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

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