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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