16 Nat. Resources L. Newsl. 1 (1984-1985)

handle is hein.journals/trends16 and id is 1 raw text is: 

           A Further Analysis of Section 18 of the
Outer Continental Shelf Lands Act: California v. Watt, a
                  Common Sense Interpretation
                            Paul B. Smyth *

I. Introduction
In my first article on section 18 of the Outer Continen-
tal Shelf Lands Act, 43 U.S.C.  1344 (Supp. II
1978)(OSCLA), I discussed whether section 18 was
part of the problem or the solution to OCS leasing
uncertainty.' The section requires the secretary to pre-
pare and maintain a 5-year Outer Continental Shelf
(OCS) oil and gas leasing program. I concluded that
section 18 had increased the level of uncertainty by in-
troducing additional substantive factors for secretarial
consideration, thus providing new grounds for attack
by opponents of OCS leasing. In its recent decision of
July 5, 1983, the U.S. Court of Appeals for the D.C.
Circuit has added a new chapter to this story sig-
nificantly improving the situation.' Rather than suc-
cumbing to a barrage of highly technical arguments
levied against the program, the court upheld it by
applying common sense.
II. Background
On October 6, 1981, the court of appeals remanded
the then existing leasing program to Secretary Watt
on grounds that Secretary Andrus had not fully com-
plied with section 18.3 Since Secretary Watt had
already begun the process of revising and reapproving
a new program under the provisions of section 18(e),
the relief raised the question whether the secretary
would be required to restart the section 18 approval
process. On January 19, 1982, the court ruled that the
secretary could rely on the procedures already com-
pleted  and   approved   the   secretary's proposed
timetable for completing the revision.4 The timetable
was met, and on July 21, 1982, the secretary approved
the final 5-year OCS Leasing Program for the years

  *The author is now the Assistant Solicitor, Land Use, in the Divi-
sion of Energy and Resources, Office of the Solicitor, U.S. Depart-
ment of the Interior. He was the lead attorney involved in the July
1982 reapproval of the 5-year OCS Leasing Program. The opinions
and views expressed in this article are his own and do not necessari-
ly reflect those of the Department or Office of the Solicitor.

  The program was immediately challenged by the
original petitioners who sought expeilited review. Ex-
pedited review was resisted by the government on the
grounds that it would not allow participation by other
possible petitioners who under section 23(c) of the
OCSLA had sixty days from the date of approval of
the program to challenge it.' Indeed, this view was
correct since several new petitioners joined the litiga-
tion including the states of Florida, Washington and
Oregon, and several environmental and conservation
  The court denied expedited review and on July 5,
1983, issued its opinion on the reapproved OCS leas-
ing program.
III. The Litigation
A. Standard of Review
In the initial litigation (Watt I), the court ruled that a
hybrid standard of review applied to compliance with
section 18.' The court analogized the section 18 ap-
proval process to that of informal rulemaking under
the Administrative Procedure Act.' It held that when
reviewing findings of ascertainable fact made by the
secretary the substantial evidence test applies, but
when reviewing secretarial policy judgments the
courts must determine whether the decision is based
on a consideration of the relevant factors and whether
there has been a clear error judgment.' The court
also stated that while the secretary's legal interpreta-
tions are entitled to deference, statutory interpreta-
tion ultimately lies with the judiciary.'
   In its second decision (Watt II), the court recog-
nized that petitioners primarily challenged the ade-
quacy of the secretary's analysis rather than his inter-
pretation of the statute.' Consequently, the court
held that a more deferential standard applied. The
court seemed to merge the first two standards it so
carefully distinguished in Watt I:
   [Petitioners] question the factual findings or policy
   judgments at the base of the Secretary's conclusions.

                               (continued on page 9)

Copyright  1984 American Bar Association

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