was the first occasion thatany polar state had strongly asserted a claim to exercise a sovereign right over polarwaters on environmental or conservation grounds (to be contrasted with initia-tives to assert jurisdiction on resource management or resource conservationgrounds) Canada’s action was sufficiently influential to eventually have an impactupon the negotiations at the Third UN Conference on the Law of the Sea

Responses to the Law of the Sea Convention

Article 234 of the LOS Convention provides multilateral recognition of thespecial features of the Arctic Ocean and the interests of the adjacent coastal states

in protecting the marine environment However, while Article 234 represents asignificant advance in recognising the need for marine environmental protection

in the Arctic, its limitations should also be recognised.15It does provide coastalstates with the ability to implement unilaterally laws and regulations for the ‘pre-vention, reduction and control of marine pollution from vessels in ice-coveredareas within the limits of the exclusive economic zone’ It cannot, however, be read

as a provision conferring upon states the ability to implement extensive marinepollution provisions for all polar waters, as it applies only within the EEZ and to ice-covered areas within the zone Any provisions adopted under Article 234 must also

be ‘non-discriminatory’ and have due regard for navigation

For Canada, Article 234 represented international acceptance of theaction it had taken in enacting the Arctic Waters Pollution Prevention Act and abasis upon which to expand legislative and policy initiatives to protect theCanadian Arctic As noted by leading Canadian commentators on the Arctic, such

as VanderZwaag:

13 P E Trudeau, ‘Canadian Prime Minister’s Remarks on the Proposed Legislation’, ILM, Vol 9, 1970,

pp 600–4.

14 J A Beesley and C B Bourne (eds.), ‘Canadian Practice in International Law During 1970 as

Re flected Mainly in Public Correspondence and Statements of the Department of External Affairs’,

Canadian Yearbook of International Law, Vol 9, 1971, p 288.

15 C Lamson and D VanderZwaag, ‘Arctic Waters: Needs and Options for Canadian–American

Cooperation’, Ocean Development and International Law, Vol 18, 1987, p 81; W E Westermeyer,

‘Jurisdiction and Management of Arctic Marine Transportation’, Arctic, Vol 39, 1986, pp 346–7.

Arguably, the provision grants Arctic coastal states the right to unilaterallyregulate vessel design, construction, equipment and manning These powersexceed coastal state control in the territorial sea and the general economiczone, and Article 234 was drafted with this in mind.16

The Polar Sea incident

In 1985, Canada became concerned once again over navigation throughthe Northwest Passage This followed an announcement that the US icebreaker,

Polar Sea, intended to sail through the Northwest Passage Canada responded by

announcing a review of Canadian Arctic policy; and on 10 September 1985, theMinister for External Affairs, Joe Clark, made a comprehensive statement onCanadian Arctic sovereignty to Parliament.17The statement included six majorpolicy initiatives:

1 the establishment of straight baselines around the Canadian ArcticArchipelago, effective from 1 January 1986;

2 the adoption of new legislation to enforce Canadian civil and criminallaws in the offshore areas enclosed by the straight baselines;

3 talks with the United States on cooperation in Arctic waters on the basis

of full respect for Canadian sovereignty;

4 increased aircraft surveillance and naval activity in the eastern Arctic;

5 the withdrawal of Canada’s reservation to the International Court ofJustice;

6 the construction of a Polar Class 8 icebreaker to operate in the enclosedwaters and a review of the other means available through which effectivecontrol could be exercised over Canadian Arctic waters.18

The statement removed some doubts about Canada’s intentions in the Arctic andclarified Canada’s legal position over the region By proclaiming straight baselinesaround its Arctic Archipelago, all the waters that fell within the baselines were

‘internal waters’ of Canada over which it now claimed complete sovereignty Themeasures which accompanied the proclamation of the baselines were alsodesigned to ensure that the Canadian action was not hollow but would be sup-ported by positive evidence of Canadian sovereignty over the waters.19

The importance of the Canadian baseline declaration should not beunderestimated The declaration may be controversial, but there has been noformal legal challenge made against it Canada’s capacity to legislate over thewaters on the landward side of the baselines appears to be unchallenged, subject,

16 D VanderZwaag, ‘Canada and Marine Environmental Protection: The Changing Tides of Law and

Policy’, in D McRae and G Munro (eds.), Canadian Oceans Policy (Vancouver: University of British

Columbia Press, 1989), p 103 See also the discussion by Brubaker, Chapter 10 in this book.

17 House of Commons Debates (Canada), 10 September 1985, Vol 5, p 6,463 18Ibid., p 6,464.

19 For an assessment of the Canadian action, see T L McDorman, ‘In the Wake of the Polar Sea:

Canadian Jurisdiction and the Northwest Passage’, Marine Policy, Vol 10, 1986, pp 243–57.

however, to the contentious right of international navigation through the west Passage.20This has substantial implications for Canada’s capacity to enactlaws and adopt polices for the protection of its Arctic waters and the marineenvironment which fall within the baselines.

North-Canada’s response to the AEPS

While the AEPS places emphasis on the development of enhanced erative measures amongst the Arctic states on matters of common environmentalconcern, ultimately many of the commitments made under the AEPS relate toactions of individual states Canada has perhaps been the best placed to meet itsdomestic obligations under the Strategy In 1991 the government announcedUS$100 million in funding to support Canadian Arctic environmental research andclean-up operations,21and also released an ‘Arctic Environmental Strategy’ for theCanadian Arctic.22There has been continuing debate within Canada over the needfor enhanced marine environmental protection in the Canadian Arctic;23however,notwithstanding some of the developments discussed below, a comprehensiveresponse is still pending

coop-Relevant Canadian legislation

Canada has adopted a range of legislative and policy initiatives for theprotection of its Arctic waters The most notable remains the Arctic WatersPollution Prevention Act, which is the principal Canadian legislative regime for thearea Among other initiatives is the Arctic Marine Conservation Strategy, developed

in the late 1980s It identified the following key principles:

1 Canada will exercise its sovereign rights and responsibilities in Arcticmaritime areas;

2 Canada will conserve and protect Arctic marine waters and renewableresources for the benefit and enjoyment of present and future genera-tions;

3 essential ecological components, processes and systems, and geneticdiversity will be maintained in the Arctic marine environment;

20See the discussion in D Pharand, The Northwest Passage Arctic Straits (Dordrecht: Martinus

Nijhoff, 1984); R R Roth, ‘Sovereignty and Jurisdiction over Arctic Waters’, Alberta Law Review, Vol.

28, 1990, pp 845–72; and D R Rothwell, ‘The Canadian–US Northwest Passage Dispute: A

Reassessment’, Cornell International Law Journal, Vol 26, 1993, pp 331–72.

21R Howard, ‘Arctic Protection Program Unveiled’, Globe and Mail (Toronto), 30 April 1991, p A4; and R F Keith, ‘Canada’s Arctic Environmental Strategy: Critique and Prospect’, Northern Review,

4 conservation requires an ecosystem approach and integrated ment of renewable and non-renewable resources; and

manage-5 all users of Arctic marine resources will be recognised.24

Moreover, as already mentioned, in 1991 Canada developed an Arctic

Environmental Strategy as part of the development of Canada’s Green Plan This

Strategy has five main objectives:

1 ensure the health and well-being of northern ecosystems;

2 protect and enhance environmental quality and sustainable use ofresources, including their use by indigenous peoples;

3 ensure that indigenous peoples’ perspectives, values and practices areaccommodated in the planning, development, conservation and protec-tion of the north;

4 improve decision-making by integrating local, regional, national andinternational interests as part of new legal, constitutional and cooper-ative arrangements; and

5 develop international agreements to use, conserve and manage resourcesand protect the circumpolar environment.25

The main components of this strategy dealt with environment–economy tion, waste, water and contaminants While none was specifically directed towardsthe marine environment, several did deal directly with developing response strate-gies to marine pollutants This has especially been the case with the programmedealing with contaminants, which has focused on developing a more advancedunderstanding of the way in which contaminants enter the Canadian Arcticenvironment via a number of sources.26This Arctic Environmental Strategy hasenhanced Canada’s capacity to give effect to its commitments under the AEPS;however, it does not seem to have resulted in any substantive changes to theCanadian legislative regime dealing with the Arctic marine environment.27

integra-Canada also adopted the Oceans Act in 1996, which became operativefrom 31 January 1997.28The Preamble to this Act specifically notes that the ArcticOcean is a part of the common heritage of all Canadians, and that Canada wishes

to promote the precautionary approach to the ‘conservation, management andexploitation of marine resources in order to protect these resources and preservethe marine environment’ The Act, in its section 30, provides for the development

of an ‘Oceans Management Strategy’ to be based upon the following principles:

24 L R Kriwoken and R P Côté, ‘Developments in Australian and Canadian Environmental

Management’, in L R Kriwoken, M Haward, D VanderZwaag and B Davis (eds.), Oceans Law and

Policy in the Post-UNCED Era: Australian and Canadian Perspectives (London: Kluwer Law

International, 1996), p 231.

25 Department of Indian and Northern Affairs (Canada), The Arctic Environmental Strategy: Five

Years of Progress (Hull: Department of Indian and Northern Affairs, 1996), p 6.

26 Ibid., pp 28–33.

27 See the discussion in D VanderZwaag, R Huebert and O Hurtzman, ‘The Arctic Marine

Environment: Not a Pristine Pole Apart’, in Kriwoken et al (eds.), Oceans Law and Policy, pp.

28

1 sustainable development, i.e., development that meets the needs of thepresent without compromising the ability of future generations to meettheir own needs;

2 the integrated management of activities in estuaries, coastal waters andmarine waters that form part of Canada or in which Canada has sovereignrights under international law; and

3 the precautionary approach, i.e erring on the side of caution

The Act seeks to provide a framework for the overall management of Canada’soceans; with the exception of the provisions dealing with marine protected areas(i.e., sections 35–36), it does not specifically provide for environmental manage-ment mechanisms

       

As defined in US legislation, the Arctic encompasses ‘all United States andforeign territory north of the Arctic Circle and all United States territory north andwest of the boundary formed by the Porcupine, Yukon, and Kuskokwim Rivers; allcontiguous seas, including the Arctic Ocean and the Beaufort, Bering, and ChukchiSeas; and the Aleutian chain’.29As recently as 1970, US attention to the Arctic wasclose to non-existent, although this is not to imply that activities important for theUnited States were not occurring in the polar north.30Rather, it suggests that, rela-tive to other parts of the country and the world, US policy interests toward theArctic received low priority Unlike Russia and Canada, which possess extensiveArctic territory, the US Arctic remains isolated from most Americans Even so, overthe past three decades, there has been a significant re-evaluation of US nationalpriorities in the Arctic

US Arctic policy

Current US policy toward the Arctic was first articulated in NationalSecurity Decision Memorandum 144 of 1971.31Although this policy statement wasnot comprehensive, it did furnish the basic framework within which US Arcticpolicy, and national legislation implementing it, could be developed NationalSecurity Decision Memorandum 144 asserts that:

the President has decided that the United States will support the sound andrational development of the Arctic, guided bythe principle of minimizinganyadverse effects to the environment; will promote mutuallybeneficial

29 Arctic Research and Policy Act of 1984, Public Law 98-373, Title I, section III, of 31 July 1984, 98 Stat.

1248 (codi fied in USCA, Vol 15, section 4111).

30See, for instance, above in this chapter on the Manhattan incident.

31Done on 22 December 1971 See the discussion in B D Smith, ‘United States Arctic Policy’, Ocean

Policy Studies 1:1 (Charlottsville, VA: Center for Oceans Law and Policy, University of Virginia,

1978), pp 38–40.

international cooperation in the Arctic; and will at the same time provide forthe protection of essential securityinterests in the Arctic, including preserva-tion of the principle of freedom of the seas and superjacent airspace.

This Memorandum also established the Interagency Arctic Policy Group (IAPG),which has become a key body for overseeing implementation of US Arctic policyand for reviewing and coordinating US activities in the Arctic

The management framework for US ocean policy in the Arctic is lished by national legislation This has meant a functional, piecemeal approach,rather than that of unified, comprehensive management There is no US ‘GrandPlan’ for the Arctic, no master scheme for a management authority to coordinate

estab-US ocean law or policy there This is attributable to the fact that, as estab-US territory,Alaska falls under federal jurisdiction; thus, all laws pertaining to the United Statesperforce pertain to the Alaskan Arctic While beyond the scope of this analysis, thestate laws of Alaska also generate important impacts upon the activities of US

nationals in the Arctic region, which is not surprising given the ad hoc pattern of

regulatory development in the United States

US Arctic interests

The United States security interests in Arctic marine areas, and nationallegislation protecting those interests, have taken four principal themes: militarysecurity, scientific security, economic security and environmental security Sincethe end of the Cold War, military concerns have waned, while the priority of otherinterests has tended to escalate

During the Cold War, the United States perceived serious threats fromSoviet maritime activities in the Arctic The deployment into Arctic waters of Sovietballistic missile submarines capable of firing nuclear missiles at US targets was agrave concern Three-quarters of the most advanced Soviet submarines were based

on the Kola Peninsula and operated in Soviet Arctic waters The Soviet militarybuild-up at the eastern end of the Northern Sea Route also gave the northern frontnew prominence.32Finally, the threat of bombers and land-based intercontinentalballistic missile attacks over the Arctic Circle remained a constant strategicconcern, creating the need for early warning systems on both sides of the ArcticOcean.33The disintegration of the Soviet Union and the end of the Cold War dimin-ished these threats

32 On the Northern Sea Route (NSR) in the context of vessel-source pollution, see Brubaker, Chapter

10 in this book For a general review of the NSR, see D Brubaker and W Østreng, ‘The Military

Impact on Regime Formation for the Northern Sea Route’, in D Vidas and W Østreng (eds.), Order

for the Oceans at the Turn of the Century (The Hague: Kluwer Law International, 1999), pp 261–90;

and W Østreng (ed.), National Security and International Environmental Cooperation in the Arctic

– The Case of the Northern Sea Route (Dordrecht: Kluwer Academic Publishers, 1999).

33 See G L Johnson, D Bradley and S Winokur, ‘United States Security Interests in the Arctic’, in

W E Westermeyer and K E Shusterich, United States Arctic Interests: The 1980s and 1990s (New York: Springer Verlag, 1984), pp 268–94.

As to the case of the USA and Canada, security-related disagreements inthe Arctic have strained the relationship since 1970 First, while the United Statesand Canada share a common boundary in the Arctic – the 141st meridian – theirmaritime boundary in the Beaufort Sea remains unresolved.34The two govern-ments have ‘agreed to disagree’ on the issue, which remains non-problematic solong as the overlapping ocean area appears to have little strategic value The hydro-carbon potential of the region, however, is thought to be high That could in thefuture raise the economic stakes, and complicate the resource claims, for bothgovernments Secondly, there is ambiguity concerning jurisdiction over offshoreareas in the Arctic This is potentially most problematic, as it relates to transit rightsthrough the Northwest Passage As already described in this chapter, the complex-

ities were demonstrated during the voyages of the Manhattan and the Polar Sea.

US–Canadian relations over the Northwest Passage have also been strained by theassertion of the right of submarines to pass through it submerged While Canadamaintains that these Arctic waters are subject to Canadian jurisdiction, the UnitedStates regards the Northwest Passage as an international strait, subject to interna-tional rights and regulations

Access to and control of living and non-living marine resources in theArctic remains a US security concern of considerable importance Since the 1950s,the US government has sought to protect these interests in its coastal waters,including those in the polar north As technology for exploiting underwaterreserves of crude oil and natural gas developed after World War II, interest arose inproducing hydrocarbons from the Outer Continental Shelf (OCS), that being thefederal portion of the continental shelf which extends outward beyond the threenautical mile line in most cases While submerged lands within three miles of thecoast belonged to the states, the Outer Continental Shelf Lands Act 1953 (OCSLA)established federal jurisdiction over submerged lands on the outer continentalshelf seaward of Alaska’s state boundary.35The OCSLA provided for orderly leasing

of these lands, while ensuring protection of the environment and that the federalgovernment received fair market value for the land and for mineral production.The outer continental shelf is the source of 15 per cent of US crude oil productionand 25 per cent of natural gas output.36

Under the OCSLA, the US Secretary of the Interior is responsible for theadministration of mineral exploration and development of Alaska’s outer conti-nental shelf The Act empowers the Secretary to grant leases to the highest qualified

34 See generally K L Lawson, ‘Delimiting Continental Shelf Boundaries in the Arctic: The United

States–Canadian Beaufort Sea Boundary’, Virginia Journal of International Law, Vol 22, 1981, p 221; and D R Rothwell, Maritime Boundaries and Resource Development: Options for the Beaufort

Sea (Calgary: Canadian Institute of Resources Law, 1988).

35 Done 7 August 1953, 67 Stat 462, as amended, USCA, Vol 43, 1988, section 1331 ff.

36 L C Kumins, ‘95115: Outer Continental Shelf Leasing for Oil and Gas Development’ (Washington, DC: Congressional Research Service, Library of Congress, CRS Issue Brief updated, 1 November 1996), p 1.

responsible bidder(s) and to formulate such regulations as necessary to carry outprovisions of the Act In general, the Act provides guidelines for implementing theOCS oil and gas exploration and development programme The basic goals of theOCSLA in the offshore US Arctic region are threefold:

1 to establish policies and procedures for managing the oil and natural gasresources of Alaska’s OCS that are intended to come from development ofthe OCS;

2 to preserve, protect and develop oil and natural gas resources of Alaska’sOCS in a manner that is consistent with the need: (a) to make suchresources available to meet the nation’s energy requirements as rapidly aspossible; (b) to balance orderly resources development on the continen-tal shelf with protection of the human, marine and coastal environmentsoffshore Alaska; (c) to ensure the public a fair and equitable return on theresources of the Alaskan OCS; and (d) to preserve and maintain freeenterprise competition; and

3 to encourage the development of new and improved technology forenergy resources production, which will eliminate or minimise risk ofdamage to Alaska’s human, marine and coastal environments.37The US Minerals Management Service (MMS), which collects royalties for petro-leum and natural gas production, is responsible for administering mineral leasing

of submerged OCS lands and for supervising offshore operations after leases areissued Regulations administered by the MMS govern the leasing of oil, gas andsulphur mineral deposits on the OCS.38The Secretary of the Interior is responsiblefor monitoring the human, marine and coastal environments of any area or region

in order to obtain data for determining whether any significant impacts are beingmade on the quality of productivity of the environment

Opposition by environmental groups to drilling on the outer continentalshelf since 1970 has seriously deterred leasing prospects offshore Alaska This isnotwithstanding the enactment of the Outer Continental Shelf Deep Water RoyaltyRelief Act 1995,39which provides for a ‘royalty holiday’ (i.e., rate reduction) fordeep-water drilling operations in order to encourage hydrocarbon prospectors to

go further offshore on the OCS In response to such opposition to drilling in Alaska’soffshore areas, Congress approves OCS moratoria annually and bans expenditure

of appropriated funds for any leasing activity on environmentally sensitive areas ofthe OCS While a moratorium is in place preventing leasing activities along mostcoastal areas of the United States, five Alaskan planning areas have been included

in the five-year leasing plan for 1997–2002 adopted by the MMS

37 See USCA, Vol 43, 1988, section 1332.

38 See CFR, Vol 30, section 256 Regulations for the conduct of mineral operations are contained in

CFR, Vol 30, sections 250 and 251.

39 Public Law 104-58, Title III, section 301, of 28 November 1995, 109 Stat 563, USCA, Vol 43, tions 1301 and 1337.

sec-US Arctic conservation and protection laws

Protection of the marine environment through conservation and tion laws has assumed increasing importance over the past decade for the USArctic US legislation affecting the Arctic ocean environment has focused on man-aging coastal resources, preserving areas offshore the Alaska wildlife refuge, andsustaining living marine resources in the Arctic Ocean A prominent example is theCoastal Zone Management Act (CZMA), enacted by Congress in 1972 to checkincreasing pressures of over-development of coastal resources and land-useconflicts in US coastal areas.40The CZMA encourages US states (including Alaska)

protec-to preserve, protect and where possible resprotec-tore valuable natural coastal resourcessuch as wetlands, floodplains, estuaries, barrier islands and coral reefs, as well asfish and wildlife using those habitats An interesting feature of the CZMA is thatparticipation by states is voluntary, and that Alaska is included among the partici-pating states

The CZMA sets an important precedent as it establishes the role of stateand local governments in developing coastal planning and management pro-grammes It also encourages state governments to participate by providing federalassistance to any US coastal state willing to develop and implement a comprehen-sive programme of coastal management In addition to resource protection, theCZMA specifies that coastal states, including Alaska, may manage developmentoffshore The CZMA requires that Alaska’s programme management anticipateimpacts from energy development facilities and that they plan for such impacts.41Among the facilities affecting US Arctic waters are petroleum refineries; gasifica-tion facilities, used for transport, treatment, conversion, transfer or storage ofliquefied natural gas; oil and gas facilities, including platforms, assembly plants,storage depots and refining facilities; and transfer facilities, deepwater ports, pipe-lines and related terminals – all of which are active in coastal areas offshore Alaska

Throughout the 1980s, the US federal government considered the need forgreater scientific research in the Arctic Debate within the Congress over the merits

of a special Arctic science policydrew attention to the growing importance of theArctic for US interests Policy-makers came to realise that the Arctic contains vitalresources, both onshore and offshore, that can reduce US dependence uponimported foreign oil Theyalso came to appreciate that the Arctic is critical to USnational defence and that the renewable resources of the Arctic – inclusive offisheries–constituteoneofthecountry’sgreatestcommercialassets.Consequently,

a comprehensive national policyto organise hitherto-neglected research on theregion was deemed necessaryin order to fulfil the objectives of national resource,strategic, environmental and foreign policy

40Coastal Zone Management Act of 1972, Public Law No 92-583, Statutes, Vol 86, section 1280, of

1972 (codi fied as amended at USCA, Vol 16, sections 1451–1465).

41Ibid., section 306(d)(2)(H).