REGULATORY FRAMEWORK
The NEPA (1969) established national policies and goals for the protection of the environment. Procedural requirements direct all Federal agencies to appropriately consider the environmental effects of their decision-making and to prepare detailed environmental statements on any action that may significantly affect the quality of the environment. The President’s Council on Environmental Quality (CEQ) established regulations for federal agency implementation of the act.
EO 12114 directs federal agencies to provide for informed decision making for major federal actions outside the U.S., including the global commons, the environment of a non-participating foreign nation, or protected global resources.
The ESA (16 U.S.C. 1531 to 1543) applies to federal actions in two separate respects. First, the ESA requires that Federal agencies, in consultation with the responsible wildlife agency, ensure that proposed actions are not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat [16 U.S.C. 1536 (a)(2)]. Regulations implementing the ESA expand the consultation requirement to include those actions that “may affect” a listed species or adversely modify critical habitat.
The MMPA of 1972 established, with limited exceptions, a moratorium on the “taking” of marine mammals in waters or on lands under U.S. jurisdiction. The act further regulates “takes” of marine mammals in the global commons (i.e., the high seas) by vessels or persons under U.S.
jurisdiction. The term “take,” as defined in Section 3 (16 U.S.C. 1362) of the MMPA, means “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” “Harassment” was further defined in the 1994 amendments to the MMPA, which provided two levels of “harassment,” Level A (potential injury) and Level B (potential disturbance).
The NMSA prohibits the destruction of, loss of, or injury to any sanctuary resource managed under law or regulations, and any violation of the act, any regulations, or permits issued there under (16 U.S.C. 436). In addition, Section 304(d) of the NMSA (16 U.S.C. 1434[d]) prohibits federal agency actions, internal or external, to any national marine sanctuary that are likely to destroy, cause the loss of, or injure any sanctuary resource (for Stellwagen Bank National Marine Sanctuary, the threshold is "may" destroy, cause the loss of, or injure).
The MSA provides for the conservation and management of U.S. fishery resources. Through the reauthorization of this act by the Sustainable Fisheries Act (1996), the National Marine Fisheries Service (NMFS) and regional fishery councils must describe and identify Essential Fish Habitat (EFH) for all species that are federally managed. EFH is defined as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. Under the Act, federal agencies must consult with the Secretary of Commerce regarding any activity or proposed activity that is authorized, funded, or undertaken by the agency that may adversely affect EFH.
The MBTA (1918, as amended) implements various treaties and conventions between the U.S. and Canada, Japan, Mexico, and the former Soviet Union for the protection of migratory birds.
The CZMA provides for the preservation, protection, development, restoration and enhancement of the nation’s coastal zone resources. The CZMA requires that any federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone be carried out in a manner that is consistent, to the maximum extent practicable, with the enforceable policies of the National Oceanic and Atmospheric Administration (NOAA) approved state management programs.
EO 13158 on MPAs calls on the Department of Commerce (DOC) and the Department of the Interior (DOI), in consulation with other federal agencies and stakeholders, to develop a national system of MPAs to enhance the conservation of the nation’s natural and cultural marine heritage. A proposed draft framework for developing the MPA system was released in February 2007, which proposed guidelines for the development of the National System of MPAs. At this time, MPAs have not been formally designated under EO 13158.
In accordance with EO 13089 on Coral Protection (1998),
all federal agencies whose actions may affect U.S. coral r
eef ecosystems shall: (1) identify their actions that may affect coral reef ecosystems; (2) utilize their programs and authorities to protect and enhance the conditions of such ecosystems; and (3) to the extent permitted by law, ensure that any actions they authorize, fund, or carry out will not degrade the conditions of such ecosystems.
The NHPA of 1966 governs cultural resources and requires federal agencies to consider their potential impacts on historic properties that are listed, or are eligible for listing, in the National Register of Historic Places (NRHP).
The CAA (1970) established regulations to control air pollution and protect public health and the environment. Subsequent amendments also address acid rain, ground -level ozone pollution, stratospheric ozone depletion and toxics.