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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