The Coast Guard’s Next Decade: An Assessment of Emerging Challenges and Statutory Needs (2023) / Chapter Skim
Currently Skimming:
2 Identifying Future Developments and Assessing Statutory Authority
2 Identifying Future Developments and Assessing Statutory Authority
Pages 31-52
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 31... ...
weforum.org/reports/the-global-risks-report-2020. 2 Identifying Future Developments and Assessing Statutory Authority
|
From page 32... ...
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.
|
From page 33... ...
• 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 selected and pitched a scenario for which they use fiction to arrive at potential new developments.
|
From page 34... ...
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 oversight, 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.
|
From page 35... ...
These foreseeable developments are connected to several broader societal and environmental trends that are acting as external forces for change. The 10 future developments 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)
|
From page 36... ...
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.
|
From page 37... ...
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" encompasses both economic and political change forces, including those that have implications for national security and the military.
|
From page 38... ...
Global Strategic Competition Although by no means new, global competition among nations, both economic and political, remains a major force for change that affects the maritime 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.
|
From page 39... ...
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.
|
From page 40... ...
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 operators to address specified problems in the maritime domain.
|
From page 41... ...
Although this study centers on statutory authority for responding to each of the 10 foreseeable developments, 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.
|
From page 42... ...
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.
|
From page 43... ...
United States illustrates the challenges associated with interpreting statutory authority. The case involved an interdiction at sea in exclusively federal waters by a deputized federal agent.
|
From page 44... ...
‘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 purposes -- 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.
|
From page 45... ...
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 procedures 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 articulated 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.
|
From page 46... ...
When the Coast Guard, for example, faced a legal challenge to a decision 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.
|
From page 47... ...
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 authority 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 circumstances that the Coast Guard will confront in the years ahead.
|
From page 48... ...
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.
|
From page 49... ...
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.
|
From page 50... ...
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 authority appears to be sufficient to permit needed actions, new legislation could be useful.
|
From page 51... ...
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 statutory authority may also be useful for another reason: to overcome institutional inertia that can sometimes arise within agencies and impede timely and effective action to new developments. Consequently, the committee 36 46 U.S.C.
|
From page 52... ...
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 attention, 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.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.