Colorado Environmental Law Journal > Printed > Volume 35 > Issue 1 > The Rise of the Nondelegation Doctrine and the Decline of Our Oceans

The Rise of the Nondelegation Doctrine and the Decline of Our Oceans


The great oceans of our planet evoke a variety of emotions in visitors, from fear of what lurks beneath the unknown depths, to awe and wonder about the expansive world beneath the waves. Despite this appreciation or fear, oceans are often overlooked for their wide-reaching benefits. The Amazon is often referred to as the lungs of the planet, yet oceans produce over half of the oxygen we breathe and absorb carbon from the atmosphere that may otherwise contribute to climate change.[2] Seafood from our oceans accounts for fifteen percent of animal protein consumed and fifty-seven million jobs globally.[3] More generally, oceans and marine resources provide ingredients in medicinal products, attract tourists and recreationists, and regulate the climate.[4] But the actions of humans are devastating our ocean ecosystems.

Human activities in and on oceans impact the marine mammals who call these waters home, including the largest of these species: whales. Whale strikes—the collision of whales and ocean shipping vessels often in shipping lanes near ports[5]—are a detriment to whale populations, especially on the West Coast of the United States, where the ports play a significant role in international trade.[6] Ship strikes cause serious injury to whales and can result in death.[7] These interactions between whales and ships are often under-reported, with roughly eighty deaths off the West Coast annually and a third of East Coast right whale deaths attributed to ship strikes.[8] These ship strikes impair the ability of endangered whale species to recover.[9] Additionally, anthropocentric noise has increased over the past sixty years and reduces the ability of whales and other marine mammals to detect prey and communicate.[10] Impacts of anthropocentric noise include habitat abandonment, suppression of vocalization, and chronic stress.[11] Other threats to whale species include entanglement in ropes or cables, habitat degradation, and changing ocean temperatures and currents.[12]

While the impacts to whales often receive media coverage, impacts to smaller marine species, including fish, are more frequently overlooked. Throughout the globe, overfishing is the “most significant driver” of marine population declines, with over thirty percent of fish stocks overfished.[13] The Magnuson-Stevens Fishery Conservation and Management Act (“MSA”) requires an annual report of the status of U.S. fish stocks to Congress.[14] In 2020, U.S. fishermen accounted for the production of 8.4 billion pounds of seafood product (roughly the weight of 21,000 blue whales or 693,000 elephants) and United States per capita consumption reached nineteen pounds of seafood per year.[15] Overfishing directly influences fish by depleting populations and indirectly impacts fish size, reproduction, and rate of maturity, while also changing food webs.[16] Fish populations are further impacted by illegal, unreported, and unregulated fishing (“IUU”). IUU refers to fishing that is against local or international laws, not reported or misreported to the relevant oversight authorities, or undertaken in areas not managed or conducted by a vessel without nationality.[17] As these practices are outside of the reported and regulated fishing schemes, the accurate catch data from IUU operations is not available and only estimated, which can result in inaccurate population or catch rates estimates that are used to inform the management of fisheries.

Shark populations, like their smaller fish counterparts, have declined globally by seventy percent since 1970.[18] Overfishing of sharks can be attributed in part to longline fishing gear.[19] Even if sharks are not the target species, they are potentially caught as bycatch.[20]

Coral reefs globally have declined by fifty percent since the 1950s, due to changes in temperature and acidity of the oceans.[21] The loss of coral is a loss of habitat for reef fish.[22] When oceans absorb carbon, they become more acidic and less hospitable for coral.[23] With the increase of carbon in our atmosphere, this problem will only get worse.

The threats to global oceans are grave, but they can and must be addressed. The United States and the larger international community are working towards preservation of ocean resources. Within the U.S. government, authority to conserve ocean ecosystems through the creation of Marine Protected Areas (“MPAs”) is delegated to federal agencies and the President. While this delegation so far is an effective method of furthering these prospective goals, threats loom on the horizon. Almost all members of the conservative supermajority on the Supreme Court have at one point made clear their personal opinions on the revival of the nondelegation doctrine, the idea that Congress cannot delegate its authority to other branches,[24] or at least have supported a tightening of the authority to delegate to other branches. While nondelegation has been rejected many times since the founding of the United States, including the denial of proposed provisions to the Constitution that would incorporate nondelegation through amendment,[25] there are concerns the nondelegation doctrine may soon rear its ugly head due to the makeup of the current Supreme Court. The Court’s current Republican majority has “expressed interest in revitalizing” this doctrine, which it views as a prohibition on the delegation of “any of [Congress’s] lawmaking power” to the Executive branch.[26] If the Court decides to take up a case challenging the delegation of authority, the conservative majority could change centuries of delegatory practices and fundamentally change the way the U.S. government functions.

In the pages that follow, this Note will present how a potential revival of the nondelegation doctrine would impact one of the many important functions under the Executive branch—the protection of our oceans. Part I explores the importance of MPAs and the commitments of the United States to continue protecting these areas. Part II presents the many, yet disjointed, ways Congress delegates the authority to create MPAs to the Executive Branch. Finally, Part III is an assessment of the current state of the nondelegation doctrine in the Supreme Court and a projection of the future of the doctrine with a consideration of how this could impact MPAs.

I. Protection of marine resources through area-based management furthers interests of private industries and the federal government.

A. Area-based preservation provides direct benefits to ecosystems and indirect benefits to surrounding communities.

Generally, an MPA refers to a geographical area managed in furtherance of conservation with restrictions on certain human activity.[27] Executive Order 13158 defines MPAs as an area “of the marine environment that has been reserved by Federal, State, territorial, tribal, or local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein.”[28] This term is used broadly by the National Oceanic and Atmospheric Administration (“NOAA”) to mean a “park or other protected area that includes some marine or Great Lakes area,” while the International Union for the Conservation of Nature defines MPAs as “clearly defined geographical space[s], recognized, dedicated and managed, through legal or other effective means, to achieve the long term conservation of nature with associated ecosystem services and cultural values.”[29] While states can create MPAs out to three nautical miles off their coastal land,[30] the MPA authority addressed in this Note refers to the authority of the federal government. Unlike states, the federal government has the authority over “living and non-living resources” out to 200 nautical miles, which is classified as the country’s Exclusive Economic Zone (“EEZ”).[31]

MPAs help prevent the decline of species in a number of ways. Generally, a reduction of the human impacts on an area helps populations recover in the absence of anthropogenic stressors, leading to a larger fish and shark biomass than in unprotected areas.[32] Prohibitions on fishing in MPAs unquestionably benefit fish populations in the area, but this prohibition can have indirect benefits as well. Areas surrounding MPAs have greater fish populations and can sustain greater fishing efforts.[33] Protecting key lifecycle areas of migratory species, like spawning habitats, can reduce threats, especially in periods when species are most vulnerable.[34] MPAs provide protection that creates resilient ecosystems that are in turn more apt to handle climate change.[35] These protections help preserve marine biodiversity by conserving representative samples of fish and their ecosystems.[36] MPAs are also valuable for their genetic material, which can be used to assist other marine communities negatively impacted by anthropogenic or natural causes.[37] Additionally, greater genetic diversity is associated with individuals with greater survival, growth, and reproductive capacity.[38] Genetic material, meaning DNA,[39] aids other marine communities in multiple ways. For one, genetic material provides information regarding evolution of species, which can help scientists understand how species “interact and evolve with their environment, and thus how we can conserve them,”[40] helping both the MPA populations and other ecosystems with similar species.

Protecting these areas benefits human interests as well. MPAs are popular tourist destinations and a thriving marine environment can bring great profits through diving, snorkeling, beach going, and more.[41] The long-term economic benefits of marine tourism, when managed properly, often exceed the economic value of the consumptive use of fisheries.[42] Tourism and recreation contribute $124 billion to the U.S. gross domestic product, or about 42.9 percent of the total marine economy.[43] MPAs and protected areas in general provide revenue for governments through entrance fees, benefiting not just private industry but the governments that sustain them.[44]

However, ecotourism can have negative impacts on oceans and coastal areas. Sunscreen containing toxic chemicals leaches into oceans, harming corals.[45] But this impact can be abated by placing bans on sunscreens containing harmful chemicals, as Hawaii, Mexico, and Aruba did in 2018.[46] Additionally, tourism brings further plastic pollution to coastal areas resulting from tourists’ use of single-use plastics.[47] While plastic pollution presents a larger problem than just to our coasts, the coastal impacts can be reduced through more attention to correct disposal, better packaging, and increased awareness of the problems created by pollution. Tourism activities associated with boating can cause damage to coral reef ecosystems; for example, boat anchors can decimate coral reefs.[48] Noise from boats can harm marine life as well. Given that some marine species rely on the use of sound, the increase in ocean noise can greatly disrupt communication and other key aspects of survival including detecting predators, navigation, and hunting.[49] Mitigating these impacts on marine wildlife includes methods like reduced propeller noise or slower speeds and rerouted shipping routes to avoid key areas.[50] With the proper protections, MPAs can assist in mitigating the downsides of tourism.

Aside from the benefits to the people and ecosystems surrounding MPAs, these areas further act as control sites to help scientists manage and comprehend the health of similar, but unprotected ecosystems.[51] Having control areas like MPAs provides for the ability to identify the decline of an ecosystem or area, allowing for better management.[52] While no-take provisions in MPAs may be unpopular due to the immediate economic impacts from complete restrictions on fishing, they are a cautious, yet beneficial, approach to addressing declines in fish stock and providing for the longevity of fish populations.[53]

B. The United States is committed to protection of marine resources through international agreements and federal commitments.

In 2015, the United States adopted the United Nations’ (“UN”) Sustainable Development Goals (“SDGs”). [54] The SDGs lay out seventeen goals and 169 targets[55] to address poverty and environmental harm by 2030.[56] Goal Fourteen, “Life Below Water,” aims to conserve and promote sustainable use of ocean resources, recognizing “[h]ealthy oceans and seas are essential to human existence and life on earth… [and] provide key natural resources including food, medicines, biofuels, and other products.”[57] Goal Fourteen lays out ten targets including, for example, the reduction of marine pollution, protection and restoration of ecosystems, implementation and enforcement of international sea laws, and the conservation of coastal and marine areas.[58] Target 14.5, “Conserve Coastal and Marine Areas,” lays out the UN’s goal for ten percent of coastal and sea area conserved by 2020.[59] As of 2021 this goal was still not met, with only eight percent of coasts and oceans within an MPA.[60] While only two percent away from the goal, our oceans continue to deteriorate with fourteen percent of coral reefs lost between 2009 and 2018,[61] an increase of 122 percent in fish consumption from 1990 to 2018, increased ocean acidification, and millions of tons of pollution threatening marine life and coastal livelihoods.[62] While the number of MPAs has increased over the last decade, threats to oceans and global fish stocks continue.[63]

As of 2017, the United States reported only twenty-six percent of coastal or ocean waters protected through MPAs.[64] As the country with the largest EEZ, the United States has great potential to add to the global percentage of protected marine area.[65] Additionally, in the Biden Administration’s Executive Order 14008 from January 2021, the administration stated that it aims to protect thirty percent of U.S. lands and waters by 2030, what it calls “30 by 30.”[66] The Executive Order further called for a report from the Secretaries of the Interior, Agriculture, and Chair of the Council on Environmental Quality, along with heads of “other relevant agencies” to recommend steps to meet this goal.[67] The most likely route to achieving the 30 by 30 goal is for the Executive branch to use the authority delegated to the agencies and the President rather than to wait on a slow-moving Congress to designate areas.

II. U.S. Legislation provides the executive branch with the authority to create MPAs.

Throughout U.S. oceans and the Great Lakes, there are more than 300 MPAs.[68] The U.S. National Marine Protected Areas Center provides a classification system that uses five characteristics of MPAs to describe a designated area.[69] These characteristics are: (1) Conservation Focus; (2) Level of Protection; (3) Permanence of Protection; (4) Constancy of Protection;[70] and (5) Scale of Protection.[71] MPAs vary in level of protection based on the uses allowed within the protected area, ranging from no access, which restricts all human access, to uniform multiple-use, which prescribes consistent levels of activities and restrictions throughout the area.[72] One category of MPAs is the “no-take” zone which prohibits consumptive human use.[73] In the United States, there is no comprehensive legislation granting one agency the authority to create or govern MPAs.[74] Rather, the authority is delegated to multiple federal agencies and the President.

A. Through numerous acts, Congress has delegated the authority to create MPAs to administrative agencies.

Congress has attempted to regulate ocean ecosystems through numerous acts, including those that directly address ecosystems like the National Marine Sanctuaries Act (“NMSA”), those that indirectly regulate ecosystems through managing key species like the Marine Mammals Protection Act (“MMPA”), to those that only address the pollution of our oceans like the Clean Water Act. This Note focuses on acts that have been leveraged to create MPAs or de facto MPAs, including the NMSA, the MSA, the National Wildlife Refuge System Administration Act (“The Refuge System Act”), the Endangered Species Act (“ESA”), the MMPA, the Coastal Zone Management Act (“CZMA”), and the President’s authority under the Antiquities Act and Executive Orders. This Part presents an overview of the authority granted to the agencies and the President that allow for the creation of MPAs.

1. The National Marine Sanctuaries Act

The 1972 NMSA was created to identify and designate marine sanctuaries to be managed as a national system.[75] The NMSA provides the Secretary of Commerce with the authority to designate national marine sanctuaries.[76] This Act provides the strongest and most straightforward ability for NOAA to create MPAs as it specifically allows the Secretary of Commerce to establish these areas. Within national marine sanctuaries, NOAA can restrict activities that may potentially damage the natural resources within the protected area.[77] While one of the purposes of this legislation is to provide comprehensive and coordinated authority for the conservation and management of the designated areas under the NMSA, this Act only applies to marine sanctuaries.[78] Some sanctuaries in other parts of the globe are categorized as “no-take MPAs,” generally providing a “refuge from hunting.”[79] However, according to NOAA, U.S. marine sanctuaries generally allow for extractive uses.[80] As of 2002, only one U.S. national marine sanctuary actually prohibited commercial fishing.[81]

Under the NMSA, NOAA can designate sites as marine sanctuaries with the development of management plans that guide the sanctuary’s oversight and use.[82] While NOAA is the agency authorized to designate sites, the relevant Regional Fishery Management Council (“RFMC”) has the authority to determine whether fishing regulations are needed and the Secretary of Commerce must accept the determination.[83] Council members are nominated and appointed by NOAA, and members represent a variety of interests including fishing, government, environmental, and academic sectors.[84] These Councils do not base their decisions solely on scientific information due to these special interests; for example, a member of an RFMC who is also a fisherman may want to protect their livelihoods or a member of an RFMC who is a government representatives may view MPAs as unpopular with their base or as a drag on the local economy.[85] While the NMSA does not outwardly provide for the inclusion of all pre-existing MPAs within its jurisdiction, it is postulated that through the Act, Congress intended to create a cohesive, national MPA program under one scheme rather than the current disjointed system, or lack thereof.[86]

The NMSA provides standards to guide the Secretary’s decision on whether to designate a sanctuary, including: fulfillment of the purposes and policies of the Act; existing authorities are inadequate or need supplementation; the size and nature of the area permits coordinated management; and the area “is of special national significance.”[87] The special national significance of a site warranting sanctuary status may be due to “conservation, recreational, ecological, historical, scientific, cultural, archaeological, educational, or esthetic qualities,” the marine resources in the area, or the value to humans.[88] While the NMSA is the strongest legislative basis for the creation of MPAs by administrative agencies, other acts effectively provide for MPA creation through the employment of other conservation techniques.

2. Magnuson-Stevens Fishery Conservation and Management Act

The MSA is the quintessential fisheries management act in the United States and provides ways to regulate fisheries in methods similar to MPAs and sanctuaries.[89] The MSA of 1976 established that federal jurisdiction over the country’s coasts extends to 200 nautical miles.[90] While the 1982 UN Convention on the Law of the Sea established country EEZs extending to 200 nautical miles for all signatory countries, the U.S. had already created its EEZ through the MSA.[91] When Congress amended the MSA in 1996, sustainable development was incorporated into the Act’s provisions, resulting in a more holistic, ecosystem-based approach to fisheries management rather than a traditional fisheries-specific management.[92] The Act called for a “national program for the conservation and management of the fishery resources,” to prevent the decline and promote the recovery of the nation’s fish stocks.[93]

One key aspect of the MSA is the creation of eight RFMCs made up of stakeholders including representatives of coastal states and fishermen.[94] These councils are responsible for the development of fisheries management plans, which may include management tools like the designation of essential fish habitat, area closures, and gear restrictions.[95] Under the MSA, NOAA Fisheries identifies essential fish habitat (“EFH”) for highly migratory species.[96] These areas identify the essential locations for species in which they “spawn, breed, feed, or grow to maturity.”[97] Once the EFH is identified, NOAA takes measures to potentially limit fishing gear and development within the EFH.[98] Much like the Endangered Species Act (“ESA”), federal agencies consult with NOAA regarding the potential impacts of actions in identified EFH.[99] However, the guidance provided by NOAA Fisheries regarding federal actions is in the form of a recommendation rather than required compliance.[100] The consultation process allows for NOAA to provide suggestions on alternatives or mitigation measures but does not require the agency prevent harm to the EFH.[101]

While the MSA does not create MPAs in name, the ability to regulate fishing practices creates de facto MPAs. In Alaska, two areas totaling more than 370,000 square miles were closed to trawling practices through amendments to the areas’ fisheries management plans.[102] The MSA was also used to create marine reserves off the coast of California through the Western Pacific RMFC’s fishery management plans.[103]

While the MSA provides NOAA and fisheries management councils with the authority to conserve and manage resources, there is no reference in the MSA to marine reserves or protected areas, and no explicit grant of authority to the agency or the fishery management councils. However, since the MSA tasks the National Marine Fisheries Service (“NMFS”) with conservation of marine resources and promotion of fish stock recovery, NMFS has implemented area closures to further this goal.[104] Area closures, whether indefinite, daily, or seasonal, aid in the recovery of fish populations.[105] This means of method has been used by NMFS since at least the early 1990s when it was used to address the overfishing of sea scallops and groundfish.[106] Due to the variety of management techniques allowed under the MSA, including access limits, fishing quotas, gear restrictions, catch limits, and EFH designation, this legislation is likely the second strongest authority to designate MPAs.[107] While specifically targeted at maintaining fish populations, these measures also have indirect benefits to the entire ecosystem. Because the main target of the MSA is fish populations, the protections provided by the Act may not be realized unless fish populations are threatened, whereas area protections that do not rely on the status of sought-after species provide protection before an ecosystem faces collapse.

3. The National Wildlife Refuge System Administration Act

The Refuge System Act is generally targeted at wildlife and habitat protection and is most often used on land.[108] This Act focuses on the creation and conservation of two types of areas, national wildlife refuges and waterfowl production areas.[109] Currently, over 140 wildlife refuges established under the Act include coastal or marine areas.[110] These areas typically prohibit the harming of wildlife and require any actions in the refuge to be compatible with the System’s goal to “conserve fish, wildlife, plants, and their habitats.”[111] Further, the Secretary of the Interior must authorize hunting, fishing, and other consumptive activities.[112] Under the Refuge System Act, overseen by the Fish and Wildlife Service (“FWS”), a refuge can be created in a number of ways, including establishment by Congress, the President, or by order of the Secretary of the Interior.[113]

The Refuge System Act establishes that areas administered by the Secretary of the Interior are part of the National Wildlife Refuge System; these areas include “wildlife refuges, areas for the protection and conservation of fish and wildlife that are threatened with extinction, wildlife ranges, game ranges, wildlife management areas, or waterfowl production areas.”[114] The final clause of the authorizations provided to the Secretary of the Interior allows for the Secretary to issue regulations to carry out the Refuge System Act.[115] While the Act provides guidance on the creation of comprehensive conservation plans for the refuges, it does not offer specific guidance on how the Secretary is to determine the location of new refuges but rather leaves this decision to the discretion of the Secretary.[116] What little guidance is provided on the topic requires the Secretary to conserve fish and wildlife and to “plan and direct the continued growth of the System.” [117] While the Act’s language does not specifically preclude its use to protect the marine environment, it has not been used to create MPAs specifically.[118] Thus, while this act provides the potential authority to create an MPA, this authority has not been tested. Similarly, species-specific acts do not expressly provide the authority to create MPAs but in theory provide the authority to do so through their provisions for habitat protections.

4. The Endangered Species Act

In 1973, Congress passed the ESA. In its adoption, Congress expressly acknowledged the depletion of species due to economic growth and development.[119] The Act requires the consideration of the best available science in determining whether a species is to be listed. [120] The Act has multiple sections and mechanisms addressing actions by individuals and government organizations that implicate marine life. Section 9 sets out the provisions relative to individuals including prohibitions on take, import and export, possession, and other trade-based functions.[121] Section 7 provides that all federal agencies must consult with NOAA or the Forest Service before undertaking any federal activity that could potentially impact an endangered species.[122] While the ESA is a species-specific mechanism for control, one of the Act’s primary purposes is to “provide a means to conserve the ecosystem upon which threatened and endangered species depend.”[123] As such, the Act provides that NOAA may identify critical habitat for listed species.[124] Under the ESA, federal agencies are required to consult with NOAA to determine whether their actions are likely to destroy or adversely modify critical habitat.[125] The provisions of the ESA help protect marine species by requiring federal agencies to consult with NOAA prior to taking actions that may potentially harm endangered marine species. While these requirements do not create similar mandates for individuals, the provisions of section 9 provide some protection for species from private parties by prohibiting the taking of endangered species by any individual. Under the ESA, “take” is defined broadly as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”[126] While this broad taking prohibiting applies to all endangered species, the requirement of federal agencies to determine whether their actions may impact critical habitat is essential to marine species and the creation of de facto MPAs.

Marine species generally have larger designated habitats compared to terrestrial species due to their migratory nature.[127] The large critical habitats help protect marine species throughout their migrations and essential survival actions like feeding, mating, and spawning. Additionally, the use of the ESA has gone beyond just the preservation of habitat. NOAA has previously used the ESA to regulate the use of shrimp fishing nets, effectively protecting species from certain problematic fishing practices.[128] As shrimp fishing nets consist of small mesh, larger species easily get caught in the nets and may be brought on board as bycatch.[129] As with the Refuge System Act, the ESA leaves much to be desired in its authority to create MPAs. While the ESA can create de facto MPAs through the protection of habitats and gear restrictions, this only applies when an endangered species is involved, rather than as preemptive protection for a habitat or unlisted species. Yet, prohibiting the use of problematic fishing mechanisms provides the opportunity for endangered and threatened species to recover and indirectly benefits other species that may be susceptible to the fishing gear, including marine mammals.

5. The Marine Mammal Protection Act

Similar to the ESA, the MMPA is targeted at the protection of species rather than ecosystems as a whole. The MMPA is implemented by multiple agencies depending on the species regulated.[130] FWS regulates those species that are found on both land and in the ocean, including walruses, manatees, sea otters, and polar bears.[131] In contrast, NOAA regulates those marine mammals that are purely or predominantly found in marine environments, including whales, dolphins, porpoises, seals, and sea lions.[132] Like the ESA, the MMPA prohibits the taking of marine mammals.[133] However, the MMPA restrictions are less stringent than those of the ESA, as the MMPA does not prohibit harm or have similar provisions relating to critical habitat.[134] The Act’s congressional findings provide that the stock of marine mammals should not be allowed to diminish beyond optimum sustainable population and if they do, immediate measures should be taken, including the protection of essential habitats.[135] Like the MSA, the potential closure of areas, change in fishing methods, and protection of essential habitat could effectively create a quasi-MPA. But this power is not expressly granted; rather, the authority provided through the MMPA is to preserve marine species and use habitat protection and closures as a method for doing so, resulting in a weak grant of authority to create MPAs. While the previous two acts created de facto MPAs through species-specific protections, the protection of a unique ecosystem is another method that can be employed to create MPAs.

6. Coastal Zone Management Act

Under the CZMA, NOAA has the authority to designate National Estuarine Research Reserves.[136] These areas include estuarine lands and waters.[137] Estuaries are areas where bodies of water such as rivers meet the sea, resulting in the mixing of fresh water and salt water, also referred to as brackish water.[138] These areas are extremely productive and are often an important source of food, breeding grounds, and migration stops for marine mammals.[139] These areas provide additional sanctuary for marine species as they are often not impacted by waves, winds, and storms due to the buffering provided by the surrounding lands.[140] The congressional findings of the CZMA acknowledge these areas are highly vulnerable, especially to human impacts.[141] The protection from the typical harsh circumstances of the ocean is what makes estuaries essential areas for the lifecycle events of species. Under the National Estuarine Research Reserve System, the Secretary of Commerce has the authority to designate estuarine areas if the state’s governor nominates the area and it meets four requirements.[142] The estuarine area must be (1) suitable for long-term research, (2) local laws must provide for long-term protection, (3) the area’s designation will enhance public awareness and knowledge, and (4) the area’s state complies with the other regulations implemented by the Secretary regarding the CZMA.[143] While the CZMA provides for area-based protection, it is not the strongest legislative basis for administrative action due to the limits of the Act. The requirement that the area be nominated by the State Governor provides a hurdle not present in the other acts discussed. Further, the CZMA only covers coastal areas. Given that the Refuge System Act currently covers some coastal areas without requiring coordination with states, it is a stronger source of authority for MPA creation.

B. The involvement of the President in the Creation of MPAs.

1. The Antiquities Act

The Antiquities Act of 1906 provides the President with the authority to create national monuments.[144] Similar to the use of agencies to create MPAs, the presidential creation of national monuments is not a democratic process in the same way that creation by Congress would be for similar land conservation exercises, due to the lack of public input.[145] The Antiquities Act declares the President has the discretion to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”[146] While the Antiquities Act has mainly been used to designate areas on land, Presidents have used the authority granted by this legislation to create marine-based national monuments.[147] The authority vested in the President has been exercised 150 times, but only five times to protect the marine environment.[148]

When the President designates an area as a marine national monument, the area is then managed by NOAA and FWS. In 2006, the first marine national monument was designated by President Bush.[149] Currently, there are five national marine monuments managed by NOAA, all designated within a ten-year span by only two presidents. President Bush designated Papahānaumokuākea in Hawaii in 2006, Rose Atoll in American Samoa in 2009, and Mariana Trench in Northern Mariana Islands and Guam in 2009.[150] In 2009, President Bush designated the Pacific Remote Islands, located south of Hawaii, which was later expanded by President Obama in 2014.[151] The last time the Antiquities Act was used to designate marine areas was in 2016 when President Obama designated the Northeast Canyons and Seamounts in Massachusetts.[152]

The President’s authority to create national monuments and protected areas under the Antiquities Act has been challenged and consequently upheld multiple times. In the first challenge to the Act in 1920, a challenge to the designation of the Grand Canyon National Monument was struck down by the Supreme Court.[153] In 1945, Jackson Hole National Monument’s establishment was upheld with a U.S. District Court determining that a federal court has limited jurisdiction to review the reasonableness of proclamations under the Antiquities Act.[154] In 2002, the designation of Giant Sequoia National Monument was upheld,[155] followed by the upholding of the designation of Grand Staircase-Escalante National Monument in 2004.[156] Review by the courts has not restrained the reach of the Antiquities Act but expanded it.[157] Additionally, in 1996 and 2000, congressional bills to limit the authority provided to the President under the Antiquities Act failed to pass.[158] In 2001, after President Bush requested the Secretary of the Interior review the national monuments created under President Clinton, the Secretary recommended no changes to the designations.[159]

While the Antiquities Act provides for the designation of important lands by the President, this authority has costs. The Antiquities Act does not discuss the President’s authority to reduce or shrink the national monuments, only providing for the authority to create them.[160] Yet, presidents have reduced or modified national monuments since enactment, including President Trump’s modification of the Bears Ears and Grand Staircase-Escalante National Monuments.[161] Additionally, the President unilaterally determines the areas protected and what activities are allowed within them.[162] The authority provided by the Antiquities Act allowing the President to establish national monuments has survived judicial challenge despite the Act’s drawbacks. More recently, presidents have used Executive Orders, not to create MPAs, but to guide the agencies who create them.

2. Executive Orders and Proclamations

In 2000, President Clinton issued Executive Order 13158 which required agencies involved in establishing or managing MPAs to “take appropriate actions to enhance or expand protection of existing MPAs and establish or recommend, as appropriate, new MPAs.”[163] This Executive Order further called for a National System of Marine Protected Areas (“National System”) to collaborate with state and local governments and the creation of a National MPA Center under the authority of NOAA.[164] The National System focuses primarily on connecting MPA sites, building MPA site capacity, and strengthening coordination among the agencies that oversee MPAs and their stakeholders.[165] Yet the Executive Order and the National System did not establish new authority to designate or manage MPAs.[166] Finally, as previously mentioned, the Biden Administration proclaimed it is the Administration’s prerogative to protect thirty percent of the nation’s oceans by 2030.[167] This is an ambitious goal, especially considering there is no one piece of federal legislation that allows for the creation of MPAs. Furthermore, those laws that explicitly allow protection are targeted at protecting a specific type of area or designate areas with stricter regulations on activities permitted. Without clearer legislation, the nation may not meet the Biden Administration’s “30 by 30” goal.

III. The Nondelegation Doctrine threatens the authority of the executive branch to issue regulations and rules under Congressional delegation of the authority to do so.

A. The history of the nondelegation doctrine in U.S. jurisprudence.

The nondelegation doctrine is the principle that Congress cannot delegate its legislative authority to the other branches.[168] Some constitutional originalists theorize that the Framers included nondelegation in the Constitution.[169] If nondelegation truly were included in the Constitution, it would likely be found in the wording of Article 1, Section 1 which states, “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.”[170] Yet this is not a clear prohibition on delegation of authority.[171] Further, there is no mention of nondelegation in the debates from the First Congress, indicating the Framers did not intend Article 1, Section 1 to prohibit delegation to the extent these constitutional originalists may believe.[172]

Alternatively, the theory of nondelegation finds roots in the separation of powers as a way of preventing any one branch from having too much power.[173] To ensure a continued separation of powers, Supreme Court precedent provides that the delegation of authority must be guided by an “intelligible principle” in congressional legislation.[174] This test determines whether Congress provided sufficient instructions for executing the legislation.[175] The guidance of an intelligible principle is, in theory, what separates delegation of legislative authority and delegation of authority to fill in the gaps.[176] In Whitman v. American Trucking Associations, the Court held that even the phrase “requisite to protect public health” as a guide for the EPA in setting air quality standards under the Clean Air Act was sufficient to guide the EPA and fits within the intelligible principle precedent given the Court’s determination that “requisite” meant “no more than necessary.”[177]

Delegation of authority to the other branches is essential to our government, especially in our world today. Through legislation, Congress provides agencies the ability to address the more complex pieces of government programs.[178] Agencies, unlike Congress, are more readily able to adapt government programs to changes in economic and technological circumstances.[179] Because agencies are not constrained by the same structure or voting process as Congress, they are more readily able to adapt to immediate issues or ever-evolving problems. Moreover, agency employees often have more technical expertise and can make quicker decisions based on this knowledge rather than needing to search for the information as Congress would be obligated to do. However, delegation also has its drawbacks. For example, the EPA’s failure to require compliance with the Safe Drinking Water Act resulted in the Flint, Michigan water crisis, which demonstrates that federal agencies often struggle with oversight of state and city agencies.[180]

While the theory of nondelegation is well known, the Supreme Court has only used the doctrine to find legislation unconstitutional on two occasions,[181] both times in regard to the National Industrial Recovery Act of 1933 (“NIRA”).[182] The NIRA included provisions for the President to promulgate regulations to stabilize the economy by “restrict[ing] interstate transportation of oil produced in violation of state law,”[183] which in Panama Refining CO. v. Ryan, the Court found was unconstitutional as Congress had provided no policy, standard, or rule to guide the President.[184] The same year as Panama Refining, the Court found another provision of the NIRA unconstitutional for its “unbounded” delegation of power to the

president.[185] In A.L.A. Schechter Poultry Corp. v. United States, the Court invalidated provisions of the NIRA that allowed the President to approve private industry proposals.[186]

While only used twice in a majority opinion, the nondelegation doctrine has made appearances in the writings of other Justices. In his concurrence in Industrial Union Dept., AFL-CIO v. American Petroleum Institute, Justice Rehnquist recognized separation of powers, and thus nondelegation, should not be strictly interpreted and adhering to strict nondelegation would frustrate government efficacy.[187] Yet his concurrence urged that section 6(b)(5) of the Occupational Safety and Health Act was an unconstitutional delegation of authority to the Secretary of Labor stating, “[w]hen fundamental policy decisions underlying important legislation about to be enacted are to be made, the buck stops with Congress.”[188] Following in the footsteps of Justice Rehnquist, Justice Scalia was a strong critic of the delegation of power to the other branches.[189] Justice Scalia’s understanding of acceptable delegation is not a delegation of legislative authority, rather the discretion needed to execute laws.[190] Justice Scalia’s feelings and writings towards the nondelegation doctrine hint towards it being a political question and, thus, nonjusticiable.[191]

The nondelegation doctrine has not been used to find a statute unconstitutional since Panama Refining and Schechter Poultry with Justice Scalia submitting to the idea of delegation as an essential part of the nation’s government.[192] The Supreme Court maintains that a delegation of legislative power to another branch is unconstitutional, while invoking the Executive’s assistance when guided by an intelligible principle is within constitutional limits.[193]

B. Under the Roberts Court, the nondelegation doctrine may be used to invalidate Congressional delegation given the opinions expressed by the Justices.

The use of the major questions doctrine during the past term represents a “disguised and slightly diluted” version of the nondelegation doctrine as described in Schechter Poultry.[194] One commentator noted the current Court’s use of the major questions doctrine was no longer part of the Chevron analysis. Instead, its recent use amounted to the Court making the decision about what specific authority could be delegated to administrative agencies, rather than a review of the type of authority delegated, as the Court had previously done.[195] While delegation itself has survived the Roberts Court thus far, cases are making their way through the lower courts that may provide the Court the opportunity to reassess the delegation of authority.[196] A case recently decided by the Fifth Circuit, Jarkesy v. SEC, determined Congress unconstitutionally delegated authority to the U.S. Securities and Exchange Commission to bring enforcement actions without providing guidance on what circumstances warrant an administrative or judicial action.[197] Using Article I of the Constitution, the court argued that legislative powers are not vested in administrative agencies.[198]

Past decisions and commentary from justices provide predictions of how justices will vote in future matters. Justice Thomas previously argued that the “intelligible principle test” regarding the delegation of legislative powers by Congress is “inconsistent with the separation of powers and the vesting of all legislative powers in Congress.”[199] Former colleagues of Justice Thomas speculate that he is potentially waiting for a case in which the test is truly challenged before he makes his move.[200] In concurrence of the majority decision in Whitman v. American Trucking Associations, Justice Thomas argued for a reconsideration of the “intelligible principle” and “pointed the way for judicial enforcement of the non-delegation principle.”[201] Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, recently dissented in Gundy v. United States, expressing a willingness to re-examine nondelegation.[202] While Justice Gorsuch contends another branch can fill in the details Congress left, he calls the intelligible principle a “misadventure” and asserts the Court has found Congress’s efforts to delegate powers unconstitutional, but has done so by a different name, the major questions doctrine.[203] In a separate opinion, Justice Alito indicated he would be willing to reconsider the Court’s approach to delegation.[204] Justice Alito’s opinion of the nondelegation doctrine, as emphasized in his dissent in Ortiz v. United States, is centered around his belief that the vesting clause prohibits Congress from delegating power to any other entity.[205]

Following Gundy, Justice Kavanaugh issued a statement that Justice Gorsuch’s dissent in Gundy “may warrant further consideration in future cases.” [206] Lastly, the newest Conservative Justice, Amy Coney Barrett, has also expressed her dismay with the intelligible principle, calling it “notoriously lax.”[207] She goes on to state that the Supreme Court’s precedent indicates a “reluctance to second-guess” the judgment of Congress related to the degree of authority granted to the executive branch.[208] Further, Justice Coney Barrett generally follows the judicial philosophy of Justice Scalia.[209] Given Justice Scalia’s animosity to delegation, it would not be a far stretch to assume Justice Coney Barrett’s opinions on nondelegation align with those of Justice Scalia. Past statements may provide some predictability as to how the Justices will decide future cases, thus it is not out of the question that the Court may revive the nondelegation doctrine if presented with the opportunity to do so, greatly altering the Court’s centuries of interpretation of delegation.

C. The revival of the nondelegation doctrine presents a bleak future for administrative agencies and the marine resources they manage.

The revival of a nondelegation doctrine “would give an originalist Supreme Court a self-created, ill-defined, and virtually uncontrollable license to overturn any regulatory legislation that the Court disfavored for policy reasons.”[210] The use of nondelegation would provide the Court with great power. As a rejected constitutional provision, the nondelegation doctrine changes the way our government currently functions and would provide the court with the power to force this doctrine on Congress and the Executive branch.[211] The nondelegation doctrine is not just an interpretation method or view of the Constitution, but rather an extreme version of the separation of powers. For the Court to find this doctrine in the Constitution would be for the Court to find the power to effectively amend the Constitution in ways the Founders expressly denied.[212] A court that leans into the nondelegation doctrine could “render most of government unconstitutional”[213] and impact those agencies that oversee essential government services “environmental protection, financial services oversight, and occupational health and safety.”[214]

So, what does the nondelegation doctrine mean for MPAs specifically? Looking to the language of the statutes and what they permit, agencies and the President would likely not be able to create protected areas carte blanche. The MSA’s provisions allowing the creation of essential fish habitat, prohibiting fishing practices in certain areas, and calling for conservation of marine resources do not explicitly provide for creation of MPAs and, thus, protected areas created under this legislation may be at risk. If the Court follows the nondelegation path, any delegation of power could be at risk. This includes the MSA’s authority to close marine areas to fishing and the authority invoked by the RFMCs to create marine reserves.

While the NMSA provides more detailed guidance than many of the other acts, it may still fail if the Court leans into the nondelegation doctrine due to the Court’s previous findings on the major questions doctrine. The NMSA provides no guidelines on how to analyze the requirements of designation, and, in designating an area as a marine sanctuary, the Act greatly cuts off individuals’ access to the marine resources found in an area. Further, even if this Act were not invalidated under nondelegation, the Act only applies to sanctuaries. As MPAs vary in their permissible activities, they are potentially more palatable than sanctuaries for interested stakeholders hesitant to prohibit certain activities. Whereas protecting the nation’s oceans through mainly no-take areas may leave stakeholders without a reliable livelihood.

The species-specific acts, the ESA and MMPA, can use their authority to implement fishing regulations and close areas to help fish stocks recover. However, these acts are not explicitly able to create MPAs, rather they create quasi-protected areas with the regulations they are able to implement. Therefore, nondelegation would prohibit this use because there is not a clear directive from Congress in the language of the statutes. The authority provided to the Secretary under the Refuge System Act to create refuges is explicit in the Act, but the guidance is not as clear as that of the NMSA and may very well fail under a nondelegation doctrine. The CZMA’s authority to create estuarine reserves must comply with four requirements, but these requirements are potentially vague. Estuarine reserves also may not be enough to meet the Biden Administration’s goal of thirty percent ocean protection in the United States by 2030.

Lastly, the Antiquities Act provides the President with unilateral authority to designate areas as national monuments, including marine areas. While the courts have not previously found the Antiquities Act to be unconstitutional, with the increased media attention given to presidential authority under the Antiquities Act following President Trump’s use of the authority to reduce national monuments, this legislation could face challenges in the future and, under a nondelegation doctrine, face its demise given its somewhat vague guidance.

Without the ability to create MPAs through the executive branch, our oceans face a bleak future. Threats include accelerated climate change and reduced resiliency to its impacts.[215] Coral reefs are currently facing extinction due to climate change and human impacts, yet corals provide coastal protection from storm surges, among many other benefits.[216] Without this protection, our coastal communities may be more dramatically impacted by storms. As MPAs help fish populations recover, without their protection fish populations may succumb to overfishing.[217] In 2020, the U.S. commercial and recreational fisheries accounted for 1.7 million jobs and $253 billion in sales.[218] The decline of healthy and abundant fish populations would drastically harm ocean ecosystems and the national economy. Even with the marine protections in place currently, the health of global oceans is “declining faster than at any time in human history.”[219] Without additional protections, or with a reversal of the current protections, our world may look drastically different.


The United States committed to the SDGs, including the goal of protection of ten percent of global oceans. The Biden Administration further aims to protect thirty percent of U.S. marine waters by 2030. The ability to meet these goals is critical to the protection of marine resources, the planet’s ability to combat climate change, and the expansive tourism industries that depend on a healthy marine ecosystem. But given the incomplete and disjointed federal authority to create MPAs, these goals may be farfetched. And with a Court that expresses interest in reviving the nondelegation doctrine, the ability to meet these goals may be further hindered. If the Roberts Court finds reason to hear a case regarding delegation, it may very well reassess the nondelegation doctrine and/or the intelligible principle test. A stricter requirement in the intelligible principle test may result in overturned statutes due to vague guidance while a nondelegation doctrine revival may very well completely block the administrative state’s ability to create MPAs as well as many other essential functions.

It is time for Congress to consider passing legislation specifically targeted at the management of MPAs. To insulate established and future MPAs from a challenge under nondelegation, Congress must provide NOAA with the authority to create and regulate all MPAs with careful attention to the prescribed authority. Given the negative view of the intelligible principle in the Roberts Court, it behooves Congress to leave no room for decision-making, but rather only gaps to be filled by the agency.

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  70. Constancy of protection refers to whether the MPA provides year-round protection to the site, while seasonal sites allow for closures and restrictions on a seasonal basis, generally during a season of greater vulnerability or importance to species within the area. Id. at 5.
  71. Id. at 1.
  72. Id.
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  75. 16 USC § 1431(b)(1) (2018).
  76. 16 U.S.C. §§ 1431(c), 1432(4).
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  82. Harold F. Upton & Eugene H. Buck, Cong. Rsch. Serv., RL32154, Marine Protected Areas: An Overview 1 (2010).
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  109. Id.
  110. Id.
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  112. Id. at 534; 16 U.S.C. § 668dd(d)(1)(A) (2018).
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  114. 16 U.S.C. § 668dd(a)(1).
  115. Id. § 668dd(b)(5).
  116. Id. § 668dd(e).
  117. Id. §§ 668dd(a)(4)(A), (C).
  118. Cong. Rsch. Serv., RL32486, supra note 106, at 18.
  119. 16 U.S.C. § 1531(1) (2018).
  120. 16 U.S.C. § 1533(b)(1)(A) (2018).
  121. 16 U.S.C. § 1538(a) (2018).
  122. 16 U.S.C. § 1536 (2018).
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  145. Id. at 22.
  146. 52 U.S.C. § 320301(a) (2018).
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  154. Id.
  155. Id.
  156. Id.
  157. Shattuck, supra note 147, at 208–09.
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  159. Id.
  160. Shattuck, supra note 147, at 202.
  161. Id.
  162. Id. at 200–01.
  163. Exec. Order No. 13,158, 65 Fed. Reg. 34,909 (May 26, 2000).
  164. Nat’l. Marine Protected Area Ctr., Framework for the National System of Marine Protected Areas of the United States of America 1 (March 2015),
  165. Id. at 2.
  166. Id. at 4.
  167. Exec. Order No. 14,008, 86 Fed. Reg. 7,619 (Jan. 27, 2021).
  168. Wurman, supra note 23, at 975.
  169. Eggert, supra note 24, at 708.
  170. U.S. Const. art. 1, § 1.
  171. Eggert, supra note 24, at 716.
  172. Julian Davis Mortenson & Nicholas Bagley, There’s No Historical Justification for One of the Most Dangerous Ideas in American Law, The Atlantic (May 26, 2020),
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  174. J.W. Hampton Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
  175. William K. Kelley, Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument, 92 Notre Dame L. Rev. 2107, 2111 (2017).
  176. Id. at 2111, 2117.
  177. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 473–74 (2001).
  178. Mortenson & Bagley, supra note 171.
  179. Id.
  180. Hannah J. Wiseman, Delegation and Dysfunction, 35 Yale J. on Regul. 233, 236 (2018).
  181. Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 283–84 (2021).
  182. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541–42 (1935); Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935).
  183. Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L. J. 1399, 1404 (2000).
  184. Id. at 1400.
  185. Id. at 1401.
  186. Id. at 1404.
  187. Indust. Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 673–74 (1980) (Rehnquist, J., concurring).
  188. Id. at 687.
  189. Kelley, supra note 174, at 2108.
  190. Id. at 2111.
  191. Id. at 2118.
  192. Bressman, supra note 182, at 1405.
  193. Kelley, supra note 174, at 2109.
  194. John C. Coffee, Jr., The Two-Front War on the Administrative State: How Far Will the Supreme Court Go?, Colum. L. Sch.: CLS Blue Sky Blog (July 5, 2022)
  195. Id.
  196. This last term, in American Hospital Association v. Becerra, the Court had the opportunity to overturn Chevron, and were urged to do so by some, but instead did not invoke the common doctrine at all. James Romoser, In an opinion that shuns Chevron, the court rejects a Medicare cut for hospital drugs, SCOTUSblog (June 15, 2022); Then, in West Virginia v. EPA, the Court again did not renew the nondelegation doctrine, but invoked the major questions doctrine, generally used during Chevron analysis as a statutory interpretation method to find the Clean Air Act does not provide the EPA with authority over carbon emissions. Amy Howe, Supreme Court curtails EPA’s authority to fight climate change, SCOTUSblog (June 30, 2022),
  197. Coffee, supra note 193; Jarkesy v. Sec. Exch. Comm’n, 34 F.4th 446, 451 (5th Cir. 2002).
  198. Jarkesy v. Sec. Exch. Comm’n, 34 F.4th at 460.
  199. Neomi Rao, Saying What the Law Is, Justice Thomas Style, 6 Harv. J. L. & Pub. Pol. Per Curiam 1, 4 (2021).
  200. Id.
  201. Id. at 7; Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 486–87 (2001).
  202. Mark P. Nevitt, The Remaking of the Supreme Court: Implications for Climate Change Litigation & Regulation, 42 Cardozo L. Rev. 2911, 2923; Mortenson & Bagley, supra note 171.
  203. Gundy v. United States, 139 S. Ct. 2116, 2141 (2019) (Gorsuch, J., dissenting).
  204. Mortenson & Bagley, supra note 180, at 279.
  205. Ortiz v. United States, 138 S. Ct. 2165, 2197 (2018) (Alito, J., dissenting).
  206. Paul v. United States, 140 S. Ct. 342, 342 (2019) (Kavanaugh, J., statement).
  207. Amy Coney Barrett, Suspension and Delegation, 99 Cornell L. Rev. 251, 318 (2014).
  208. Id.
  209. Nevitt, supra note 201, at 2913.
  210. Eggert, supra note 24, at 709–10.
  211. Id. at 710.
  212. Id. at 724.
  213. Id. at 714 (referencing Gundy v. United States, 139 S. Ct. 2116, 2130 (2019)).
  214. Id. at 716.
  215. What Happens If We Don’t Protect the High Seas?, Nature Conservancy (Oct. 16, 2018),
  216. Id.
  217. Connecting Marine Protected Areas Can Improve Ocean Health, Pew Charitable Trusts, (July 1, 2022)
  218. Fisheries Economics of the United States, Nat’l Oceanic Atmospheric Admin. Fisheries, (last visited Apr. 7, 2023).
  219. Connecting Marine Protected Areas Can Improve Ocean Health, supra note 216.