Ice Law and the Complexities of the Land-Water Interface: Physical, Market, and Regulatory Dimensions (H. Osofsky)

H Osofsky2Ice Law and the Complexities of the Land-Water Interface: Physical, Market, and Regulatory Dimensions

Professor Hari Osofsky, Professor of Law, University of Minnesota

Arctic melting lies at a complex interface of physical, market, and regulatory systems.  Physically, climate change has caused melting of frozen water in its multiple forms, from land-based permafrost and glaciers to sea ice in its many forms.  This melting has a variety of implications, both negative and positive, that create a need for adaptation.  For example, melting has made core infrastructure and ice-based routes unstable; coastal communities face sea level rise, erosion, and severe weather; disrupted animal habitats have changed migratory, feeding, and mating patterns; and decreased summer sea ice has opened up new possibilities for navigation and oil and gas exploration. These many changes have particularly significant impacts on indigenous peoples in the Arctic, making it difficult to maintain traditions while opening up new resource opportunities for those with relevant property rights.[1]

These physical changes interact with markets and regulations at multiple scales in ways that involve a wide range of stakeholders.  For example, demand for oil and natural gas – paired with developments in deepwater drilling and hydraulic fracturing technology that create access to new reserves – drives interest in exploring the unconventional energy resources that climate change has made more accessible.  But low natural gas prices as a result of the expansion of hydraulic fracturing makes some natural gas projects less profitable.  Moreover, the BP Deepwater Horizon oil spill created regulatory rethinking with respect to both drilling safety and oil spill clean up, including a focus on the regulatory complexities emerging from the unique physical environment of the Arctic.[2]

The legal treatment of land and water, in both liquid and frozen states, plays a key role in the complexity of these physical, market, and regulatory dynamics.  The international law principle of state sovereignty over natural resources gives states property rights over their territory.  The United Nations Convention on the Law of the Sea (UNCLOS) uses land boundaries – both from coastlines and the submerged continental shelves – to establish state property rights over water off of their coasts and the land the lies under that water.  However, ice complicates those assessments, as nation-states grapple with when ice extending beyond land and/or compressing land so that it is below sea level should count as land in these assessments.  Similarly, uncertainties around predicting the exact pattern of summer sea ice melting, paired with the certainty that the ice will return in winter months, makes market and regulatory decisions about navigation and oil and gas exploration difficult.  The presence of ice most of the year also complicates protocols for oil spills.[3]

Even when water is shifting between frozen and liquid states over land clearly with a nation-state’s territory, difficult issues arise.  For instance, traditional Inuit travel routes and animal migratory patterns depend on water being frozen.  Petitions to domestic and international tribunals – none of which have succeeded to date – have asserted the violation of legal rights based on this melting.  Melting also interacts with water rights, as it changes the timing and quantity of flow in domestic water systems, creating problems not just in the polar regions but within other areas of Arctic nations.  Droughts, flooding, and uncertainties in water rights result from these changes.[4]

This complicated interface among changes in the state of water, markets in water and other resources made accessible by melting, and multi-level regulatory systems creates an opportunity and need for new conceptual and practical thinking.  First, these dynamics suggest the importance of reevaluating approaches to international law that establish territorial rights based on land.  Determining if and when frozen water should be treated as land under law is critical for property rights determinations in the Arctic, especially in boundary regions.  Scholars in this group and beyond focused on baseline determinations under UNCLOS are already making important contributions along these lines.  Furthermore, these analyses around territory and frozen water have synergies with other dilemmas of climate change adaptation and international law.  For instance, one of the four requirements of statehood under international law has traditionally been territory.  This requirement creates major difficulties for small island nations facing submergence.  To the extent that the complexity of frozen water opens up new dialogue around territory at the land-water interface, it may assist with needed creative thinking about possibilities for submerged states to retain nation-state status or some variation of it.[5]

Second, the fragmentation of relevant legal authority and institutions, together with the range of important non-state stakeholder such as indigenous peoples and corporations, provides an opportunity for new thinking about governance structures. While the Arctic nations have reaffirmed their commitment to UNCLOS in the 2008 Illulissat Declaration, the Arctic Council serves as a critical forum for bringing together the Arctic states, representatives of indigenous peoples, and other key stakeholders.  Although it lacks binding decisionmaking authority, it has been and likely will continue to play an important role in helping efforts to address the challenges and opportunities of the changing Arctic.  At the domestic-international interface, interesting governance questions abound as well.  For example, multiple U.S. agencies participate in the Arctic Council, with the lead role varying based on which working group is involved.  This divided authority creates difficulties for a unified U.S. approach, but also opportunities to explore the best way to address problems over which multiple agencies legitimately have governance authority.[6]

Finally, the Arctic and its melting ice provide an important case study for the best regulatory approaches to rapidly changing technology and complex science.  For instance, in the context of offshore drilling, policymakers debate the value of prescriptive regulation versus a safety case approach, in which corporations prove that they are operating safely.[7]   In addition, when disputes reach generalist forums like courts, decisionmakers must grapple with the best way to address technical subjects about which they do not have baseline expertise.[8]

[1] See Susan Joy Hassol, Arctic Climate Impact Assessment, Impacts of a Warming Arctic: Arctic Climate Impact Assessment 2004, at 8, available at http://www.amap.no/acia/index. html [ACIA]; Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and Vulnerability, Vol. 2, Ch. 28, Polar Regions (2014), http://www.ipcc.ch/report/ar5/wg2/.

[2] See Charles Ebinger, John P. Banks & Alisa Schackmann, Offshore Oil and Gas Governance in the Arctic: A Leadership Role for the U.S. (Brookings Energy Security Initiative Report, Mar. 2014), http://www.brookings.edu/research/reports/2014/03/offshore-oil-gas-governance-arctic.

[3] See id.

[4] See Hari M. Osofsky, The Right to Frozen Water: The Institutional Spaces for Supranational Climate Change Petitions, in Progress in International Institutions: Confronting the 21st Century (Rebecca Bratspies and Russell Miller, eds.) (2008, Martinus Nijhoff).

[5] See Maxine Burkett, The Nation Ex-Situ, in Threatened Island Nations (Michael Gerrard & Gregory Wannier eds., Cambridge U. Press 2013).

[6] See U.S. Government Accountability Office, Arctic Issues: Better Direction and Management of Voluntary Recommendations Could Enhance U.S. Arctic Council Participation (May 2014) (Report to Congressional Requesters), http://www.gao.gov/products/GAO-14-435.

[7] Nat’l Comm’n on the BP Deepwater Horizon Oil Spill & Offshore Drilling, Report to the President, Deepwater: The Gulf Oil Disaster and the Future of Offshore Drilling 252 (2011).

[8] Jacqueline Peel & Hari M. Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy? (forthcoming 2014, Cambridge University Press).

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