The Coast Guard’s Next Decade: An Assessment of Emerging Challenges and Statutory Needs (2023)

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31 This chapter explains in greater detail the approach followed in this study to identify future developments, while also noting some of the challenges involved in assessing the U.S. Coast Guard’s statutory authority to respond to these developments. The study committee proceeded with an understand- ing that it is not possible to identify all significant developments that may materialize over the next 10 years to affect the maritime domain and Coast Guard. Recent and current events attest to this reality. For instance, in the years leading up to 2020, global leaders surveyed by the World Economic Forum ranked the risk of a pandemic to be low.1 Furthermore, even within the short time since this study committee convened for the first time in late 2021, Russia invaded Ukraine, prompting a security crisis and global political response that had not been widely anticipated even a year earlier. In addition to the inherent uncertainties associated with any effort to forecast over a span of years, the approach that was taken in this study needed to fit with the resources and time available to the committee. The approach described in this chapter is best viewed as a high-level exercise intended to aid policy makers in identifying statutory areas that are candi- dates for closer scrutiny. It can also serve as a prelude to a more developed practice of what the committee terms “legal foresight.” A range of fore- casting techniques, scenario planning methods, and other tools of strategic foresight that have become well developed in recent decades are increas- ingly relied on by government agencies for strategic planning, and they 1 World Economic Forum. 2020. The Global Risks Report 2020. January 15. https://www. weforum.org/reports/the-global-risks-report-2020. 2 Identifying Future Developments and Assessing Statutory Authority

32 THE COAST GUARD’S NEXT DECADE could very well provide additional insights into future developments facing the Coast Guard over the coming decade (see Box 2-1).2 The Coast Guard has regularly employed scenario-based methods as part of its Evergreen process.3 Commencing in 2002, the Evergreen process operates on a 4-year cycle, with the latest iteration, Project Evergreen V, covering 2018-2022.4 In each case, the resulting Evergreen report contains recommendations to be delivered to the incoming Commandant’s Transition Team to inform the Commandant’s Strategic Direction. The set of scenarios considered in the most recent Project Evergreen includes shifts in demographics, technology, and workforce arrangements; changing patterns of energy production and usage; changing drug production, use, and legislation; and geopolitical shifts including the rise of China and resurgence of Russia, fragile state control in various regions, and terrorist threats. The committee reviewed the publicly available materials released as part of the Coast Guard’s Evergreen process and made relevant inquiries to the Coast Guard but was unable to identify any systematic efforts to build legal analysis expressly into the Coast Guard’s strategic foresight processes. The approach taken in this study can thus provide a foundation for fur- ther development of methods that can in the future be used to incorporate 2 Scoblic, J. P., and P. Tetlock. 2020. “A Better Crystal Ball: The Right Way to Think About the Future.” Foreign Affairs, November/December. https://www.foreignaffairs.com/ articles/united-states/2020-10-13/better-crystal-ball?utm_campaign; Schoemaker, P. J. H., and P. Tetlock. 2016. “Superforecasting: How to Upgrade Your Company’s Judgment.” Harvard Business Review. https://hbr.org/2016/05/superforecasting-how-to-upgrade-your-companys- judgment; Scoblic, J. P. 2020. “Learning from the Future: How to Make Robust Strategy in Times of Deep Uncertainty.” Harvard Business Review. https://hbr.org/2020/07/learning-from- the-future; Scoblic, J. P. 2021. “Strategic Foresight in U.S. Agencies: An Analysis of Long-Term Anticipatory Thinking in the Federal Government.” New America, December 15. https://www. newamerica.org/international-security/reports/strategic-foresight-in-us-agencies; Wendling, C., AXA, communication with the committee, April 14, 2022. 3 Davenport, A. C., M. D. Ziegler, S. A. Resetar, et al. 2022. USCG Project Evergreen V: Compilation of Activities and Summary of Results. Homeland Security Operational Analy- sis Center. https://www.rand.org/pubs/research_reports/RRA872-2.html; Tingstad, A., M. T. Wilson, K. Anania, et al. 2020. Developing New Future Scenarios for the U.S. Coast Guard’s Evergreen Strategic Foresight Program. Homeland Security Operational Analysis Center (oper- ated by the RAND Corporation). https://www.rand.org/pubs/research_reports/RR3147.html. 4 Davenport, A. C., M. D. Ziegler, S. A. Resetar, et al. 2022. USCG Project Evergreen V: Compilation of Activities and Summary of Results. Homeland Security Operational Analysis Center. https://www.rand.org/pubs/research_reports/RRA872-2.html. The RAND Corpora- tion operates the Homeland Security Operational Analysis Center (HSOAC) for the DHS. The Homeland Security Act of 2002 (Section 305 of Public Law 107-296, as codified at 6 U.S.C. § 185) authorized the DHS to establish one or more federally funded research and development centers to provide independent analyses of homeland security matters. RAND’s HSOAC has supported the Coast Guard’s Evergreen strategic foresight activity from July 2018 to July 2022. The Evergreen Project is a team effort consisting of staff from the Coast Guard Office of Emerging Policy, a core group of Coast Guard subject-matter experts, and HSOAC researchers.

IDENTIFYING FUTURE DEVELOPMENTS 33 careful statutory review into the Coast Guard’s strategic planning and help the Coast Guard and Congress ensure that statutory authority keeps pace with changes in the maritime domain and the mission demands they create. BOX 2-1 Examples of Strategic Foresight and Forecasting Methods • “What if” scenarios begin with a potential future condition, such as “What if temperature/ocean levels rise X amount higher?,” to examine from various relevant vantage points. For example, scenarios that are those close to pos- sible would be identified for the Coast Guard and the consequences and implications for the Service examined from different angles, such as social, economic, legal, environmental, geopolitical, safety, and national security. • Fiction exercises are an approach now commonly used that engages a set of science fiction writers to explore possible futures. Applied to the maritime domain, for instance, authors who write about maritime issues could be se- lected and pitched a scenario for which they use fiction to arrive at potential new developments. • Betting markets methodology uses tools that allow people to bet on futures and generate clusters showing themes in what people believe are likely scenarios, actions, and outcomes. • “Catalog of innovations” is an analysis technique that often focuses on prob- lems but also on relevant innovations. For example, experts may develop a list of 10 innovations that could most affect the Coast Guard, pitch those innovations for debate and a confrontation process that would bring greater value to the decisions of the working group about the likelihood of the innova- tions and potential issues related to them. • “Use of extreme cases” is an approach that draws on recent disasters that are documented and pushes these to a greater extreme. Examples of its applica- tion include the Fukushima disaster and the Icelandic Eyjafjallajökull volcano disruptions. How the Coast Guard operates in disasters or other scenarios could be examined and scenarios could be made even more drastic to “stress test” whether the Coast Guard could be resilient in an event when pushed to greater limits. These stress tests could also assess the Coast Guard’s ability to respond when different disaster scenarios occur simultaneously. • Superforecastinga involves developing clusters of questions that give early, forecastable indications of which of several alternative futures is likely to emerge, thus allowing policymakers to place smarter bets sooner. Instead of evaluating the likelihood of a long- term scenario only as a whole, ques- tion clusters allow analysts to break down potential futures into a series of clear and forecastable signposts that are observable in the short run. Ques- tions could be chosen not only for their individual diagnostic value but for their diversity as a set so that each cluster provides the greatest amount of information about which imagined futures, or which elements of envisioned futures, are emerging. a Scoblic, J. P., and P. Tetlock. 2020. “A Better Crystal Ball: The Right Way to Think About the Future.” Foreign Affairs, November/December. https://www.foreignaffairs.com/articlee0-13/ better-crystal-ball?utm_campaign.

34 THE COAST GUARD’S NEXT DECADE This study’s general approach followed a three-step process.5 It began with the identification of foreseeable developments that could be expected to affect and present new challenges falling within the Coast Guard’s areas of responsibility. For each foreseeable development included in the study, the committee next sought to identify a range of likely actions that the Coast Guard would need to take to respond to the development. Finally, the committee reviewed existing statutes to assess whether Congress has already provided the Coast Guard with the authority it will likely need to undertake the kinds of actions identified. The purpose of the remainder of this chapter is to describe the approach the committee took in completing each of these three steps. FORESEEABLE DEVELOPMENTS As explained in Chapter 1, the legislation calling for this study asked for an “examination of emerging issues that may require Coast Guard over- sight, regulation, or action.”6 Under this legislation, an “emerging issue” was defined as “changes in the maritime industry and environment that in the determination of the National Academy of Sciences are reasonably likely to occur within 10 years.”7 The legislation pointed to three areas of change that the study committee was asked to consider: new technologies; new processes and operational activities; and new uses of the navigable waterway. The study’s statement of task elaborated further on how such changes were to be identified by calling for the study committee to “survey foreseeable developments that could affect the Coast Guard’s missions and authorities, including changes in technological capabilities, industry trends, cybersecurity risks, climate and environmental conditions, and geopolitical factors that could affect governance and activities in the maritime domain and how and where the Coast Guard needs to operate.” After considering the task statement and its legislative origins, the study committee concluded that terminology needed to be better defined and made more consistent. In contemplating the statement’s reference to “fore- seeable” developments, which is consistent with the legislation’s interest in changes that are “reasonably likely to occur,” the committee decided that it could not try to identify all plausible future developments. Considering the 10-year time frame of the requested review, the study committee focused instead on what it considered to be major developments that are already becoming discernible in their impacts on the maritime domain and Coast 5 For a graphical representation, see Figure 1-3 in Chapter 1. 6 William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, 134 Stat. 4709 (Jan. 1, 2021). 7 Public Law 116-283, § 8249(d).

IDENTIFYING FUTURE DEVELOPMENTS 35 Guard. In this regard, the committee sought to identify developments that are foreseeable, including those that are being spawned or energized by broader environmental, technological, and societal forces and that are likely to have implications for the maritime domain that will require Coast Guard attention and possible actions. The terms “foreseeable development” and “emerging issue,” which are used interchangeably in the task statement, are also generally used interchangeably in this report. To begin the process of surveying the landscape for foreseeable develop- ments, the committee consulted with a variety of experts, representatives from interested organizations, and Coast Guard officers. It also consulted with experts on strategic forecasting and foresight methods and benefited from a review of public materials released as part of the Coast Guard’s Evergreen process. This process of consultation and review weighed heavily on the com- mittee’s identification of 10 future developments in the Coast Guard’s operating environment that are discussed in this report. These foreseeable developments are connected to several broader societal and environmental trends that are acting as external forces for change. The 10 future develop- ments that are the subjects of this report, and that are considered in greater detail in the next chapter, are • autonomous systems; • cybersecurity risk; • commercial space operations; • offshore wind energy; • aquaculture; • the Arctic domain; • ship decarbonization; • disasters; • migration; and • illegal, unreported, and unregulated (IUU) fishing. These 10 developments were deemed by the committee, in its expert judgment as informed by its consultations, to be among those most likely to create substantial impacts over the next decade on the maritime domain and create a potential need for the Coast Guard to take a new type of action or be ready to act on a larger scale or in a new environment. All 10 develop- ments align with interests called out in the legislation and task statement. Autonomous systems, offshore wind energy, aquaculture, cybersecurity risk, and commercial spaceflight operations all involve new technologies, processes, operational activities, or uses of navigable waterways. The issues surrounding the Arctic domain, ship decarbonization, disasters, migration, and IUU fishing align with the task statement’s reference to changes in

36 THE COAST GUARD’S NEXT DECADE geopolitical factors and climate and environmental conditions. Indeed, all 10 developments can be connected to several of the interests reflected in the statement of task, and all are sufficiently specific to allow for at least an initial assessment of their potential implications for the maritime domain and Coast Guard. FORCES FOR CHANGE The committee also took note that the 10 developments are not unrelated to each other but are rooted in a common set of broader environmental and societal trends, including three that bear highlighting: (1) the changing climate, (2) the growing pace and breadth of innovation in technology and industry, and (3) global strategic competition on economic and political grounds, with their corresponding national security implications. Figure 2-1 shows the 10 developments and their relationship to these three major types of external forces driving changes over the next decade that will pose challenges for the Coast Guard. The figure also shows how future develop- ments can be affected by intersections among these external forces, and it underscores that events in the future are likely not to fall neatly into any single individual category. Not only will they be affected by intersecting external forces, but events will likely occur that combine or cut across the categories of future developments that form the core of this report. For ex- ample, the high-profile occurrence in February 2023 of a Chinese-operated high-altitude balloon that traveled across U.S. airspace held cross-cutting implications for national security, space operations, the Arctic region, navi- gational safety, and environmental stewardship.8 Climate Change It is generally understood that climate change will spawn numerous devel- opments affecting the maritime domain and, ultimately, the Coast Guard. Some of the developments are already under way, such as international and domestic efforts to mitigate climate change by decarbonizing marine ship- ping (through the introduction of new vessel fuels and propulsion systems) and installing wind and other renewable energy facilities offshore. Rising sea levels and more frequent and widespread extreme weather from climate change will create increasing demands for the Coast Guard to respond to floods and other disasters in the maritime domain and in coastal and riverine areas, not to mention creating problems at Coast Guard facilities 8 “U.S. Navy, Coast Guard Deploy to Recover Chinese Spy Balloon’s Debris.” Maritime Executive, February 5, 2023. https://maritime-executive.com/article/u-s-navy-coast-guard- deploy-to-recover-chinese-spy-balloon-s-debris.

IDENTIFYING FUTURE DEVELOPMENTS 37 themselves.9 More cross-border migration of people from islands and low- lying regions vulnerable to climate change can be expected to occur by sea, creating an increased demand for Coast Guard interdiction, rescue, and humanitarian services. The warming oceans are opening navigation routes for shipping and cruise ships in the Alaskan Arctic and increasing economic interest in the exploitation of Arctic resources in areas where the Coast Guard has responsibility for ensuring safety and security. Technological Innovation The accelerating pace and expanding scope of technological and industrial innovation is already evident in the maritime domain and presents a vari- ety of emerging challenges for the Coast Guard. Innovation in alternative sources of energy has been spurred by interest in mitigating climate change 9 U.S. Coast Guard. Climate Framework, January 2023. https://media.defense.gov/2023/ Feb/24/2003167005/-1/-1/0/USCG%20CLIMATE%20FRAMEWORK_JAN2023_FINAL. PDF. The framework includes an effort to build climate resiliency into the Coast Guard workforce infrastructure and to plan for and respond to frequent weather emergencies and long-term climate trends. FIGURE 2-1 Change forces and future developments for the maritime domain and Coast Guard. NOTE: The committee’s usage of the term “Global Strategic Competition” en- compasses both economic and political change forces, including those that have implications for national security and the military. External Influences on Foreseeable Developments TECHNOLOGICAL AND INDUSTRY INNOVATION Autonomous Systems Commercial Space Operations Aquaculture Offshore Wind Energy Ship Decarbonization Arctic Domain Migration Cybersecurity Risk Illegal, Unreported, and Unregulated (IUU) Fishing GLOBAL STRATEGIC COMPETITION CLIMATE CHANGE Disasters

38 THE COAST GUARD’S NEXT DECADE as well as increasing requirements for new, low-carbon vessel fuels and propulsion systems. Private space launch and reentry activities in and near the Marine Transportation System are recent developments but are increas- ing and may accelerate further as new commercial opportunities emerge along with advancing technological capabilities. Aquafarming and other forms of aquaculture have become a prominent industry in the broader “blue economy” in the navigable waters that the Coast Guard manages and safeguards. Autonomous systems are starting to make their way into shipping and port operations. They will become part of the Coast Guard’s own concept of operations, but their deployment by private maritime ac- tors will also likely pose new risks that the Coast Guard will be called on to manage. The proliferation of highly data-dependent autonomous ves- sels and other digital technologies throughout the maritime sector would, in turn, create additional opportunities for cyberattacks by terrorists and nation-state adversaries. Global Strategic Competition Although by no means new, global competition among nations, both eco- nomic and political, remains a major force for change that affects the mari- time domain and the Coast Guard, with implications for economic growth and security, national security, and military strategy. The warming Arctic Ocean is becoming the new theater for projecting economic and military power by rivals China and Russia, each vying for influence and access in a region in which the Coast Guard operates and patrols. The Coast Guard can expect to need to stay prepared to encounter more migrants escaping countries with deteriorating social and economic conditions, with climate change being a new source of geopolitical instability.10 Russia, China, and other state actors are increasingly seeking to exploit weaknesses in cyber- security to advance their geopolitical aims and threaten the U.S. economy and national security. The maritime domain has many critical cybertargets that the Coast Guard is already working to protect. Large-scale IUU fish- ing, driven by commercial gain and sometimes the support and complicity of foreign governments, is a growing threat to the many distant, vast, and 10 United Nations Department of Economic and Social Affairs. 2023. International Mi- gration Stock. New York. https://www.un.org/development/desa/pd/content/international- migrant-stock. Not only is this type of threat-based migration likely to increase overall, it is less predictable than patterns of opportunity-based migrations. Massey, D. S. 2023. The Shape of Things to Come: International Migration in the Twenty-First Century, in L. Lerpold, Ö. Sjöberg, and K. Wennberg, eds. Migration and Integration in a Post-Pandemic World: Socio- economic Opportunities and Challenges. Palgrave Macmillan; Solano, P., and D. S. Massey. 2022. “Migrating Through the Corridor of Death: The Making of a Complex Humanitarian Crisis.” Journal on Migration and Human Security 10(3):147-172.

IDENTIFYING FUTURE DEVELOPMENTS 39 remote parts of the U.S. exclusive economic zones where the Coast Guard also faces challenges to its ability to operate and patrol. As major external forces such as climate change, technological inno- vation, and global strategic competition drive the 10 developments at the center of this report, broader demographic and societal trends will create their own challenges for the Coast Guard. A continuing shift in population to coastal regions, for example, will put additional demands on the Coast Guard for responses to communities impacted by hurricanes, flooding, and other marine disasters. This shift may also increase the cost of living for Coast Guard personnel deployed to these high-demand locations. Other demographic trends, such as a declining U.S. birth rate, may affect the Coast Guard’s ability to attract needed entry-level personnel while creating an increasingly tight and competitive market for younger workers with the skills and interests needed to staff a more technologically advanced and modernized Coast Guard. ACTIONS RESPONSIVE TO DEVELOPMENTS In focusing attention on the 10 foreseeable developments at the core of this report, the committee also considered how each development could create new or increasing demands for action on the part of the Coast Guard. Because the statement of task called for the identification of possible needs for new or modified statutory authority, it was necessary to consider what actions the Coast Guard might anticipate needing to take in response to each development. After all, the developments themselves do not inherently or directly give rise to any needs for statutory authority. Rather, the Coast Guard needs authority to take specific actions in response to the develop- ments. This is why it was necessary for the committee to anticipate the type of actions that might be needed in response to each development. Each development addressed in this report could potentially necessitate a suite of actions taken by the Coast Guard, and the committee aimed to identify the range of potential actions needed. Given the complexities and consequences associated with each of the 10 developments, determining the precise set of Coast Guard actions to take in response to each, and considering in detail how each action should be implemented, was beyond the scope of this study. Each of the 10 developments could easily justify its own dedicated study of considerable depth, whereas the statement of task for the present study called for a breadth of coverage. As a result, the actions considered in this study are presented in a general form, as opposed to representing detailed proposals or plans for response. Although the needed actions will vary from development to de- velopment, examples of common, broad types of actions anticipated in the coming decade include the following:

40 THE COAST GUARD’S NEXT DECADE • Monitoring, data collection, and analysis; • Workforce training and development; • Coordination with other government agencies; • Delivery of services, such as search and rescue; and • New or modified regulation of private entities. As this illustrative list of the general types of actions the committee identi- fied suggests, the actions that the Coast Guard will need to take over the next 10 years will draw on different institutional capacities and capabilities, among them budgetary resources, technological tools, and human capital. Another type of institutional capacity takes the form of statutory au- thority. The committee was careful to distinguish authority from other necessary resources. Some actions, such as data analysis, training, or coor- dination with other agencies, might well only entail internal management efforts—such as workforce training—that may require other resources, but which fall within the realm of general executive discretion and would not require specific statutory authorization. Other Coast Guard actions—such as the adoption of new regulations—would impose obligations on or other- wise directly affect the interests of individuals or entities outside of govern- ment and thus will require adequate statutory authority. Recognizing that the Coast Guard’s existing statutory authority may be sufficient for some actions, the committee’s aim has been to identify, for each foreseeable development, those likely responsive actions for which the Coast Guard needs statutory authority but appears to lack it. This could be because they are entirely new actions that might not clearly fall under the Coast Guard’s already existing authority or because they are actions that appear to be specifically precluded under existing law. With anticipated actions in mind, the committee reviewed the Coast Guard’s relevant statutory authorities at a high level, looking for obvious instances where an authority to act might be missing, insufficient, unduly restricted, or substantially in need of clarification. The approach followed in conducting these reviews is explained in the next section. Understanding that it could not conduct detailed legal assessments for so many potential actions and relevant authorities, the committee concluded that its high-level review could nevertheless help the Congress and Coast Guard in targeting and prioritizing areas in need of more detailed legal assessments. The committee distinguished between statutory “authority” and a statutory “requirement.” The former empowers the Coast Guard to take action that it could not otherwise take—such as by granting statutory authority to adopt new regulations that obligate vessel owners and opera- tors to address specified problems in the maritime domain. The latter—a statutory requirement—compels the Coast Guard to take specified action, constraining the Coast Guard and imposing an obligation on it. Sometimes

IDENTIFYING FUTURE DEVELOPMENTS 41 Congress deems it necessary to impose requirements on executive agencies because doing so spurs them to act more quickly than otherwise, whether because agencies already must carry out many competing needs or simply because institutional inertia can make some agencies resistant to change or innovation. Even though statutory requirements may be helpful, the committee focused in this study on its task of identifying needs for statu- tory authority, not requirements. That said, the committee did recognize that sometimes ambiguity about whether an agency possesses statutory authority may itself delay or impede agency action. The committee kept this possibility in mind in conducting its review. The committee was also cognizant that, as noted above, clarity about statutory authority alone will not always be sufficient to enable the Coast Guard to take the actions needed to address all foreseeable develop- ments. New or expanded actions will inevitably require a commitment of attention and resources to create the capacity to act, raising implica- tions central to the Coast Guard’s mission support functions and overall institutional capabilities. In many cases, these mission support functions are themselves both enabled and constrained by statutory authority and restrictions. Because the statement of task calls for a review of the Coast Guard’s “related abilities,” these mission support needs are addressed separately in Chapter 4 of this report, where the committee focuses on three core areas of Coast Guard mission support that emerged as themes from its gathering of information: data management and analysis, acquisi- tion and procurement, and the workforce. Although this study centers on statutory authority for responding to each of the 10 foreseeable develop- ments, the committee also noted issues brought to its attention by the Coast Guard and other experts where the Coast Guard’s ability to create and sustain the needed capacity and capability to respond to a foreseeable development could be hindered by missing, unduly restrictive, or unclear statutory authorities. HIGH-LEVEL ASSESSMENTS OF STATUTORY AUTHORITY New developments, of course, do not always demand new kinds of actions. Even when new action is needed, it may be often permitted, and even ro- bustly supported, under existing statutory authority. Furthermore, as noted above, the creation of new or clarified authority may not be all that the Coast Guard needs to act as quickly or effectively in response to the foresee- able developments of the coming decade. Statutory authority is necessary, but by itself it cannot substitute for adequate resources and operational capacities and capabilities when these are missing or severely limited. In seeking to fulfill its task of assessing the Coast Guard’s future statu- tory authority needs, the committee had to make many judgments about

42 THE COAST GUARD’S NEXT DECADE whether the Coast Guard appears to have authority that is sufficient to permit a range of potentially needed actions in response to each foreseeable development. This section details the complexities involved in analyzing statutory authority and explains the high-level nature of the committee’s legal analysis, which focused on identifying obvious instances where au- thorities may be lacking or unclear. The committee’s decision to take such a high-level approach was driven by practical considerations. Each of the 10 developments covered in the re- port could potentially require dozens of specific types of actions by the Coast Guard, some of them possibly requiring all on their own a lengthy, in-depth legal analysis to make confident assessments of their statutory authorization. Moreover, the committee was fully aware that context matters greatly in mak- ing legal assessments. Litigation challenging agency action can arise not only because of the nature of an action but also in response to how that action is undertaken. Subtle aspects of any action or how it is executed could provide a theoretical basis for a successful legal challenge to the Coast Guard’s author- ity. Only case-specific assessments can provide a definitive answer to whether statutory authority is sufficient. Even then, a realistic legal assessment would be probabilistic, such as framed in terms of the risk that a court will find a particular action the Coast Guard took to be ultra vires—that is, in excess of statutory authority. The committee, of course, could not undertake, in the time afforded for this study, detailed legal assessments of any specific action addressing any of the 10 foreseeable developments. As a result, this study is limited to more abstract and preliminary assessments in an effort to identify glaring gaps or other needs in the Coast Guard’s legal authority. In making this identification, the committee recognized that statutory interpretation is far from a straightforward or formulaic endeavor. Differ- ent judges can apply different theories or methods of statutory interpre- tation. Some methods, known as “textualist,” purport to rely solely on understanding the “plain meaning” of the text of the statute itself. Other methods, known as “intentionalist” or “purposivist,” look to other sources, such as legislative history (e.g., committee reports or statements by legisla- tors), to interpret a statute according to congressional intent or purpose. Even within these three broad interpretive methods, judges can rely on different dictionaries as aids to interpretation or invoke different canons of statutory construction—the latter being a set of rules of thumb that judges sometimes rely on when deciding what a statute means when applied to a particular context. Another reason statutory interpretation can be complicated is that the concrete settings in which a statute’s application must be assessed can be novel and different from what legislators had in mind when they adopted a statute. Box 2-2 illustrates the difficulties that statutory interpretation can create by briefly summarizing a Supreme Court maritime case, Yates

IDENTIFYING FUTURE DEVELOPMENTS 43 BOX 2-2 Is a Fish a “Tangible Object”?: An Illustration of Statutory Interpretation The Supreme Court’s 2015 decision in Yates v. United States illustrates the chal- lenges associated with interpreting statutory authority. The case involved an inter- diction at sea in exclusively federal waters by a deputized federal agent. Federal regulations require immediate release of red grouper under 20 inches. After an enforcement officer noticed smaller fish hanging from a hook, he inspected all the fish on board Yates’s ship. The officer found 72 fish on board that were smaller than the 20-inch limit. After separating the smaller fish from the rest of the catch and packing them in wooden crates, the officer directed Yates to leave the fish as packed until re- turning to port. But when the fishing boat returned to port 4 days later, the officer found that the fish in the crate were all larger than the fish he inspected when at sea. A member of the crew admitted that Yates had instructed the crew to throw overboard the smaller fish and replace them with larger fish. Federal prosecutors charged Yates with a federal crime under Title 18, Section 1519 of the U.S. Code, which prohibits anyone from “knowingly … destroy[ing] … any tangible object with the intent to impede, obstruct, or influence [an] investiga- tion.” The question that eventually came to the Supreme Court, after decisions by two lower federal courts, could be stated simply: Is a fish a “tangible object” under the meaning of Section 1519? The U.S. government argued that “[t]he ordinary meaning of an ‘object’ that is ‘tangible,’ as stated in dictionary definitions, is ‘a discrete … thing,’ (Webster’s Third New International Dictionary), that ‘possess[es] physical form,’ (Black’s Law Dictionary). From this premise, … ‘tangible object,’ as that term appears in Section 1519, covers the waterfront, including fish from the sea.” But the Supreme Court majority decided that a fish is not a tangible object. Ac- cording to justices in the majority, even though “[o]rdinarily a word’s usage accords with its dictionary definition[, i]n law as in life, however, the same words, placed in different contexts, sometimes mean different things.… [I]dentical language may convey varying content when used in different statutes, sometimes even in differ- ent provisions of the same statute.” These justices emphasized several contextual factors: (i) Section 1519 appeared in the Sarbanes Oxley Act, a statute dealing with financial regulation; (ii) Section 1519 was placed in a part of the statute deal- ing with bank examinations and health care and bankruptcy fraud investigations; and (iii) the heading or title for Section 1519 described it dealing with the destruc- tion of “records.” In addition, these same justices relied on two canons of construction—that is, rules of thumb used to discern statutory meaning. One canon, noscitur a sociis, holds that a word can be understood to have a meaning similar to the words sur- rounding it. The other canon, ejusdem generis, holds that general words (such as “tangible objects”) that follow specific words in a list can take on a meaning that fits with the specific words. In Section 1519, the entire provision encompassed any individual who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object.” The surrounding words had nothing to do with fish. continued

44 THE COAST GUARD’S NEXT DECADE v. United States, that presented the question of whether a fish constituted a “tangible object” as covered by the applicable statute.11 Despite a dis- senting opinion that argued that “[a] ‘tangible object’ is an object that’s tangible,” the Court decided by a 5-4 majority that a fish is not a tangible object. Although the Yates case—summarized in Box 2-2 for illustrative pur- poses—did not involve a question of the Coast Guard’s statutory authority, it is easy to see how the introduction of new technologies or other future developments in the maritime sector will present novel situations that may raise new statutory questions. No statute, for example, grants the Coast Guard the specific power to issue regulations governing protection of off- shore wind energy structures and turbines—at least in those terms. The Ports and Waterways Safety Act of 1972 does not include the word “wind- mills,” “wind turbines,” or other words specifically related to offshore wind energy. And when the Act was passed in 1972, members of Congress presumably had no way of conceiving of the types of offshore energy development projects that are now starting to emerge 50 years later. But the Ports and Waterways Safety Act does provide the Coast Guard with the authority to “take such action as is necessary to—prevent damage to, or the destruction of, any bridge or other structure on or in the navigable 11 574 U.S. 528 (2015). The dissenting justices—Justices Kagan, Scalia, Thomas, and Kennedy—rea- soned that “[a] ‘tangible object’ is an object that’s tangible.” Plus, they emphasized that the statute says “any” tangible object. They also noted that the words “record, document, or tangible object” in Section 1519 mirrored words in Section 1512, a federal witness-tampering law which all the justices agreed covered physical evidence of any kind. This example illustrates how a determination of “statutory authority” is not always straightforward, even for Supreme Court justices. Disputes over statutory authority arise because statutes are often intentionally written in general terms to cover a variety of circumstances. It would be impossible, for example, to spell out, or even conceive of in advance, all the possible tangible objects that might be destroyed by someone trying to cover up a crime. Statutory interpretation disputes arise in concrete settings that can be quite novel and different from what legislators considered when they adopted a statute. Moreover, different conclusions about statutory meaning can arise from the use of different dictionaries, different canons of construction, and different overarching theories of how to interpret statutes. BOX 2-2 Continued

IDENTIFYING FUTURE DEVELOPMENTS 45 waters of the United States.”12 It also separately gives the Coast Guard the authority to “issue … regulations necessary to implement” its authority under the Act.13 The question about whether the Coast Guard may issue regulations related to the protection of offshore energy platforms, such as by imposing safety zones around them, becomes one of whether offshore wind turbines and their platforms constitute a “structure” under the mean- ing of the Act.14 This question is not an abstract one. It not only takes place within a real-world context of increasing development of offshore energy, but it is also situated within a statutory provision that authorizes and directs the Coast Guard to “take … action.” The language in the Port and Waterways Safety Act—namely, “any bridge or other structure”—is broad in part be- cause it is found within a provision authorizing an executive agency—the Coast Guard—to carry out its overall mission of maritime safety in the face of circumstances that legislators could not fully anticipate. Statutes often are written with broad language. This is also a principal reason that Con- gress has created agencies such as the Coast Guard and authorized them to develop more specific regulations: namely, to apply statutory goals to more specific contexts. Agencies need to follow a specified and elaborate set of “notice and comment” procedures whenever they develop new regulations.15 But even a regulation that is properly developed in accordance with those proce- dures can be rejected by the courts if the agency lacks statutory authority to create the regulation in the first place.16 In deciding whether an agency has acted with statutory authority and within statutory bounds, the courts have for decades given a degree of deference to the government agency’s own understanding of statutory meaning, especially when interpreting broad or ambiguous statutory language.17 In 1984, the Supreme Court, in a case called Chevron v. Natural Resources Defense Council,18 articu- lated a stepwise framework for courts to follow when confronted with an agency’s interpretation of a broad or ambiguous statute.19 In Chevron, the Supreme Court generally called on lower courts, in cases of statutory 12 46 U.S.C. § 70011. 13 46 U.S.C. § 70034. 14 In the 2021 National Defense Authorization Act, Congress amended Section 4(a)(1) of the Outer Continental Shelf Lands Act to expressly include “non-mineral energy resources.” 15 Administrative Procedure Act, 5 U.S.C. § 553. 16 The Administrative Procedure Act calls on courts to “hold unlawful and set aside agency action, findings, and conclusions found to be … in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706. 17 Skidmore v. Swift & Co., 323 U.S. 134 (1944). 18 467 U.S. 837 (1984). 19 See, for example, Coglianese, C. 2017. “Chevron’s Interstitial Steps.” George Washington Law Review 85:1339.

46 THE COAST GUARD’S NEXT DECADE ambiguity, to follow the agency’s interpretation, so long as it was reasonable. Agencies have recognized that Chevron deference is relevant to deter- mining whether they have statutory authority. In a 2012 rulemaking on ballast water management, for example, the Coast Guard cited Chevron and noted that “where the statutory mandate is ambiguous, courts must defer to an agency’s interpretation so long as that interpretation is permissible.”20 A year earlier, in upholding a different Coast Guard action, a federal district court noted that “[t]he judicial branch must … defer under certain circum- stances to the reasonable determinations of the executive agencies, which have developed that expertise by virtue of being charged by Congress ‘with the administration of the [relevant laws and regulations] in light of everyday realities.’”21 Deference by the courts under the Chevron doctrine gives agencies an ability to adapt older statutes to newer problems and even to change their interpretations of ambiguous statutes over time, as long as they keep their interpretations reasonable.22 This flexibility has been considered important because Congress is not always able to update its statutes at a pace that keeps up with changing conditions and new technology. In general, law can succumb to a “pacing problem” where “technology development far outstrips the capability of regulatory systems to keep up.”23 It is thus not uncommon for agencies to need to apply older statutes, potentially in ways that were not entirely contemplated by the legislature at the time a statute had been adopted. When the Coast Guard, for example, faced a legal challenge to a de- cision it made in 2010 to deny an application for a navigational permit, the relevant issues in dispute derived from a statute adopted more than a century before: the 1906 Bridge Act.24 The Coast Guard denied the permit application because the location of the proposed bridge was still subject to a local property rights dispute and a Coast Guard regulation stated that a federal permit approval would “not [be] granted when there is doubt of the 20 U.S. Coast Guard. 2012. “Standards for Living Organisms in Ships’ Ballast Water Dis- charged in U.S. Waters.” Federal Register 77(March 23):17253, 17280. 21 Shipbuilders Council of Am. v. DHS, 770 F. Supp. 2d 793, 809 (2011) (quoting Chevron v. NRDC, 467 U.S. 837, 865-866 (1984)). 22 Freeman, J., and D. B. Spence. 2014. “Old Statutes, New Problems.” University of Pennsylvania Law Review 163:1; Greve, M. S., and A. C. Parrish. 2015. “Administrative Law Without Congress.” George Mason Law Review 22:501. 23 Marchant, G. 2020. “Governance of Emerging Technologies as a Wicked Problem.” Vanderbilt Law Review 73:1861. 24 Detroit Int’l Bridge Co. v. Gov’t of Canada, 53 F. Supp. 3d 1 (2014).

IDENTIFYING FUTURE DEVELOPMENTS 47 right of the applicant to construct and utilize the bridge.”25 The challengers argued that the Coast Guard lacked authority under the 1906 Bridge Act to have adopted its regulation, but a federal court in 2014 upheld the Coast Guard’s regulation by applying the Chevron framework. After finding that the relevant provisions of the Bridge Act were ambiguous, the Court consid- ered whether the Coast Guard had provided a “reasonable interpretation” of the Bridge Act: The Court finds that the 1906 Bridge Act is ambiguous … and therefore considers whether the … regulation is a reasonable interpretation of the Coast Guard’s statutory authority.… The Coast Guard has provided a reasonable interpretation of the 1906 Bridge Act, which allows it to approve the plans, specifications, and loca- tion of a proposed bridge. Whether local property rights are considered part of the “plan,” “specification,” or “location,” the 1906 Bridge Act authorizes the Coast Guard to interpret these terms as part of its au- thority to approve applications for navigational permits. Therefore, the Court concludes that Congress provided the Coast Guard with statutory authority to condition navigational permits on the acquisition of necessary property rights.26 This challenge to the Coast Guard’s authority over bridges did not involve the kinds of new technologies or other emerging or changing cir- cumstances that the Coast Guard will confront in the years ahead. But it illustrates how judicial deference under the Chevron doctrine could help provide the Coast Guard with flexibility to draw on older statutes for au- thority to issue new regulations or take other needed actions in the face of the kinds of new developments considered in this report. This review of the Chevron doctrine is relevant to this study because the continued legal viability of the Chevron doctrine is currently in doubt. Although the Supreme Court has not formally repudiated the doctrine, its status is widely thought to be in question because several Supreme Court justices have expressed in separate opinions or academic writings either opposition to or skepticism about the legal validity of Chevron deference 25 33 C.F.R. § 115.05. 26 53 F. Supp. 3d. at 24-25.

48 THE COAST GUARD’S NEXT DECADE to an agency’s statutory interpretations.27 Legal scholars have indicated that the Court may soon overturn Chevron, if it has not already aban- doned it.28 Whatever Chevron’s future may be, the Supreme Court issued three decisions in 2022 that provide a separate factor for agencies such as the Coast Guard to take into account when seeking to determine if they have sufficient authority under old statutes to respond to new developments. These three decisions—two arising from agency responses to the COVID pandemic, and one involving a climate change regulation—have articulated what the Court now calls a “major questions doctrine.” Under the major questions doctrine, courts are to demand that Congress speak very clearly when agencies seek to take actions that hold great economic or political significance. Invoking this doctrine, the Court ruled that the Centers for Disease Control and Prevention lacked sufficient statutory authority to impose a nationwide moratorium on rental evictions during the COVID pandemic.29 For similar reasons, the Court rejected the assertion that the Occupational Safety and Health Administration had sufficient statutory authority to adopt a regulation requiring COVID vaccines and testing.30 Finally, the Court in West Virginia v. Environmental Protection Agency 27 Several justices have openly expressed concern with Chevron, albeit to varying degrees and on various grounds. See, for example, County of Maui v. Hawaii Wildlife Fund, 590 U.S. ___, 140 S. Ct. 1462 (2020) (Thomas, J., dissenting) (asserting that “deference under Chevron … likely conflicts with the Vesting Clauses of the Constitution”); Buffington v. McDonough, 598 U.S. ___, 143 S. Ct. 14 (2022), denying cert. to Buffington v. McDonough, 7 F.4th 1361 (Fed. Cir. 2021) (Gorsuch, J., dissenting from denial of cert.) (observing that reading Chevron broadly “turns out to pose a serious threat to some of our most fundamental commitments as judges and courts”); Kavanaugh, B. M. 2016. “Fixing Statutory Interpretation.” Harvard Law Review 129:2118, 2150 (Chevron “has no basis in the Administrative Procedure Act” and “is an atextual invention by courts”). See also Pereira v. Sessions, 585 U.S. ___, 138 S. Ct. 2105 (2018) (Alito, J., dissenting) (noting “that the Court, for whatever reason, is simply ignoring Chevron” and acknowledging that “[i]n recent years, several Members of this Court have questioned Chevron’s foundations”). See generally Brannon, V. C., and J. P. Cole. 2018. “Deference and Its Discontents: Will the Supreme Court Overrule Chevron?” Congressional Research Service Legal Sidebar. LSB10204. October 11. https://crsreports.congress.gov/prod- uct/pdf/LSB/LSB10204; Green, C. 2021. “Deconstructing the Administrative State: Chevron Debates and the Transformation of Constitutional Politics.” Boston University Law Review 101:619. 28 Pierce, R. J. 2022. “Is Chevron Deference Still Alive?” The Regulatory Review, July 14. https://www.theregreview.org/2022/07/14/pierce-chevron-deference; Hickman, K. E., and A. L. Nielson. 2021. “Narrowing Chevron’s Domain. Duke Law Journal 70:931. 29 Alabama Assn. of Realtors v. Dep’t of Health and Human Servs., 594 U.S. ___, ___, 141 S. Ct. 2485, 210 L. Ed. 2d 856, 860 (2021). (“We expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’”) 30 Nat’l Fed’n of Indep. Bus.s v. Occupational Safety and Health Admin., 595 U.S. ___, ___, 142 S. Ct. 661, 665 (2022) (“The question … is whether the Act plainly authorizes the Secretary’s mandate.”).

IDENTIFYING FUTURE DEVELOPMENTS 49 held invalid a federal climate change regulation seeking to control emissions from electricity power plants, stating the following: [O]ur precedent teaches that there are “extraordinary cases” … in which the “history and the breadth of the authority that [the agency] has as- serted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority…. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims.31 The Court has not articulated what counts as an “extraordinary case,” what makes a matter of “economic and political significance,” nor what constitutes “clear” statutory authority. As a result, “[t]he Court’s jurispru- dence … leaves open the question of how, or even whether, Congress may grant agencies the authority to act to address major issues in the future that Congress did not anticipate when it enacted a statute.”32 Inasmuch as the Coast Guard often relies on older statutes drafted in broad terms, the approach taken by the Supreme Court in 2022 in these three cases—especially if the major questions doctrine is applied further— adds an inherent element of uncertainty to any long-term assessments about whether new or clarified statutory authorities may be needed. To be sure, none of these three cases before the Court in 2022 arose in the context of national or homeland security issues of the kind addressed by the Coast Guard, and it is at least conceivable that the Court will be more willing to accept the application of older statutes to new developments with respect to those aspects of Coast Guard activity that fall within the domain of national or homeland security.33 But if nothing else, the Supreme Court’s decision in West Virginia v. EPA suggests that if there should be any doubt about whether the Coast Guard possesses statutory authority, and if the Coast Guard needs such authority to exercise “highly consequential power” in novel ways that regulate maritime actors, Congress may wish to consider making that authority as clear as possible. As one expert commented to the committee, “West Virginia teaches agencies to exercise caution in regulating novel domains or regulating existing domains in new ways,” as such action 31 West Virginia v. EPA, 597 U.S. ___, 2022 WL 2347278, 2022 U.S. LEXIS 3268 (2022). 32 Bowers, K. 2022. The Major Questions Doctrine. Congressional Research Service, No- vember 2. https://crsreports.congress.gov/product/pdf/IF/IF12077. 33 Meyer, T., and G. Sitaraman. 2023. “The National Security Consequences of the Major Questions Doctrine.” Michigan Law Review 122; see also Bradley, C. A. 2000. “Chevron Def- erence and Foreign Affairs.” Virginia Law Review 86:649-726; Posner, E., and C. R. Sunstein. 2007. “Chevronizing Foreign Relations,” Yale Law Journal 116:1171.

50 THE COAST GUARD’S NEXT DECADE may not be “safe from [a major questions doctrine] challenge without statu- tory ‘top cover.’”34 Even this extended review of legal issues does not provide a comprehen- sive elucidation of all the issues that can arise with statutory interpretation in general or with the analysis of any specific agency’s statutory authority, including the Coast Guard’s. It is aimed, however, at showing the range of considerations and complexities that can factor into answering questions of statutory authority like those considered by the study committee. This review helps situate this study’s more high-level search for obvious gaps in authority or instances of highly ambiguous or unclear authority. Because the committee did not have concrete actions before it, nor did it have the time or resources to engage in an in-depth legal analysis of each possible issue that might confront the Coast Guard over the next 10 years, this study’s main goal has been to aid decision makers by making an initial prioritization of areas deserving further scrutiny. That said, it is important to acknowledge that even if the committee had conducted a much more exhaustive legal analysis, uncertainties about legal authority might still re- main due to the Supreme Court’s changing posture toward administrative agencies’ authority to use existing statutes to address new problems, at least in circumstances that hold substantial economic or political significance. The current, perhaps inherent, uncertainty following West Virginia v. EPA about how often and in what situations the major questions doctrine will be applied may persist at least until the Supreme Court reaches other decisions over time. It is also possible that, with further developments by the Supreme Court, future Coast Guard actions that might appear today permissible based on broadly expressed statutory authority might be judged differently by the courts a few years from now. For this reason, even where the Coast Guard’s existing statutory au- thority appears to be sufficient to permit needed actions, new legislation could be useful. Changes in statutory language that make crystal clear that existing legislation provides the Coast Guard with authority to act can still be beneficial. New legislation could make clear that statutes originally adopted in an earlier era are intended to give the Coast Guard the author- ity to address novel developments.35 Or statutes that are currently written in general terms broad enough to encompass new developments could be amended to make clear that they do indeed encompass the new develop- ments. For example, because the Maritime Transportation Security Act of 34 McNamara, B., commissioned paper submitted to the committee, September 17, 2022, “Report to New Coast Guard Authorities Committee.” 35 McNamara, B., commissioned paper submitted to the committee, September 17, 2022, “Report to New Coast Guard Authorities Committee,” proposing Congress adopt legislation stating that existing legislation “delegates authority to the Secretary to address novel policy issues necessarily included in and logically flowing from the existing legislation.”

IDENTIFYING FUTURE DEVELOPMENTS 51 2002 authorizes actions to address “security incidents”—defined broadly as any “security incident resulting in a significant loss of life, environmen- tal damage, transportation system disruption, or economic disruption in a particular area”36—the Coast Guard has already taken action under the statute to address cybersecurity risks.37 But the statute itself never uses the word “cybersecurity” or even “computer.” Whenever Congress affirms that general language encompasses new risks or circumstances, such clarifica- tions may help allay concerns internal to an agency about the litigation risks associated with taking action.38 On the other hand, the remedy may not always be as simple as making a specific clarification may seem. The more that Congress acts to confirm that broad statutory language includes authority to act to address specific new risks, then the more the courts could possibly come to view the ab- sence of such congressional affirmation in particular instances as limiting agency authority under broad statutory language. Unless Congress can remain ever-vigilant and responsive to clarifying that specific new risks are encompassed under more general statutory language authorizing action by the Coast Guard, the possibility exists that a court may be persuaded that a generally worded statute does not include specific authority to respond to a new threat. A better approach for Congress to take may be, as noted above, to affirm that it has deliberately adopted broad language because it expressly intends for the Coast Guard to response to new threats and risks within the maritime domain, even though not specifically mentioned in the statute. In doing so, of course, the Congress will need to be careful to articulate an intelligible principle that makes clear at least the types of new risks and threats that fall within the Coast Guard’s authority—such as those directly within or affecting the maritime domain—so as to avoid falling prey to judicial disapproval under the nondelegation doctrine.39 Even when not necessary as a matter of law, efforts to clarify statu- tory authority may also be useful for another reason: to overcome institu- tional inertia that can sometimes arise within agencies and impede timely and effective action to new developments. Consequently, the committee 36 46 U.S.C. § 70101(7). 37 33 C.F.R. Parts 105 and 106; 33 C.F.R. § 104.305. 38 Some lawyers have offered agencies concrete guidance about how to analyze and frame their actions in light of the major questions doctrine. See, for example, Dobbs-Allsopp, W., R. Klarman, and R. Shaw. 2022. “Guidance for Regulators on the Major Questions Doctrine.” The Regulatory Review, November 29. https://www.theregreview.org/2022/11/29/dobbs-all- sopp-klarmn-shaw-guidance-for-regulators-on-the-major-questions-doctrine. 39 See, for example, Coglianese, C. 2019. “Dimensions of Delegation.” University of Penn- sylvania Law Review 167:1849-1889; Sunstein, C. R. 2018. “The American Nondelegation Doctrine.” George Washington Law Review 86:1181; Krent, H. J. 1994. “Delegation and Its Discontents.” Columbia Law Review 94:710.

52 THE COAST GUARD’S NEXT DECADE recognizes that even where it may assess that existing legislation likely gives the Coast Guard sufficient authority to address foreseeable developments, new legislation targeted at specific developments may possibly be warranted in some circumstances in prompting the Coast Guard to give greater prior- ity to addressing new developments in ways that may otherwise be difficult for it to undertake. When the complexities of statutory interpretation are considered along- side the uncertainties about the future, both the importance of and chal- lenges associated with this study’s task become clear. The next chapter turns to a consideration of the Coast Guard’s statutory authority to address 10 major developments confronting the maritime domain in the next 10 years. In doing so, it not only reveals a few areas in need of further legislative at- tention, but it also illustrates the benefit of, and provides a process path for, future legal foresight that can be applied more systematically and in greater depth by the Coast Guard on a regular basis in the years ahead.