About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

12 Ocean L. Memo 1 (1979)

handle is hein.journals/ocoaslme12 and id is 1 raw text is: Ocean Resources Law Program * School of Law * University of Oregan * Eugene * OR 97403 Ocean La Mem issue ii February 197Q Developing Oil and Gas Resources from the Outer Continental Shelf: Legal Management Capabilities in Oregon With the passage of the Outer Continental Shelf (OCS) Lands Act Amendments of 1978, new opportuni- ties became available to states and local govern- ments to participate in the OCS leasing program. This legislation and the increase in West Coast oil production has alerted coastal states to the certainty of further petroleum related activities and the magnitude of their potential impacts. In January, 1977, the governor appointed an inter- agency Task Force on Outer Continental Shelf Oil & Gas Development to define Oregon's role in the OCS development process. The University of Oregon Ocean Resources Law Program prepared a series of reports for the task force use on the legal aspects of state and local management of offshore oil and gas development and associated facilities. This issue of the Ocean Law Memo contains abstracts of those reports. The reports were funded under the Oregon 305 Outer Continental Shelf Development Grant provided by the Coastal Zone Management Act of 1972 as amended through the Office of Coastal Zone Management, NOAA, and administered by the Oregon Department of Land Conservation and Develop- ment. Limited copies of the complete reports are available at cost for the Department of Land Conservation and Development and the Ocean Re- sources Law Program. PREEMPTION The doctrine of preemption results from the Supremacy clause of the Constitution (Art. VI, cl 2), which mandates that the laws of the federal government have priority over state or local regulations when a conflict develops. Traditionally, preemption of state law by federal law is a matter of Congressional intent. This intent may be explicit. When creating some legislation, Congress will indicate if and to what extent the states remain free to regulate in the same area. More often, however, Congress is silent in this respect. Depending on the nature of the state and federal regulation involved, the courts may infer Congressional intent to pre- empt the states' power. If it is physically im- possible for someone to obey both regulations, or if the state regulation somehow hinders the pur- pose of the federal regulation, the courts will hold that the conflict between the two powers indicates an implicit Congressional intent to preempt state regulation. Intent to occupy the field of regulation, either explicit or implied involves a hybrid analysis of supremacy and commerce clause considerations. Under the commerce clause state or local regulation may not burden inter-state commerce unless the re- gulation is necessary to further an important local interest. Again, Congressional intent to occupy an area of regulation, to provide for uniformity of regulation in the area in question, may be ex- plicit. Sometimes, however, the courts will add commerce considerations to the statutory analysis, balance the federal and state interests involved and hold that the state regulation is preempted by federal act because the field of regulation itself requires uniformity. This is referred to as implicit Congressional intent to occupy the field and thus prevent the states from acting. State licensing of federally owned facilities is presumed by the courts to be forbidden on supre- macy grounds unless specifically allowed by Con- gress. When such a situation is brought to the courts, the terms of the federal statute allowing such state regulation are strictly construed against the states. This bias of the courts in favor of federal exemption from state regulation indicates that the courts may strictly construe the consistency provisions of the CZMA against the states. For example, the CZMA provides that the Secretary of Commerce may override a decision of non-consistency with the state program if she finds that the action in question either is con- sistent with the federal CZMA, or else is neces- sary for national security purposes. In light of the court's past actions, these override provi- sions may be interpreted to hinder state regulation of federal activity at every turn. To avoid such a development, an amendment by Congress to the CZMA may be needed. Disribtedby:050Extnsin Srvie' eaGrant Marine Advisory Program. Corvallis n on , .Lssue 1L2 February 1979 k/'tL7 Distributed by: OSU Extension Service' Sea

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most