A push for the third rail of conservation


Editor’s Note: The following is the winning speech the author delivered at the 33rd Annual Attorney General’s Cup speech competition last Friday at the Guma Hustitia in Susupe.

Tell them we have seen it rising,
flooding across our cemeteries, gushing over our sea walls…
Tell them we don’t know of the politics or the science
but…we see what’s in our backyard.
[And] tell them…we don’t want to leave
[because] we are nothing without our islands.”

On Sept. 23, 2014, with her husband and newborn child by her side, a young Marshallese poet, Kathy Jetnil-Kijiner, spoke these words to the United Nations, delivering her now famous poem, “Tell Them.” With a standing ovation, it was a moving call to action that inspired hope across the world to save our islands from sinking into the sea.

Unfortunately, two and a half years later, with countries backing out of the Paris Climate Accord, business interests trumping the environment and sea levels continuing to rise, one thing is clear: nothing has changed, leaving us to wonder if Jetnil-Kijiner’s poem of hope was nothing more than a message in a bottle lost in a rising sea of empty promises, political apathy, and environmental decay.

Today’s topic, though, gives us a chance to find that bottle, hear its message, and make a difference. Today, we can finally listen to what Jetnil-Kijiner, scientists, and our ancestors have been telling us all along: take care of our islands, take care of our planet, take care of our home.

That is why we must work through the challenges of federalism in order to protect our natural resources. To do that, I will discuss three aspects of today’s topic.

First, I will examine how federalism operates here in the CNMI.

Second, I will critique local and federal efforts to protect our natural resources.

Third and last, I will propose how federal and local officials can protect our environment, especially within the context of the Antiquities Act, the Endangered Species Act, and marine sanctuaries and conservation areas.

To begin with, let us take a look at federalism.

As set forth by the 10th Amendment, federalism divides powers between the states and the national government. And although the Covenant excluded the 10th Amendment, it did so in order to uphold our internal sovereignty. In political theory, this is called dual federalism, with some powers granted to the central federal government, and all remaining powers reserved for the states and our Commonwealth.

However, in contrast to this de jure concept of dual federalism, the de facto reality is one of coercive federalism. As Paul Posner from George Mason University has argued, the centralization of federal power that started during World War II has intensified over the past 40 years.

At the national level, this has led to a wide range of preemptive statutes, unfunded mandates, and regulatory overreach. At the local level, we have seen this coercive federalism in our labor and immigration system, intrusive federal oversight, and decisions made by officials thousands of miles away who know almost nothing about who we are and what we face.

This coercive system reflects one simple fact: the federal government has become too powerful. You would think, then, that with all that power, the U.S. government could effectively protect our environment.

Sadly, though, that has not been the case, which brings me to my second point: Our leaders have failed to protect our natural resources.

U.S. environmental policy has been woefully inadequate, whether it be the Bush administration’s refusal to adopt the Kyoto Protocol, the Trump administration backing out of the Paris Climate Accord, or an EPA director that doesn’t believe in the science of global warming.

As if that weren’t bad enough, the federal government has also supported business interests over the environment, such as the Trump administration’s approval of the Dakota Access pipeline or its call for more coal mining.

The federal government also has a terrible track record here, with the military’s toxic waste at the Tanapag cemetery, the proposed bombing of Pagan, or the actual bombing of Farallon de Medinilla.

Even supposed efforts to protect the environment have done more harm than good. Take, for example, the Marianas Trench National Marine Monument, a coercive federal declaration that was even supported by the Obama administration.

As John Gourley of Marianas Conservation wrote in a letter to President Obama, “Under the pretense of conservation, U.S. mainland politics took away our access and extraction rights over vast areas of the ocean that have traditionally been used…by Mariana Island communities for thousands of years.”

In that way, the Marianas Trench monument has restricted, not protected, this precious natural resource.

However, even with the failures of the federal government, our local government has done no better. Although there are a ton of environmental laws on the books, our local officials have, time and time again, failed to enforce those laws.

In the 1990s, local agencies did nothing to prevent the garment industry from building Mount Puerto Rico with garment waste, which led to periodic fires that closed down Garapan under clouds of black smoke.

At the turn of the century, our coastal resource management program was so poorly run that we lost millions of dollars in grants.

More recently, officials have stood by, doing virtually nothing, as Imperial Pacific violates all sorts of environmental laws by simply paying fees and not changing its practices.

And, at a simple but no less important level, ask yourself: When was the last time you or anyone you know was fined for littering our beaches?

The net result of these failures has been catastrophic. Our coral reefs are deteriorating. Our beaches are routinely red flagged. And our fishing stocks are being depleted.

These are just some of the many ways that both our national and local leaders have failed our islands.

But we cannot and should not sit back and do nothing. This brings me to my third and final point. The only way we can save our environment is for the federal government and the CNMI to work together.

Earlier, I distinguished between dual federalism and coercive federalism. However, there is another option: cooperative federalism.

In this model, rather than dividing power or competing for jurisdiction, federal and local officials collaborate to achieve shared goals that benefit everyone.

We witnessed this in the 2015 response to Typhoon Soudelor, which involved coordinated efforts between numerous federal and local agencies.

As a result of those efforts, in a few short months, food and shelter were made available to all in need, basic utilities were restored, and the islands began the steady path toward recovery.

That level of collaboration was a testament to what we can do together, especially in response to a crisis. And the crisis of our environment demands that same level of collaboration.

So, in that spirit of collaboration, how can we use cooperative federalism to protect our natural resources?

First, instead of using the Antiquities Act, we should shift to the Magnuson-Stevens Act and the National Marine Sanctuaries Act, both of which give the CNMI more voice and agency over our natural resources.

Second, in the spirit of the Covenant, the Endangered Species Act should be amended and adapted to respect the unique needs of our local culture and economy while still protecting endangered species.

Third and last, given how important our natural resources are, Section 902 of the Covenant should be the primary tool for identifying sanctuaries and conservation areas, with special attention paid to the fishing and harvesting needs of the CNMI.

These examples of cooperative federalism will help us all work together to protect our natural resources and save our environment.

Because only by working together can we heed the calls of scientists, our ancestors, and Kathy Jetnil-Kijiner to take care of our home.

But I have no illusions about how hard it is to work together, especially when so much is at stake. Perhaps, then, we should look back to our heritage and learn a lesson from the House of Taga.
After a lifetime of heroic triumphs, Taga grew jealous of his youngest son, who was growing stronger than Taga. In a rage, Taga killed his son. His wife then died, overcome with grief, his daughter murdered him, and all his remaining children died in misery over the whole tragedy. This all happened because they were fighting over one thing: power.
Imagine, instead, if they had fought to keep their family together, just as Kathy Jetnil-Kijiner is fighting for her family and fighting for her home.
Imagine if they fought to keep the House of Taga standing.
So, instead of arguing about power and authority over our natural resources, the federal government and our Commonwealth should share responsibility for those natural resources.
And instead of fighting against each other, we should work with each other to protect our natural resources, to save our islands from sinking into the sea, and to keep our house standing.


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