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14 Nat. Resources L. Newsl. 1 (1982)

handle is hein.journals/trends14 and id is 1 raw text is: AN ANALYSIS OF SECTION 18 OF THE OUTER CONTINENTAL SHELF LANDS ACT AS INTERPRETED IN CALIFORNIA v. WATT: HAS IT ACCOMPLISHED ITS PURPOSE? Paul B. Smyth* I. Introduction Prior to the enactment of the 1978 amendments to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. (Supp. 11 1978) (OCSLA), oil and gas lease sales on the Outer Continental Shelf (OCS) were held at a pace determined by the Secretary of Interior who took into consideration myriad factors including na- tional energy goals, industry interest, environmental constraints and budgetary limitations. This, coupled with litigation under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4221 et seq. (1976), resulted in the scheduling of lease sales subject to administrative delays, court injunctions, and political tradeoffs. The effect on industry and government planning and the development of offshore resources was far from ideal. Congress amended the OCSLA in 1978 in response to this problem. Unfortunately, extensive delays have continued, increasing the level of uncertainty in the offering of leases. In fact, since 1978 court challenges to lease sales have intensified rather than diminished. Prior to the 1978 amendments, less than one OCS-related suit per year was being filed. In the past three years, how- ever, the average has been nearly four suits per year. This article examines section 18 of the OCSLA, which requires the Secretary to prepare and maintain an oil and gas leasing program consisting of a sched- ule of lease sales for a five-year period. Given the recent interpretation of section 18 by the U.S. Court of Appeals for the District of Columbia Circuit, this article will evaluate whether section 18 is part of the problem or the solution to leasing uncertainty. (continued on page 13) *The author is an attorney with the Office of the Solicitor, Divi- sion of Energy and Resources, U.S. Department of the Interior. The opinions and views expressed in this article are his own and do not constitute and do not necessarily reflect those of the Depart- ment or Office of the Solicitor. NEW SPIRIT OF COOPERATION BETWEEN EPA AND OTHER FEDERAL AGENCIES* Robert M. Perry I. Introduction During the previous administration, EPA all too fre- quently took a confrontational posture toward the Department of Defense and other federal agencies. The staff of the Office of Federal Activities concerned with controlling the pollution of federal facilities was transferred to EPA's enforcement branch. More dra- matically, EPA actually sought to bring enforcement lawsuits against other federal agencies. Fortunately, sanity prevailed. The Department of Justice and OMB intervened to stop this radical plan, questioning how the government could sue itself, who would pay any fine, and arguing that the executive branch should be able to clean its own house without the intervention of the judiciary. EPA will no longer take such an abrasive stance in its dealings with the Defense Department. In imple- menting our environmental laws for federal facilities, EPA should cooperate with other agencies. If we be- lieve that compliance measures are needed, our first response should be quiet diplomacy, rather than confrontation. EPA's relationship with the Department of Defense is especially important because of the Department's size and the scope of its activities. Department of Defense pollution abatement projects account for about 80 percent of the expenditures for compliance with environmental laws by all federal agencies. In 1981, the Department of Defense spent more than $240 million on pollution control projects. In fact, the Defense Department may have the most massive and complex environmental compliance burden of any U.S. entity, public or private. I would like to briefly sketch the legal history of envi- ronmental regulation of federal facilities up to the issu- ance of Executive Order 12088 and the rise of the power (continued on page 19) *This article is an excerpt from a speech delivered by EPA General Counsel, Robert Perry, on November 9, 1981, before the Pentagon Chapter of the Federal Bar Association. Copyright © 1982 American Bar Association Produced by the ABA Press

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