Congress should create an ocean zoning system to protect marine resources from expanded offshore energy development, according to Duke University researchers.

Their paper, published today in Science, says federal policymakers must extend public-trust doctrine used for settling legal disputes on land to the sea. The doctrine could provide an effective and ethical answer to questions about how to regulate offshore areas for oil and gas drilling and wave and wind development while protecting fisheries and marine habitat, the researchers write.

At issue is how to address demands for energy development on the outer continental shelf.

Some lawmakers have proposed offshore zoning, or "marine spatial planning." Several advocacy groups are working to put marine zoning language that would mandate an ecosystem-based management approach into an energy bill this year.

But the authors of the new report say U.S. ocean governance cannot easily accommodate ecosystem management. To do so, they say, Congress should employ the public trust doctrine, which obliges the government to manage natural resources in the best interest of its citizens.

"The public trust doctrine could provide a practical legal framework for restructuring the way we regulate and manage our oceans. It would support ocean-based commerce while protecting marine species and habitats," said Mary Turnipseed, a doctoral student at Duke's Nicholas School of the Environment and the study's main author.

Many analysts and the U.S. Commission on Ocean Policy have assumed the public trust doctrine already extends to federal waters. But Stephen Roady, a fellow at Duke's School of Law and a lawyer at Earthjustice, said that doctrine must be "formally articulated" by Congress, the White House or the federal courts.

President Obama could use an executive order to extend the doctrine offshore, or Congress could write it into oceans law, Roady said. Alternatively, federal courts could extend the doctrine to the oceans by using the same precedents and statutes that states have used, according to the report.

States that use the public trust doctrine on land have started to try to extend it to the ocean. The Massachusetts Ocean Partnership recently wrote legislation saying the state should manage its waters according to the doctrine. Rhode Island and New York are in the process of drafting similar comprehensive plans for managing state waters.

The Duke report says the doctrine should be extended to U.S. ocean waters to help federal agencies manage conflicting demands in 3 million nautical square miles of the Exclusive Economic Zone.

Currently, more than 20 different federal agencies, operating under dozens of laws, regulate species and activities in these waters, without any mandated, systematic effort to coordinate their actions for the public good, according to the report.

'Frontier' zoning

Once established, ocean zoning could protect vital wildlife habitat and site specific areas for energy development.

Larry Crowder, a marine biology professor at Duke's Nicholas School of the Environment, envisions using the public trust doctrine to create a "marine special management plan" that has input from all of the relevant federal agencies. Ecosystems management would be a guiding principle.

Crowder predicts that as the debate over how to regulate uses of offshore areas matures, historically influential players – such as oil and gas producers – could exercise undue influence. Start-up industries, such as wave and tidal energy producers, may have less power.

"People still think of the oceans as a frontier," Crowder said. "When the West was a frontier, there wasn't zoning. The guy with six bullets won."

He added, "We've done this on land with comprehensive plans. You don't put a porn shop next to an elementary school."

Senior reporter Michael Burnham contributed.

Reprinted from Greenwire with permission from Environment & Energy Publishing, LLC., 202-628-6500