Wednesday, November 7, 2012
President Obama’s Re-Election—for Obvious and Less Obvious Reasons—May Push the Canada-U.S. Relationship to Center-Stage
By Keith Edmund White
Will Obama’s second term put the Canada-U.S. relationship on center-stage? A quick round-up of Canadian headlines shows three major issues dominating the post-election Canada-U.S. relationship: (1) in the short-term, Canadian apprehension over America’s ability to reach a debt deal, (2) Keystone XL, and (3) moving forward on the Beyond the Border Initiative. But let’s not forget two other wrinkles from America’s election night: Heidi Heitkamp’s Senate win and the failure of a state constitutional roadblock to the Detroit River Crossing Project. And when you add to this Canada’s critical role in the Trans-Pacific Partnership talks, the Canada-U.S. relationship will be getting its fair due during Obama’s second term.
BC’s The Tyee offers a cautious Canadian reaction to President Obama’s re-election. The article's two chief points: (1) If Obama does not reach a debt deal with Congressional Republicans, who still hold the U.S. House of Representatives, America could tumble into recession, and drag Canada along for the ride; and (2) hope that Obama will clear full construction of the Keystone XL pipeline. But The Hill calls Keystone XL an energy election-night ‘loser,’ seeing a Romney White House fast-tracking the project. My guess: with Keystone XL already under construction, I don’t expect the Obama administration to stall Keystone XL’s northern construction much longer.
But, in any case, Heidi Heitkamp’s Senate victory in North Dakota guarantees one strong, Democratic voice in favor of the pipe-line.
And then, of course, one major pit-fall in Canada-U.S. relations was avoided. Yesterday Michigan voters shot down a state constitutional amendment that would have delayed—and perhaps killed—plans to build a second, bridge crossing connecting Detroit to Windsor over the Detroit River—a project with obvious economic impact in both Canada and the United States, and strongly supported by Canadian Prime Minster Harper.
But one less reported story bears mentioning. December 2011’s Beyond the Border Initiative (BTB), a Canada-U.S. project to streamline border regulations and bolster border security, might get a jump start. Birgit Matthiesen offers this BTB post-election update for the Canadian Manufacturers & Exporters:
What’s the importance of listing these seemingly unattached policy items? First, it seems that two big pressure points in the Canada-U.S. relationship—Keystone XL and the International Detroit River Crossing—have (or soon will be) taken care of. Next, Canada represents low-hanging economic fruit for the United States. And—after Obama does heavy lifting on a debt deal and a job bill—the name of the White House economic strategy will be (with one major exception) connecting small dots to generate growth. One major and needless U.S. economic drain? Canada-U.S. border regulatory burdens that could be eased through smart, cooperative policies.
Now, naysayers may argue the United States has had trouble keeping focus on Canada. But, if the TPP talks keep moving ahead, the United States simply won’t have this luxury. Hence, whether pushed by state-specific issues or international trade diplomacy, the Canada-U.S. relationship may just see its fair share of time on center-stage during Obama's second term.
Will Obama’s second term put the Canada-U.S. relationship on center-stage? A quick round-up of Canadian headlines shows three major issues dominating the post-election Canada-U.S. relationship: (1) in the short-term, Canadian apprehension over America’s ability to reach a debt deal, (2) Keystone XL, and (3) moving forward on the Beyond the Border Initiative. But let’s not forget two other wrinkles from America’s election night: Heidi Heitkamp’s Senate win and the failure of a state constitutional roadblock to the Detroit River Crossing Project. And when you add to this Canada’s critical role in the Trans-Pacific Partnership talks, the Canada-U.S. relationship will be getting its fair due during Obama’s second term.
BC’s The Tyee offers a cautious Canadian reaction to President Obama’s re-election. The article's two chief points: (1) If Obama does not reach a debt deal with Congressional Republicans, who still hold the U.S. House of Representatives, America could tumble into recession, and drag Canada along for the ride; and (2) hope that Obama will clear full construction of the Keystone XL pipeline. But The Hill calls Keystone XL an energy election-night ‘loser,’ seeing a Romney White House fast-tracking the project. My guess: with Keystone XL already under construction, I don’t expect the Obama administration to stall Keystone XL’s northern construction much longer.
But, in any case, Heidi Heitkamp’s Senate victory in North Dakota guarantees one strong, Democratic voice in favor of the pipe-line.
And then, of course, one major pit-fall in Canada-U.S. relations was avoided. Yesterday Michigan voters shot down a state constitutional amendment that would have delayed—and perhaps killed—plans to build a second, bridge crossing connecting Detroit to Windsor over the Detroit River—a project with obvious economic impact in both Canada and the United States, and strongly supported by Canadian Prime Minster Harper.
But one less reported story bears mentioning. December 2011’s Beyond the Border Initiative (BTB), a Canada-U.S. project to streamline border regulations and bolster border security, might get a jump start. Birgit Matthiesen offers this BTB post-election update for the Canadian Manufacturers & Exporters:
Over the last four years, Canada has too often benignly neglected by our neighbour. But the next four years presents an opportunity to build a North American manufacturing base. The US business community has a partner in Canada. One-third of our cross border business is intra-company and another third is comprised of intra-industry shipments. Our best ideas are each other's next new product.But, the big story—and not once mentioned on cable news last night—is that an Obama victory will continue progress, without the interruption of a presidential transition, on the Trans-Pacific Partnership (TPP). As earlier reported on CUSLI-Nexus, Canada may likely play a critical role in ensuring these talks succeed. And if this massive trade deal succeeds, it will likely—over the medium and long-term—generate more economic growth--and, at times, painful economic shifting--than any stimulus or jobs bill. Furthermore, how the TPP goes may well portend how the future effectiveness of the World Trade Organization.
The ball is in our court, as it always is when dealing with an American administration. But we do not have to start at square one.
Two initiatives between President Obama and Prime Minister Harper have already been launched – the Beyond the Border Action Plan and the Regulatory Cooperation Council. The ambition is great, but the progress is slow. Now that the elections are behind us, Ottawa and Washington need to get back to the table on these two efforts.
We have a major opportunity right now. 2013 must be the year that celebrates our cross-border partnership and the strength that our industries bring to each other's communities. Obsolete border management policies and unnecessary regulations must be replaced by a modern framework that will protect us from the economic storms ahead.
What’s the importance of listing these seemingly unattached policy items? First, it seems that two big pressure points in the Canada-U.S. relationship—Keystone XL and the International Detroit River Crossing—have (or soon will be) taken care of. Next, Canada represents low-hanging economic fruit for the United States. And—after Obama does heavy lifting on a debt deal and a job bill—the name of the White House economic strategy will be (with one major exception) connecting small dots to generate growth. One major and needless U.S. economic drain? Canada-U.S. border regulatory burdens that could be eased through smart, cooperative policies.
Now, naysayers may argue the United States has had trouble keeping focus on Canada. But, if the TPP talks keep moving ahead, the United States simply won’t have this luxury. Hence, whether pushed by state-specific issues or international trade diplomacy, the Canada-U.S. relationship may just see its fair share of time on center-stage during Obama's second term.
Oil Tanker Regulations and Protecting the Great Lakes: A Gaping and Environmentally Dangerous Regulatory Hole and the Need for Common-Sense, Joint Action to Avoid Oil Spills on the Great Lakes
By Graham Lanz, Staff Writer
The United States, to protect U.S. waters from oil spills, requires oil tankers and other ships with dangerous liquids to be inspected and obtain a Certificate of Compliance. Sounds like smart policy. But the unusual nature of the Great Lakes throws a wrench into this regulatory system. If an oil tanker bound from Venezuela to Nova Scotia entered U.S. territorial waters off Miami, and then remained within sight of land up the entire Eastern seaboard as far as the Northeastern tip of Maine, it would not need a Certificate of Compliance for any portion of its multi-day voyage. However, if that same tanker then departed Halifax and proceeded to Toronto, even a momentary diversion onto the U.S. side of Lake Ontario would trigger the Certificate of Compliance requirement. CUSLI-Nexus staff writer Graham Lanz explores this regulatory gap and its ramifications on U.S. maritime and environmental policies. And, most importantly, he poses a common-sense solution to solve the problem.
If safety regulations are written in blood, as has often been quipped, then a good portion of U.S. environmental law has been written in oil. From the Exxon-Valdez to the BP/Deepwater Horizon disaster, slicks of oil spoiling pristine wilderness areas and smothering marine life strike at the very heart of our collective desire to be better stewards of the environment. Thus, the U.S. has adopted special regulations for vessels that carry oil and other dangerous liquid substances in bulk.[i] To ensure that foreign-flagged oil tankers meet these regulations, the U.S. Coast Guard inspects ships and, when satisfied that the ship is safe, issues (for a fee) a Certificate of Compliance, valid for one year. Oil tankers must possess a Certificate of Compliance in order to “operate on the navigable waters of the United States.”[ii] Thus, foreign flagged vessels navigating the Canadian side of the Great Lakes face noncompliance (and a $25,000 civil penalty) if they stray into U.S. waters without the required certificate.[iii] This is inconsistent with the ideal of freedom of navigation and creates enforcement challenges for the U.S. Coast Guard. This posting examines this problem, whether the requirements for foreign-flagged oil tankers should apply on the Great Lakes for vessels bound for Canadian ports, and proposes some possible solutions to this regulatory inconsistency.
The Certificate of Compliance and the Innocent Passage Exception
The statute requiring a Certificate of Compliance includes an exception for tankers that are “on innocent passage on the navigable waters of the United States.”[iv] This exception is consistent with some of the oldest principles of customary international law. Namely, ships that transit another nation’s territorial sea (generally 12 nautical miles from shore, although some coastal states claim more) en route from the high seas or another state’s waters, bound to the high seas or another state’s waters are to be granted the right of innocent passage.[v] That is, provided the vessel is acting innocently (e.g. not breaching the peace, not actively fishing in violation of fisheries law, not marauding as pirates) the coastal state is expected to leave it alone and allow it to pass through unmolested. This promotes efficiency and safety, allowing vessels to plot the shortest course from Port A to Port B and encouraging them to stay within reach of land-based rescue in the event of emergency, all without fear of being hassled by coastal state authorities. Particularly as the international patchwork of regulatory regimes has become more complex, innocent passage has become more necessary to the shipping industry. If it were not for its innocent passage exception, the requirement for a Certificate of Compliance would essentially function as a toll for use of the U.S. territorial sea for oil tankers not intending to call on a U.S. port or conduct oil transfers in U.S. waters.
Yet innocent passage is not recognized in a nation’s internal waters.[vi] Therein, a state is free to exclude vessels and exercise a much greater degree of authority over foreign vessels. Internal waters are:
The Great Lakes: A Legally Distinct, Bi-National Group of Internal Waters
The Great Lakes of North America are an exceptionally unusual body of water: They are bi-national internal waters.[viii] The Boundary Waters Treaty of 1909 established that each nation intended to exert full authority over the waters on it side of the international border, while still maintaining freedom of navigation across the Great Lakes collectively (including Lake Michigan, which is the only Great Lake exclusively within the United States).[ix] The alternative would have been for each nation to assert its 12 mile territorial sea, with “high seas” in the waters between on those portions of the lakes greater than 24 miles wide. This unappealing option would have created a number of unconnected, nearly lawless frontiers of varying sizes between two civilized allies, opening the door for unscrupulous vessels of third party nations to thumb their noses at the U.S. and Canada nearly within sight of both shores.
A ship traversing the Great Lakes will typically cross the Canada-U.S. border dozens of times. Thus, vessels entering the Great Lakes from the St. Lawrence Seaway are merely a slight rudder angle change from switching which nation’s exclusive jurisdiction they are under. It would be as if a ship was instantaneously teleported from a mooring in Rotterdam’s enclosed harbor to a berth in Mumbai, without the benefit of “easing into” a possibly different regulatory environment after crossing the high seas. Thankfully (both for ships and shipping regulators) the regulations enforced by the U.S. Coast Guard and Transport Canada are highly congruent. However, the U.S. requirement for the Certificate of Compliance is one significant difference.
Why The Liquid Bulk Dangerous Cargoes Regulatory Gap Matters
If an oil tanker bound from Venezuela to Nova Scotia entered U.S. territorial waters off Miami, and then remained within sight of land up the entire Eastern seaboard as far as the Northeastern tip of Maine, it would not need a Certificate of Compliance for any portion of its multi-day voyage. However, if that same tanker then departed Halifax and proceeded to Toronto, even a momentary diversion onto the U.S. side of Lake Ontario would trigger the Certificate of Compliance requirement.[x] In both instances the vessels are bound from one foreign (non-U.S.) port to another. In neither instance is the vessel calling on a U.S. port or conducting oil transfer operations while in U.S. waters. During one leg of the voyage the tanker just happens to be passing (“innocently,” one might even say) through U.S. internal waters.
On its face, this seems unjust and inefficient. It also seems to contravene the spirit of free navigation embodied in the Boundary Waters Treaty. Further, it presents an enforcement burden for the U.S. Coast Guard, which will not have the opportunity to board this vessel in a U.S. port to examine whether it possesses a valid Certificate of Compliance, but is still expected to enforce the law and protect the marine environment.[xi]
Solutions to the Regulatory Gap
Some common sense solutions are available. The simplest, cheapest fix would be to amend the text of 46 U.S.C. § 3702 (e) to reflect the spirit of the Boundary Waters Treaty by adding to the innocent passage exception “or vessels navigating U.S. internal waters of the Great Lakes solely for the purpose of calling on Canadian ports.” However, this approach of broadening an exception would create an apparent acceptance of risk to the environment that may be politically unappealing to the constituencies who rely on the Great Lakes for fishing, drinking water, and recreation.
A better solution would be to issue Certificates of Compliance to all oil tankers entering the Great Lakes during a regulatory inspection they are already required to undergo, such as their joint U.S./Canadian ballast water examination,[xii] or the St. Lawrence Seaway Development Corporation’s enhanced seaway inspection.[xiii] This latter solution would require some further coordination between the U.S. Coast Guard and its Transport Canada and St. Lawrence Seaway Development Corporation partners in order to facilitate the presence of a qualified U.S. Coast Guard marine inspector, as well as submission of an application and payment of a fee by the ship’s management.[xiv] This approach would require only a modest investment and would be consistent with previous proposals that the U.S. Coast Guard establish a permanent presence in Montreal to facilitate this sort of pre-Great Lakes inspection activity at a choke point in the system where ships are already stopped.[xv] Canadian tankers that navigate solely on the Great Lakes could be examined annually and given a Certificate of Compliance, much in the same manner that the U.S. Coast Guard annually examines Canadian bulk cargo vessels on the Great Lakes.
Why Potential Great Lakes Oil Drilling Makes Solving the Compliance Certificate Regulatory Gap Not Merely Abstract Legal Untidiness, But a Significant Regulatory Hurdle
One potential development that might alter the landscape is the renewed interest in oil drilling on the Great Lakes.[xvi] While the BP/Deepwater Horizon catastrophe has certainly dampened enthusiasm for new underwater drilling, powerful energy lobbies have had recent success in tapping into the vast oil and natural gas deposits under the Great Lakes region from land-based wells, and Ontario continues to permit operation of extraction wells in their provincial waters.[xvii] Facing rising energy prices and continued struggles to replace their historical industrial base, the states and provinces of the Great Lakes may find the allure of underwater oil and gas tempting enough to reverse their previous stance against drilling beneath the world’s largest source of fresh surface water. That would certainly draw more tankers (and attention) to the Great Lakes.
If there is any doubt a tanker could be involved in a disaster on the Great Lakes, we need look no further back than September 16, 1990 (more recent than the Exxon-Valdez) when the oil tanker Jupiter exploded while unloading gasoline in the Saginaw River.[xviii] Due to the cargo’s high flammability, the damage to the marine environment turned out to be minimal, but the episode illustrates the need for regulatory agencies on both sides of the Great Lakes to be vigilant regarding tanker safety. An important pre-requisite to effective oversight in any regulatory context is absolute clarity about what the rules are. Clarifying the applicability of the Certificate of Compliance requirements for vessels calling on Canadian Great Lakes ports is a necessary step. If the requirement is determined to apply, as it appears it should, the U.S. Coast Guard must work with its partners in Canada and the shipping industry to ensure compliance with it. Conducting a Certificate of Compliance exam in conjunction with other inspection activities, either in Montreal or in the St. Lawrence Seaway, seems to be the optimal solution.
The United States, to protect U.S. waters from oil spills, requires oil tankers and other ships with dangerous liquids to be inspected and obtain a Certificate of Compliance. Sounds like smart policy. But the unusual nature of the Great Lakes throws a wrench into this regulatory system. If an oil tanker bound from Venezuela to Nova Scotia entered U.S. territorial waters off Miami, and then remained within sight of land up the entire Eastern seaboard as far as the Northeastern tip of Maine, it would not need a Certificate of Compliance for any portion of its multi-day voyage. However, if that same tanker then departed Halifax and proceeded to Toronto, even a momentary diversion onto the U.S. side of Lake Ontario would trigger the Certificate of Compliance requirement. CUSLI-Nexus staff writer Graham Lanz explores this regulatory gap and its ramifications on U.S. maritime and environmental policies. And, most importantly, he poses a common-sense solution to solve the problem.
If safety regulations are written in blood, as has often been quipped, then a good portion of U.S. environmental law has been written in oil. From the Exxon-Valdez to the BP/Deepwater Horizon disaster, slicks of oil spoiling pristine wilderness areas and smothering marine life strike at the very heart of our collective desire to be better stewards of the environment. Thus, the U.S. has adopted special regulations for vessels that carry oil and other dangerous liquid substances in bulk.[i] To ensure that foreign-flagged oil tankers meet these regulations, the U.S. Coast Guard inspects ships and, when satisfied that the ship is safe, issues (for a fee) a Certificate of Compliance, valid for one year. Oil tankers must possess a Certificate of Compliance in order to “operate on the navigable waters of the United States.”[ii] Thus, foreign flagged vessels navigating the Canadian side of the Great Lakes face noncompliance (and a $25,000 civil penalty) if they stray into U.S. waters without the required certificate.[iii] This is inconsistent with the ideal of freedom of navigation and creates enforcement challenges for the U.S. Coast Guard. This posting examines this problem, whether the requirements for foreign-flagged oil tankers should apply on the Great Lakes for vessels bound for Canadian ports, and proposes some possible solutions to this regulatory inconsistency.
The Certificate of Compliance and the Innocent Passage Exception
The statute requiring a Certificate of Compliance includes an exception for tankers that are “on innocent passage on the navigable waters of the United States.”[iv] This exception is consistent with some of the oldest principles of customary international law. Namely, ships that transit another nation’s territorial sea (generally 12 nautical miles from shore, although some coastal states claim more) en route from the high seas or another state’s waters, bound to the high seas or another state’s waters are to be granted the right of innocent passage.[v] That is, provided the vessel is acting innocently (e.g. not breaching the peace, not actively fishing in violation of fisheries law, not marauding as pirates) the coastal state is expected to leave it alone and allow it to pass through unmolested. This promotes efficiency and safety, allowing vessels to plot the shortest course from Port A to Port B and encouraging them to stay within reach of land-based rescue in the event of emergency, all without fear of being hassled by coastal state authorities. Particularly as the international patchwork of regulatory regimes has become more complex, innocent passage has become more necessary to the shipping industry. If it were not for its innocent passage exception, the requirement for a Certificate of Compliance would essentially function as a toll for use of the U.S. territorial sea for oil tankers not intending to call on a U.S. port or conduct oil transfers in U.S. waters.
Yet innocent passage is not recognized in a nation’s internal waters.[vi] Therein, a state is free to exclude vessels and exercise a much greater degree of authority over foreign vessels. Internal waters are:
wholly or largely surrounded by a state’s land territory as well as sea waters on the landward side of the baseline of the territorial sea or of the archipelagic waters.1 "Internal waters" include waters of lakes, rivers, and bays that are on the landward side of the baseline of the territorial sea or of archipelagic waters. For rivers, this baseline is a straight line across the mouth of the river between points on the low-tide line of its banks.[vii]Nations are permitted to assert exclusive jurisdiction over their internal waters.
The Great Lakes: A Legally Distinct, Bi-National Group of Internal Waters
The Great Lakes of North America are an exceptionally unusual body of water: They are bi-national internal waters.[viii] The Boundary Waters Treaty of 1909 established that each nation intended to exert full authority over the waters on it side of the international border, while still maintaining freedom of navigation across the Great Lakes collectively (including Lake Michigan, which is the only Great Lake exclusively within the United States).[ix] The alternative would have been for each nation to assert its 12 mile territorial sea, with “high seas” in the waters between on those portions of the lakes greater than 24 miles wide. This unappealing option would have created a number of unconnected, nearly lawless frontiers of varying sizes between two civilized allies, opening the door for unscrupulous vessels of third party nations to thumb their noses at the U.S. and Canada nearly within sight of both shores.
A ship traversing the Great Lakes will typically cross the Canada-U.S. border dozens of times. Thus, vessels entering the Great Lakes from the St. Lawrence Seaway are merely a slight rudder angle change from switching which nation’s exclusive jurisdiction they are under. It would be as if a ship was instantaneously teleported from a mooring in Rotterdam’s enclosed harbor to a berth in Mumbai, without the benefit of “easing into” a possibly different regulatory environment after crossing the high seas. Thankfully (both for ships and shipping regulators) the regulations enforced by the U.S. Coast Guard and Transport Canada are highly congruent. However, the U.S. requirement for the Certificate of Compliance is one significant difference.
Why The Liquid Bulk Dangerous Cargoes Regulatory Gap Matters
If an oil tanker bound from Venezuela to Nova Scotia entered U.S. territorial waters off Miami, and then remained within sight of land up the entire Eastern seaboard as far as the Northeastern tip of Maine, it would not need a Certificate of Compliance for any portion of its multi-day voyage. However, if that same tanker then departed Halifax and proceeded to Toronto, even a momentary diversion onto the U.S. side of Lake Ontario would trigger the Certificate of Compliance requirement.[x] In both instances the vessels are bound from one foreign (non-U.S.) port to another. In neither instance is the vessel calling on a U.S. port or conducting oil transfer operations while in U.S. waters. During one leg of the voyage the tanker just happens to be passing (“innocently,” one might even say) through U.S. internal waters.
On its face, this seems unjust and inefficient. It also seems to contravene the spirit of free navigation embodied in the Boundary Waters Treaty. Further, it presents an enforcement burden for the U.S. Coast Guard, which will not have the opportunity to board this vessel in a U.S. port to examine whether it possesses a valid Certificate of Compliance, but is still expected to enforce the law and protect the marine environment.[xi]
Solutions to the Regulatory Gap
Some common sense solutions are available. The simplest, cheapest fix would be to amend the text of 46 U.S.C. § 3702 (e) to reflect the spirit of the Boundary Waters Treaty by adding to the innocent passage exception “or vessels navigating U.S. internal waters of the Great Lakes solely for the purpose of calling on Canadian ports.” However, this approach of broadening an exception would create an apparent acceptance of risk to the environment that may be politically unappealing to the constituencies who rely on the Great Lakes for fishing, drinking water, and recreation.
A better solution would be to issue Certificates of Compliance to all oil tankers entering the Great Lakes during a regulatory inspection they are already required to undergo, such as their joint U.S./Canadian ballast water examination,[xii] or the St. Lawrence Seaway Development Corporation’s enhanced seaway inspection.[xiii] This latter solution would require some further coordination between the U.S. Coast Guard and its Transport Canada and St. Lawrence Seaway Development Corporation partners in order to facilitate the presence of a qualified U.S. Coast Guard marine inspector, as well as submission of an application and payment of a fee by the ship’s management.[xiv] This approach would require only a modest investment and would be consistent with previous proposals that the U.S. Coast Guard establish a permanent presence in Montreal to facilitate this sort of pre-Great Lakes inspection activity at a choke point in the system where ships are already stopped.[xv] Canadian tankers that navigate solely on the Great Lakes could be examined annually and given a Certificate of Compliance, much in the same manner that the U.S. Coast Guard annually examines Canadian bulk cargo vessels on the Great Lakes.
Why Potential Great Lakes Oil Drilling Makes Solving the Compliance Certificate Regulatory Gap Not Merely Abstract Legal Untidiness, But a Significant Regulatory Hurdle
One potential development that might alter the landscape is the renewed interest in oil drilling on the Great Lakes.[xvi] While the BP/Deepwater Horizon catastrophe has certainly dampened enthusiasm for new underwater drilling, powerful energy lobbies have had recent success in tapping into the vast oil and natural gas deposits under the Great Lakes region from land-based wells, and Ontario continues to permit operation of extraction wells in their provincial waters.[xvii] Facing rising energy prices and continued struggles to replace their historical industrial base, the states and provinces of the Great Lakes may find the allure of underwater oil and gas tempting enough to reverse their previous stance against drilling beneath the world’s largest source of fresh surface water. That would certainly draw more tankers (and attention) to the Great Lakes.
If there is any doubt a tanker could be involved in a disaster on the Great Lakes, we need look no further back than September 16, 1990 (more recent than the Exxon-Valdez) when the oil tanker Jupiter exploded while unloading gasoline in the Saginaw River.[xviii] Due to the cargo’s high flammability, the damage to the marine environment turned out to be minimal, but the episode illustrates the need for regulatory agencies on both sides of the Great Lakes to be vigilant regarding tanker safety. An important pre-requisite to effective oversight in any regulatory context is absolute clarity about what the rules are. Clarifying the applicability of the Certificate of Compliance requirements for vessels calling on Canadian Great Lakes ports is a necessary step. If the requirement is determined to apply, as it appears it should, the U.S. Coast Guard must work with its partners in Canada and the shipping industry to ensure compliance with it. Conducting a Certificate of Compliance exam in conjunction with other inspection activities, either in Montreal or in the St. Lawrence Seaway, seems to be the optimal solution.
[i] Generally 46 U.S.C. § 3701 et seq.
[ii] 46 U.S.C. § 3711 (a)
[iii] 46 U.S.C. § 3718 (a) (1)
[iv] 46 U.S.C. § 3702 (e)
[v] Convention on the Territorial
Sea and the Contiguous Zone, Apr. 29, 1958, art. 14, 15 U.S.T. 1606.
[vi] U.S. v. Louisiana, 470 U.S. 93,
113 (1985). Another regulation enforced
by the U.S. Coast Guard (33 C.F.R. § 151.2020) explicitly defines innocent
passage as excluding vessels “bound for, entering or departing a U.S. port, or
navigating the internal waters of the U.S.”
[vii] 44B Am. Jur. 2d International Law § 82
[viii] Id. Most of the conventions of the International Maritime
Organization (IMO), such as the Safety of Life at Sea Convention (SOLAS),
contain exemptions for ships that navigate solely on the Great Lakes,
reflecting its unique nature.
[ix] Boundary Waters Treaty, Jan. 11,
1909, U.S.- Can. Available at http://www.ijc.org/rel/agree/water.html#text
[x] A recent search of a
commercially available ship tracking site (http://ais.boatnerd.com/) revealed at least five tankers
navigating on the Great Lakes, only one of which was on the U.S. side of the
border. Search conducted on September 26, 2012.
[xi] Database inquiries and tracking
technologies can establish these violations with relative ease, but before
enforcement action can be taken (if desirable) the vessel can already have
“escaped” back into Canadian internal waters.
[xii] See
http://www.uscgnews.com/external/content/document/4007/1444375/1/Document.pdf
[xiii] See 33 C.F.R. § 401.
[xiv] Shipping companies might chafe at
paying a fee they have not had to pay in the past, particularly since this
approach does not remedy the apparent injustice of there being no innocent
passage on the Great Lakes. A compromise might be a reduced fee.
[xv] U.S. Coast Guard personnel based
in Rotterdam, Netherlands, Yakota, Japan, and Singapore conduct this sort of
inspection regularly for oil tankers bound for the United States. See the summarized concluding remarks Rear
Admiral Michael N. Parks, U.S. Coast Guard at the 2012 CUSLI Conference,
available at http://www.cuslinexus.com/2012/03/cusli-2012-conference-concluding.html
[xvi] For a detailed
discussion see Professor Hall’s analysis at http://www.greatlakeslaw.org/files/hall_bcealr_article.pdf
[xvii] Id.
[xviii]
NOAA’s
National Ocean Service Office of Response and Restoration, http://www.incidentnews.gov/incident/6755.
See also National Transportation Safety Board memorandum to Michigan
Gov. James Blanchard dated December 3, 1991, available at
http://www.ntsb.gov/doclib/recletters/1991/M91_44.pdf
Tuesday, November 6, 2012
Canadian News-Wrap: U.S. Election Day Edition
America’s Election Day is under-away. How is the Canadian press reacting to its southern neighbor’s billion-dollar election juggernaut (finally) getting underway?
Yes, Canadians are invading America’s elections…to the battle hymn of ‘peace-order-and-good-governance.’ For me, this iPolitics report by Colin Perkel wins the day with its slice-of-life field report exploring what drove a cluster of Canadians to canvass for Obama’s election and re-election in Pennsylvania.
Nate Silver’s Polling Magic Is Causing Headaches in Canada too. Maclean’s offers Jaime Weinman’s take on the pundit v. poll aggregator clash Nate Silver’s NYTimes 538 Blog has brought into the public square. Definitely worth a morning speed-read, but is it missing the main problem posed by Silver’s NYTimes success: if a poll aggregator, created by one arm-chair general, out-guns the Grey Lady’s field reporting and commentary, is discourse, not election auguring, be the true casualty?
Candidates Last-Minute Moves Over-Rated? Oh, and Colby Cosh—with breezy aplomb—reminds U.S. election-watchers of last-minute electioneering lessons learned from 2012’s Alberta provincial race. [Souce: Maclean's]
Breaking Down Election-Night, Hour-by-Hour. Globe and Mail offers an election-night television guide. The main thrust: we’ll know by 7:30 or tomorrow at noon—woo-hoo!
Calgary--Stop Picking on Ohio! Kevin Booker, a columnist for the Calgary Herald, casts a critical Canadian eye on the American political process:
Yes, Canadians are invading America’s elections…to the battle hymn of ‘peace-order-and-good-governance.’ For me, this iPolitics report by Colin Perkel wins the day with its slice-of-life field report exploring what drove a cluster of Canadians to canvass for Obama’s election and re-election in Pennsylvania.
Nate Silver’s Polling Magic Is Causing Headaches in Canada too. Maclean’s offers Jaime Weinman’s take on the pundit v. poll aggregator clash Nate Silver’s NYTimes 538 Blog has brought into the public square. Definitely worth a morning speed-read, but is it missing the main problem posed by Silver’s NYTimes success: if a poll aggregator, created by one arm-chair general, out-guns the Grey Lady’s field reporting and commentary, is discourse, not election auguring, be the true casualty?
Candidates Last-Minute Moves Over-Rated? Oh, and Colby Cosh—with breezy aplomb—reminds U.S. election-watchers of last-minute electioneering lessons learned from 2012’s Alberta provincial race. [Souce: Maclean's]
Breaking Down Election-Night, Hour-by-Hour. Globe and Mail offers an election-night television guide. The main thrust: we’ll know by 7:30 or tomorrow at noon—woo-hoo!
Calgary--Stop Picking on Ohio! Kevin Booker, a columnist for the Calgary Herald, casts a critical Canadian eye on the American political process:
Also, as has become customary, the liberals in Kansas and the conservatives in California will cast largely meaningless ballots. If pundits are correct, it will come down to only one state, Ohio, whose reputation for election mismanagement has been well established.
The U.S. loves to portray itself as a beacon of freedom and democracy. But when it comes down to democracy's mechanistic realities, that beacon is currently flashing an SOS. Sadly, perhaps impossibly, a total overhaul is what's needed.
Monday, November 5, 2012
Call for Papers: Canada-United States Law Journal 2013 Issue
Email submissions to cusli@case.edu.
Read the Journal's 2013 call for papers below for details.
Niagara International Moot Court: Register Now—and Be Heard by a Supreme Court of Canada Judge, UN Security Council Terrorism Sanctions Committee Ombudsman, and Former Head of the DOJ’s Justice Office of International Affairs
Tomorrow is Election Day in America, and the last day to register for the 2013 Niagara International Moot Court Competition! The competition will be held in Toronto next February 28th through March 2nd.
And if the tournament’s timely topic isn’t enough—exploring the thorny obligations under international law when it comes to stamping out terrorism financing in a complicated, globalized world and asylum law—competitors and attendees should check out the competition’s Final Round judges:
- Kimberly Prost, UN Security Council Terrorism Sanctions Committee Ombudsman and former judge on the International Criminal Tribunal for the former Yugoslavia;
- Thomas Snow, US Immigration Law Judge and former head of the Department of Justice Office of International Affairs; and,
- The Honourable Mr. Justice William Ian Corneil Binnie, Justice on the Supreme Court of Canada.
Saturday, November 3, 2012
Toronto's Lower Don: The Challanges of Urban Redevelopment
By Keith Edmund White
New Spur of Residential Development Triggers New Greenway Project to Consolidate the Lower Don's Recent Gains
The Globe and Mail reported Friday on the commercial kick-start that may trigger a lasting, and full-scale redevelopment on The Lower Don:
Challenges Facing Lower Don's Redevelopment
What seems to be the problem with re-starting the Lower Don? This SpacingToronto 'reality check' helps answer that vexing question:
Editor-in-Chief
The Lower Don, once a industrial hob of Toronto's industrial era, has fallen on hard times, and has now lived through over 50 years of redevelopment attempts. The appeal of the Lower Don is obvious: if prudently developed, the Lower Don offers an ideal urban living space for a growing metropolis. But after decades of fits and
starts, will large-scale residential construction now underway, will large-scale residential development finally kick-start the redevelopment of the Lower Don?
 |
| Images taken from Canadian Geographic, Evergreen City Works, and WATERFRONToronto |
Quick
Facts About the Lower Don
The Lower Don Lands is a
125-hectare (308-acre) area that runs from East Bayfront (the Parliament Street
Slip) east to the Don Roadway and from West Don Lands (the rail corridor) south
to the Shipping Channel. (Source: WATERFRONToronto)
As of 2000, over the Lower Don—or
Ward 25 that covers the Don Rive—boasted
84,000 inhabits. (Source: City of Toronto Website)
Why did the Lower Don fade? The Lower Don area initially developed as an
industrial center. And with the dawn of the Industrial era, the Lower Don faced a slow death—leaving this unique waterfront area left with environmental scars. From the Canadian Geographic Magazine’s June 2011 article "Death and Rebirth of the Don River":
At the time of the Funeral for the Don, the river’s 36,000- hectare watershed was easy to divide into three regions. The foulest area was near the river’s southern terminus. Rebuilt in Victorian days as an industrial artery for a restless Dominion, the lower Don was a font of goods, everything from flour, lumber, paper, wool and brick to Coleman lanterns, Sunlight soap, Woods tents and sleeping bags, Gooderham’s Bonded Stock whisky and probably even the metal pails Love used to carry the deceased to the funeral. (The Don’s industrial role was no accident. Upper Canada’s first Lieutenant-Governor, John Graves Simcoe, decided to build the new capital of York — now Toronto — east of the river to take advantage of its timber and the sheltered waterfront created by a large peninsula and marsh. As a result, the Don was close to shipping and eventually became a railway corridor, while the larger Humber River, to the west, was surrounded first by farms and later housing.)
…
What the mourners couldn’t have known is that the industrial Don was on the verge of a dramatic transformation (see timeline above). When James Onyschuk worked at a riverside warehouse in the 1960s, he’d occasionally check to see what colour the river was: pink, maybe, or bright blue, courtesy of the dyes from an upstream paper mill. Today, former factories have become trendy lofts and upscale car dealerships. North of the funeral site, the plant that provided the material for much of Toronto’s stolid Victorian architecture has been rebranded as the Evergreen Brick Works. It’s an environmental community centre and tourist draw, complete with a farmers’ market and workshops on water conservation, bicycle repairs and home canning.
…
“In the Don, there’s 150 years of history to reverse,” says Ontario Ministry of the Environment research scientist Paul Helm. Change on that scale “doesn’t happen on a dime.”
Enough dimes, however, will soften history’s more egregious insults, and a series of successful regreening efforts offer hope for a broader transformation of the river. When Nancy Penny moved to her Scarborough neighbourhood in the 1970s, the local section of Taylor Massey Creek was confined to what she calls a “concrete ditch” running through parkland that was “basically a dog toilet: a grass field with a few trees.”
New Spur of Residential Development Triggers New Greenway Project to Consolidate the Lower Don's Recent Gains
The Globe and Mail reported Friday on the commercial kick-start that may trigger a lasting, and full-scale redevelopment on The Lower Don:
Evergreen has just launched the Lower Don Greenway Project, a collaboration with the city and the Toronto and Region Conservation Authority (TRCA) to pick up where the now-disbanded Task Force to Bring Back the Don left off.Who’s building the new residences that would be the beneficiary of building such “accessible green space”? WATERFRONToronto, whose 2012/2013 Corporate Plan (pages 2-3) includes plans to renovate East Bayfront, West Don Lands, Central Waterlands, and other Toronto areas. And guess what? WATERFRONToronto itself a public development corporation created by the Canada national government, the province of Ontario, and the city of Toronto. But, critically, this group has leveraged private funds to fuel the Lower Don’s redevelopment, with investments from organizations including Urban Capital.
The aim of Evergreen’s project – and a city-sponsored planning study that will be announced this week – is to make the valley accessible green space for the 80,000 people expected to move into nearby infill housing.
The lower valley has come a long way since 1989 when it was a no-go area and the task force was launched. As the staff co-ordinator for eight years Mr. Stonehouse saw fences come down and bridges go up, wetlands and trails created.
But the valley is in danger of falling off the radar, according to Mr. Stonehouse. “We need public engagement to create a bandwagon effect,” he says, adding, “There needs to be a wish list.”
Challenges Facing Lower Don's Redevelopment
What seems to be the problem with re-starting the Lower Don? This SpacingToronto 'reality check' helps answer that vexing question:
-disagreements on how to develop the space—e.g super-mall anchored development vs. urban feel),The apparent result: a stop-and-start, staggered approach to the Lower Don's redevelopment, which often seemed a breathe away from flat-lining.
-the costs of greening the Lower Don (not to mention addressing the ravine’s inherent flooding risk),
-and disagreements over whether the cost of full-scale redevelopment would be paid back—in less than 10 years—by tax revenue.
But with the launch of a new 80,000 residential construction project, it now seems the Lower Don redevelopment effort now has the commercial muscle needed to kick-start and, hopefully, complete the revitalization of an waterfront area once considered a casualty of Toronto's industrial past.
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