Enduring Optimism- Examining the Rig-to-Reef Bargain

The Aging Offshore Oil Infrastructure

The United States relies heavily on fossil fuels to support its economy, particularly in industry and transportation A significant portion of domestic oil and gas is sourced from the outer continental shelf (OCS), which holds proven reserves of these resources While large drilling platforms are established in this region, it is essential to evaluate decommissioning alternatives without assuming that these platforms contribute positively to marine resources.

Governor Davis highlighted that the scientific community does not widely accept the theory of environmental benefits from artificial reefs The ongoing debate centers on whether these structures truly provide habitat, especially since man-made reefs often differ significantly from the original fisheries habitats The use of artificial reefs as a mitigation strategy for the loss of distinct habitats remains a contentious issue, as noted in the National Oceanic and Atmospheric Administration's Draft National Artificial Reef Plan Revision.

The longstanding debate surrounding artificial reefs centers on their historical use as an alternative for solid waste disposal.

Debate: Habitat Enhancement or Waste Disposal?, 25 OCEAN DEV & INT'L L 87 (1994) (discussing the use of incinerator ash, tires and platforms as artificial reefs).

15 The Outer Continental Shelf Lands Act defines "outer Continental Shelf" as "all submerged lands lying seaward and outside of the area of lands beneath navigable waters as

As of 2005, there are around 4,000 offshore oil rigs operating on the Outer Continental Shelf (OCS), primarily located in the Gulf of Mexico and some along the Pacific coast The early 2000s marked a surge in offshore drilling in U.S coastal waters, driven by the George W Bush administration's strong support for boosting domestic oil and gas production on public lands, both onshore and offshore.

Due to a growing focus on domestic production, the share of offshore oil and gas in the national supply is expected to rise in the near future Recent advancements in technology have significantly enhanced deepwater drilling operations, leading to an increased influx of petroleum from offshore sources The United States maintains jurisdiction over the Outer Continental Shelf (OCS) resources, extending up to 200 miles from the shore within its exclusive economic zone, as outlined in U.S law and international agreements established by the U.N Conference on the Law of the Sea.

According to the MMS Offshore Facilities Report, as of March 2005, there have been a total of 3,944 installations of offshore production facilities in federal waters since 1953 Of these, 3,921 are located in the Gulf of Mexico Outer Continental Shelf (OCS), while 23 are situated in the Pacific OCS off the coast of California.

17 Sam Fletcher, US Drilling Surge Will Continue Into the Year, OIL & GAS J., May 19,

The Bush administration actively promoted extractive industries, particularly oil and gas, as highlighted by Robin Kundis Craig in her overview of environmental policies (2003) This emphasis on domestic production extended to public lands, as reported by Douglas Jehl in the New York Times (2001) Additionally, Jan G Laitos and Thomas A Carr noted a significant decline in oil and gas drilling on public lands from the 1970s through the 1990s, illustrating a shift in resource management strategies.

Government press releases and public documents from the DOI and Minerals Management Service (MMS) support forecasts indicating increased offshore oil production in the coming decade, as highlighted in the January-February 2004 issue of MMS OCEAN SCIENCE However, the aftermath of Hurricane Katrina significantly impacted the offshore oil and gas industry's downstream production, with refineries in Louisiana and Mississippi facing challenges due to employee evacuations and damage to infrastructure, as reported by the Energy Information Administration on August 31, 2005.

According to the Minerals Management Service, deep water oil production in the Gulf is projected to nearly double over the next decade, reaching 2.25 million barrels per day by 2011, which would account for approximately 80% of total Gulf production The advancements in offshore oil rigs, capable of operating at depths exceeding 6,600 feet, further support this growth in deep water development.

Deepwater drilling is crucial for the future of oil exploration, particularly in the Gulf of Mexico, where the U.S has implemented the Deepwater Royalty Relief Act to promote private investment in drilling operations beyond 200 meters As the demand for deepwater oil and gas reserves grows, the need for additional platforms at greater depths is becoming evident This trend reflects a global increase in offshore oil production and the utilization of offshore rigs, highlighting the expanding significance of deepwater exploration in the energy sector.

The oil industry is actively exploring and producing in deepwater regions; however, it is also dealing with a significant number of aging offshore platforms that are nearing their production limits Consequently, the United States and its oil industry lessees must increasingly address the challenges associated with the retirement of these aging drilling platforms.

The process of winding down offshore production is called

Decommissioning involves shutting down operations, plugging wells, dismantling offshore structures, and disposing of waste Over the next decade, despite the construction of new oil production platforms on the Outer Continental Shelf (OCS), approximately a thousand rigs in the Gulf of Mexico are expected to be retired by their owners Additionally, government regulations will play a crucial role in this process.

20 MMS DEEPWATER DEv FACTS, supra note 19, at 2; U.S COMMISSION ON OCEAN POLICY, AN OCEAN BLUEPRINT FOR THE 21ST CENTURY: FINAL REPORT 357 (2004) [hereinafter OCEAN COMM'N REPORT].

21 Outer Continental Shelf Deep Water Royalty Relief Act of 1995, Pub L No 104-58,

109 Stat 557 (codified as amended at 43 U.S.C §§ 1301, 1337 (2000)); 43 U.S.C § 1337(a)(3)(C)(ii) The Secretary of Interior has authority to waive royalty payments if it is uneconomical to explore otherwise.

The discovery of natural resources like methane hydrates, along with the growing interest in deepwater ocean mining and renewable energy projects, is expected to boost the installation of structures in the future.

23 HOSSEIN ESMAEILI, THE LEGAL REGIME OF OFFSHORE OIL RIGS IN INTERNATIONAL LAW 12 (2001).

Michael Vincent McGinnis and colleagues from the University of California, Santa Barbara, conducted a comprehensive study on the politics, economics, and ecology involved in decommissioning offshore oil and gas structures This research, titled "The Politics, Economics, and Ecology of Decommissioning Offshore Oil and Gas Structures," was published as MMS OCS Study 2001-006 by the Minerals Management Service in 2001 The full study can be accessed at the Coastal Research Center's website.

A 2001 report by Allan G Pulsipher and colleagues from the Center for Energy Studies at Louisiana State University predicts a significant 29 percent reduction in the number of offshore platforms in the Gulf of Mexico from 1999 to 2023 This forecast highlights the anticipated decline in offshore infrastructure within the region, as detailed in the OCS Study MMS 2001-013 published by the Minerals Management Service in April 2001.

The Vacillating U.S Approach to Platform Removal

Cultural Influences on Platform Removal Policy

The debate surrounding the disposal of offshore platforms is a recent development, yet offshore drilling has long been a contentious issue in American politics A key consideration in this ongoing discussion is the potential lack of onshore infrastructure needed to dismantle these large steel structures, prompting the exploration of alternative solutions, such as repurposing them as artificial reefs or for other uses.

46 See, e.g., COMM'N ON DISPOSITION, supra note 2; MCGINNIS ET AL., supra note 24, at 78; DECOMMISSIONING OFFSHORE CALIFORNIA, supra note 1; The oil industry wanted to revisit the removal requirement when the third convention on the Law of the Sea was negotiated, pointing to the high cost of removal in deepwater Richard J McLaughlin, Coastal State

Discretion, U.S Policy, and the New IMO Guidelines for the Disposal of Offshore Structures: Has

Article 5(5) of the 1958 Continental Shelf Convention Been "Entirely Removed?" 1 TERR SEA J.

In 1991, the Oil Industry International Exploration and Production Forum presented Proposed International Standards aimed at enhancing navigation safety to the IMO Sub-Committee on Safety of Navigation during its 33rd session, as documented in IMO Doc Nav 33/7 (1986).

47 See generally EDWARD A FITZGERALD, THE SEAWEED REBELLION: FEDERAL-STATE CONFLICTS OVER OFFSHORE ENERGY DEVELOPMENT (Lexington Books

In 2001, legal challenges arose regarding the development of the outer continental shelf, highlighting ongoing debates in this area R Scott Farrow's work, "Managing the Outer Continental Shelf Lands: Oceans of Controversy," published by Taylor & Francis in 1990, delves into the contentious issues surrounding the management of these lands Additionally, public protests in 1995 erupted over plans for waste disposal in the outer continental shelf, reflecting growing environmental concerns.

The "Seaweed Rebellion" of 2005 highlights the ongoing conflict between coastal states and the federal government regarding offshore energy development Coastal states maintain jurisdiction over the waters extending three miles from the shore, while the federal government oversees areas beyond this limit.

In recent years, concerns from coastal states and the public regarding the environmental effects of offshore drilling have significantly influenced Outer Continental Shelf (OCS) development and drilling practices While offshore drilling has notably increased, it is mainly concentrated in the deepwater regions of the Gulf of Mexico, a trend driven by the political clout of certain congressional representatives from coastal states Currently, a moratorium on leasing offshore lands for oil and gas exploration is enforced, affecting all areas except for the central and eastern Gulf of Mexico and Alaska.

The growing concern over the poor condition of overfished oceans and the degradation of marine environments is reshaping perspectives on offshore drilling Years of overfishing, pollution, and habitat destruction have led to a significant "crisis in our oceans," prompting renewed international discussions, particularly highlighted by the controversial disposal of the Brent Spar oil platform in the North Sea Environmentalists, ocean advocates, and policymakers view the removal and onshore disposal of these platforms as a vital strategic goal, underscoring the urgent need for sustainable solutions in marine resource management.

48 See generally FITZGERALD, supra note 47 (discussing history and development of state-federal conflicts over offshore resources).

49 See discussion infra Part IV.A.1 on the historic and ongoing state-federal conflict on the OCS.

50 See Robert B Wiygul, The Structure of Environmental Regulation on the Outer

Continental Shelf: Sources, Problems, and the Opportunity for Change, 12 J ENERGY NAT. RESOURCES & ENVTL L 75 (1992) (providing an in depth discussion and critique of the framework of environmental regulation on the OCS).

51 MMS OFFSHORE FACILITIES REPORT, supra note 16.

52 The President has the authority to withdraw any unleased lands of the OCS OuterContinental Shelf Lands Act, 43 U.S.C § 1341(a) (2000) The moratorium was declared byPresident George H.W Bush, and was extended by President William J Clinton As it stands,the moratorium will last until 2012 unless it is subsequently extended by the President Each year since, Congress has prevented spending on development of oil and gas through appropriations riders More generally, the issue of environmental degradation has achieved a foothold in national energy policy discussions See David J Hayes, Energy, Again -But with a Kicker, 16NAT RESOURCES & ENV'T 215 (2002) (noting environmental considerations at the center ofBush energy policy development); Gary C Bryner, The National Energy Policy: AssessingEnergy Policy Choices, 73 U COLO L REV 341, 341-42 (2002) (noting that the difficulty of developing an energy policy "is increasingly an unremitting challenge because it is inextricably linked to environmental issues").

The declining health of the oceans, long overlooked, is now gaining recognition and prompting calls for management policy reform Recent legislative actions at both federal and state levels aim to address the need for effective management and restoration of ocean health, highlighting the critical role oceans play in providing essential ecosystem services A significant milestone was achieved with the Oceans Act of 2000, which initiated an expert appraisal of ocean health and management strategies.

The Oceans Act established the United States Commission on Ocean Policy, tasked with recommending improvements to the ineffective ocean management system and addressing the crisis in ocean health due to human activities The Commission's "Ocean Blueprint for the 21st Century" proposes comprehensive reforms to current ocean laws to promote the long-term sustainability of marine resources While legislative action on these recommendations has been slow, some measures are gaining attention from lawmakers, and states are increasingly focused on enhancing marine health Public awareness of ocean issues is rising, leading to a modest but necessary increase in legislative efforts, even as U.S energy demands continue to exceed domestic fossil fuel supplies, increasing reliance on imports.

53 See PEW OCEANS COMMISSION, AMERICA'S LIVING OCEANS: CHARTING A COURSE

The PEW REPORT (2003) identifies significant threats to ocean health, including pollution from both point and nonpoint sources, invasive species, aquaculture practices, coastal development, overfishing, habitat alteration, bycatch, and climate change It highlights the alarming decline in various marine species populations, the rise in marine diseases, and the detrimental impacts on other ecosystem species that depend on these affected marine organisms.

54 See id at 102-126 (making recommendations for change in the management of the ocean's resources).

55 Oceans Act of 2000, Pub L No 106-256, 114 Stat 648 (to be codified at 33 U.S.C § 857-19).

56 See id § 2; Robin Kundis Craig, Regulation of U.S Marine Resources: An Overview of the Current Complexity, 19 NAT RESOURCES & ENV'T 3, 4 (2004) (stating how regulations need to be more coordinated to comprehensively protect marine resources).

58 See OCEAN COMM'N REPORT, supra note 20, at 472-522 (providing a complete list of recommendations appearing throughout the report).

59 The proposals on aquaculture have been well discussed, as well as the potential for research and additional siting of fixed structures See National Offshore Aquaculture Act of

60 California's Marine Life Protection Act is one important state initiative to rebuild the health of ocean ecosystems See CAL FISH & GAME CODE §§ 2850-2863 (Deering 2005).

The shift towards alternative and renewable energy sources has been slow, despite rising demands for oil and natural gas This delay has heightened interest in reducing dependence on foreign oil, coupled with advancements in deepwater drilling technology, which promote increased domestic offshore production However, the significant costs associated with platform removal after offshore production pose a challenge Eliminating these multi-million dollar removal obligations could make U.S offshore areas more profitable and appealing to the industry.

International Rules Regarding Platform Removal

The United States' responsibility for the disposal of offshore platforms is regulated by international agreements, specifically the U.N Convention on the Law of the Sea and the London Dumping Convention While international law regarding platform removal remains ambiguous, there has been a shift from mandatory removal to allowing coastal nations greater discretion in the decision-making process.

61 The sizable divide between U.S energy policy and the growing energy demand in this country is well documented For a recent discussion recommending ways to facilitate increased offshore drilling to close the import gap, see Kim Harb, The Legal and Policy Dilemma of Offshore Oil and Gas Development, 19 NAT RESOURCES & ENV'T 23 (2004) (noting a "vast disconnect in this country between our energy needs and our energy policies") On the other hand, those who promote sustainable use of natural resources promote expansion of alternative and renewable energy sources as well as appropriate conservation efforts to develop a sustainable energy policy.

62 The recently enacted Energy Policy Act of 2005 requires that the Secretary of Energy prepare an inventory of oil and natural gas resources beneath all of the waters of the United States OCS, specifically calling for the inventory and analysis to "use any available technology, except drilling, but including 3-D seismic technology to obtain accurate resource estimates Pub L No 109-58, § 357(a)(2), 119 Stat 594, 720 (2005) (to be codified at 42 U.S.C § 15912). Many see this type of inventory process as a precursor to exploration and drilling See Bart Jansen, End to Drilling Ban Viewed as Threat to Georges Bank: Senate Approval of Exploration for Oil and Gas Reserves Rekindles a Controversy, MAINE SUNDAY TELEGRAM, June 22, 2003, at 1A On the other hand, it may encourage agitation for continued moratorium Apart from the inventory, other incentives in the Energy Policy Act of 2005 were directed to increase domestic production of oil and gas, such as royalty relief and tax subsidies See Press Release, Minerals Management Service (MMS), 2005 Energy Policy Act Grants MMS New Authority and Includes Incentives for Increased Domestic Energy Production (Aug 8, 2005).

63 Law of the Sea: Convention on the Continental Shelf, entry into force June 10, 1964, 15 U.S.T 471, 499 U.N.T.S 311 [hereinafter UNCLOS I]; Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature Dec 29, 1972, entry into force Aug 30, 1975, 26 U.S.T 2403, 1046 U.N.T.S 120 [hereinafter London Dumping Convention]; U.N Conference on the Law of the Sea, opened for signature Dec 10, 1982, U.N. Doc A/Conf.62/122 (1982), reprinted in 21 I.L.M 1261 (1982) [hereinafter UNCLOS III] The United States has not yet acceded to the UNCLOS III, thus its international obligations are even further uncertain at this time given the arguable operation of the UNCLOS I to which it is a party.

64 A few reasons for this uncertainty exist: the most recent law of the sea convention has not been joined by all nations, some nations have entered into regional treaties that are more restrictive, and state practice relevant in defining international law has not yet emerged clearly.

See Rosalyn Higgins QC, Abandonment of Energy Sites and Structures: Relevant International

The international community's concern for unrestricted commercial and military navigation prompted the establishment of strict removal requirements, exemplified by the 1958 Convention on the Continental Shelf, which mandates the complete removal of abandoned offshore installations In the 1970s, the United States actively engaged in discussions regarding ocean dumping, participating in negotiations for the London Dumping Convention (LDC), aimed at preventing marine pollution The LDC prohibits the disposal of offshore structures at sea while allowing for the placement of materials for purposes other than mere disposal, thereby addressing the critical issue of ocean degradation.

By the late 1970s, many large offshore platforms had exhausted their wells, leading to the need for decommissioning The 1982 Third United Nations Convention on the Law of the Sea (UNCLOS III) granted coastal states the discretion to determine the fate of abandoned offshore structures Specifically, Article 60(3) of UNCLOS III permitted these states to consider any internationally recognized standards set by competent organizations in their decision-making process.

The International Maritime Organization (IMO) is a competent international organization that has established guidelines and standards for the removal of offshore structures located on the continental shelf and within the 200-mile exclusive economic zone of coastal nations.

Law, 11 J ENERGY & NATURAL RES L 6 (1993) (discussing the state of international law on the question of platform removal and rigs-to-reefs).

65 UNCLOS I, supra note 63, art 5(5) (establishing this strict removal provision).

66 John Warren Kindt, Solid Wastes and Marine Pollution, 34 CATH U L REV 37, 76-81 (1984).

67 The 1972 London Dumping Convention considers disposal of offshore platforms as sea dumping, unless the platform is placed for an alternate purpose London Dumping Convention, supra note 63, art III(1)(a), (1)(b)(ii) The 1996 Protocol to the convention arguably "tightens up" dumping restrictions See Elizabeth A Kirk, The 1996 Protocol to the London Dumping Convention and the Brent Spar, 46 INT'L COMP L.Q 957, 963 (1997) The MPRSA was amended in 1974 to conform to the treaty obligations of the LDC See Act of Mar 22, 1974, Pub L No. 93-254, § 1(1), 88 Stat 50.

68 London Dumping Convention, supra note 63 (proclaiming ratification by United States on Sept 25, 1973).

69 Art III(1)(a) prohibits dumping, while art III(1)(b) allows alternative uses Id.

70 Cameron, supra note 1, at 121 (noting industry has been aware of looming problem of decommissioning).

72 Id art 60(3) The United States has not yet ratified the UNCLOS III treaty President George W Bush endorsed the treaty and it has been moved to the Senate for approval The Senate has expressed reservations about entering into a treaty that will limit U.S sovereignty.

The International Maritime Organization (IMO) guidelines advocate for a case-by-case evaluation of platform removal, taking into account navigation, environmental impact, costs, and potential new uses In certain situations, large platforms may be permitted for ocean dumping if the environmental effects are deemed acceptable Additionally, the guidelines allow coastal states to convert platforms into artificial reefs to enhance marine resources However, the IMO also recommends that platforms on the Outer Continental Shelf (OCS) be designed for complete removal, thereby reducing the viability of future claims regarding the infeasibility of such actions.

The United States has cautioned against ocean dumping, urging the International Maritime Organization (IMO) to allow platform removal solely for "a bona fide legitimate new purpose," while recommending a strict 2 percent limit on such exceptions However, these proposals were not embraced, as the U.S was unable to persuade other countries to integrate this approach into international treaties, and domestic law did not acknowledge these restrictions or the necessity for complete removal design.

The shift to a case-by-case evaluation of the removal rule in international law has raised alarms over the considerable discretion granted to coastal nations regarding the abandonment of outdated platforms Concerns have been voiced about the potential influence of special interest groups and the detrimental impact on international navigational rights Some nations may exploit this flexibility by overstating removal costs and promoting dubious "new uses" for obsolete structures Notably, the designation of artificial reefs as a "new use" raises significant concerns, as it may lack technical validity due to the scientific uncertainties surrounding its ecological effects.

73 Guidelines and Standards for the Removal of Offshore Installations and Structures on the Continental Shelf and in the Exclusive Economic Zone, Int'l Maritime Org 16th Ass Res. A.672, MSC 57/27/Add.2, Annex 31 (Oct 19, 1989) [hereinafter IMO Guidelines].

76 Id at 3.13 (requiring that any structure erected after January 1, 1998 be designed for complete removal).

80 See McLaughlin, supra note 46, at 249 (characterizing coastal state discretion as excessive and potentially problematic for U.S interests).

81 McGlaughlin was concerned that the navigational rights of the international community were at risk and criticized vague standards and reliance on case-by-case evaluations Id at 266.

In 2005, concerns were raised about the impact of artificial reefs on marine environments, highlighting that the United States is not exempt from these issues The ongoing debate regarding the proliferation of fixed structures on the Outer Continental Shelf (OCS) is overshadowed by the pressing need to address the declining health of the oceans Current discussions primarily focus on the costs and individual environmental impacts of each rig-to-reef conversion, neglecting the broader implications for marine ecosystems.

Domestic Legislation Regarding Platform Removal

The legal framework governing the removal of offshore platforms is primarily established by three federal statutes: the Outer Continental Shelf Lands Act (OCSLA), the National Fishing Enhancement Act, and the Marine Protection, Research and Sanctuary Act OCSLA, a comprehensive statute regulating offshore drilling, was updated in 1976 to enhance environmental protections Under OCSLA, the Minerals Management Service (MMS) within the Department of Interior mandates the removal of oil platforms within one year after production ceases Additionally, standard lease agreements between the federal government and oil companies require the removal of all platforms from the ocean floor, ensuring compliance with environmental regulations The National Fishing Enhancement Act, enacted in 1984, further complements these removal provisions.

83 Id McGlaughlin noted that the discretion given to coastal nations meant that it was possible that "[r]egardless of technical merit, a coastal state could designate any abandoned structure as an aid to the enhancement of living resources and allow it to remain in place." Id at 264.

84 Outer Continental Shelf Lands Act, 43 U.S.C §§ 1301, 1331-1356 (2000); National Fishing Enhancement Act of 1984, Pub L No 98-623, 98 Stat 3394 (codified at 16 U.S.C § 1220

(2000) and 33 U.S.C §§ 2101-2106 (2000)); Marine Protection, Research and Sanctuaries Act, Pub L No 92-532, § 2, 86 Stat 1052 (codified as amended in scattered sections of 16 U.S.C and

The complexity of ocean law, characterized by overlapping jurisdictions, raises significant questions regarding the removal of statutes such as the Endangered Species Act, which prohibits harming protected species, the Marine Mammal Protection Act, which regulates activities affecting marine mammals, and the National Environmental Policy Act, which mandates environmental impact assessments for major federal projects This intricate legal framework is further explored in Parts II and IV, focusing on regulations related to the development of artificial reefs.

86 MMS Lease Form, supra note 29, § 22 ("Removal of Property on Termination of Lease Within a period of one year after termination of this lease in whole or in part, the Lessee shall remove all devices, works, and structures from the premises no longer subject to the lease in accordance with applicable regulations and Orders of the Director However, the Lessee may,with the approval of the Director, continue to maintain devices, works, and structures on the leased area for drilling or producing on other leases.") Federal regulations dictate removal within the one-year period from termination of the lease or pipeline right-of-way, unless approval is obtained to use the structure for other activities 30 C.F.R § 250.1725(a). providing a specific artificial reef exception to the rule that platforms must be removed 87 MMS amended its regulations accordingly 88

The Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), known as the "Ocean Dumping Act," marks the United States' initial efforts to regulate ocean dumping Under the MPRSA, the Environmental Protection Agency (EPA) oversees the disposal of materials in ocean waters While the London Dumping Convention prohibits the disposal of offshore structures, it permits the placement of materials for purposes other than mere disposal, aligning with MPRSA standards The Act clarifies that "dumping" does not encompass the construction of fixed structures or artificial islands, nor the intentional placement of devices in ocean waters, provided these actions are regulated by Federal or State law or authorized programs.

There is also a dispensation for emergencies 92

87 See discussion infra Part III on NFEA.

89 The Council on Environmental Quality noted the problem of ocean pollution in an influential report See COUNCIL ON ENVIRONMENTAL QUALITY, OCEAN DUMPING: A NATIONAL POLICY (1970) For discussions of the development of ocean dumping laws, see Steven J Moore, Troubles in the High Seas: A New Era in the Regulation of U.S Ocean Dumping, 22 ENVTL L 913, at 928 (1992) (describing the influence of the CEQ's ocean dumping report on adoption of ocean dumping legislation) See also William J Chandler & Hanna Gillelan, The History and Evolution of the National Marine Sanctuaries Act, 34 ENVTL L. REP 10,505, 10,521 (2004) ("With the release of the CEQ report on ocean dumping, momentum for an ocean dumping law became unstoppable.") The MPRSA authorized the federal Environmental Protection Agency to regulate the disposal of materials in the ocean by, among other things, empowering EPA to permit offshore disposal in certain narrow instances See 33 U.S.C §§ 1411-1421 (2000) For a time, EPA typically prohibited offshore disposal when confronted with scientific uncertainty over whether the implementation of a particular proposal would adversely impact the marine environment But its exercise of its permitting authority under the Ocean Dumping Act was not as prohibitive as some would have preferred, leading to challenges to EPA's approval practice and occasional litigation.

90 London Dumping Convention, supra note 63, art III(1)(a) (prohibiting dumping); Id art III(1)(b) (allowing alternative uses).

92 When a storm mangled an offshore rig, the government allowed the dumping of that platform in place as an emergency exception to the removal rule See Bill Finch & Ben Raines,

Offshore Platform Standards Get a Tough Drilling, Wind-Design Criteria are Under Question,

GRAND RAPIDS PRESS, Oct 2, 2005, at C7; Steve Quinn, Rita Ravages Oil Production in the

Gulf, MIAMI HERALD, Sept 29, 2005, at C3 Heather Timmons & Vikas Bajaj, BP Details Its

Damages From Hurricanes, N.Y TIMES, Oct 5, 2005, at C5; Heather Timmons, BP Estimates

Damage by Hurricanes at $700 Million, INT'L HERALD TRIB., Oct 5, 2005, at 15.

The United States adopts a stringent stance on ocean dumping, particularly regarding the disposal of oil platforms According to domestic law, these platforms cannot simply be discarded into the ocean; they must either be completely removed or repurposed as artificial reefs, adhering to established federal and state regulations.

Despite government consultants' recommendations for limited dumping of platforms on the Outer Continental Shelf (OCS), the current legal approach has evolved In 1984, the Department of the Interior (DOI) sought guidance from the Marine Board of the National Research Council regarding offshore platform decommissioning, acknowledging its significant financial implications for the drilling industry The Marine Board explored the potential for EPA-designated ocean dumpsites and government liability for abandoned platforms, ultimately noting that while some may view this policy as overly favorable to the oil sector, it is challenging to justify requiring substantial private expenditures when the public benefit is marginal.

The federal government's rejection of the National Research Council's proposal for designated "ocean dumpsites" for offshore platform disposal highlights the significant role that decommissioning costs play in shaping removal policies The oil industry has effectively influenced policymakers to prioritize cost considerations and liability relief, ensuring that these factors remain central in discussions regarding alternative uses for offshore platforms.

Beyond the exception for artificial reefs, the conversion of rigs to other "new uses" has a very good chance of being approved in the future.

In 2003, Senator David Vitter, then a Representative from Louisiana, introduced the Rigs to Reef Act, aiming to amend the Outer Continental Shelf Lands Act This legislation was designed to promote the conversion of offshore oil platforms into artificial reefs, while also encouraging their use for other purposes, such as observation.

94 The federal government rejected the advice of policy consultants recommending that some ocean dumping of platforms be used in context of overall platform disposition policy. COMM'N ON DISPOSITION, supra note 2, at 3 (recommending that the EPA designate a number of ocean dumpsites for platforms) See McLaughlin, supra note 46, at 261 (noting removal requirement stayed in place in domestic law despite influential report by the Commission on Disposition of Offshore Platforms recommending some ocean dumping of platforms).

95 See COMM'N ON DISPOSITION, supra note 2.

97 See Rigs to Reefs Act of 2003, H.R 2654, 108th Cong (2003) (unenacted) (focusing further on liability relief and tax breaks to oil companies who donate platforms).

In 2005, the Energy Policy Act included a provision for alternate uses of existing offshore structures, despite a related bill not passing through Congress Experimental aquaculture projects utilizing these rigs have already commenced, backed by the current presidential administration and commercial interests In line with the Ocean Commission's recommendations, the White House introduced the "U.S Ocean Action Plan," advocating for new authority for the Department of the Interior to permit the conversion of offshore facilities to approved alternative uses.

The United States has established its platform removal policy against the backdrop of competing interests in oil dependence and environmental protection While historically promoting offshore oil development to ensure low domestic prices, the nation enforces strict regulations against ocean dumping due to environmental concerns Despite influential reports advocating for the restoration of ocean ecosystems, new proposals for more "productive" uses of the ocean continue to emerge, complicating the balance between economic and ecological objectives.

99 See Pub L No 109-58, § 388(a), 119 Stat 594, 744-47 (2005) (to be codified at 43 U.S.C § 1337(p)).

100 Experiments with operating rigs acting as aquaculture pens have begun in California.

The Grace Mariculture Project, as outlined by the Hubbs-Seaworld Research Institute, focuses on sustainable marine practices and the ecological implications of marine life in relation to old oil rig removals According to a Washington Post article by Cheryl Lyn Dybas, the presence of marine life complicates the decommissioning process of these structures For more detailed information, refer to the project description available at the Grace Mariculture Project website.

101 U.S OCEAN ACTION PLAN: THE BUSH ADMINISTRATION'S RESPONSE TO THE U.S. COMMISSION ON OCEAN POLICY 24 (2004) [hereinafter BUSH RESPONSE].

Professor McDade emphasizes the complex balance that countries like the United Kingdom and the United States must maintain when navigating conflicting international treaty requirements regarding platform removal He points out that these nations, as traditional advocates for international law changes, need to carefully manage the dual goals of maximizing energy resource utilization while minimizing taxpayer expenditures.

Installations and Conflicting Treaty Obligations as a Result of the Emergence of the New Law of the Sea: A Case Study, 24 SAN DIEGO L REV 645, 653 (1987).

The Rig-to-Reef A lternative

Rig-to-reef conversions are initiatives that allow oil companies to leave decommissioned platforms in the ocean, transforming them into artificial reefs, provided that states accept responsibility for the materials This approach significantly reduces decommissioning costs by eliminating expenses related to transportation, onshore dismantling, and disposal fees Typically, the steel support structure, known as the platform jacket, remains submerged to serve as an artificial reef In the United States, these artificial reefs primarily support recreational fishing, while some projects also aim to mitigate environmental damage caused by construction and industrial activities.

Oil companies prioritize profit through exploration and extraction, and while they may contribute to rigs-to-reef projects, their primary focus is not on creating fisheries habitats As a result, these companies often opt for the removal of platforms over conversion when it is the more cost-effective option This situation led Louisiana Congressman David Vitter to introduce The Rigs to Reefs Act.

2003, which if passed would have provided tax incentives to donating companies in addition to removal and liability relief See H.R 2654, 108th Cong (2003).

Decommissioning involves plugging wells and converting them into artificial reefs, which requires some level of cleaning The primary cost savings arise from avoiding transportation and onshore recycling or disposal fees Different decommissioning scenarios entail varying costs, as detailed by McGinnis et al in their discussion of the financial implications of various decommissioning options.

In 2002, NOAA raised concerns among artificial reef planners about the use of artificial reefs primarily as mitigation rather than as enhancements for fishing access A notable mitigation project is underway in Southern California, where the California Coastal Commission mandated Southern California Edison to construct artificial reefs to compensate for the loss of natural kelp beds due to the San Onofre nuclear power plant This project consists of a small-scale pilot experiment followed by a larger-scale construction phase The final report from the experimental phase indicates that the efforts may yield positive results, suggesting the potential effectiveness of artificial reefs in mitigating environmental damage.

The five-year experimental phase of the artificial reef mitigation project yielded promising results, demonstrating that all six artificial reef designs and seven tested locations exhibited a strong potential to meet the established performance standards for mitigation reefs.

Artificial reefs can be created from platform jackets through various methods, including cutting off the platform top while leaving the jacket in place, toppling the jacket, or relocating it to a different site on the ocean floor When these methods are employed in federally regulated areas beyond the three-mile mark, the platforms remain under federal control but are managed by state officials Alternatively, the jacket can be moved to other federal OCS areas or closer to shore in state waters Regardless of the method used, these converted platforms attract fish, creating "hot spots" for fishermen and divers Proponents of the rig-to-reef initiative argue that each method of artificial reef creation offers distinct benefits for fisheries.

The rising popularity of artificial reefs is linked to fisheries managers' efforts to impose fishing restrictions aimed at restoring overfished populations However, despite initial optimism, these reefs have not significantly aided in the recovery of domestic fisheries and are primarily utilized for recreational fishing and diving The uncertain effectiveness of low relief concrete rubble or quarry rock reefs, such as those off the coast of San Clemente, CA, suggests they may serve as a viable compensation for the loss of kelp forest ecosystems caused by the operations of SONGS Units 2 & 3.

In Europe, artificial reefs are primarily utilized for conservation purposes rather than for recreational activities This approach highlights the focus on ecological benefits over leisure opportunities, as discussed by Antony Jensen in his work, "Artificial Reefs of Europe: Perspective and Future."

108 COMM'N ON DISPOSITION, supra note 2, at 49-51.

109 See Oil and Gas Lease Sale 116, Final Notice of Sale, 62 Fed Reg 4789, 4794 (Jan 31, 1997); Oil and Gas Lease Sale 168, Final Notice of Sale, 62 Fed Reg 39,863, 39,869 (July 24,

1997) (referring to the fact that an adjacent state, Texas, had zoned proposed lease area for future artificial reef development).

110 The Federal Government has jurisdiction from three to 200 miles; the coastal states have jurisdiction from the shore out to the three-mile mark See discussion infra Part IV.B.

Fishermen in the Gulf often focus their fishing activities around offshore platforms, as these structures serve as valuable fishing spots Additionally, artificial reefs, such as sunken rigs, enhance accessibility for small boat owners, making it easier for them to catch snapper and other fish species.

In Texas, red snapper anglers often rely on fishing platforms, such as rigs, which are believed to ensure a successful catch Fishermen frequently report that trips to these structures lead to consistent results, highlighting their significance in the fishing community.

Toppling a structure restricts the reef to benthic use, while cropping the top and leaving the jacket maintains habitat diversity at various depths, supporting existing fish populations These methods also differ in their effects on navigation.

Fisheries managers have yet to consider artificial reefs as a means to enhance the recovery of specific fish stocks, and research is just starting to explore their potential role in supporting fisheries recovery efforts.

115 NOAA DRAFT ARTIFICIAL REEF PLAN OF 2002, supra note 12, at 13; COASTALARTIFICIAL REEF PLANNING GUIDE, supra note 4, at 12, 16; MCGINNIS ET AL., supra note 24, at73.

The enduring optimism in the United States regarding removal projects has led many citizens, environmentalists, and policymakers to view these initiatives as primarily subsidizing oil production rather than genuinely enhancing fisheries Critics argue that such projects resemble ocean garbage dumping rather than contributing positively to marine resources While the legal definition of ocean dumping excludes the creation of artificial reefs for recreational purposes, the lack of proven success in improving fisheries through these reefs raises questions about the effectiveness of this legal distinction.

II TURNING PLATFORMS INTO REEFS:

ARTIFICIAL REEF LEGISLATION AND GULF STATE PROGRAMS

This section examines the key federal and state laws regulating artificial reef development and rig-to-reef conversions The National Fishing Enhancement Act, designed to promote rig-to-reef conversions, has been adopted by several Gulf of Mexico states; however, it does not constitute a comprehensive federal program for artificial reef development The Act has significant limitations, leading to state artificial reef programs that function as ineffective pseudo-experiments, lacking sufficient safeguards to address long-term environmental issues.

The Ocean Conservancy generally opposes artificial reefs for fishing or tourism, advocating for a cautious approach due to their potential to restore damaged habitats However, they acknowledge that these reefs may negatively impact over-fished species Greenpeace stands out as the most vocal environmental NGO against alternative offshore disposal methods.

The National Fishing Enhancement Act of 1984

Punting on Coordination and Vision: A National

The NFEA assigns regulatory responsibilities for artificial reef development and monitoring to the Secretary of Commerce, who oversees fisheries regulations, and the Army Corps of Engineers, which holds permitting authority for fixed Outer Continental Shelf (OCS) structures Currently, the federal government does not engage in national-level artificial reef construction, nor does it actively participate in reef-building initiatives.

129 See supra notes 53-60 and accompanying text.

According to 33 U.S.C § 2102 (2000), Congress established key objectives for artificial reefs created under the National Fishing Enhancement Act (NFEA) The primary goals include maximizing the enhancement of fishery resources and improving access for both recreational and commercial fishermen in the United States.

Staff reviewing the proposed California Rigs to Reefs Act S.B 1 expressed concerns about the feasibility of the California Department of Fish and Game assessing the net environmental benefits of artificial reefs versus platform removal Instead, they recommended focusing on whether the artificial reef would not significantly harm the marine environment.

Five federal entities play significant roles in rig-to-reef conversions, including the Department of Interior (DOI), Department of Commerce (DOC), Department of Defense (DOD), Department of Transportation (DOT), and Environmental Protection Agency (EPA) Their involvement encompasses various aspects such as permitting, planning, and constructing artificial reefs, as outlined in the NOAA Draft Artificial Reef Plan of 2002.

2005] coordinated nationally t35 Instead, the NFEA directed the drafting of a National Artificial Reef Plan (NARP) to guide states to develop their own comprehensive artificial reef programs 36

The National Oceanic and Atmospheric Administration (NOAA) developed the National Artificial Reef Plan (NARP) in 1985, highlighting significant gaps in understanding how to effectively design and manage artificial reefs to boost fishery resources A subsequent review in the Bulletin of Marine Science revealed that, despite enthusiasm from various stakeholders, there was limited knowledge about the biology and ecology of artificial reefs The review emphasized that substantial funds were being allocated to reef construction without a solid foundation of knowledge regarding optimal design, location, and size Furthermore, the 1985 NARP cautioned that poorly planned or managed reefs could be ineffective, disrupt other activities like trawling, and potentially harm natural habitats, preventing the realization of intended benefits.

To assure high quality construction of artificial reefs in the future, the NARP evaluates proposed materials by focusing on four factors: function, compatibility, durability and stability, and availability 43

135 NOAA ARTIFICIAL REEF PLAN OF 1985, supra note 44, at 2.

The NARP, a technical memorandum published by NOAA with contributions from agencies like the National Marine Fisheries Service and EPA, provides essential guidance on artificial reef construction and management Its executive summary outlines three primary functions: offering technical advice based on the best scientific information, serving as a resource for state and federal agencies to ensure compliance with national standards set by the NFEA, and promoting comprehensive planning of artificial reefs while considering local conditions As of September 1985, the NARP indicated that local reef siting plans were in development, aiming to inspire further planning in other regions interested in artificial reef initiatives.

138 NOAA ARTIFICIAL REEF PLAN OF 1985, supra note 44, at 36-38 (discussing priority research needs).

139 James A Bohnsack & David L Sutherland, Artificial Reef Research: A Review with Recommendations forFuture Priorities, 37 BULL MARINE SCI 11 (1985).

142 NOAA ARTIFICIAL REEF PLAN OF 1985, supra note 44, at 2.

Platform jackets excel in durability and stability, making them a preferred choice for artificial reef builders They are less likely to drift or shift once installed, which enhances their effectiveness in marine environments According to the initial NARP, these advantages position platform jackets as a superior material compared to others in the construction of artificial reefs.

Petroleum structures offer numerous advantages as reef materials due to their varied locations and depths, substantial quantities, adaptable designs, durability, and stability The recently revised NARP highlights a positive outlook on leveraging state experiences to enhance the development of artificial reefs.

Exception to the Platform Removal Requirement

Following the enactment of the NFEA, the MMS updated its regulations regarding oil platform removal, allowing for options such as partial structure removal or toppling in place for rig-to-reef conversions This is contingent upon the structure becoming part of a state artificial reef program, the state securing a permit from the Army Corps of Engineers, and the state assuming title and liability for the structure However, it's important to note that the NFEA does not allocate any funding for these state artificial reef initiatives.

Quality materials for reef construction can be costly, with the U.S primarily relying on donated and recycled materials for artificial reef projects, unlike Japan, which invests heavily in such constructions The market for pre-fabricated reef materials is expanding in the U.S., as outlined in the NOAA Artificial Reef Plan of 1985.

145 NOAA DRAFT ARTIFICIAL REEF PLAN OF 2002, supra note 12, at 17.

In 1985, the NOAA Artificial Reef Plan highlighted that approximately 4,000 active offshore gas and oil structures were present, many of which functioned as unofficial reefs.

147 See sources cited supra note 86.

148 51 Fed Reg 7584-02 (Mar 6, 1986) (codified at 30 C.F.R pt 250).

In 2002, the MMS restructured decommissioning regulations, granting the MMS Regional Supervisor the authority to approve alternative removal depths for platforms, deviating from the standard of fifteen feet below the mudline This approval can occur if specific criteria are met: the structure will not obstruct other users of the seafloor, there is evidence that erosional processes will not reveal obstructions, safety risks arise from unstable seafloor sediment requiring divers, or if the water depth exceeds 2,624 feet.

In the preamble to the final rule established by the MMS in 2005, it was clarified that the section does not allow for the abandonment of platform portions in place Instead, it permits limited abandonment only when structures do not pose risks to other ocean users or navigation Additionally, special exceptions are made for platforms located in deeper waters, specifically those exceeding 2,624 feet, where the safety of personnel, such as divers, is a primary concern This regulation pertains to oil and gas and sulphur operations in the Outer Continental Shelf regarding decommissioning activities.

The exception allows a coastal state to decide whether to keep an offshore platform in place by integrating it into its artificial reef program This is significant as it enables states to manage these structures in federal waters, extending beyond the three-mile limit that typically separates state jurisdiction from federal waters.

The NFEA mandates that states assume ownership and liability for platforms converted into reefs The NARP likens a state's choice to take on a reef construction permit to its decision to build a public park By strictly following all permit requirements, reef managers, who are generally state fish and game department employees, can protect themselves from liability under section 205 of the NFEA Nonetheless, the liability of artificial reef managers remains ambiguous in other situations.

States are generally protected from liability related to artificial reef permits; however, this protection has limitations Specifically, states can be held liable if they violate permit conditions or if damages occur outside the permit's scope In essence, the permit shield is limited to the specific terms outlined in the permit.

The likelihood of state liability regarding artificial reefs appears minimal due to the robust permitting process that ensures their structural integrity and stability These reefs must be accurately represented on navigation charts, marked with buoys, and meet navigability standards According to NOAA's Artificial Reef Plan Revision, a well-sited and properly marked artificial reef significantly reduces the risk of liability.

The Minerals Management Service (MMS) clarified that it lacks the authority to permit the ocean disposal of platforms, emphasizing that such actions require a permit from the Environmental Protection Agency (EPA) under the Marine Protection, Research, and Sanctuaries Act (MPRSA).

151 Most funding is provided by state appropriations, federal aid for sportsfishing restoration and platform donors See MCGINNIS ET AL., supra note 24, at 81.

153 NOAA DRAFT ARTIFICIAL REEF PLAN OF 2002, supra note 12, at 39.

In the absence of a federal statute that alleviates liability, state actors may rely on doctrines of state sovereign immunity and state assumption of risk laws to defend against lawsuits related to personal injury or property damage.

Under the National Fishing Enhancement Act, individuals holding a permit are not liable for actions mandated by the permit itself, as stated in 33 U.S.C § 2104(c)(1) However, the Act does impose potential liability for any actions not covered by the permit, indicating that both the permit holder and their insurer may be held responsible for damages as determined by applicable law.

The topic of state liability for artificial reefs remains largely unexamined in legal contexts States may have several defenses against claims for damages related to property or personal injuries, particularly under tort theories The comparison to liability issues surrounding public parks is relevant, as recreational users like fishermen and divers may encounter doctrines such as assumption of risk and contributory negligence Even if a third party establishes a prima facie case for nuisance, trespass, or negligence, the state could potentially evade liability through the common law doctrine of sovereign immunity or by relying on immunity statutes and recreational use laws enacted by state legislatures.

The platform donator is protected from liability once the title is transferred, provided that the NARP standards are met and the materials are not defective at the time of transfer.

The NFEA aims to clarify ownership of abandoned platforms, shift liability to coastal states, and maintain federal interests in mineral extraction and navigation However, it lacks a long-term vision for utilizing artificial reefs in the OCS and does not establish a federal role in habitat enhancement Essentially, the NFEA supports rig-to-reef projects primarily for fishing purposes, which represents a significant shortcoming It assumes that increasing the number of fishermen and fishing trips will lead to healthier fish populations, raising concerns about the sustainability of this approach Current artificial reef research does not conclusively demonstrate that these structures improve natural habitats or bolster ocean fisheries, indicating that they should not be seen as a solution to overfishing.

157 FOWLER V HARPER, FLEMING JAMES, JR & OSCAR S GRAY, Liability of Governmental Units, 5 THE LAW OF TORTS § 29 (2d ed 1986).

The Deceptive Comfort of the "Best Scientific

The NFEA mandates the use of the "best scientific information available" for the siting, construction, monitoring, and management of artificial reefs; however, it lacks funding for research and does not require mandatory monitoring in state programs, which limits the accumulation of scientific knowledge about these structures The draft Artificial Reef Plan Revision of 2002 highlights that many aspects of artificial reef research remain under-explored Despite an increase in information, resource managers still need enhanced fishery science to ensure that artificial reef programs yield maximum benefits at minimal costs and to prevent negative impacts on resources and users Key areas for further investigation include understanding reef community ecology and other related factors.

In 2005, Patin highlighted the secondary use of offshore platforms, particularly emphasizing the popularity of the rig-to-reefs initiative in the Gulf of Mexico, which is linked to the positive impact of these structures on fish landings.

Recent analyses of the Gulf of Mexico's fishing situation indicate that the increase in fish catch is linked to the redistribution of commercial species rather than a rise in their overall stock This phenomenon is attributed to the reef effect created by offshore platforms Additionally, the preference for static gear methods, such as lines and hooks, over trawl gears plays a significant role in this dynamic.

Scientific uncertainty regarding the impact of rigs on fish populations significantly influences the development and management of rig-to-reef programs, especially in areas still facing overfishing challenges.

The NMFS Cooperative Research Program (CRP) Grant Program has provided funding for research on the effects of artificial reefs, particularly focusing on recreational and charter fisheries in the Gulf of Mexico and the Atlantic coast This initiative highlights the need to evaluate the effectiveness of artificial reefs, their benefits to the fishing community, and the associated impacts on marine ecosystems.

2002) The solicitation also noted that better information was needed on the catch and effort from recreational fishermen.

164 NOAA DRAFT ARTIFICIAL REEF PLAN OF 2002, supra note 12, at 40.

ENDURING OPTIMISM population life histories, bioengineering and design, harvest analysis, community production, and reef population dynamics 166

The lack of fundamental understanding regarding the functions of artificial reefs, coupled with ongoing funding challenges for their management, hampers potential environmental benefits Improved scientific research on artificial reefs could enhance their positive impact and prevent negative outcomes from poorly designed or managed structures However, despite two decades of progress, the "best scientific information available" standard for rigs-to-reefs remains largely symbolic, lacking practical significance in real-world applications.

Gulf State Rig-to-Reef Programs

The Ongoing Scientific Debate

The Oil Industry and Recreation Interests Unite

The debate centers around the potential subsidies for domestic fossil fuel production and the enhancement of recreational fishing and diving opportunities Although both activities provide substantial economic benefits, they have also played a role in the deterioration of ocean health.

The oil industry strongly advocates for rig-to-reef programs, promoting the offshore disposal of decommissioned platforms as a viable alternative to onshore disposal Industry representatives actively participate in expert commissions, panels, and workshops to support these initiatives, especially in California, where such programs have faced repeated rejection As profit-maximizing entities, corporations prioritize reducing operating costs, which influences their push for these offshore disposal options.

Donating an offshore platform to an artificial reef program offers companies a dual benefit: it helps them avoid substantial decommissioning expenses while potentially enhancing their reputation as environmentally responsible entities According to a recent MMS study report, this practice may lead to an unwarranted boost in a company's image as a good environmental steward.

The oil industry's interest in California's rig-to-reef policy stems from its potential for cost savings and resource allocation However, even if a cost-benefit analysis could eliminate waste, there is no established mechanism to ensure that these savings are directed towards the most deserving social programs Instead, the benefits are likely to be reallocated to the regulated entities, who may prioritize shareholder interests over societal benefits Without a governmental framework to guide the spending of resources saved through reduced regulation, the focus will remain on maximizing profits rather than addressing community needs.

233 Stephen T Hesse, Adapting to Sea Change: Managing Marine in the Face of Climate

Uncertainties, 5 SUSTAINABLE DEv L & POL 37, 38 (Spr 2005); Felicia C Coleman et al., The

Impact of United States Recreational Fisheries on Marine Fish Populations, 305 SCIENCE 1958, (Sept 24, 2004).

234 The California Artificial Reef Enhancement (CARE) program was established in 1999.

It was organized to study the prospects for rig-to-reef conversions in California, and began with seed money donated by Chevron See MCGINNIS ET AL., supra note 24, at 69.

The oil production and refining industry encompasses not only its employees but also the supporting industries that service offshore operations A notable example is WINMAR Construction, which specializes in lifecycle management for the energy sector and offers innovative disposal solutions, including Rigs-to-Reefs Win Thornton, the President of WINMAR, serves on the Artificial Reef Advisory Board for Texas, highlighting the company’s commitment to sustainable practices in the energy industry For more information, visit WINMAR's website.

236 MCGINNIS ET AL., supra note 24, at 62-72 (discussing efforts to develop and pass rig-to- reef legislation in California).

237 Id at 69 See discussion of social license to operate, infra Part III.B.2.

2005] ENDURING OPTIMISM opportunity for promoting its image as an environmental steward or benefactor 238

Recreationists, including hobby fishermen and divers, are among the strongest advocates for rig-to-reef programs, which have led to the creation of artificial reefs that enhance diving experiences and serve as popular fishing locations The advantages gained by recreational and some commercial fishing interests, along with the cost savings for the industry, have significantly driven the development and implementation of these programs across various states.

The removal of offshore platforms can lead to significant environmental consequences, including air, water, and land pollution Additionally, these structures often serve as habitats for marine life, attracting various species that thrive around them Historical practices, such as the use of explosives to dismantle platforms, have resulted in the destruction of marine ecosystems in the surrounding areas While only a portion of rigs on the U.S Outer Continental Shelf are situated in locations suitable for artificial reefs, the removal of each rig inevitably leads to the loss of marine organisms, strengthening the argument for leaving these structures in place.

238 MCGINNIS ET AL., supra note 24, at 69.

Sportsfishing organizations advocate for the implementation of artificial reefs to enhance recreational fishing opportunities Collaborative efforts between the oil industry and recreational fishing interests have led to the promotion of rig-to-reef initiatives The sportsfishing industry has shown significant support for these developments, recognizing the benefits they bring to recreational fishing, which contributes substantially to the economy.

$20 billion dollars to the U.S economy and is a recognized priority of federal and state governments OCEAN COMM'N REPORT, supra note 20, at 275.

Some commercial fishermen oppose rig-to-reef conversions due to concerns that artificial reefs can obstruct navigation and impede trawling, a method they use to catch shrimp and other bottom-dwelling fish The presence of artificial reefs can lead to nets, long-lines, and trawlers becoming entangled, resulting in property damage and potential injuries While the negative effects of commercial fishing on the marine environment are well documented, they remain largely unaddressed This tension between recreational fishermen's interest and commercial fishermen's resistance to the rig-to-reef concept is particularly noted in California.

242 COMM'N ON DIsPOSITION, supra note 2, at 47 Furthermore, the machinery and vessels used to transport materials during the decommissioning activities may emit air and water pollutants.

244 COMM'N ON DISPOSITION, supra note 2, at 47.

Certain marine organisms, including bottlenose and spotted dolphins, are protected under the Endangered Species Act and the Marine Mammal Protection Act, particularly during oil and gas platform removal activities in the Gulf of Mexico A proposed rule allows for the incidental take of these dolphins during such removals, yet the GAO emphasizes the need for a deeper understanding of the environmental impacts of decommissioning methods, like the use of explosives Despite a prevailing belief among environmentalists that complete dismantling of retired offshore platforms is the only environmentally responsible approach, this perspective may overlook potential ecological considerations.

Conservation and Environmental Advocates Seek

Environmentalists are the primary opponents of rig-to-reef programs, emphasizing the need to address scientific uncertainty surrounding the effectiveness of artificial reefs as tools for fishery management Organizations like the Ocean Conservancy and the Natural Resources Defense Council advocate for more thorough evaluations of artificial reefs, arguing that their recreational use does little to restore declining marine health.

Opponents of offshore disposal of oil platforms argue that it promotes the dangerous notion of using the ocean as a dumping ground for waste This concern stems from the historical lessons learned in the 1970s, which led to the implementation of the Marine Protection, Research, and Sanctuaries Act (MPRSA) Advocates for environmental protection emphasize that industrial waste should be treated and recycled rather than discarded in the ocean, a stance that resonates beyond radical environmental groups and reflects a broader commitment to safeguarding marine ecosystems.

RESOURCES, INTERIOR CAN IMPROVE ITS MANAGEMENT OF LEASE ABANDONMENT, REPORT

TO THE CHAIRMAN, COMMITTEE ON GOVERNMENT AFFAIRS, U.S SENATE, GAO/RCED-94-

246 PULSIPHER & DANIEL, supra note 47, at 1.

The Natural Resources Defense Council (NRDC) has expressed concerns regarding the potential future liability for the removal of offshore rigs Additionally, Bruce Alpert reports that Senator Vitter advocates for legislation that would allow these rigs to remain in place as artificial reefs.

Change Law Forcing Removal, NEW ORLEANS TIMES PICAYUNE, Sept 19, 2003, at 13 See also

SIMON REDDY, GREENPEACE INT'L, NO GROUND FOR DUMPING, THE DECOMMISSIONING AND ABANDONMENT OF OFFSHORE OIL AND GAS PLATFORMS (1995)

249 See Anderson, supra note 35, at 79 See also Kindt, supra note 66, at 37 (discussing use of ocean as garbage receptacle).

In a letter dated September 5, 1995, Peter Melchett, Executive Director of Greenpeace-UK, addressed Christopher Fay, Chairman and CEO of Shell UK, acknowledging a miscalculation regarding the amount of oil remaining on the Brent Spar Despite this admission, Melchett reaffirmed Greenpeace's strong opposition to ocean dumping practices.

ENDURING OPTIMISM agreement that we should not deface the ocean by disposing of garbage and waste products offshore 251

The debate surrounding the environmental benefits of removing offshore platforms is complex and often contentious While immediate removal may cause short-term harm to the area, the long-term advantages of restoring the environment to its original state are significant This perspective aligns with the moral obligation to rehabilitate the site and the principle that polluters should bear the costs of their activities Additionally, from a utilitarian viewpoint, removing these platforms opens up possibilities for alternative uses of the site, enhancing navigation and contributing to the overall benefits of environmental restoration.

The liability associated with artificial reefs has become a significant concern for environmentalists in political discussions Potential risks include navigation interference, physical harm to users, property damage, and negative environmental effects on fisheries Additionally, there is a long-term risk of needing to remove these structures in the future It is essential to consider the potential costs of remote liability that may fall on the state and taxpayers against the more apparent costs of complete removal and the uncertain benefits provided by artificial reefs.

The Brent Spar dispute exemplifies the clash of differing perspectives, stemming from a 1995 proposal by Shell to dispose of a large North Sea platform Initially, the United Kingdom sanctioned the disposal, determining that deepwater disposal was the "best environmental option practicable" under its laws Reports related to the decommissioning indicated minimal environmental differences between leaving the platform in place or removing it However, environmental advocates remained unconvinced by this assessment.

251 See COMM'N ON DISPOSITION, supra note 2, at 48 (citing the notion that the ocean should not become a "junkyard").

253 See Mark Sagoff, Settling America or The Concept of Place in Environmental Ethics, 12

254 See COMM'N ON DISPOSITION, supra note 2, at 41.

255 Groups such as the NRDC have voiced concerned about the long term liability for removal being shifted away from oil companies See Alpert, supra note 247.

Greenpeace, the primary critic of the Brent Spar disposal plan, labeled the dumping as environmental vandalism In response, various environmental and community activists initiated boycotts against Shell UK, advocating for onshore disposal instead As opposition intensified, several countries, including those that initially supported the proposal, shifted their stance and urged the United Kingdom to reconsider its decision.

The public opposition to Shell UK's disposal plans led to a shift towards onshore disposal methods, significantly impacting offshore disposal decisions Following the Brent Spar incident, both companies and governments have sought to postpone the decommissioning of major oil platforms in the North Sea This dispute resulted in amendments to regional treaties that restrict disposal options and has effectively put an end to the possibility of a rigs-to-reefs program in the North Sea.

The Brent Spar incident highlights the emergence of corporate responsibility, often referred to as a "social license to operate." This concept suggests that oil companies require public approval, in addition to government permits, to conduct their business Researchers have noted that this social license compels companies to exceed mere legal compliance, particularly in relation to environmental pollution Understanding this theory may clarify the contrasting public perceptions surrounding different environmental practices, such as rig-to-reef initiatives.

259 Mankabady, supra note 29, at 612-13 The Brent Spar ended operations in September

1991 Id at 612 Shell obtained a disposal license from the Marine Safety Agency of the DTI in

260 Mankabady, supra note 29, at 612-13 (reporting that Greenpeace International and other groups contested Shell UK's plan to dump the Brent Spar in the ocean).

261 ESMAEILI, supra note 23, at 212-13 See also HUNTER ET AL., supra note 116, at 742-43 (discussing Greenpeace's Brent Spar campaign).

Regional treaties like the OSPAR Convention in the North-East Atlantic impose restrictions on decommissioning practices for certain countries For more information, refer to the OSPAR Commission's Sintra Statement from July 23, 1998, available at http://www.ospar.org/eng/html/md/sintra.htm.

264 See Jensen, supra note 107, at S5; Mark Baine, The North Sea Rigs-to-Reef Debate, 59 ICES J MARINE SCI S277 (Oct 2002).

The concepts of social license and environmental protection have gained significant attention and influence in recent years, highlighting why businesses choose to exceed mere compliance with regulations This trend is explored in the work of Neil Gunningham, Robert A Kagan, and Dorothy Thornton, emphasizing the evolving role of corporate responsibility in environmental stewardship.

266 See id at 307 (describing a social license as the extent to which a corporation must meet societal expectations whether or not they are embodied in current law).

267 See id at 314 (finding evidence from the pulp and paper industry that community actors and environmental groups may have more influence over corporate environmental compliance than government).

The ENDURING OPTIMISM programs advocate for the use of abandoned ships and materials as artificial reefs, highlighting a more permissive legal framework for ocean disposal compared to decommissioned oil rigs While both ships and oil rigs provide valuable marine habitats, public acceptance leans more towards ships due to widespread concerns about the environmental impacts associated with oil and gas operations This social license to operate shapes public opinion on how the wealth generated from offshore drilling should be allocated among the federal government, states, and citizens, while also addressing environmental considerations.

The Brent Spar incident highlights the significance of a social license to operate in the platform removal debate, as Greenpeace's actions have made public acceptance of decommissioning options a key objective for the oil industry In response to increasing public awareness of the environmental impacts of fossil fuel usage, the industry is striving to enhance its image as an environmental steward People are recognizing that oil and gas extraction leads to environmental degradation, while their consumption results in air, water, and soil pollution Moreover, the lack of careful planning for waste disposal demonstrates that every phase of offshore drilling operations poses potential environmental risks.

The National Fishing Enhancement Act of 1984, codified at 16 U.S.C §§ 1220-1220d, mandates in Section 1220(b) that the Secretary must consider the availability of obsolete ships for states to utilize as artificial reefs.

Reflecting on the Origins of the Problem: Fragmentation of

FRAGMENTATION OF OCEAN LAW AND THE CONTINUING CONTEST

The ongoing debate surrounding rig-to-reef programs highlights significant shortcomings in fisheries laws and offshore oil development practices, which fail to promote sustainable ocean resource use Both oil and gas regulation, along with fisheries management, are primarily driven by economic interests, resulting in frameworks that do not support sustainable resource utilization These legal regimes contain elements that contradict the principles of sustainability, prompting extensive discussions on necessary reforms It is widely acknowledged that our legal infrastructure requires restructuring to enhance ocean ecosystem health and secure long-term benefits from these vital natural resources.

273 This is consistent with other initiatives that rely on information disseminated to the public See id

274 OUR COMMON FUTURE: THE WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT (Gro Harlem Brundtland ed., Oxford University Press 1987).

276 See generally OCEAN COMM'N REPORT, supra note 20; PEW REPORT, supra note 53;Kristen M Fletcher, Fix It! Constructing a Recommendation to the Ocean Commission for the

2005] ENDURING OPTIMISM stewardship created the problems that rig-to-reef programs seek to address, as two unsustainable practices converge.

Offshore oil and gas regulation faces two significant challenges that influence the development of rig-to-reef policies The first challenge is the persistent rivalry between coastal states and the federal government regarding the management of Outer Continental Shelf (OCS) resources The second challenge is the insufficient planning for the sustainable long-term exploitation of OCS resources.

1 The State-Federal Conflict on the OCS

Coastal states and the federal government have historically clashed over control of coastal waters and resources, primarily driven by offshore oil production While coastal states face the risks associated with offshore drilling, the federal government reaps the financial benefits Increasingly, concerns are rising not only about the potential for large oil spills but also about the under-researched chronic and cumulative impacts of offshore drilling on marine and human environments This inequity has motivated many coastal states, particularly California and Florida, to actively resist drilling in federal waters, as healthy coastal ecosystems are vital to their economies A rare compromise has emerged, allowing states to develop and potentially manage their own artificial reef programs in federal waters.

Future of Fisheries, 8 ROGER WILLIAMS U L REV 93 (2002) This is also evident given the numerous proposals for amendments to the OCSLA and laws governing ocean activities.

277 This enduring dispute is popularly known as the "Seaweed Rebellion." FITZGERALD, supra note 47, at 53-82.

278 Id.; H.R REP NO 98-206, at 26-30 (1983); Barry Hart Dubner, Problem on the United

States Continental Shelf-Measuring the Environmental "Effectiveness" of the Outer Continental ShelfAct (OSCA), 34 NAT RESOURCES J 519, 530 (1994); OCEAN COMM'N REPORT, supra note 20, at 359.

The Ocean Commission Report highlights the detrimental effects of offshore oil and gas drilling on bottom-dwelling organisms and habitat destruction It emphasizes the need for further research into the chronic, low-level impacts and cumulative effects on marine, coastal, and human environments.

The political landscape surrounding offshore oil and gas leasing has seen significant involvement from states, particularly California, where local ordinances have been utilized to influence drilling decisions (Van de Kamp & Saurenman, 1990) Efforts to prevent offshore drilling through local laws have been prominent in California, reflecting a strong desire for local management of natural resources (Weaver, 2002) Meanwhile, Florida's experience illustrates a shift from support to opposition regarding offshore energy development, highlighting the complexities of state responses to drilling activities (Fitzgerald, 2002) This dynamic approach, while proactive, presents challenges under the existing offshore drilling revenue-sharing framework.

Federal supremacy in offshore waters, once determined by the Supreme Court, is now governed by a range of federal statutes that regulate the intricate relationship between states and the federal government in these areas.

Coastal states typically have jurisdiction extending from the shore to the three-mile limit, while the federal government maintains navigational rights for commerce and national interests within this zone Beyond three miles, the federal government holds exclusive jurisdiction and has established an exclusive economic zone that extends to 200 miles This division of authority at the three-mile boundary, which is largely arbitrary from an ecological perspective, is a key factor in ongoing disputes, especially regarding the regulation of offshore oil drilling practices.

In the landmark case United States v State of California, 332 U.S 19 (1947), the Supreme Court addressed the federal government's challenge to California's authority to lease offshore areas for oil and gas development California claimed ownership of these waters based on the precedent set in Pollard v Hagan, which granted states rights to inland waters on equal footing with the original thirteen colonies However, the Court ruled that no ownership of offshore waters could be claimed by either the original colonies or later admitted states, affirming that the federal government holds authority over offshore resources beyond the low water mark This decision led to further litigation involving other coastal states, including Texas and Louisiana, as the disputes over control and management of Outer Continental Shelf (OCS) resources continued under federal statutes.

The regulation of the Outer Continental Shelf (OCS) is primarily governed by three key statutes: the Outer Continental Shelf Lands Act (43 U.S.C §§ 1301, 1331-1356), the Federal Submerged Lands Act (43 U.S.C §§ 1301-1315), and the Coastal Zone Management Act (16 U.S.C §§ 1451-1465) The ongoing state-federal conflict regarding OCS management has been extensively analyzed in academic literature, with Wiygul offering a concise overview of the power dynamics and statutory framework that shape OCS development.

According to 43 U.S.C § 1312, the typical seaward boundary for coastal states is set at three geographical miles from the coastline However, Texas and Florida have extended boundaries due to historical factors For a more in-depth exploration of the offshore boundary disputes between coastal states and the federal government, refer to Robert Jay Wilder's work.

The Three-Mile Territorial Sea: Its Origins and Implications For Contemporary Offshore

285 Consistent with UNCLOS III, supra note 63, art 57.

286 See Wilder, supra note 283 (arguing for reevaluation of the state-federal delineation given the increasing uses of the OCS).

The Outer Continental Shelf Lands Act (OCSLA) serves as the main legal framework for offshore oil drilling, primarily through its leasing provisions that allow the federal government to lease offshore land to private companies This arrangement generates revenue for the federal government via bonus bids, lease payments, and royalties from extracted minerals and gas Unlike the revenue-sharing models applied to onshore public lands, the federal government only shares a portion of these revenues with adjacent coastal states in specific situations Additionally, while some other laws may grant states limited influence over offshore drilling, the federal government retains significant control and is not required to share revenues.

287 See discussion supra Part I.B on OCSLA.

288 Outer Continental Shelf Lands Act, 43 U.S.C § 1334 (2000).

289 Under the Mineral Leasing Act of 1920, affected states and the federal government share revenues from minerals extraction Pub L No 109-80, 41 Stat 437 (codified as amended in scattered sections of 30 U.S.C §§ 181-263 (2000)).

When a well site is situated within three miles of a state boundary, a portion of the royalties is shared with neighboring states under section 1337(g) of the OCSLA This revenue-sharing initiative aims to provide coastal states with funds for mitigating the economic and environmental impacts associated with offshore development However, despite this small provision for revenue sharing, the mitigation payments have not significantly reduced the ongoing tensions between states and the federal government regarding offshore drilling activities.

The ongoing tension between coastal states and the federal government regarding offshore drilling has prompted suggestions for increased revenue-sharing This issue is particularly relevant in the context of the differences between the Minerals Leasing Act for onshore activities and the Outer Continental Shelf Lands Act (OCSLA) revenues The recent Energy Policy Act has further highlighted the need for a resolution to these conflicts.

2005 increased revenue sharing between coastal states and the federal government in part to support increased domestic oil and gas production.

Coastal states possess a degree of authority regarding offshore drilling activities, as outlined by the existing legal framework This influence was further established with the adoption of the Coastal Zone Management Act (CZMA) shortly after the Outer Continental Shelf Lands Act (OCSLA) was enacted.

The Coastal Zone Management Act (CZMA) emphasizes the vital role of coastal states in federal ocean resource programs, recognizing their significant interests in the protection and management of these resources (16 U.S.C §§ 1451-64) It encourages states to develop Coastal Management Plans (CMPs) that address diverse coastal uses, with federal funding available to support these initiatives (16 U.S.C § 1455) Once a CMP is approved by the Department of the Interior, federal agencies must align their coastal zone activities with the approved state management programs, ensuring a cooperative approach to ocean resource management.

Fisheries Management Looks to Habitat Protection

Ocean Management Failures

The declining health of oceans and fisheries is a critical global environmental issue, with the misconception that the ocean is immune to human impact and its resources are limitless now proven false Over a decade ago, the United Nations Conference on Environment and Development highlighted the urgent need for nations to protect ocean resources, acknowledging the detrimental effects of human activities However, the outdated belief in the ocean's inexhaustibility persists within the U.S legal and political systems, particularly affecting offshore mineral extraction and fishing practices, which hinders necessary legal and policy reforms to safeguard the marine environment.

The inadequate response to the ocean's declining health is partly due to the slow and fragmented development of ocean law in the United States, which is significantly behind terrestrial environmental regulations As noted by an expert in ocean regulation, the U.S lacks a cohesive policy for managing marine resources, leading to a complex web of federal, state, and local laws that often do not align effectively This disjointed legal framework is particularly evident in the area of rig-to-reef conversions, which involves multiple stakeholders, including the federal government and coastal states, with competing interests.

332 See HUNTER ET AL., supra note 116, at 673-707 (discussing conservation of living marine resources).

333 United Nations Conference on Environment and Development, Rio de Janiero, Brazil, June 3-14, 1992, Agenda 21, Ch 17, U.N Doc A/CONF.151/26/Rev.1.

334 Robin Kundis Craig, Sustaining the Unknown Seas Changes in U.S Ocean Policy and Regulation Since Rio '92, 32 ENVTL L REP 10,190, 10,191 (2002) (using term "paradigm of inexhaustibility").

John A Duff discusses the need for innovative governance models in offshore resource management, specifically focusing on fish, oil, and wind In his article, he advocates for the adaptation of existing public resource management frameworks to address the unique challenges posed by offshore environments This shift towards ocean governance is essential for sustainable management and policy development in these critical areas.

In her article, Robin Kundis Craig examines the evolution of ocean regulations in the United States, highlighting the significance of historical science and marine restoration efforts in shaping policies like the Oceans Act of 2000 She emphasizes the importance of taking a long-term perspective on ocean ecosystems to ensure effective management and conservation strategies.

Recent years have seen significant legal focus on terrestrial ecosystems, highlighting the growing recognition of their importance The Oceans Act of 2000 serves as a pivotal example of Congress acknowledging the necessity for enhancing current ocean legislation.

2005] about ocean dumping regulated under the MPRSA, fisheries management and attention to marine habitat, restrictions to preserve unhindered navigation, and of course oil and gas regulation.

The Ocean Commission's report to the President highlighted the urgent need for legal reform regarding ocean management due to increasing competition for ocean space, new potential uses, declining commercial fishery stocks, ongoing debates over offshore energy and mineral development, and persistent marine pollution To enhance environmental protections, the Commission recommended consolidating various federal agencies to streamline expertise Additionally, it criticized the Outer Continental Shelf Lands Act (OCSLA), advocating for expanded revenue sharing and greater involvement of coastal states in ocean governance.

The Ocean Commission's report emphasizes two key objectives relevant to rig-to-reef programs: promoting sustainability of ocean resources and adopting an ecosystem management approach This aligns with the United States' commitment to sustainable development principles across various resource use contexts, and federal natural resource agencies increasingly prioritize incorporating ecosystem management strategies.

Before the Commission's report, the Minerals Management Service (MMS) shared a draft outlining its initiatives to integrate sustainable development into resource management The MMS acknowledged the crucial contribution of offshore oil and gas to the economy and quality of life, while emphasizing that these exhaustible resources can lead to environmental harm Consequently, it urged society to evaluate the implications of their production and use.

The private sector is actively enhancing ocean management and governance, paralleling efforts by organizations like the Pew Foundation Recently, the Pew Oceans Commission published a comprehensive study titled "Navigating a Route to Sustainable Seas," which outlines strategies for achieving sustainable ocean practices.

Fletcher proposes the establishment of a federal Oceans Agency and recommends relocating NOAA from the Department of Commerce to mitigate the economic incentives associated with fisheries management.

340 OCEAN COMM'N REPORT, supra note 20, at 359-60.

342 See THOMAS J SCHOENBAUM, RONALD H ROSENBERG & HOLLY D DOREMUS, ENVIRONMENTAL POLICY LAW 324-30 (Foundation Press 2002) (discussing the ecosystem management approach).

343 MINERALS MGMT SERV., OCS RESOURCE MANAGEMENT AND SUSTAINABLEDEVELOPMENT (Sept 24, 1999), available at http://www.mms.gov/SD-FINAL2.PDF.

The wealth generated from offshore drilling raises critical concerns about the trade-offs between exploiting non-renewable resources and preserving renewable ones Public interest in corporate social responsibility emphasizes the need for more equitable benefits from natural resource exploitation Although current laws may fall short of reflecting the public's demand for fair returns on public resources, the emerging concept of a social license to operate is gaining traction Unsustainable offshore oil drilling practices pose a threat to broader ocean sustainability efforts, especially as ecosystem management becomes more prevalent Current policies fail to balance the immediate and future reliance on ocean resources, leading to ongoing legal debates and skepticism regarding the sustainability of our existing offshore drilling regulations.

The inadequate response to the ocean's declining health can be attributed to the limited scientific understanding of marine environments compared to terrestrial ones Research aimed at enhancing marine policymaking highlights key principles such as sustainability, biodiversity, the polluter pays principle, and the precautionary approach to resource management, which emerged from the UNCED Recent trends in marine resource management laws indicate a shift towards incorporating scientific evidence, emphasizing precautionary and adaptive decision-making, internalizing externalities for marine resource exploitation, and prioritizing biodiversity preservation.

345 Gunningham et al., supra note 265, at 336-37; David W Case, Corporate Environmental Reporting as Informational Regulation: A Law and Economics Perspective, 76 U. COLO L REV 379,419-22 (2005)

346 Gunningham et al., supra note 265, at 336-37; Case, supra note 345, at 419-22.

347 Richard G Hildreth et al., Roles for a Precautionary Approach to Marine Resources

Sustainability and sustainable development focus on utilizing natural resources to fulfill current human needs while ensuring future generations can also meet their needs Originating in Germany, the polluter pays principle mandates that those responsible for pollution must cover the costs of cleanup and mitigation efforts, reinforcing accountability in environmental management.

In 2005, legal experts M Casey Jarman and Richard Hildreth highlighted significant changes in ocean and coastal laws, including the Sustainable Fisheries Act and the National Environmental Policy Act, while noting a lesser impact from the Ocean Dumping Act However, they observed that the integration of environmentally responsible practices in the management of the Outer Continental Shelf (OCS) for oil, gas, and minerals remains unclear.

Acknowledging our shortcomings in addressing declining ocean health reveals both a lack of effective legal responses and a deficiency in commitment to environmentally responsible practices It is crucial that rig-to-reef projects are guided by principles that prioritize public benefit, fostering a legal framework that emphasizes environmental responsibility over the interests of powerful groups.

Alternative Views of Artificial Reef Programs

The National Marine Sanctuary Artificial Reef Policy

Skepticism surrounding artificial reefs is prevalent, as not all federal agencies responsible for ocean management recognize them as effective tools for enhancing fisheries, despite Congress supporting their construction through the passage of the NFEA.

National Marine Sanctuaries are designated by the federal government as vital areas with unique and sensitive habitats The National Marine Sanctuaries Program, managed by the National Ocean Service of NOAA, typically prohibits the placement of artificial reefs within these sanctuaries, with few exceptions This prohibition is based on the current limitations in artificial reef science, as the understanding of their design and function remains inadequate, potentially leading to adverse impacts on sanctuary resources.

The National Marine Sanctuary Artificial Reef Policy differs from existing rig-to-reef programs by permitting artificial reef projects solely in experimental settings These proposals must outline clear objectives for enhancing sanctuary resources and provide detailed reports on their success Upon completion, the artificial reef is expected to be removed from the sanctuary, indicating a more cautious approach to artificial reefs that simultaneously promotes scientific research and knowledge generation.

National Marine Sanctuaries projects offer a significant advantage over rig-to-reef conversions by allowing for comprehensive baseline measurements of environmental impacts Prior to the deployment of artificial structures, valuable data can be collected about the surrounding ecosystem, facilitating more accurate assessments In contrast, state rig-to-reef programs face challenges in obtaining similar baseline information, making impact measurement more complex.

The Coastal Artificial Reef Plan highlights the role of artificial reefs as effective fisheries management tools, showcasing their benefits and reflecting the optimism of fisheries managers involved in these projects.

359 NOAA, POLICY STATEMENT OF THE NATIONAL MARINE SANCTUARY PROGRAM: ARTIFICIAL REEF PERMITTING GUIDELINES at i (2003).

362 See id at 4-5 (allowing research, education and in some sanctuaries "management").

Decommissioned oil rigs have significantly impacted their surrounding environments, yet research on the low-level and cumulative effects of drilling remains scarce While environmental impact reports typically address various environmental concerns, establishing baseline conditions is challenging due to limited data Increased scientific resources dedicated to assessing the environmental consequences of oil drilling could enhance our understanding and inform future projects.

California's Skepticism of Rig-to-Reef Programs

California's skepticism towards rig-to-reef programs is exemplified by the fate of a recent bill aimed at incorporating offshore oil platforms into the state's artificial reef initiative Recognizing the decline of certain fish species as a critical issue, California's legislature previously established a program focused on research and innovative solutions to this problem, while promoting artificial reef construction in collaboration with local universities However, this existing program did not permit platform donations SB 1, introduced on December 4, 2000, marked the third attempt in three years to authorize the conversion of platforms into artificial reefs in California, differing significantly from similar laws in Louisiana and Texas, particularly regarding donor liability, cost avoidance returns, and the intended use of the converted platforms.

Unlike Gulf of Mexico state programs, SB 1 enabled the Department of Fish and Game (DFG) to establish an indemnity agreement with the donating company, protecting the state from liability Additionally, SB 1 featured a structured scaling of returns to the state.

The California Department of Fish and Game is responsible for managing the installation of artificial reefs in state waters, as outlined in the California Artificial Reef Program under sections 6420 to 6425 of the Fish and Game Code.

366 MCGINNIS ET AL., supra note 24, at 58-59 (chronicling California's artificial reef program); Id at 62-64 (discussing proposals for rig donations and conversions in California) In

1992, the California Department of Fish and Game rejected a donation of rig materials for an artificial reef concluding that the materials were not suitable for reefing Id at 63.

367 S.B 1, 2001-2002 Sess (Cal 2000) (vetoed by Governor Gray Davis, Oct 13, 2001).

368 See MCGINNIS ET AL., supra note 24, at 65-66; S.B 241, 1999-2000 Sess (Cal 1999) (unenacted); S.B 2173, 1997-1998 Sess (Cal 1998) (unenacted).

California Senate Bill 1 proposes the addition of sections to the California Fish and Game Code, specifically § 6427(f)(1)(D) and § 6427.5 This legislation aims to indemnify the state from any liabilities associated with the conversion of offshore oil platforms or production facilities into artificial reefs, as well as any liabilities stemming from the ownership of these reefs.

Enduring optimism characterizes the platform donation process, as evidenced by the 370 platforms donated Unlike Gulf of Mexico state programs that negotiate decommissioning savings on a case-by-case basis, where states usually obtain half of the removal costs, SB 1 mandates that the donating company contributes 35 percent of avoided costs for platforms in 200 feet of water or less, and 50 percent for those in deeper waters.

400 feet of water, and 65 percent for platforms at depths of more than 400 feet 371

The key distinction between SB 1 and Gulf of Mexico state programs lies in their strategies for utilizing converted platforms as fishery management tools Under SB 1, the Department of Fish and Game (DFG) must confirm that a proposed conversion offers a net benefit to the marine environment compared to removing the facilities Initially, these artificial reefs will be designated as "no-take" zones, prohibiting the harvesting of fish and marine species This restriction may be lifted once specific habitat enhancement goals are met, meaning that, unlike the Gulf of Mexico programs, the artificial reefs will not be immediately available for fishing; instead, they will undergo monitoring and evaluation to ensure they contribute to fishery enhancement objectives.

In the end, SB 1 passed through the legislature but was vetoed by the governor Governor Davis rejected the bill, explaining that it was

It is premature to implement this program until the scientific and environmental communities widely accept the environmental benefits of such conversions Studies conducted in California have not provided evidence that platform conversions positively impact regional marine species stocks Despite this, Governor Davis vetoed SB 1, indicating an awareness of the lack of supporting evidence.

370 Id (proposing addition of CAL FISH & GAME CODE § 6429.3(a)).

371 Id (proposing addition of CAL FISH & GAME CODE § 6429.3(a)).

372 Id (proposing addition of CAL FISH & GAME CODE § 6427(b)).

373 Id § 8 (proposing addition of CAL PUB RES CODE § 30960(b)).

A proposed section of S.B 1 emphasizes that allowing fishing at artificial reefs created from offshore oil platforms could jeopardize efforts to enhance sports and commercial fishing in California If approved, the Department of Fish and Game (DFG) would be required to prohibit all fishing and the removal of marine life from these artificial reefs, with exceptions made only for research purposes.

376 See SELECT SCIENTIFIC ADVISORY COMM ON DECOMMISSIONING, supra note 11, at

35 ("[T]here is not any sound scientific evidence (that the Committee is aware of) to support the idea that platforms enhance (or reduce) regional stocks of marine species.").

2005] hand, no evidence demonstrates that such structures, if left in place,would necessarily harm regional stocks of marine species 377

A Sound and Sustainable Rig-to-Reef Program

Conforming Goals to Reality-Experimenting, Adapting, and Removing Ill-sited Platforms

The rig-to-reef debate lacks a balanced approach to the competing interests involved, as current programs focus more on the intended benefits of enhancing fisheries and restoring ocean ecosystems rather than on measurable outcomes Without specific goals and monitored results, these initiatives risk being indistinguishable from ocean dumping The emphasis on the purpose of rig-to-reef projects obscures their actual effects, and performance monitoring remains voluntary To ensure ecological benefits and align with public sentiment against ocean dumping, rig-to-reef programs must establish clear objectives and require evidence of their impact.

To enhance existing programs, it is crucial to reevaluate the standards for the initial approval of rig-to-reef projects By adopting a more experimental approach to artificial reefs, we can shift the current perspective on their utility The discussion surrounding the approval criteria for potential rig-to-reef conversions, particularly in the context of California's rejected SB 1, highlights the challenges faced in this area.

The uncertainty surrounding political debates often mirrors issues involving scientific ambiguity and potential environmental risks Notable examples include the recycling of heavy metals in fertilizers, cloud seeding, and the genetic engineering of crops This highlights the complexities in regulating toxic risks, as discussed in Wendy E Wagner's article, "The Science Charade in Toxic Risk Regulation."

"science charade" that agencies use in regulating toxic risk to suggest politically neutral outcomes based on science rather than value judgment).

379 NOAA DRAFT ARTIFICIAL REEF PLAN OF 2002, supra note 12, at 35.

The current Gulf State programs rely heavily on the goodwill of fisheries managers, as highlighted in SB 1, which suggests that rig-to-reef conversions should only proceed if they provide a net benefit to the marine environment compared to facility removal However, due to scientific uncertainties, staff comments on SB 1 indicated that this criterion may be unrealistic for the Department of Fish and Game (DFG) to meet Instead, it was proposed that the DFG assess whether the project would cause "no significant harm to the marine environment." While this standard aligns with existing environmental regulations for ocean dumping permits, it reflects a specific objective of the National Fishery Enhancement Act (NFEA) to avoid harm to marine areas Consequently, the initial approval should focus on ensuring no environmental damage, placing the responsibility on project proponents to provide scientific evidence supporting their claims.

To enhance marine resources effectively, it is essential to move beyond good intentions by clearly defining objectives and tracking progress The NMSP artificial reef policy and California's rejected SB 1 "no-take" zone provide valuable examples of adaptive management for artificial reefs Each artificial reef can have both positive and negative impacts, making it crucial to conduct mandatory periodic reviews of habitat enhancement goals These reviews will not only ensure compliance with permit conditions but also help clarify the ecological benefits, if any, provided by artificial reefs.

380 Cal S.B 1 § 5, adding CAL FISH & GAME CODE § 6427(b).

381 Senate Natural Resources and Wildlife Committee, Bill Analysis, Cal S.B 1, at 7.

Under the Marine Protection, Research, and Sanctuaries Act (MPRSA), the approval of dumping activities hinges on ensuring that such disposal will not significantly harm the marine environment Compliance with environmental impact criteria and effective management of disposal sites is mandated by MPRSA regulations.

384 McGINNIS ET AL., supra note 24, at 25.

385 See Margaret W Miller, Using Ecological Processes to Advance Artificial Reef Goals,

59 ICES J MARINE SC S27, S30 (Oct 2002) (suggesting vast improvement in successes with artificial reefs would accrue if every artificial reef "were treated as a study reef").

Artificial reef managers aim to establish the scientific benefits of artificial reefs while minimizing potential harm They should identify success benchmarks and reasonable timelines, with baseline data collected before reef establishment Flexibility is essential, allowing for fishing and diving restrictions during evaluation periods If research indicates alternative benefits, managers can adapt initial objectives, potentially permitting non-consumptive uses like diving or research if these reefs relieve pressure on natural ecosystems Conversely, reefs that prove harmful should be removed Longevity of artificial reefs requires ongoing proof of their effectiveness in meeting specific goals, ensuring accountability to both project objectives and the recreational fishing community This research-driven approach enhances public understanding of artificial reefs' efficacy and efficiency.

To effectively differentiate rig-to-reef projects from ocean dumping, a comprehensive experimental model is essential to address the increasing application of artificial reefs in various contexts A well-structured research approach can facilitate the responsible use of artificial reefs for estuary restoration and environmental mitigation in projects impacting marine resources The National Artificial Reef Plan highlights the rising interest in utilizing artificial reefs not only for enhancing recreational fishing but also for habitat restoration and mitigation However, the existing scientific landscape on artificial reefs is fraught with competing theories, which poses a significant risk of failing to meet environmental objectives when artificial reefs are used as substitutes for natural habitats.

386 See COASTAL ARTIFICIAL REEF PLANNING GUIDE, supra note 4.

The NOAA Draft Artificial Reef Plan of 2002 is rooted in the original plan developed in 1985 under the National Fishing Enhancement Act of 1984, which highlighted the lack of information regarding optimal reef siting for habitat enhancement and restoration Despite the increasing interest in artificial reefs for improving fishery resources, the original plan acknowledged the scarcity of research and experience in this area, offering limited guidance through a set of recommendations outlining essential "dos" and "don'ts."

The concept of enduring optimism regarding artificial reefs requires thorough examination as the science behind them is still developing Public interest in artificial reefs is expected to persist, highlighting the need for improved understanding and communication about their ecological impacts.

To enhance scientific oversight of rig-to-reef initiatives, it is essential to equip artificial reef managers with adequate staffing and funding The industry must provide significant environmental benefits in exchange for flexibility in removal obligations, ensuring these benefits are as impactful as the requirement to dismantle outdated industrial structures Without sufficient personnel to assess and monitor the impact of artificial reefs, effective evaluation of these projects remains unattainable.

Increasing transparency in rig-to-reef transactions is essential for maximizing benefits while alleviating the financial burden on coastal states from under-funded cleanup programs By including the monetary value of potential artificial reef habitats and the state's costs for accepting these conversions in proposals, stakeholders can better understand the economic implications This shift in perspective highlights that managing unproven technologies, which require ongoing research and monitoring, is often more expensive than established methods Unlike many environmental commodities, the economic value of artificial reef construction materials is known, but the habitat enhancement they provide remains speculative due to scientific uncertainties Estimating habitat value, despite its challenges, can help the public grasp the necessity of such investments Effective calculation tools may involve assessing environmental baselines to compare existing habitats with anticipated improvements or referencing the costs associated with restoring or replacing habitats.

Calculating the economic impact of artificial reef construction involves various components, some of which are easier to monetize than others The materials used in building these reefs have a recognized economic value Additionally, the potential economic benefits from tourism, along with the costs associated with maintenance, liability management, and insurance policies, can be estimated with reasonable accuracy.

Valuing artificial reef habitats presents challenges, particularly in estimating costs associated with navigation obstructions, potential structural movement, and environmental risks These risks include the possibility of pollution release from decomposition and the importance of restoring the ocean floor to its pre-drilling condition.

Identifying and valuing natural areas of ecological significance remains a contentious topic, particularly in the realm of natural resource damage litigation under CERCLA One common method for assessing the value of these areas is contingent valuation, which involves surveying individuals to determine how much they would be willing to pay for the preservation of these resources.

Aligning Goals and Sharing Responsibilities

To ensure the effectiveness of rig-to-reef programs, it is essential to align federal and state objectives for Outer Continental Shelf (OCS) activities This alignment must begin with federal recognition of the issue during the initial stages of offshore development decision-making The government level most capable of addressing environmental concerns should be tasked with managing these issues In this context, the federal government, as a trustee, is best positioned to mitigate waste disposal challenges arising from its permitted OCS development projects and should take a leadership role in this effort.

The federal government, which benefits financially from Outer Continental Shelf (OCS) development, initially controls the agreements made with the oil industry To optimize the overall operation—from OCS leasing to artificial reef conversion—federal and state objectives must align, even if state programs are well-meaning If the federal goal is to subsidize oil and gas production, it can achieve this through royalty relief or bonus bid reductions during production, rather than focusing financial support on cleanup efforts Additionally, federal involvement in reef programs could facilitate more comprehensive research in deepwater areas, enhancing the effectiveness of rig-to-reef initiatives.

391 Daniel C Esty, Revitalizing Environmental Federalism, 95 MICH L REV 570 (1996).

392 See discussion of state and federal competition on the OCS infra Part II.B.

The future direction of the rig-to-reef policy, as indicated by the MMS, will largely be influenced by stakeholders, particularly a diverse coalition of recreationists and the oil industry, reflecting historical trends.

The federal government receives payments based on oil or gas production from specific leases and may reduce these payments to promote development, as demonstrated by the Outer Continental Shelf Deep Water Royalty Relief Act of 1995.

The federal government initiates negotiations for offshore lease sales with a lump sum or "bonus" bid, which can be significant These bonus bid amounts may be allocated to oil companies to help offset the expenses associated with platform removal, as authorized under 43 U.S.C § 1337(a) by the Secretary of the Interior.

2005] ENDURING OPTIMISM development might require a trade-off that involves impacts to navigation 3 96

The decision to remove offshore platforms is now made on a case-by-case basis, primarily due to the high costs and technical challenges associated with complete removal Current practices favor recycling deeper platforms as artificial reefs, despite the fact that operators often prefer to sink structures to avoid costly decommissioning Technological advancements in deepwater platform construction have outpaced those for safe and economical removal, leading to shortsighted business practices This trend must be reversed; technical feasibility should not dictate removal decisions, especially given the substantial financial gains from these operations Platforms should be engineered for complete removal, and implementing this as a design requirement in federal leases would prioritize public interests over industry convenience.

Research indicates that preserving rig-to-reef marine communities near the water's surface may offer greater environmental benefits than dismantling rigs Organisms reliant on light and nutrients found in the upper structure would be adversely affected if removed, potentially disrupting marine life in deeper waters The removal of the top portion of a rig could significantly impact the lower biota, risking the long-term sustainability of these ecosystems Furthermore, the involvement of the Department of Interior, Coast Guard, and other federal agencies is crucial to support the enhancement of marine ecosystems through artificial reefs, reflecting a commitment to marine conservation.

During a public workshop on decommissioning, Carolita Kallaur, Associate Director for Offshore Minerals Management at the U.S Department of the Interior, highlighted that in the Gulf of Mexico, deeper water increases the likelihood of decommissioned structures being transformed into artificial reefs Specifically, she pointed out that 40% of structures in 100-200 feet of water and 85% in 200-400 feet have been repurposed as artificial reefs.

398 Ron Twachtman, Offshore-Platform Decommissioning Perceptions Change, OIL & GAS J., Dec 8, 1997, at 38.

The standard for addressing the proliferation of abandoned platforms impacting U.S marine defenses was proposed over thirty years ago by the Secretary of Defense, highlighting the need for interagency discussion This concern was reiterated in 2000 when the Minerals Management Service (MMS) expressed support for the requirement during the revision of platform installation regulations, emphasizing the importance of safeguarding seaborne forces.

To effectively manage the proliferation of offshore platforms, it is essential to establish a clear goal for the number of structures designated as artificial reefs This approach would alleviate concerns regarding seabed congestion and enhance the capacity of state artificial reef managers to develop their programs Furthermore, it highlights the necessity for greater federal oversight during the initial leasing stages to mitigate potential waste disposal issues, especially as the federal government prepares to authorize an increase in permanent fixed structures on the Outer Continental Shelf (OCS) for energy development, aquaculture, and research.

States play a crucial role in overseeing coastal zone activities, and there is a need for a collaborative tool that empowers both federal and state governments to promote a sustainable vision for ocean use One effective approach is the adoption of ocean zoning, which can facilitate the designation of specific short-term uses for ocean areas while ensuring long-term sustainability.

Marine Protected Areas Could Mediate Among

Marine Protected Areas (MPAs) are increasingly recognized as effective regulatory tools for managing ocean ecosystems This form of ocean zoning takes into account all activities within a designated area, promoting a holistic ecosystem approach The federal government and various states have adopted MPAs in response to the limitations of traditional marine management strategies, such as individual fishing quotas, catch limits, and gear restrictions.

2000) (to be codified at 30 C.F.R pt 250).

The Bush administration has sought to enhance the authority over Outer Continental Shelf (OCS) structures, leading Congress to expand the Department of the Interior's (DOI) powers for offshore energy development through the Energy Policy Act of 2005.

The Outer Continental Shelf Lands Act was amended in 2005 to grant the Secretary of the Interior the authority to issue leases, easements, or rights-of-way on the Outer Continental Shelf (OCS) This provision allows for energy-related and other authorized marine-related activities, utilizing facilities that are currently or were previously employed for activities permitted under this Act.

401 OCEAN COMM'N REPORT, supra note 20, at 473-74 (recommending increased partnerships with coastal states).

402 See Exec Order No 13,158, 65 Fed Reg 34,909 (May 26, 2000) (encouraging the adoption of MPA management); NATIONAL RESEARCH COUNCIL, MARINE PROTECTED

AREAS: TOOLS FOR SUSTAINING OCEAN ECOSYSTEMS (2001); Craig, supra note 330, at 167-68; Christie, supra note 322, at 430 (discussing marine reserves as complement to ecosystem- management).

The Marine Protected Area (MPA) framework is a valuable regulatory tool for achieving federal and state objectives in the Outer Continental Shelf (OCS) by establishing a hierarchy of ocean use or non-use tailored to specific regions For example, proponents advocate zoning areas like the Gulf of Mexico for mineral extraction alongside compatible activities, such as recreational fishing While this may appear drastic, policymakers acknowledge the challenges of multiple-use management in open access systems and are seeking methods to enhance ocean resource exploitation while minimizing user conflicts The MPA approach is particularly effective for managing fixed structures on the OCS, as these structures provide place-based certainty and have localized impacts.

Marine reserves represent the most stringent type of Marine Protected Areas (MPAs), completely banning all extractive activities within their boundaries This approach not only alleviates pressure on overfished species but also protects habitats from the physical impacts of fishing The integration of artificial reefs, similar to the proposals in California SB 1, offers an opportunity to gather valuable scientific data on their effects on marine ecosystems and specific fish populations Although the use of artificial reefs in MPAs is currently limited, reef managers believe it holds significant potential for generating reliable evidence regarding their ecological impact.

The National Marine Protected Areas Center's progress report highlights the status of Executive Order 13158 and the efforts of the Center during fiscal years 2002 and 2003 The federal government plays a crucial role in coordinating information related to Marine Protected Areas (MPAs) For comprehensive details on Marine Managed Area programs in various states, territories, and commonwealths, visit MPA.gov, which provides a list of coastal states utilizing MPAs to effectively manage ocean resources.

Executive Order No 13,158 emphasizes the critical need to address emerging user conflicts and threats to ocean sustainability while highlighting the importance of protecting ocean areas from human impacts.

Mooring Lines: Time For More Formal Resolution of Use Conflicts in States' Coastal Waters?, 4

The article discusses the need for enhanced ocean management strategies to address rising conflicts over ocean use, as highlighted in the analysis by OCEAN & COASTAL L.J It also examines the effectiveness of the Magnuson-Stevens Act in fulfilling its conservation goals over the past twenty-eight years, as explored by Roger Fleming, Peter Shelley, and Priscilla M Brooks.

L REV 579, 610 (2004) (discussing increasing uses of oceans); Id at 619-21 (discussing network of marine protected areas to conserve marine habitat).

407 See Craig, supra note 330, at 169-72 (discussing the benefits of marine reserves).

409 COASTAL ARTIFICIAL REEF PLANNING GUIDE, supra note 4, at 15.

2005] the surrounding environment than those artificial reefs constantly utilized by recreationists 410

Coastal states are increasingly adopting the Marine Protected Area (MPA) approach for marine life and habitat conservation, with California leading the way through the Marine Life Protection Act (MLPA), which creates a comprehensive network of protected areas along its coastline In addition to this initiative, California advocates for a complete moratorium on offshore oil drilling, highlighting the need for alignment between federal and state environmental goals to ensure sustainable ocean management The success of the MLPA relies on cooperative efforts, as conflicting federal interests in risky offshore drilling could undermine its effectiveness.

Marine Protected Areas (MPAs), especially no-take marine reserves, face significant criticism, primarily from fishing interests who argue that ocean zoning infringes on traditional fishing rights Opponents have even pushed for "freedom to fish" legislation to restrict fisheries managers' regulatory power over recreational fishing To address the resistance to ocean zoning, some advocate for collaboration between fishermen and fisheries managers The effectiveness of MPAs, particularly marine reserves, relies heavily on the acceptance of stakeholders, and gaining this support necessitates demonstrable results in restoring ocean ecosystems.

410 The Coastal Artificial Reef Planning Guide suggests that the lack of baselines poses a serious shortcoming to artificial reef management efforts, to the extent they exist at all Id at 36.

411 See sources cited supra note 404.

The Marine Life Protection Act, enacted by the California legislature in 1999, aims to establish a comprehensive network of Marine Protected Areas (MPAs) along California's coastline, marking a significant step in marine conservation efforts.

413 CAL RES AGENCY, PROTECTING OUR OCEAN: CALIFORNIA'S ACTION STRATEGY,

FINAL REPORT TO GOVERNOR ARNOLD SCHWARZENEGGER iii, 36 (Sept 2004).

Conflicts between federal initiatives aimed at restoring marine ecosystems and state-level activities could potentially undermine environmental protections As highlighted in Craig's analysis, these discrepancies may hinder the effectiveness of conservation efforts.

415 See Christie, supra note 322, at 431 (noting that the most frequent criticism of marine reserves is violation of public trust doctrine).

In response to concerns from recreational fishing groups, numerous coastal states proposed Freedom to Fish Acts, aimed at reducing conflicts in the Exclusive Economic Zone Notably, in 2003, eleven states introduced such legislation, including California's S.B 281 and Washington's H.B 2205, both of which were ultimately unenacted, alongside Rhode Island's enacted H 5686A and Maryland's H.B 1160.

417 See Craig, supra note 330, at 261 (underscoring need for public support for successfulMPA management).

ENDURING OPTIMISM fisheries Stakeholders are likely to accept change only if there has been a satisfactory demonstration that sacrifices have been secured toward a common goal.

To create a more environmentally sound approach to rig-to-reef programs, national planning and an experimental mindset are essential, as these initiatives currently support unsustainable practices and prioritize fish extraction over ocean ecosystem health Often perceived as a means of legally sanctioned waste disposal, these projects can detract from valuable fisheries habitats While they may offer some recreational benefits, states are misallocating limited resources amid a crisis in ocean health It is crucial that scientific and legal uncertainties do not yield to political interests or profit-driven motives Instead, rig-to-reef programs should focus on enhancing the health and functionality of vital ocean ecosystems, countering the influence of oil companies and the optimistic expectations of recreational fishermen.