Hypoxia in the Gulf of Mexico: A Legal and Practical Analysis
Each year, a large area of the Gulf of Mexico is seasonally depleted of life-giving oxygen. Called hypoxia, the phenomenon threatens to bring about a collapse of the Gulf’s marine ecosystem. A voluntary regime is working to address this threat, and has set a year 2015 goal of considerably reducing the size of the Gulf hypoxic area to less than 5,000 square kilometers by 2015. Implementation of this goal will entail an estimated reduction in nitrogen loading to the Gulf of at least thirty percent.
This note analyzes the conceptual transformation of this voluntary regime into a regulatory one. Because the Clean Water Act only permits regulation of “point sources” of pollution, a term that specifically exempts agricultural run-off, the U.S. Environmental Protection Agency (EPA) could not implement Mississippi River Basin nutrient reductions through direct federal regulation of agricultural non-point sources of pollution. However, a regulatory regime for the Mississippi River watershed, implemented through a pollution trading program, would give state and federal agencies leverage to effectively “bargain” for non-point source reductions.
This note analyzes the Clean Water Act to concludes that the statute does confer upon the EPA discretionary authority to develop and implement such a regulatory regime to restore those waters of the Gulf of Mexico affected by Gulf hypoxia. It proceeds to apply practical analysis to conclude that the agency should exercise this authority. Nonetheless, it illustrates the lack of clarity in the law regarding EPA authority over ocean waters, and recommends Congressional action.
Date of this Version
Bradford T. McLane, "Hypoxia in the Gulf of Mexico: A Legal and Practical Analysis" (August 30, 2005). bepress Legal Series. bepress Legal Series.Working Paper 723.