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1986 Coastal L. Memo 1 (1986)

handle is hein.journals/ocoaslme1986 and id is 1 raw text is: Ocean and Coastal Law Center * School of Law * University of Oregon * Eugene 97403 A Coastal Law memo Federal Consistency Under the Coastal Zone Management Act Revisited The Coastal Zone Management Act (CZMA) was enacted in 1972 to encourage the prudent management of natural resources in the coastal zone. Pub. L. No. 92-583, 86 Stat. 1280 (1972) (codi- fied as amended at 16 U.S.C. SS 1451-64 (1982)). The operation of the act as amended in 1980 and prospects for the future were discussed in Coastal Law Memo No. 2 (April 1981). The Act provides two incentives for states to develop coastal management programs: federal grants to fund the programs and the requirement that fed- eral activities be consistent with the states' plans. However, under the Reagan administration, the federal fund- ing of state programs has been reduced. The National Oceanic and Atmo- spheric Administration (NOAA) has char- acterized the 1980's as a post-funding era for state programs. NOAA no longer funds new proposals and only those states that can prove critical funding shortages may receive other remaining funds. Thus, the consistency provisions remain the principal incentive for states to comply with the CZMA. The CZMA mandates that all federal activities directly affecting the coastal zone be conducted in a manner consistent with a federally approved state coastal zone management plan. Because the CZMA does not define the term directly affecting, administra- tive and judicial interpretation of the phrase is controlling. Coastal Law Memo No. 4 (March 1983) examined judicial interpretation of the consistency provisions of the CZMA by focusing on two cases, California v. Watt, 683 F.2d 1254 (9th Cir. 1982), rehearing denied, Nov. 10, 1982; and Kean v. Watt, No. 82-2420 (D. N.J. Sept. 17, 1982). However, the United States Supreme Court overruled the Ninth Cir- cuit California v. Watt opinion, radi- cally changing the judicial interpreta- tion of the consistency provisions of the CZMA. The Supreme Court in Clark v. California, 464 U.S. 312 (1984) , held that the Interior Department was not required to perform a consistency review before the sale of oil and gas leases on the outer continental shelf (OCS). The decision cast doubt on the application of the consistency requirement to anv activity not physically within the coastal zone, reducing the effectiveness of the CZMA. The Kean v. Watt case was reversed and remanded by the Court of Appeals for the Third Circuit. The Court of Appeals considered two issues: (1) whether the sale of OCS oil and gas leases directly affects the coastal zone within the meaning of S 307(c) (1) of the CZMA, and (2) if S 307(c) (1) applies to a lease sale, whether the term directly affects includes economic or social impacts as well as physical impacts on the coastal zone. Following the Supreme Court's Clark v. California lead, the Third Circuit reversed the district court's determination and found that lease sales are not subject to q 307(c)(1)'s consistency requirements. The Court of Appeals also remanded the second issue with instructions to dis- miss it as moot. Thus, the district court's holding that the CZMA protects only against inconsistent physical impacts on the coastal zone is no longer effective. It remains to be seen whether directly affects includes social or economic impacts as well as physical impacts on the adjacent coastal zone. This Coastal Law Memo examines the Court's construction of the consistency provisions of the CZMA and the Court's reasoning in Clark v. California. Implications of the decision, as well as several post-Clark v. California cases, are also discussed. Because the Inte- rior Department's proposed 1987-91 program of oil and gas lease sales includes sales off Oregon, Washington, and Alaska, how these issues are ISSUE 5 MARCH 1986

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