Linda, where does your personal interest in the Arctic come from?
It comes from a variety of sources. I grew up speaking Norwegian in Seattle. My family in Norway would send things from Norway like clothes from Lapland and Norwegian books and became very interested in pictures and stories about the Sami people. I even had some traditional clothing: sealskin boots with the embroidery and the matching hat and mittens. And my mother would send me to school like that – in the United States and I was absolutely delighted. I also became very interested in indigenous peoples. I learned what I could from what was available to me in the United States in the public library in my little neighborhood – that wasn’t very much. But as I did that, I started finding references to other indigenous peoples, and I became very interested in the indigenous peoples in South and North America.
When I went to law school, I had the opportunity to work for a professor of Indian law and fell in love with Indian law. When I graduated from law school, amazingly a small law firm that represented Indian tribes moved from Albuquerque, New Mexico, to Salt Lake City, Utah, where I was going to law school and they offered me a job. So I started my career working for native indigenous groups. It’s like international law but looking at it from the perspective of Native American history. I also had opportunities to represent other groups subsequent to that with significant civil rights issues, such as people in psychiatric hospitals, jails and nursing homes. That’s the work that brought me to Washington DC, where I became the Acting Legal Director at the Bazelon Center for Mental Health Law in Washington DC. From there, I was asked to join the White House Office of Drug Policy to work on legal issues regarding drug and alcohol abuse and dual diagnosis. When I left, I had the opportunity of joining the firm – Culhane Meadows PLLC – where I am now.
That was at the same time when all of the issues on the Arctic were emerging and I became secretary of the NACC (Norwegian American Chamber of Commerce) in DC. The NACC in DC were very interested in what was happening in the Arctic and sustainable development and stakeholder engagement, and so I expressed an interest in covering that activity in Washington DC and they were delighted. So I had the opportunity in Washington DC to attend public meetings regarding policy development in the US Arctic where I could provide input, suggest resources, suggest persons that should be consulted and areas of law that might be overlooked, and also alert stakeholders about opportunities not only to attend but also to have input via alternative means and technologies. Very few people living in rural Alaska can actually come to Washington DC and share their input.
How do you get to represent someone in Alaska and how do you get to connect with them?
It’s certainly by referral. What makes it more difficult are technology issues. When I had an opportunity, when the US became Chair of the Arctic Council, to suggest priority areas for infrastructure, the very first thing that I suggested was telecommunications. And it certainly has been improving; the US has made significant efforts to advance infrastructure development, technology and communication in the US Arctic. They have also provided more and more alternative means of communication for folks living in rural areas. A lot of it has actually been policymakers traveling to Alaska rather than expecting people to do the usual and come to them. So they have gone to the US Arctic to meet directly with representatives of the people living there.
Do you feel like there is an increased interest in Washington in the Arctic and an interest to engage?
Absolutely. It’s not only motivated by the fact that the US is chair of the Arctic Council right now, but also that President Obama is very concerned about climate change and the implications of climate change in the US and particularly on our pristine Arctic. He has made it a high priority in his administration and has established a steering committee that includes all of the various US agencies that have any connection to the Arctic. He requires them to meet regularly and do strategic planning. That has all made a huge difference in to raising the priority and visibility of Arctic issues in the US and for people living and working there to have input into that policy development. One big example of that is tapping into indigenous knowledge. We have tended to do things from afar and fund science to look at all different things without consulting the people living there. More and more researchers are actually going to the area and talking to the local indigenous hunters if they want to know about a certain animal, for example. That is happening more and more; it is not perfect, and there is still a lot of work to be done and opportunities for stakeholders to have better and more effective engagement, but it’s certainly a big improvement.
With all this change going on, especially related to climate change, I am sure there is an increasing need for regulation, and currently this legal regime is rather fragmented. Where do you see the need for improvement? Where do you see gaps in that system?
The thing that is the most difficult is the national jurisdiction of the countries across the Arctic. It is not always easy to get countries to cooperate. The Arctic Council has a good reputation of fostering cooperation between the Arctic States and in coming up with policies for a sustainable future. The challenge is that the Arctic Council doesn’t have enforcement authority. So the Council can develop wonderful international agreements, but the resources to enforce those agreements depend on enforcement priorities of each of the individual Arctic countries. Oftentimes, agreements are not enforced with the strength of law that they could be. It will be up to the enforcement priorities of the leadership or administration of the country at the time. So the US in particular is often criticised for not enforcing international law. If a relevant US law exists, the US will often enforce that instead. The criticism of that by other countries and/or international stakeholders or industry is that US law will often be stricter than international law. It can create a situation, let’s take shipping for instance, where depending on where the ship goes, it will be subject to different legal standards regarding its operations. This generally makes it more difficult and costly for companies to comply with the laws. Tackling this issue was the intention of the Polar Code, recently developed by the International Maritime Organization. However, planning for enforcement is not developing or progressing as quickly as originally anticipated. So compliance by industry with the Polar Code is currently behind – not just in the US, but everywhere. So, with regard to the Polar Code, we just have to see to what extent it will have a beneficial impact over the long run.
Linda, what would be your recommendations with regards to making this system easier to understand and navigate?
I also look out for the interests of businesses that want to be active in the Arctic, but are also very concerned about maintaining a sustainable Arctic not only for themselves, their owners and shareholders but also for the world and for the indigenous peoples living there. They want their activities to be beneficial for everyone and they want to know how to do the right thing. You are exactly right that it can be very confusing and very difficult to do. Two things that I have been quite surprised about when it comes to international law making, two major groups of stakeholders have often not been adequately represented in the discussion: industry and indigenous peoples. Many governments will be represented and sometimes international non-governmental organisations will participate, but industry itself is not necessarily represented in the development of international laws. The consequence is that policy is formulated without their input or without very much input but they are expected to comply with it when they haven’t participated in the process to develop the legal standards. So that’s a big concern. The same can be true for indigenous groups.
Do you feel like the law that is currently in place encourages business activity or rather deters it?
Overall, that’s not really possible to say. Regulation in the US Arctic is extremely industry-specific. There has been an increasing dialogue between US policy makers and industry with regard to how to operate in the US Arctic. There is significant concern in the Obama administration that if things go wrong in the pristine Arctic, they cannot necessarily be corrected quickly. Take subsistence hunting, and the implications of oil and gas development, shipping, cruising and all kinds of other commercial activities on those hunting activities.
Further, all of that commercial activity unfortunately also has the potential to increase climate change and warming in the Arctic. The standard shipping fuel is called ‘heavy fuel oil’, and it is the least refined of all of the fuels. It’s very thick with material that does not burn completely. So when it comes out the ship stack, there is a lot of black soot, black particles that didn’t burn and land on the ice. The black soot darkens the surface of the ice and attracts and holds more heat so the ice under it melts more quickly. So it becomes this cycle: the ice is melting so the ship can come through, but the ship is sending out black soot that is landing on the ice attracting more heat from the sun and causing more melting. So data shows us that, for a variety of reasons, the Arctic is warming at least twice as fast as the rest of the globe. Some people say as much as three times as fast.
Does that mean that we need to first develop a more cohesive regulatory framework and then move ahead with the industrial development. Or what conclusion would you draw from that?
To some extent, there is a disconnect when you talk about clean fuel for shipping. Unfortunately, it hasn’t been a high priority previously. So for ships to retrofit to use cleaner fuel is expensive and time consuming. The other thing is that there is not necessarily availability of the cleaner fuel in the areas where they need to refuel. So, even if they wanted to use cleaner fuel, it is not necessarily possible depending on where the ship is at the time. There are internationally recognised Emission Control Areas, for example, along the western coast, but as far as I know, so far it does not extend into the Arctic. If a ship were to come from the east and fuel up in Portland or Vancouver, they would have cleaner fuel available, and they are required to use it. But, then again, not all the ships in their fleets will have the capacity to burn the cleaner fuel. So that’s an issue – there is a lot of catching up to do.
What approach would you suggest to get to a more cohesive or holistic system – with regards to implementation and regulatory policy?
I don’t know if you have been following the situation with the cruise ship Crystal Serenity; I have been watching it closely, and it’s been getting high marks from many stakeholders, including some conservation groups and indigenous people. When it was first announced, it was very controversial, and there was a lot of concern about it. Not just from the US, but also Denmark, on behalf of Greenland, was very concerned, and certainly Canada as well.
As I understand it, their Norwegian-American ship captain initiated a stakeholder engagement tour as they were planning where the cruise would go and how it would operate and who was going to accompanying it, in terms of resources for search and rescue and ice breaking and other needs. So he began visiting Canadian local communities and the various government agencies that were responsible for the conduct of the ship as it made its voyage through Canada. That was a couple-year process during which people in Canadian communities were given an opportunity to express their concerns directly to the company and the company was able to be responsive directly to the indigenous and the non-indigenous communities in Canada along the route. The result has been a partial collaborative success story. The media reports that the Crystal Serenity exceeded in many ways the international and national standards regulating them. They used low sulfur fuel and were careful with anything that could leave the ship, such as water or trash and other things. Regrettably, it is my understanding from indigenous leaders in Alaska that not all communities impacted by the Crystal Serenity cruise were consulted by the company such as indigenous subsistence hunters in Alaska. So while it appears to be a good start, there is still much more work to be done to accomplish a sustainable Arctic for all.
So stakeholder engagement is key here, Linda?
I think so. You really want the people that are experienced with day-to-day life in this sensitive area to be able to give you advice and counsel on how they succeed living in that harsh climate.
Is that a politically feasible model for broader, bigger regulatory projects? – It appears to be politically difficult, time intensive and resource intensive.
It absolutely is, and the tickets for that cruise are very expensive. What I am hoping is that communication technologies will provide more and more opportunities for people to come around a table together. For example, for us to have this chat live between Germany and DC would not have been possible all that long ago. That is why I am so committed to see improved telecommunications in the Arctic, because I think that can make a huge difference in people being able to interact live, in real time and have that dialogue and give and take. And it can be much more affordable than traveling to a remote location every time you want to talk to someone there.