Respondents Brief — Western Oil & Gas Association v. California

Nos, 82-1326 and 82-1327 AUG vc

= = —== — — —————SS——————

In the Supreme Court~—~-

H}

United States

)

Pespondents

BRIEF OF RESPONDENTS

COUNTY OF HUMBOLDT, ET AL

I rn BE Rs

COUNSEL OF RECOKD

inRYN Bui Dicks

WILL | M. Bb

(sre 4)

Beers AND Dickson

350 Haves Street, Suite |

San Francisco, CA 94102

(415) 861-140]

.lttorneys for County of

ll umboldt. et al,

F SAN FRANCISCO. INC. © 'SO NINTH ST. ©S FCA 94103 © 415) 864-2300

QUESTION PRESENTED

Whether the lower courts properly determined that

Outer Continental Shelf Lease Sale 53, which established

the basic scope and charter for subsequent oil and gas

development in an area adjacent to the California coastal

zone, is a federal activity “directly affecting” that zone

within the meaning of Section 307(c)(1) of the Coastal

Zone Management Act of 1972, 16 U.S.C. § 1456(c)(1),

when that determination was based upon the purposes of

the CZMA, Congress’ understanding of the meaning of

“directly affecting” and the statements of Congress in

the legislative history of the Act that it intended this pro-

vision to apply to OCS leasing, and the interpretation by

the federal agency charged with administering the <Act.

ii

TABLE OF CONTENTS

Page

CONN TONNE nics. cineca ctaisrsscisecseesotdipuininssiuainlahnatitade i

UNE UI HD GUND a cicesecccnteaccacemastinvcscnsbttnucinsbaccdcabensaactl l

a | RT een Heaney ET 3

CNN irs cccoieccahcotniss vcpisicbecsbstecbestcinancbidinansedinesassichent cancel 7

I, Petitioners’ arguments fail to take into account that

California's coastal management program is a federally

funded and approved vehicle for the protection of the

“national interest” in the coastal zone and does not

constitute a “state veto” of federal activities .......... 7

A. Congress has determined that there is a

“national interest” in the management of the

IT GI ieee teecicsanaedtennorane 8

B. The requirement of consistency with the man-

agement program is crucial to the imple-

mentation of this national interest .................... 1]

C. California’s management program was re-

viewed and commented upon by affected fed-

eral agencies, approved by NOAA and upheld

in the courts as meeting the criteria of the

CI -siesechcaccitasecitusiningiieitetedseapStonstaibeadtteicceeAamadicaes 14

D. Petitioners mischaracterize the effect of the

consistency review process as applied to OCS

leasing in the decisions of the lower courts ..... 17

Ek. Given the “national interest” which Congress

sought to protect through coastal manage-

ment programs, it is clear that Section 307

(c)(1) does not detract from any “paramount

rights” that the United States has in the OCS 20

II. The lower courts properly construed the phrase

“directly affecting” in Section 307(¢)(1) ................. 22

iii

TabLe or CONTENTS

III. The application of consistency review to Lease

Sale 53 is not only feasible but essential to the

achievement of the purposes of the CZMA ..............

A. Certain vital determinations of consistency

can be made only at the lease sale stage ..........

B. Contrary to petitioners’ assertions, sufficient

information exists to make these consistency

determinations at the lease sale stage ..............

C. Deferral of consistency review to the explora-

tion and development phase defeats the essen-

tial purposes of the CZMA. ..............:sssesseseeeeees

D. The consistency review process required

under Section 307(c)(1) is not rendered

superfluous by the OCSLA consultation proc-

ess at the lease sale stage .................cccceseseseeseeeees

IV. The decisions of the lower courts do not portend

an increase in litigation or a reduction of energy

development or a loss of federal-state cooperation

0 ES AE ALITTLE SADDLE LINO py EIS

Page

41

iv

TABLE OF AUTHORITIES CITED

Cases

Alaska v. Andrus, 580 F.2d 465 (D.C. Cir. 1978) 000000... 38

American Petroleum Institute v. Knecht, 456 F.Supp.

889 (C.D. Cal. 1978), aff'd, 609 F.2d 1306 (9th Cir.

RWG, sctictscses vanes Bate Aia center == 8 SEEING, psa 2, 15, 16, 41

Andrus vy. Shell Oil Co., 446 U.S. 657 (1980) 000. 29

Bowsher v. Merck & Co., 103 S.Ct. 1587 (1983) 00000000... 28

California v. Watt, 17 ERC 1711 (C.D. Cal. 1982) ........ 23

California v. Watt, 668 F.2d 1290 (D.C. Cir. 1981) ........

Chemical Manufacturers’ Ass’n vy. Environmental! Pro-

tection Agency, 673 F.2d 507 (D.C. Cir. 1982) ....21, 22, 42

Commonwealth of Massachusetts v. Andrus, 594 F.2d

SES CRE Cs FEI Sctiiccctnevcdaincinstehicscceisiatienabaeiancatenc taal 42

Conservation Law Foundation v. Watt, 560 F.Supp.

SR, GED, BR, DED cscccccecsciteincsccnepisendnicnecencalans 23

Davis v. Morton, 469 F.2d 593 (10th Cir. 1972) oo... 25

E.E.O.C. v. Wyoming, 103 S.Ct. 1054 (1983) 000. 27

EPA v. California ex rel. State Water Resources Con-

trol Board, 426 U.S. 200 (1976) ...............cccccccccessosseseoeees 17

Ethyl Corp v. Environmental Protection Agency, 541

Fae 3 (DO. Cis. BOC ccienicdlieaeeee 29

Hancock v. Train, 426 U.S. 167 (1976) .oo.cccccccccccceeceeeeeees 17

Hodel v. Virginia Surface Mining and Reclamation

Association, 452 U.S. 264 (1981) ooo... ceceseceseseeseeee 42

Illinois v. Gorsuch, 530 F.Supp. 340 (D.D.C. 1981) ........ 29

Kean v. Watt, 18 ERC 1921 (D.N.J. 1982) 0. 23

v

Taste or AvutTuorities CITED

Cases

Morton v. Mancari, 417 U.S. 535 (1973) .0....0.c0cccceeee 22

National League of Cities v. Usery, 426 U.S. 833

I ce sa Paseecensaedinlbneabataaneppsbiemaaaaabon 27, 28

Ruckelshaus v. Sierra Club, 51 U.S.L.W. 5132 (July 1,

I cipro cost sssenshandkdcacanesnvasesianesehasiongiateialeetediapelisentosnenen 22

Scientists’ Institute for Public Information, Ine. v.

Atomic Energy Commission, 481 F.2d 1079 (D.C.

ITED, Sicccassicvnscthsacnsenaseceenscosncpseseessbacssshebomestobenmssianecsinees 29

Tennessee Valley Authority v. Hill, 437 U.S. 153

RINE "ci, sects cngnlaampssapnccitishesenesnapedapimenesienasenstanineteeindsebnantps 16

United States v. American Trucking Ass’ns, 310 U.S.

BE ED csinics'Nieceascsh saitecescniccepptecadententenitimoengocnnsimainiiaasotes 28

Statutes and Regulations

Clean Air Act,

§ 110, 42 U.S.C. § 7410 (Supp. V 1981) ........-ecccccsesseees 16

§ 118, 42 U.S.C. § 7418 (Supp. V 1981) ..........cccscseseseseeee 17

Coastal Zone Management Act, 16 U.S.C.

III: ccichinsonceseossieresipticicncenqsmensinitinastajpiesnascieenohisiiasetenetios 8

SINT > -23 ia cphisnpeeemnnensniatiaenidegestcbnapeniotaainnaniaplians 9

INI O ccssineshunvesbecncovenensnsbenensepencebpencapintinponrconsmnaiiselias 8

ED i s.cccusiciedontoneerstbicireieitevsansneiorionmsbcoreneviiesiaiavlapoitlias i)

I gi ecicctenosanounssp-coincninhettntecaniinisiotentve scininttnsanticantapeeeed 8,12

IIE IIED ss sxcscicossenasnnsessthspieshespatiapeisnaniepionhiineonndelbabfaleing 1

IE co Gincssrcntnascnovtbimnhdetiineesencthessiniananatiooapeiontelelbiinstii 10, 32

IID hcaciacetenssnsnciectdibeciiinsocmanninnsiigininceesepiessipbabancansbigeonlaic 10

BEINN (oisasninchcrasiveichcnsavnssseondanenksogiiiesnnninesteaiatemmmpnpssiaedbpedee 12

vi

TaBLe or Avtuoritizs Crrep

STATUTES

Page

et iE RIE ON oS SRE EA = be ENS Ge 12

hess cee et gg Re OS UATE 2 MAE 9

oy if ae ANA La NOD EMERGE Ler 30 2

ag or RS DIONE LAST 12

ce | REET tS EIS Men 2 He 12

i): LEE aR Ieee POOR? Spa 2

ot ag ine a, AS NEE eae AP EE A 9,15

gp SSE RG rete Tees, , 10

oo. pe a Ban 12, 15

Eee rc ARC RE Rye 31, 34, 39, 44

Si fee NR ee BTR RL Re 12

PRD secnittderiat ica ea eee 2

Deepwater Ports Act, 33 U.S.C. §§ 1501 et seq. .............. 43

Endangered Species Act, 16 U.S.C. $§ 1531 et seq. ........ 43

Federal Water Pollution Control Act, 33 U.S.C. $4 1151

oi pds RCN ANE SE ie ARR NON td Ned Te CPA 43

§ 313, 33 U.S.C. 4 1323 (Supp. V ) eo eee Pesca 17

§ 402, 33 U.S.C. § 1342(b) (Supp. V DOUG Ss 17

Marine Protection, Research and Sanctuaries Act, 16

Pere I OU 5 Se | 43

Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et

DOR couessocnsounnncenessensdssessncrcsesiesceesassocesssoseceseseesevevesesseces.c 4, 14, 20

vse elgg ee eC REET SM ee ee 23

gt ES bebe ENON ORTMTET SE SS, 41

vii

Taste or AuTuorities CiTED

STATUTES

Page

§ 1845 (C) .....c.nccsssescssscssssesssesssnsrscscecerssassndsessesesesosenscsseeseees 14

TF ple rca Rane den ASH PRs sent ve AES 43

Resource Conservation and Recovery Act,

6 3006, 42 U.S.C. § 6926 (1976 & Supp. V 1981) ............ 16

§ 6001, 42 U.S.C. § 6961 (1976 & Supp. V 1981) ............ 17

Safe Drinking Water Act,

§ 1413, 42 U.S.C. § 300g-2 (1976) 2.0... eeecerenessesenenenees 16, 17

§ 1447, 42 U.S.C. § 300j-6(a) (Supp. V 1981) ............. 17

Surface Mining Control and Reclamation Act,

§ 503, 30 U.S.C. § 1253 (Spp. V 1981) .......ccseceeeeeenees 17

§ SOB, BO UGC. © 1BTB nncecccencccscsscscsstpecccccscssesssvenecssaseseenece 17

15 CyB. $6 SBO41, 4D crcccccovecesyssnseccersbscccscssvensecsovscssscesastees 20

Other Authorities

Coastal Zone Management: Hearings on H.R. 2492,

2493 and 9229 Before the House Comm. on Merchant

Marine and Fisheries, 92d Cong. 1st Sess. 273

CROAT) nccnncscccesscsssensenemncstesinecccanesisnutenguserstiteetiemtanniontineat 9

Conference Report, H.R. Rep.

No. 506, 95th Cong., Ist Sess. 12 (1977) .......ccccecesesesneee 18

No. 830, 95th Cong., 1st Sess. 93 (1977) ........ccccccecceeseee 18

No. 1298, 94th Cong., 2d Sess. 24 (1976) .........cccccceseees 10, 11

No. 1544, 92d Cong., 2d Sess. 7 (1972) .....ccccccccceseceeeeeees 19

viii

TasLe or Avutruorities CITED

OTHER AUTHORITIES

Page

Departinent of Interior, Bureau of Land Management,

Intergovernmental Planning Program for OCS Oil

and Gas Leasing, Transportation and Related Facili-

i acpunsniemmasbsorepsovens 32

Department of Interior, Bureau of Land Management,

Study Design for Resource Management Decisions:

OCS Oil and Gas Development and the Er vironment

a. ecomibvatesecseteveceeores 32

H.R. Rep.

No. 590, 95th Cong., Ist Sess. 153 n.52 (1977) 00000000... 42, 43

No. 1012, 96th Cong., 2d Sess. 2, 28, 33, 34 (1980) ........

tas as cecenreninnsteccceserroce 10, 11, 13, 26

No. 1049, 92d Cong., 2d Sess. 5, 9-11 (1972) ooo. 8,19

J. Rose, Legal Foundations of Land Use Planning 315-

CS ES 31

Letter, April 20, 1979, to C.L. Haslam, General Coun-

sel, Department of Commerce, and Leo M. Krulitz,

Solicitor, Department of the Interior, from Leon

Ulman, Deputy Assistant Attorney General, Office of

Legal Counsel, Cal. Exh, L-15, J. A. at 43 20. 30

Letter from Secretary Andrus to Governor Brown

EE 38

Minerals Management Service, Department of Inte-

rior, Pacific Summary Report 28, 45, 56 (1982) .......... 2,3

Solicitor’s Opinion (October 1979), C.R. 3, Cal Exh.

EE 38

ix

TasLe or AvuTuHorities CITED

OTHER AUTHORITIES

Page

S. Rep.

No. 277, 94th Cong., 1st Sess. 3, 9, 37 (1975) ........00. 13, 26

No. 526, 92d Cong., 1st Sess. 30 (1971) .......cccccsescsseeeeeee 26

No. 753, 92d Cong., 1st Sess. 30 (1971) ........cccccseecsseees 26

No. 753, 92d Cong., 2d Sess. 1-7, 54 (1972) 0... 8,9, 19

No. 783, 96th Cong., 2d Sess, 11 (1980) .............. 13, 26, 40

Staff of Senate Comm. on Commerce, 93d Cong., 2d

Sess., Outer Continental Shelf Oil and Gas Develop-

ment and the Coastal Zone 79 (Comm. Print 1974) ... 31

44 Fed. Reg.

OD ncalnecdattlias ste sraccapinlechletetpipleteteihaepiaipndtioceaamninia 27, 44

IR CIT OND pacoscctti scescdnoehahotitiedanpgarinnncdilbiedicheinicuibigtatccicion 27

BE CII Cocesiicciarcnrnpticciomctivintentininiitiiiaadiaiiibaes 20

be S|) ER meaner 27

351 Comey, Bak, SERGE CAR TG) cicitccecsccscsttesienccveerstctecionnas 11

L9R Comey, Hine. GING EER (EGCG) ectecsiceviesstinscctseneninsoninonigasine 11

Nos. 82-1326 and 82-1327

In the Supreme Court

OF THE

United States

Ocrosrer Term, 1983

James G. WATT, ET AL.,

Petitioners,

vs.

Strate OF CALIFORNIA, ET AL.

Respondents.

Western O11 anp Gas ASSOCIATION, ET AL.,

Petitioners,

Vs.

State oF CALIFORNIA, ET AL.

Respondents.

BRIEF OF RESPONDENTS

COUNTY OF HUMBOLDT, ET AL.

STATEMENT OF THE CASE

The decisions of the courts below require that the Secre-

tary of the Interior conduct an outer continental shelf

(“OCS”) oil and gas lease sale, designated as Lease Sale

53, “in a manner which is to the maximum extent prac-

ticable, consistent” with California's federally approved

coastal management program, pursuant to Section 307

(e)(1) of the Coastal Zone Management Act of 1972

(“CZMA”), 16 U.S.C. § 1456(¢) (1). Respondents Humboldt

County et al. (hereinafter “Local Governments”) support

the affirmance of the decisions below because of their stake

in the effectiveness of California’s coastal management

program in addressing the impacts of OCS leasing and

development upon California’s coastal zone.'

Respondents Local Governments are comprised of 24

cities, counties and regional agencies with jurisdiction over

portions of the coastal zone in California. The CZMA con-

templates that Local Governments will take an active role

in the planning, implementation and decisionmaking with

respect to activities and programs that affect their portions

of the State’s coastal zone. See, ¢.g., 16 U.S.C. 4 1452(2)(H)

‘, hese respondents accept as substantially accurate the statement

of the case contained in the Brief for Petitioners Watt et al. (“DOI

Br.”) when supplemented by the statement contained in the Brief

for the Cross-Petitioners and the additional matters set forth herein.

of citation that are used throughout this Brief. References to

Petition for Writ of Certiorari of the Secretary of the Interior, et

are cited as “DOI Pet. at .” All references to the below

are to those opinions as reproduced in the appendices of Interior's

petition and will be cited as “DOI Pet. at a.” References to

2

(local government participation in decisionmaking) ; 4 1454

(g) (allocation of funds to local governments); § 1455(c)

(2)(B) (mechanisms for continuing participation of local

governments in coastal management programs); and

§1456a(a)(1) (funding assistance for local governments

under coastal energy impact program).

Under California’s federally approved coastal manage-

ment program, Local Governments have a major role in

dealing with OCS development matters, such as the loca-

tion of onshore support facilities, crude oil treatment and

processing systems, oil and gas transportation alternatives,

oil spill containment programs and other resource manage-

ment concerns related to such energy development. See

American Petroleum Institute v. Knecht, 456 F.Supp. 889,

922-926 (C.D. Cal, 1978), aff'd, 609 F. 2d 1306 (9th Cir.

1979).

The impacts of OCS development are of particular

concern to Local Governments because of the seale and

pace of OCS development off the California coast. A total

of 239 leases have been awarded in federal areas in prox-

imity to the California coastal zone.’ Offshore of Santa

Barbara County alone, federal oil and gas leases have been

granted on 68 tracts in the Santa Barbara Channel, 51

tracts north of Point Conception and on additional tracts

south of the Channel Islands—in addition to the state oil

and gas leases on 30 tidelands parcels, Onshore support

facilities for OCS development currently include twelve

separation and treatment facilities in Santa Barbara and

Ventura Counties and ten marine terminals located in

those two counties and in San Luis Obispo County.’ Not

only have five of the six Pacific OCS sales to date taken

place off the California coast but the current federal Five

*Minerals Management Service, Department of the Interior,

Pacific Summary Report 28 (1982),

*Pacific Summary Report, supra note 2, at 56.

3

Year Leasing Plan shows one California lease sale per

year for the period 1983-1986."

The amount and location of current and proposed OCS

development have created complex management issues that

must be addressed by Local Governments @s well as the

State, The application of Section 307(¢)(1) to the OCS

lease sale stage, under the provisions of the CZMA, is, in

the view of Local Governments, vital to their ability to

manage, in cooperation with both the state and federal

governments, the direct effects on the coastal zone of this

accelerated OCS leasing.”

SUMMARY OF ARGUMENT

I. In passing the CAMA, Congress declared that there

was a “national interest” in the effective management of

the coastal zone. Through federally funded and approved

coastal management programs, prepared by the states

with the participation of federal agencies, it established

the mechanism for balancing conflicts such as those between

coastal zone protection and the development of energy

resources on the OCS. Moreover, Congress recognized that

these management programs would be ineffective in pro-

tecting the national interest in the coastal zone if they

applied only to the actions of state and local governments,

and it accordingly required in Section 307(c)(1) of the

YMA, 16 U.S.C, § 1456(¢) (1), that all federal activities

“directly affecting” the coastal zone be conducted “to the

inaximum extent practicable, consistent” with federally

approved coastal management programs, In this regard,

the coastal impact of OCS development was one of Con-

gress’ principal concerns in enacting the CZMA, and the

legislative history of the Act contains unequivocal state-

ments of Congress’ intent that Section 307(c)(1) apply to

OCS leasing.

‘Pacific Summary Report, supra note 2, at 45.

See discussion infra at 38-41.

4

Petitioners take a different view of the national interest.

To them, the “national interest” lies singularly in “OCS

resource development” (DOT Br, a, 48), and they purport

to find its confirmation not in the statute under review but

in another statute, the Outer Continental Shelf Lands Act

(“OCSLA"), 43 U.S.C. $6 1831 et seq, Although they can

point to no specific conflict between any particular diree-

tives in the two statutes—and, indeed, acknowledge that

the Secretary of the Interior is currently complying with

both (DOL Pet. at 19 n, 18) —they nevertheless argue that

the lower courts’ interpretation of Section 307(¢)(1) will

undermine the overriding commitment to OCS development

which they discern in OCSLA and the procedures estab-

lished therein for achieving this commitment, DOI Br,

at 27-29; WOGA Br, at 21-31. They reach this conclusion

hy characterizing the application of consistency review to

OCS leasing as a potential state “veto” of OCS develop-

ment. DOT Br. at 26,

However, there is nothing in the text or legislative his-

tory of OCSLA or in any canon of statutory construction

which suggests that OCSLA provides more definitive guid-

ance for the interpretation of Section 307(¢)(1) of the

CZMA than does the CZMA itself or its legislative history.

Petitioners’ argument ignores the “national interest” in

coastal zone management reflected in the CZM.AA, and mis-

conceives the role of the coastal management program and

consistency review in fulfilling that interest, Contrary to

petitioners’ assertions, the lower courts’ interpretation of

Section 307(c)(1) does not provide the states with any

“veto” and does not detract from any paramount rights of

the United States in the OCS. It requires only that the

Secretary of the Interior comply “to the maximum extent

practicable” with the body of law which Congress has

determined should be applied to OCS leasing—the coastal

Inanagement program,

II, The lower courts properly construed the phrase

“dircetly affecting” in Section 807(¢)(1) by employing the

: 5

tests for the application of this provision which Congress

itself formulated in the legislative history of the Act.

They properly determined that there was a “functional

interrelationship” between OCS leasing and the adminis-

tration of the coastal zone and that OCS leasing initiated

“a series of events which have consequences in the coastal

zone.” DOI Pet. at 13a, 51a. In place of the language

of Section 307(c)(1) and Congress’ elaboration of its

meaning, petitioners seek to substitute other definitions

of their own making on the supposition that the phrase

“directly affecting’ has one and only one “plain mean-

ing.” There is, however, nothing in the lower courts’ inter-

pretation of that phrase which departs from any “plain

meaning” that it has, and surely nothing which requires

that such interpretation be made without regard to the

legislative history or purpose of the provision in question,

as petitioners contend. Their efforts to demean the signif-

icance of OCS leases contradict Congress’ own under-

standing of those instruments as authorizations for OCS

development.

III. Petitioners also argue that it is meaningless to

render a consistency determination at the stage of OCS

leasing because of a host of “uncertainties” and the

impossibility of issuing a “guarantee” that all hypotheti-

eal future activities will be consistent with a state’s

coastal management program. What petitioners ignore is

that there are vital determinations that can be made only

at the lease sale stage. The selection ov deletion of tracts

for leasing and the establishment of stipulations as the

terms of the lease “establish the basic scope and char-

ter for subsequent development and production.” DOI

Pet. at 13a. If the consistency review procedures as estab-

lished by Section 307 of the CZMA are deferred to a later

time when individual exploration or development plans

are submitted on a tract-by-tract basis, the opportunity

to apply the broader concerns of the coastal management

6

program will be foregone entirely. Moreover, the “federal

activity” in the OCS process—the leasing of the OCS—

will never be subjected to consistency review by the federal

government. Finally, there is no requirement that the

Secretary of the Interior issue impossible “guarantees”

in the consistency review process, as applied to OCS

leasing. Again, petitioners obscure the important decisions

that are made at the lease sale stage and overstate the

obligations imposed by consisteney review, as the essential

premises of their argument.

IV. Petitioners also invite this Court to discard the

consistency review process because of their apprehensions

that its application to OCS leasing will breed incessant

litigation, thwart OCS development and jeopardize the

federal-state cooperation in the development of manage-

ment programs. Based on the experience so far, peti-

tioners’ apprehensions appear misplaced. The early

application of consistency to OCS leasing will in many

instances reduce rather than aggravate conflicts between

the competing interests of coastal protection and OCS

development. Otherwise, states will be relegated to an

essentially defensive or reactive posture in reviewing

exploration and development plans submitted individually,

More importantly, Congress has decreed that consistency

is the prescribed vehicle for ensuring that the national

interest in the management of the coastal zone is secured,

and the “policy considerations” which petitioners advance

provide no basis for a judgment by this Court to the con-

trary.

7

ARGUMENT

I. PETITIONERS’ ARGUMENTS FAIL TO TAKE

INTO ACCOUNT THAT CALIFORNIA’S COASTAL

MANAGEMENT PROGRAM IS A FEDERALLY

FUNDED AND APPROVED VEHICLE FOR THE

PROTECTION OF THE ‘‘NATIONAL INTEREST”’

IN THE COASTAL ZONE AND DOES NOT CONSTI-

TUTE A “STATE VETO’’ OF FEDERAL ACTIV-

ITIES.

The Solicitor General seeks to dramatize the issue in this

case by implying that it pits “the national interest in OCS

resource development” against “California's interest in

the preservation of its coastal zone.” DOI Br. at 48. He

asserts, moreover, that the decisions of the lower courts

have armed the states with a potent “veto” over OCS

development (id. at 26), which may be used to defeat this

“national interest.” What these characterizations funda-

mentally ignore, however, is that California’s coastal man-

agement program is not merely a “state law” (id. at 13) or

a “state administrative process” (WOGA Br. at 3) but

a federally funded and approved management program

intended by Congress to serve as the vehicle for the protec-

tion of a clearly defined “national interest” in the coastal

zone,

In passing the CZMA, Congress recognized that coastal

management programs could not fulfill this important na-

tional objective if they applied only to the actions of state

and local governments. Accordingly, in Section 307(c) of

the CZMA, 16 U.S.C. § 1456(¢c), Congress required that the

activities of federal agencies “directly affecting” the coastal

zone, their development projects “in” the coastal zone, and

certain licenses and permits issued by them, be “consistent”

with a federally approved coastal management program.

The application of this consistency review to OCS leas-

ing under Section 307(c)(1) does not, however, provide the

states with a “veto” over OCS development, as petitioners

assert, but rather requires the Secretary of the Interior

to ensure that OCS leases are consistent, to the maximum

extent practicable, with the substantive body of law con-

tained in the management program. Thus, petitioners’ argu-

ments are premised upon fundamental misconceptions of

both the purpose and effect of the federal statute under

review, the Coastal Zone Management Act.

A. Congress Has Determined that There is a “National

Interest” in the Management of the Coastal Zone.

However narrowly petitioners conceive the “national

interest,” Congress determined, as the first premise for its

enactment of the CZMA in 1972, that “[t)here is a national

interest in the effective management, beneficial use, protec-

tion and development of the coastal zone.” 16 U.S.C, 4 1451

(a) (emphasis added). It further declared that it is “the na-

tional policy... to preserve, protect, develop, and where

possible, to restore or enhance, the resources of the

Nation’s coastal zone for this and succeeding generations,”

and to encourage federal, state and local governments to

cooperate in developing and implementing coastal manage-

ment programs for this purpose. 16 U.S.C, 6 1452 (empha-

sis added).°

From the outset, Congress included development of the

Outer Continental Shelf among the matters it expected to

be addressed by coastal management under the CZMA, For

example, Congress recognized that energy demands on the

OCS “are placing stress on these areas and are creating

the need for resolution of serious conflicts among important

and competing uses and values in coastal and ocean wa-

ters.” 16 U.S.C. $ 1451(f). It specifically included the “ex-

traction of mineral resources and fossil fuels,” among the

developments which it found had “resulted in the loss of

living marine resources, wildlife, nutrient-rich areas, per-

‘The legislative history of the 1972 Act contains pervasive

evidence of the broad conception held by Congress of “the national

interest” in protection of the coastal zone and its effective manage-

ment through coastal management programs. See, e.g., S. Rep. No.

753, 92d Cong,, 2d Sess. 1-7 (1972); H.R. Rep. No. 1049, 92d Cong.,

2d Sess. 9-11 (1972).

9

manent and adverse changes to ecological systems. .. .” 16

U.S.C. § 1451(¢).’

In the 1976 Amendments to the CZMA, Congress under-

scored its original intent that coastal zone management pro-

vide the principal means for resolving the conflicts between

the accelerated pace of OCS development and other energy

facility siting, and the protection of the coastal zone. Thus,

it amended the findings in Section 302 to add a reference

to the “national objective of attaining a greater degree of

energy self-sufficiency” (16 U.S.C. § 1451(j)); it included

a specific reference to “energy facilities” as part of the

“national interest” which must be given adequate considera-

tion in coastal management programs (16 U.S.C, § 1455(c)

(8)); and it required that coastal management programs

include a planning process for “energy facilities likely to

be located in, or which may significantly affect, the coastal

zone” (16 U.S.C. § 1454(b)(8) (emphasis added) ).’

"Congress clearly did not intend that all future development thus

affecting the coastal zone be forestalled but rather that it be effec-

tively “managed” so that the national interest in both protection and

development of the coastal zone could be achieved. In Congress-

ional hearings preceding the Act's passage, Administration spokes-

persons, such as Dr. Robert White, the Administrator of the National

Oceanic and Atmospheric Administration, emphasized the need for

this management approach:

“The coastal zone is a unique area. Rational management of

activities therein is one of the more critical environmental

problems facing our Nation. Much of the area is in a state of

degradation and under severe competition for various types of

economic development.

We feel that the answer here is not to stop development but

to provide for orderly and rational utilization of this region.”

Coastal Zone Management: Hearings on H.R. 2402, 2493 and

9229 Before the House Comm. on Merchant Marine and Fisheries,

92d Cong., lst Sess. 273 (1971). See also §.Rep. No. 753, 92d Cong.,

2d Sess. 6 (1972) (“The key to more effective use of the coastal

zone in the future is introduction of management systems permitting

conscious and informed choices among the alternatives” ).

“Energy facilities” were defined to include “oil and gas facilities,

including platforms, assembly plants, storage depots, tank farms,

10

At the same time, Congress left intact its earlier finding

that there was “hational interest” in coastal protection. It

further required that coastal management programs pro-

tect “coastal resources of national significance” (16 U.S.C,

5 1455(i) (emphasis added) ), which were defined to include

“any coastal wetland, beach, dune, barrier island, reef, estu-

ary or fish and wildlife habitat, if any such area is deter-

mined by a coastal state to be of substantial biological or

natural storm protective value” (16 U.S.C. § 1453(2)).°

The gist of the 1976 Amendments was simply a reaf-

firmation of Congress’ determination that the balancing of

these competing demands upon the coastal zone be done

through coastal management programs. The Conference

Report on the 1976 Amendments confirms this approach:

“The conferees believe ... that the coastal states and

localities, which are closer to and more cognizant of the

situation, should make the basic decisions as to the

particular needs which result from such new or ex-

panded energy activity; and... that the discretion

of the Secretary of Commerce and other Federal of-

ficials should be correspondingly limited.” Conference

crew and supply bases, . . . refining complexes . . . facilities including

deepwater ports, for the transfer of petroleum. . . [and] pipe-

lines... .” 16 U.S.C. § 1453/6).

*Throughout its deliberation over the CZMA, Congress has

recognized that the cumulative destruction from year to year of

such “local” resources as a wetland, a beach or an estuary was

resulting in the loss of “coastal resources of national significance.”

See, e.g., H.R. Rep. No. 1012, 96th Cong., 2d Sess. 2 (1980) (“we

have damaged or destroyed over forty percent of our wetlands, and

we continue to do so at a rate of 300,000 acres per year”). It was

the sum total of these losses of “local” resources that occasioned the

passage of the CZMA in the first instance and that has been the

central concern of Congress in amending and reauthorizing it. In

this respect, petitioners fundamentally misconceive the “national

interest” when they imply that it is only “California's interest in the

preservation of its coastal zone” (DOI Br. at 48, emphasis added )

which would be served by the application of its management

program to Lease Sale 53.

11

Report, ILR. Rep. No. 1298, 94th Cong., 2d Sess. 24

(1976) (emphasis added)."®

Finally, in 1980, when Congress reauthorized the CZMA

for another 5 years, it stressed once again the fundamental

national value of the coastal protection mechanisms estab-

lished by the Act:

“Tt is this rational balancing of competing pressures on

finite coastal resources which was intended by the 1972

act and it is the growing awareness that such balanc-

ing will be increasingly difficult in the years ahead

that argues strenuously for the authorization of, and

the improvements made to, the CZMA contained in

H.R. 6979.” H.R. Rep. No. 1012, 96th Cong., 2d Sess. 33

(1980).

The sole vehicle for ensuring that this sort of “balancing”

takes place in the formulation and proposal of federal ac-

tivities directly affecting the coastal zone is the ‘“con-

sistency” review process established by Section 307(c) (1)

of the CZMA.

B. The Requirement of Consistency with the Management

Program is Crucial to the Implementation of This Na-

tional Interest.

The linchpin of the cooperative scheme envisioned by

Congress in the CZMA is the coastal management pro-

See also 121 Cong. Rec. 23,055 (1975) (statement of Senator

Stevens), 23,081 (Senator Muskie), 23,082 (Senator Kennedy),

23,083 (Senator Pell). Senator Williams, for example, stated:

“Proposals are being made for a deep-water port, oil drilling

and floating nuclear powerplants off our shore, and the only

protection our precious coastal resource has is the Coastal Zone

Management Act of 1972. This act was created to assist the

States in developing adequate controls to prevent damage to

the adjacent land and to preserve the fragile ecological balance

in coastal areas.” Id. at 23,084.

The debate in the House was replete with statements by the

Representatives to this same effect. See, e.g., 122 Cong. Rec. 6,113

(1976) (statement of Rep. Mosher); 6,113-114 (Rep. Lent); 6,117

(Rep. Forsythe); 6,121 (Rep. Daniels); 6,122 (Rep. Drinan); id.

(Rep. Ruppe).

12

gram." Congress authorized federal funding for the devel-

opment and administration of the programs, and required

that they be submitted for federal approval by the Seere-

tary of Commerce under detailed criteria set forth in

the Act.** The Act also requires that federal agencies par-

ticipate extensively in the development of the management

programs, and that state agencies adequately consider the

views of federal agencies in program development."

4A “management program” was defined by Congress to include

“a comprehensive statement in words, maps, illustrations, or other

media of communication, prepared and adopted by the state in

accordance with the provisions of this chapter, setting forth objec-

tives, policies, and standards to guide public and private us» of

lands and waters in the coastal zone.” 16 U.S.C. § 1453(12).

**Congress has authorized federal grants covering eighty percent

of the costs of developing management programs, for each coastal

state which demonstrates that the funds will be used to develop a

management program consistent with particular criteria set forth in

the Act. 16 U.S.C. § 1454. The Act in turn contains detailed require-

ments which relate to both the process for development of the

program and its content, 16 U.S.C, § 1454. Programs which are

federally approved qualify for federal funding of eighty percent of

their administration costs. 16 U.S.C. § 1455. It should be noted that

the Secretary of Commerce has delegated his responsibility under

the CZMA to the National Oceanic and Atmospheric Administration

(“NOAA”).

**Congress has specifically declared it national policy “to encour-

age the participation and cooperation “£ . . Federal agencies

having programs affecting the coastal ne, in carrying out the

purposes of this chapter.” 16 U.S.C, § 52. Thus, federal funds

could not be made available for either development or administra-

tion of the program—nor could NOAA approve a program—unless

it had been developed and adopted “with the opportunity of full

participation by relevant federal agencies,” among others. 16 U.S.C.

§ 1455(c)(1); see also 16 U.S.C, §1456(b) (prohibiting the ap-

proval of a management program “unless the views of Federal

agencies principally affected by such program have been ade-

quately considered”). Any “serious disagreement between any

federal agency and a coastal state in the development . . . of a

management program” is required to be resolved by mediation.

16 U.S.C. § 1456(h),

13

Congress would not have required this participation

by federal agencies in the development of a management

program unless it expected that their activities would in

fact be affected by that program. Accordingly, in Section

307(c) of the CZMA, 16 U.S.C, § 1456(¢c), Congress pro-

vided that various activities, development projects, per-

mits and licenses under the jurisdiction of federal agen-

cies be “consistent” with approved coastal management

programs. Correspondingly, Congress has recognized that

the requirement of consistency represents the “single

greatest incentive for State participation in the coastal

zone management program.” S.Rep. No. 277, 94th Cong.,

1st Sess. 9 (1975), As the Ninth Circuit observed, “(a) quid

pro quo for the state’s development of such a plan is that

certain federal activities will be conducted consistently

with the state’s plan.” DOT Pet. at 14a.

It would be anomalous indeed if the federal activity

which has the most significant impact upon the coastal

zone—oil and gas leasing on the OCS—were not subject

to this requirement of consistency. In fact, the legislative

history of the subsequent amendments and reauthorization

of the Act in 1976 and 1980 reflects Congress’ understand-

ing that consistency review of OCS leasing is required

under Section 307(c)(1) of the CZMA."* Thus, in the

present case, the erroneous determination by the Secretary

of the Interior that Lease Sale 53 does not directly affect

the coastal zone and his consequent refusal to make the

consistency determination required by the CZMA, means

Ҥ, Rep. No. 277, 94th Cong,, Ist Sess. 3 (1975) (the lack of

coordination between coastal states and federal agencies prior to

OCS leases could be resolved by “[f]ull implementation of the

Coastal Zone Management Act of 1972”); id. at 37; S.Rep. No, 783,

96th Cong., 2d Sess. 11 (1980) (“[t]he Department of Interior's

activities which preceded lease sales were to remain subject to the

requirements of Section 307(c)(1)"); H.R. Rep. No. 1012, 96th

Cong., 2d Sess. 28 (1980) (referring to “Federal agency respon-

sibility to provide states with a consistency determination related to

OCS decisions which preceded issuance of leases”). See also note 49

infra.

14

that an entire body of law that Congré@ss intended be appli-

cable to such federal activities—namely, the coastal man-

agement program—has never even been considered or

applied by the Secretary.”

C. California’s Management Program Was Reviewed and

Commented Upon by Affected Federal Agencies, Ap-

proved by NOAA and Upheld in the Courts as Meeting

The Criteria of the CZMA.

Although Congress intended that management pro-

grams meeting the criteria in the CZMA would apply to

federal activities directly affecting the coastal zone, peti-

tioner WOGA advances certain “policy considerations”

for dispensing with their application to OCS leasing.

WOGA Br, at 44. WOGA decries “the vague and general

policies set forth in state CZMA programs” (id. at 45), it

purports to critique California’s management program

‘In all of the respects enumerated above, the consistency review

process provided by the CZMA is fundamentally different in

purpose and effect from procedures under the Outer Continen-

tal Shelf Lands Act, 43 U.S.C. §§ 1331 et seq. Section 19(a) of

OCSLA, 43 U.S.C. §1345(a)—so heavily relied upon by peti-

tioners—clearly provides states with an opportunity to partic-

ipate in policy and planning decisions relating to management of

the resources of the OCS, by permitting governors to submit

“recommendations” to the Secretary regarding the “size, timing, or

location” of OCS lease sales. See WOGA Br. at 24-25. However, in

contrast to the requirements of the CZMA, OCSLA does not require

that these recommendations be based on any coastal planning

process, does not provide any federal funds for the development

of these recommendations and does not require that they consider

the views of federal agencies, Moreover, under OCSLA, these

recommendations may be entirely ad hoc, directed to a single

federal activity, and they need not be accepted by the Secretary of

the Interior unless they take proper account, in his view, of a

reasonable balance between the national interest and the state’s

interest. 43 U.S.C. § 1345(c). Finally, these “recommendations” can

be made by any affected state. In contrast, the “consistency” review

process under the CZMA is applicable only to states with federally

approved management programs.

15

(id. at 6-10), and it invites this court to “extract” OCS

leasing from this “morass” (id, at 45). However, these

same arguments have already been rejected by NOAA

and the federal courts in reviewing WOGA’s prior chal-

lenge to federal approval of the California management

program, and the only forum appropriate for further

consideration of these “policy considerations” is Con-

gress, not this Court.

In November 1977, the Secretary of Commerce approved

the California Coastal Management Program. In so doing,

he found that “the views of Federal agencies principally

affected” by the program had been adequately considered.

Approval of the California Coastal Management Pro-

gram at 26 (Nov. 7, 1977) (citing 16 U.S.C. § 1456(b)).

He further found that:

“The management program provides for ‘adequate

consideration of the national interest involved in

planning for, and in the siting of, facilities (includ-

ing energy facilities in, or which significantly affect,

such state’s coastal zone) which are necessary to

meet requirements which are other than local in

nature.’” 7d, at 18 (quoting 16 U.S.C. § 1455(¢)(8)).

WOGA and the American Petroleum Institute sued to

block approval of the California management program.

American Petroleum Institute v. Knecht, 465 F.Supp. 889

(C.D. Cal. 1978), aff'd, 609 F.2d 1306 (9th Cir. 1979).

Their suit was brought out of a purported concern that

OCS development would be thwarted by the requirement

of consistency with the state’s management program. 456

F.Supp. at 922. They asserted that the management pro-

gram had failed to consider adequately the views of

affected federal agencies and the national interest in-

volved in planning for and siting energy facilities, and

that it was overly general. 456 F.Supp. at 920-922, 926.

However, the District Court and the Ninth Circuit both

rejected these claims, and all others that the plaintiffs

advanced, and they found that the program did provide

for adequate consideration of federal agencies’ views and

16

the national interest, 456 F.Supp. at 889, 922-927; 609 F.2d

at 1306, 1313-1315,"

Moreover, to suggest, as petitioners do, that this Court

may determine under the guise of statutory construction

that it is not feasible to apply a coastal management pro-

gram to a federal activity like OCS leasing would require

this Court to substitute its judgment for that of Congress

in enacting Section 307(c)(1) of the CZMA." They also

ignore the fact that the CZMA, as applied by the lower

courts, typifies the approach Congress has taken in recent

times in addressing national environmental or resource

problems. In a number of contexts Congress has sought

to serve national objectives or interests through the

encouragement and funding of plans developed by states,

in cooperation with federal authorities and under federal

criteria, that deal with particular environmental or re-

source problems.'* Indeed, in any number of instances

——- - ---=

“WOGA argues that this decision was the product of “a restric-

tive standard of judicial review” (WOGA Br. at 6), and liberally

quotes certain wry political observations made by the District Court

concerning the CZMA in American Petroleum Institute v. Knecht

(id. at 6-7, 45). However, the fact remains that the District Court

painstakingly reviewed the California management program in a 43

page opinion and determined that it “takes an approach which has

received the congressional blessing.” 456 F.Supp, at 926, Moreover,

with respect to WOGA's arguments that the program was too gen-

eral, the District Court pointedly stated that “[t]o the extent plain-

tiffs seek not guidance with respect to the way in which coastal

resources will be managed but instead a ‘zoning map’ which would

implicitly avoid the need to consult with the state regarding planned

activities in or affecting its coastal zone, the Court rejects their

position.” Id.

"See Tennessee Valley Authority v. Hill, 437 U.S. 153, 194-195

(1978).

"See, e.g., Clean Air Act, § 110, 42 U.S.C, § 7410 (Supp. V 1981)

(providing for state implementation plans for national primary and

secondary air quality standards); Resource Conservation and Re-

covery Act §3006, 42 U.S.C, §6926 (1976 & Supp. V 1981)

(authorizing state programs to regulate the treatment, storage,

transportation and disposal of hazardous waste, a problem Congress

found to be national in scope); Safe Drinking Water Act § 1413, 42

17

Congress has required that federal facilities or land—like

federal leasing of the Outer Continental Shelf—be subject

to the requirements of state plans developed to serve

these kinds of objectives.” The application of coastal man-

agement programs to OCS leasing thus serves the

“national interest” by a means which Congress has deemed

feasible in the CZMA and in numerous other enactments,

D. Petitioners Mischaracterize the Effect of the Consist-

ency Review Process as Applied to OCS Leasing in

the Decisions of the Lower Courts.

While according little attention to Congress’ concern

for the “national interest” in the coastal zone reflected in

the CZMA, petitioners on the other hand greatly exag-

gerate the impact of the application of coastal manage-

ment programs to OCS leasing. For example, the Solicitor

General argues that the lower courts’ construction of

Section 307(c)(1) “gives California a potential veto over

a broad range of federal activities on the OCS not pre-

vious)’ considered to be within the reach of state control.”

U.S.C, § 300g-2 (1976) (authorizing state programs to enforce na-

tional drinking water regulations); Surface Mining Control and

Reclamation Act § 503, 30 U.S.C. § 1253 (Supp. V 1951) (allowing

for state program of enforcement of national standards for surface

coal mining and reclamation); Federal Water Pollution Control Act

§ 402, 33 U.S.C, § 1342(b) (Supp. V 1951) (allowing states to estab-

lish their own permit programs to regulate discharges in order to

effect federal effluent limitations).

‘All of the federal legislation cited in the preceding footnote pro-

vides that federal facilities and activities will be subject to state con-

trol. See, eg., Clean Air Act §118, 42 U.S.C. §7415 (Supp. V

1951); Resource Conservation and Recovery Act § 6001, 42 U.S.C.

§ 6961 (1976 & Supp. V 1961); Safe Drinking Water Act § 1447, 42

U.S.C, § 300j-6(a) (Supp. V 1981); Surface Mining Control and

Reclamation Act § 523, 30 U.S.C, § 1273 ( providing that the require-

ments of an approved state program must be incorporated in any

federal mineral lease for surface coal mining as well as allowing

state regulation of surface coal mining on federal lands); Federal

Water Pollution Control Act § 313, 33 U.S.C, § 1323 (Supp. V 1951),

In Hancock v. Train, 426 U.S, 167 (1976) and EPA v. California ex

rel State Water Resources Control Board, 426 U.S. 200 (1976), this

18

DOI Br. at 26. However, the Ninth Circuit took pains in

its opinion to dispel any notion that its holding implied

that states possessed a “conclusive” or “final veto power”

over OCS oil and gas development. DOT Pet at 20a-21a.

Indeed, respondents, plaintiffs below, did not argue—and

do not argue now—that Section 307(c)(1) grants states

any unilateral authority to “veto’’ particular lease sales—

much less any “conclusive” or “final” veto authority.”

While the activities of the Secretary of the Interior

which directly affect the coastal zone of a state must be

consistent “to the maximum extent practicable” with

the state’s management program, it is the Secretary and

not the state who makes that determination of consistency.

In that sense, Congress has decreed that once a state’s

management program has been approved by NOAA as

satisfying the criteria of the CZMA, that management pro-

gram becomes the body of substantive law which thereafter

Court held that the substantive provisions of state plans developed

under the Clean Air Act and Federal Water Pollution Control Act

respectively, were applicable to federal facilities, but that state per-

mit requirements were not applicable, Following these two deci-

sions, Congress amended both laws to make clear that state permit

requirements also applied to federal facilities. See Conference

Report, H.R. Rep. No. 506, 95th Cong,, Ist Sess, 12 (1977); Confer-

ence Report, H.R. Rep. No, 830, 95th Cong,, Ist Sess, 93 (1977).

*°If the Ninth Circuit had confined its opinion to this clarification,

respondents would have no quarrel with it. However, the Ninth

Cireuit not only concluded that the final determination of con-

sistency under § 307(c)(1) rests with the Secretary of the Interior,

but also impliedly suggested that the Secretary has discretion to

avoid consistency with the state’s management program on the basis

that OCS activity “would be hampered or proscribed by conformity”

with it or apparently on the basis of his views of the “the reasonable-

ness of the state plan.” DOI Pet. at 22a. But the fact that it is

19

confines the Secretary's discretion in OCS leasing—but it

has not provided the states in Section 307(c)(1) with any-

thing akin to a “veto.” Such a veto would exist only if

Congress had provided the states in Section 307(¢)(1) with

final authority to determine the consistency of the fed-

eral activity. Instead, Congress chose to repose the author-

ity to make this determination in the federal agency con-

ducting the activity.”

On the other hand respondents submit that the federal

agency making this consistency determination is not en-

titled to disregard the state’s views on whether the federal

activity is consistent. Presumably the federal agency must

accord substantial deference to the interpretation of that

*In contrast, under § 307(c)(3), 16 U.S.C. § 1456(c)(3), which

applies to federal permits or licenses, it is the state—not the federal

permitting agency—which determines consistency, and a state’s

determination of inconsistency expressly bars the federal agency

from issuing the permit. Congress decided that it would not give a

state a “final veto” even in § 307(c) (3), however, but would provide

for a federal override of a state’s management program, as applied

to federal permits or licenses, whenever the Secretary of Commerce

determines that such an override would be consistent with the

purposes of the CZMA, or in the interests of national security. 16

U.S.C. §1456(c)(3)(A). It is noteworthy that Congress did not

vest that override in the federal permitting agency but in the Secre-

tary of Commerce, as an independent federal agency charged with

overall implementation of the CZMA.

It is also significant that Congress originally considered proposals

for a federal override of a state’s management program under Sec-

tion 307(c)(1). S.Rep. No. 753, 92d Cong., 2d Sess. 54 (1972).

However, it ultimately rejected inclusion of any such override in

Section 307(c) (1). See Conference Report, H.R. Rep. No. 1544, 92d

Cong,, 2d Sess. 7 (1972); H.R. Rep. No. 1049, 92d Cong., 2d Sess. 5

(1972). Apparently, Congress concluded that the balance of federal-

state relationships was properly struck there by vesting the deter-

mination of consistency with the federal agency and not the state,

and ve that consistency must be preserved “to the maximum

” With this protection in place against any pos-

ciblity of «state's abuse of the consistency provision, Congress did

not believe it was appropriate to allow the federal agency to “over-

ride” the state's management program.

20

management program by the state agency responsible for

its formulation and implementation.” Again, however, the

states have not been granted any veto.

E. Given the “National Interest” which Congress Sought

to Protect Through Coastal Management Programs, it

is Clear that Section 307(c) (1) Does Not Detract From

Any “Paramount Rights” that the United States Has

in the OCS.

The upshot of petitioners’ disenchantment with the

coastal management scheme established by the CZMA is

their request that its application to OCS leasing and

development be determined largely by reference to another

statute, the Outer Continental Shelf Lands Act, 43 U.S.C,

£41331 et seq. See, e.g., DOI Br. at 27-85; WOGA Br. at

21-32. They assert that any other approach risks subver-

sion of Congress’ intent in OCSLA to preserve the federal

government’s “paramount rights” over the OCS. DOI Br.

at 26; WOGA Br. at 18-19. However, petitioners cannot

identify any conflict between any particular directives in

the two statutes. Moreover, their argument again fails to

take into account the national interest that Congress

sought to protect in the coastal zone and the nature of the

system of federal-state coordination that Congress estab-

lished in the CZMA to serve that interest. When the CZMA

is properly understood, nothing in it or in the lower

courts’ interpretation of it detracts from the federal gov-

ernment’s “paramount rights” in the OCS.

WOGA’s argument is particularly far removed from

any inquiry into the purposes of the CZMA. Rather, it

proceeds from the assumption that the principal question

before the Court is whether the application of consistency

review at the OCS leasing stage would “undermine” the

**Indeed, the regulations promulgated by NOAA contemplate a

substantial interplay between the federal and state agencies, in

resolving any disputes over whether particular federal activities are

consistent. See 15 C.F.R. §§ 930.41, .42, comments; 44 Fed. Reg.

37149 (1979).

21

compromise reached in 1953 over ownership of the tide-

lands as between the state and federal governments.

WOGA Br. at 17. Accordingly, it asks this Court to treat

as automatically suspect any interpretation of the CZMA

which would “give the states any measure of authority

over OCS leasing.” Jd. at 18. However, as WOGA acknowl-

edges, the 1953 Compromise to which it refers, dealt with

the question of federal versus state ownership of the OCS.

Id, at 17, 18.

Congress did not purport in that context to limit its

own prerogative to take further action to ensure that

development of the OCS would be conducted in harmony

with other national concerns. That Congress thereafter

determined that protection of the coastal zone was in

the national interest and chose a vehicle for effective man-

agement of the coastal zone—fedrally funded and approved

management programs that require federal determinations

of consistency—in no way detracts from the United

States’ “paramount rights” in the OCS.

Respondents submit, moreover, that the fundamental

question of statutory interpretation of the CZMA posed

‘n this case must be answered principally by reference to

the objectives which Congress sought to achieve by that

legislation. Petitioners’ suggestion that OCSLA, which

deals only with development of the OCS, “should be given

initial scrutiny’ (WOGA Br. at 21) in interpreting the

language of Section 307(c)(1) of the CZMA, which applies

generally to all federal agencies, is clearly misplaced. In

Chemical Manufacturers’ Assn v. Environmental Pro-

tection Agency, 673 F.2d 507, 512 (D.C. Cir. 1982), the

court rejected a similar argument that one federal statute

should “be given precedence over” another. As the court

stated:

“When forced to choose which of two contradictory

statutes to enforce, courts may decide that the more

specific statute is an exception to the more general

one. But if the statutes do not contradict one another

t

to

no choice need be made. ... | RJegulatory overlap is

not the same as a situation where two statutes provide

mutually exclusive results when applied to the same

facts.” 673 F.2d at 512.

See also Morton v. Mancari, 417 U.S, 535, 551 (1974). The

court in Chemical Manufacturers’ Ass'n also emphasized

that the two statutes were intended to serve different

objectives. 673 F.2d at 512.

In the present case, petitioners can point to no instance

where compliance with hoth OCSLA and Section 307(c¢) (1)

of the CZMA leads to ‘mutually exclusive results,”* and

as discussed infra at 41-42, the two statutes are designed

to foster different national objectives. When the statutory

language of the CZMA at issue herein is examined in light

of that statute’s objectives, it is clear, as the lower courts

discerned, that OCS leasing is subject to the consistency

review requirement of Section 307(c)(1).**

II. THE LOWER COURTS PROPERLY CONSTRUED

THE PHRASE “DIRECTLY AFFECTING” IN SEC.

TION 307(c) (1).

The lower courts determined that Lease Sale 53 was a

federal activity “directly affecting” the California coastal

zone and that Interior was accordingly required to deter-

mine the consistency of Lease Sale 53 with the Cali-

**That there is no such conflict between the two statutes is per-

haps most evident from the fact that the Secretary of the Interior

has been making consistency determinations under Section 47,

Pin,

(c)(1) on all OCS leasing subsequent to the Ninth Circuit's °

decision herein. See DOI Pet. at 19 n. 18.

**Moreover, since the lower courts’ interpretation of Section

307(c)(1) does not in any way detract from the United States’

“paramount rights” in the OCS, it cannot be said to overturn the

kind of “consistent, established rule” for which this Court has

required a “clear statement” from Congress, Ruckelshaus v. Sierra

Club, 51 U.S.L.W. 5132 (July 1, 1983). In any event, as discussed

supra at note 14, Congress has clearly stated its intent that Section

307(c)(1) apply to OCS leasing.

23

fornia coastal management program. Their construction of

this broad phrase, “directly affecting,” does not depart

from any “plain meaning” it has. That construction is sup-

ported by the purpose and legislative history of the

CZMA; it was previously adopted by NOAA, the agency

charged with administering the CZMA; and it was

recently reaffirmed by congressional statements on the

subject.” Moreover, that construction is the only way in

which the purposes of the CZMA can be achieved with

respect to the important federal activity of OCS leasing.

It is surely no departure from any “plain meaning” of

Section 307(c)(1) to say that the “direct effects” of a lease

are the intended uses of the property leased—in this case

oil and gas development on the Outer Continental Shelf.

The Ninth Cireuit thus correctly viewed Lease Sale 53

as “the first link in a chain of events” which thereafter

includes the approval of exploration and development

plans, the oil and gas development, and the consequent

impacts upon a state’s coastal zone. DOI Pet. at 13a.

Petitioners do not dispute that oil and gas development

pursuant to an OCS lease may “directly affect” the coastal

zone of a state. However, petitioners suggest that an OCS

lease is of little or no significance in determining the impact

on a state’s coastal zone because intermediate federal

approvals are required for exploration and development.

Thus, the Solicitor General asserts that “a lease does not

directly authorize the lessee to explore for, develop or

produce oil or gas.” DOI Br. at 29. However, Congress

itself understood the practical significance of such a lease

to be just the opposite. In OCSLA, it defined a “lease” as

“any form of authorization which... authorizes explora-

tion for, and development and production of, minerals,”

43 U.S.C. 4 1331(¢) (emphasis added).

*°In addition to the decisions under review, every other court

which has construed this language so far has also reached the same

conclusion. See Conservation Law Foundation v. Watt, 560 F.Supp.

561 (D. Mass. 1983); Kean v, Watt, 15 ERC 1921 (D.N.J. 1982);

California », Watt, 17 ERC 1711 (C.D. Cal. 1982),

24

If no OCS lease is issued, then there will be no oil and

gas development and no effects upon a state’s coastal zone.

If one is issued, its intended effect is to produce oil and

gas development, which necessarily has coastal impacts”

Moreover, as the Ninth Circuit observed, “decisions made

at the lease sale stage in this case established the basic

scope and charter for subsequent development and pro-

duction.” DOI Pet. at 13a.

Petitioners, however, seek to avoid the statutory lan-

guage “directly affecting” by substituting a variety of

phrases for it. For example, they assert that it reaches

“only those federal activities that have a clear, immediate

and identifiable impact on the coastal zone.” DOI Br. at

25," Elsewhere they assert that “direct effects” are those

**The District Court found “ample evidence within the adminis-

trative record” that Lease Sale 53 “directly affects the coastal zone.”

DOI Pet. at 62a-63a. Among the direct effects detailed by the

District Court in the area of the tracts challenged by respondents

were the oil spills estimated to occur by the United States

Geological Survey; the “unavoidable effects .. . on the quality of

the surrounding water” from “[n]ormal offshore operations” like

pipelaying, drilling, construction of platforms, chronic spills from

platforms, and the discharge of treated sewage; the impacts on fish

and invertebrate populations from drilling muds and cuttings; the

displacement of recreational areas by OCS-related onshore facili-

ties; the disruption of artifacts of historic interest and aboriginal

archeological sites known to exist in the area; and “the )ikelihood

that development and production activities may jeopardize the

existence of the southern sea otter and the gray whale.” DOI Pet.

at 63a-65a.

**As discussed infra at 31-34, the selection or deletion of tracts

and the adoption of lease stipulations profoundly affect, inter alia,

“whether oil will be transported by pipeline or ship, which areas

of the coastal zone will be exposed to danger, the flow of vessel

traffic and the siting of on-shore construction.” DOI Pet. at 13a.

Moreover, the lease sale stage is the only meaningful opportunity

for analysis of the cumulative effects of development on the tracts

leased, as discussed infra at 34, 39-40.

**Similarly, petitioner WOGA appears to argue that an OCS

lease would have such “direct effects” only if there were either a

“physical activity’ which DOI would conduct at the leasing stage

25

which occur “proximately” or “without any intervening

agency, instrumentality or influence.” Id. at 21-22; WOGA

Br. at 36.* However, these are distinctly different formu-

lations than “(t]he plain language of Section 307(¢)(1)”

(DOI Br. at 25), and are entirely of petitioners’ own

making.

On the other hand, petitioners devote little or no atten-

tion to the definitions which Congress itself has supplied,

in the legislative history of the provision at issue. For

example, the 1971 Senate Report explained the intent of

Congress concerning the federal activities which were to

be subject to Section 307(¢)(1):

or activities which OCS lessees would conduct “immediately after

obtaining leases.” WOGA Br. at 12. Surely, however, the fact that

a lease is a piece of paper rather than a “physical activity” is not

dispositive of the question, so long as there is a sufficient nexus

between the lease and the effects on the coastal zone produced

by the intended uses of the property leased. See Davis v, Morton,

469 F.2d 593 (10th Cir. 1972) (rejecting the argument that

environmental effects resulted from the lessee’s operations and not

from the approval of the lease by a federal agency). Nor are these

effects any less “direct” because they do not occur “immediately.”

The fact that OCS development may occur years after the

lease rather than the next day does not ispo facto make the

effects of an OCS lease any less “direct.” In this latter respect, the

NEPA regulations, relied upon by petitioners (DOI Br. at 22 n. 19,

WOGA Br. at 36), which define “direct effects” as those which

“occur at the same time and place” as the action, are inapposite.

Moreover, it is ironic that petitioners rely upon a definition adopted

by an agency without any responsibility for interpreting the

CZMA, and at the same time reject the definition adopted by

NOAA, the one agency designated by Congress with that respon-

sibility.

**As the District Court observed, the tort concepts of “proximate”

and “intervening cause” were created by the courts to limit tort

liability and have no relevance to a statute designed to foster inter-

governmental coordination in the management of coastal resources.

DOI Pet. at 59a. Moreover, even assuming these tort concepts had

been incorporated into the statute by Congress, the District Court

properly concluded that their literal application would not alter

its decision. Id. at 60a-61a.

26

“(I)t is intended that any lands or waters under Fed-

eral jurisdiction and control, within or adjacent to the

coastal and estuarine zone, where the administering

Federal agency determines them to have a functional

interrelationship from an economic, social, or geo-

graphic standpoint with land and waters within the

coastal and estuarine zone, should be administered

consistent with approved state management pro-

grams,”

S. Rep. No, 526, 92d Cong., Ist Sess. 30 (1971) (emphasis

added). In 1980, when Congress reauthorized the CZMA,

Pub. L. 96-464, 94 Stat, 2060 (1980), the House Report

restated the 1971 formulation of the “functional interre-

lationship” test, quoted above, and added this further

clarification :

“Thus, when a federal agency initiates a series of

events of coastal management consequences, the inter-

governmental coordination provisions of the Federal

consistency requirements should apply.”

H.R. Rep. No, 1012, 96th Cong., 2d Sess, 34 (1980) ; see also

S.Rep. No. 783, 96th Cong., 2d Sess. 11 (1980),

Congress has thus expressed its own understanding of

the meaning of “directly affecting.” The consistency re-

“As petitioners note, early versions of Section 307(¢)(1) applied

only to federal activities “in” the coastal zone, DOI Br, at 23. In

1972, the Conference Committee substituted the “directly affecting”

language now found in the Act. /d. Petitioners assert that Congress

intended, nevertheless, to retain the original limitation of Section

307(c)(1) to federal activities “in” the coastal zone and substituted

the phrase “directly affecting” to further limit the scope of Section

3O7(c)(1). Id. at 24, Petitioners do not purport to rely on any

“explicit legislative history” to support their inference, but merely

assert that “it is evident.” Jd. at 23, 24. However, the trial court

Pet. at ,

language is clearly of broader import than the language

originally proposed. Moreover, contrary to petitioners’ assertion,

the legislative history of the Act reflects Congress’ specific intent

the federal activities covered by Section 307(c¢)(1) include

“.. . activities in or out of the coastal zone which affect that area.”

5.Rep. No. 277, 94th Cong,, lst Sess, 37 (1975) (emphasis added).

27

quirement of Section 307(c)(1) applies whenever the ad-

ministration of areas under federal jurisdiction and ad-

jacent to the coastal zone, like the OCS, has a “functional

interrelationship” with the coastal zone, or whenever a fed-

eral agency “initiates a series of events of coastal manage-

ment consequences,” as with OCS leasing. As NOAA has

noted, these two tests are interchangeable, and, indeed,

were carried forward by NOAA in the regulations promul-

gated by it under the CZMA, defining “directly affecting.”

See 44 Fed, Reg. 37143 (1979). In those final regulations

NOAA expressly stated that “Section 307(c)(1) of the

CZMA applies to DOT's OCS pre-lease sale activities di-

rectly affecting the coastal zone.” 7d, at 37142."

The lower courts did no more than give effect to these

Congressional tests, As the Ninth Cireuit stated, “Under

these circumstances Lease Sale 53 established the first link

in a chain of events which could lead to production and

development of oil and gas on the individual tracts leased.”

DOI Pet. at 13a. Accordingly, it held that Lease Sale 53

was subject to the consistency requirements of Section

B07 (¢) (1),

“That position was restated by NOAA on subsequent occasions,

until after the instant suit was filed. At that time, NOAA pro-

posed to revise its regulations to adopt the view previously

espoused by Interior that the provision did not apply to lease sale

activities, After congressional resolutions objecting to the proposed

revision were introduced, NOAA withdrew it. See 46 Fed. Reg.

50976-77 (1981); see also DOI Pet. at 17a-1Sa, 57a-5Sa,

“Similarly, the District Court held:

“Clearly, the consistency requirement should apply when a

federal agency initiates a series of events which have conse-

quences in the coastal zone, Any other interpretation would

thwart the purpose of the Act.” DOI Pet. at 5la (emphasis

added ).

In E.£.0.C. c. Wyoming, 103 §.Ct. 1054, 1062 (1983), relied

upon by petitioner WOGA (Br. at 35 n. 27), this Court stated

that “a virtual chain reaction of substantial and almost certainly

unintended consequential effects” might flow from the —

of federal wage and hour laws to the states, as an

its decision in National League of Cities vo. Usery, 426 U.S, mn

28

Petitioners prefer to accord no weight to Congress’ own

effort to define “directly affecting,” in light of what peti-

tioners conceive to be the “plain meaning” of “directly.”

DOI Br. at 20-21; WOGA Br. at 21, 35-36, However, when

such legislative history is available as an “aid to construe-

tion of the meaning of words as used in the statute...

there certainly can be no ‘rule of law’ which forbids its use,

however clear the words may appear on superficial exami-

nation” to petitioners, United States v. American Trucking

Ass'ns, 310 U.S, 534, 543-44 (1940),

Moreover, petitioners seek to obscure the purposes of

the CZMA, as discussed supra at 7-14, despite this Court's

observation in Bowsher v, Merck & Co,, 1083 S.Ct. 1587,

1592 n.7 (1983), that the word “directly” in the statute

there reviewed “does not dictate an answer” and that it is

necessary to “analyze the policies underlying the statutory

provision to determine its proper scope.” As discussed next,

the courts below did just that in arriving at their inter-

pretation of Section 307(c)(1).

III. THE APPLICATION OF CONSISTENCY REVIEW

TO LEASE SALE 53 IS NOT ONLY FEASIBLE

BUT ESSENTIAL TO THE ACHIEVEMENT OF

THE PURPOSES OF THE CZMA.

The thrust of petitioners’ argument has a familiar re-

frain: that their compliance with the consistency review

procedures in Section 807(c) should be deferred until a

time when there is “optimal” information available or when

“certainty” can be achieved in making these consistency

852 (1975), that such laws operated to “directly displace the

States’ freedom to structure integral operations.” (emphasis

added). Thus, this Court has recognized, as the Ninth Circuit

recognized below, that effects resulting from a chain of events

are nonetheless “direct” effects,

“In particular, they argue that the 1980 legislative history is

entitled to no weight. DOI Br, at 40, 41; WOGA Br, at 42, 43.

However, petitioners have ignored the fact that the “functional

interrelationship” test is drawn from the legislative history of

29

determinations. See, e.g., DOI Br. at 18, 43.°%* In fact, as

demonstrated below, it is only at the lease sale stage that

tract selection and deletion and the promulgation of lease

sale stipulations can be dovetailed with the coastal manage-

ment program. Those determinations can be made on the

basis of the information then available. To defer consis-

tency review until “optimal” information is supposedly

available will lead to later piecemeal review, and will, in-

deed, allow the federal government to escape any consis-

tency review of its own actions, As the courts below deter-

mined, this “wait and see” attitude would seriously defeat

the purpose of the CZMA that there be early application

of the management program's strictures to activities which

will have an important impact upon the coastal zone.

Congress’ deliberations in originally enacting the CZMA in 1972.

Moreover, the courts below properly concluded that the 1980

legislative history is entitled to substantial weight. DOI Pet. at

15a-16a, Sa-5la; see also Andrus v. Shell Oil Co., 446 U.S. 657,

666 n. § (1980) and the cases cited therein,

“In a host of cases, the courts have rejected agency arguments

that performance of their statutory responsibilities should await

the day when more information is available and greater certainty

could be secured. As the court stated in Ethyl Corp. v. Environ-

mental Protection Agency, 541 F.2d 1, 25 (D.C. Cir, 1976);

“Awaiting certainty will often allow reactive, not preventive

regulation, Petitioners suggest that anything less than cer-

tainty, that any speculation, is irresponsible, But when statutes

seek to avoid environmental catastrophe, can preventive albeit

uncertain decisions legitimately be so labeled?”

Similarly, in [Uinois v. Gorsuch, 530 F.Supp. 340, 341 (D.D.C.

1981), the court refused to countenance a further delay in promul-

gating regulations under a statute because “Congress did not direct

the Agency to resolve every conceivable problem before issuing

regulations.” Finally, in Scientists’ Institute for Public Information,

Inc, v, Atomic Energy Commission, 451 F.2d 1079, 1086 (D.C, Cir.

1973), the court refused to accept the agency's argument that the

project was of a “remote and speculative nature” and “remains

uncrystalized in form and undetemnined in application,” as a basis

for deferring compliance with NEPA.

30

A. Certain Vital Determinations of Consistency Can Be

Made Only at the Lease Sale Stage.

The Solicitor General asserts that the deferral of con-

sistency review to the time when the lessee submits ex-

ploration and development plans under Section 307(¢) (3)

(B) fully satisfies the purposes of the CZMA and renders

it unnecessary to apply Section 307(c)(1) to the precedent

issuance of OCS leases. See DOI Br. at 47-48, The answer

to this argument was supplied by the Department of Justice

in rejecting identical arguments made by the Department of

the Interior only four vears ago:

“Paragraph (B) [of Section 307(¢)(3)) is designed to

relieve the lessee of the burdens and delays resulting

from successive consistency determinations for the

many license and permit applications that may follow

the grant of a lease and the approval of an exploration,

development, or production plan. Under 4 307(c) (3)

(B) there will be a single consistency review following

the submission of the plan by the lessee, and that

review will cover any future activities described in

detail in the plan. Section 307(c)(3)(B) thus simplifies

the regulatory process during the post-leasing period.

It has no bearing on the consistency requirements an-

tedating that stage of the leasing process, It ts well

possible that some of the preleasing activities of the

Secretary of the Interior will give rise to consistency

problems which cannot be reviewed at all under the

paragraph (B) procedure, or for which such review

comes too late. It is our opinion that with respect to

pre-leasing activities 5 307(c)(1) and § 307(c)(3)(B)

can both be given effect....’™

Because Lease Sale 53 defined the physical and opera-

tional parameters for all of the subsequent exploration and

**Letter, April 20, 1979, to C, L. Haslam, General Counsel,

Department of Commerce, and Leo M. Krulitz, Solicitor, De-

partment of the Interior, from Leon Ulman, Deputy Assistant

Attorney General, Office of Legal Counsel, Cal. Exh, L-15, J. A. at

43 (emphasis added).

31

development, it will certainly “give rise to consistency prob-

lems which cannot be reviewed at all” under Section 307 (¢)

(3)(B) “or for which such review comes too late.” Funda-

mentally, the lease sale creates a subdivision of the OCS.

It establishes those tracts where development may occur,

specifies through lease stipulations the conditions for such

development, and excludes other areas from development

altogether.” As the Ninth Cireuit held below:

_. . decisions made at the lease sale stage in this case

establish the basic scope and charter for subsequent

development and production. Prior to the sale of leases,

critical decisions are made as to the size and location

of the tracts, the timing of the sale, and the stipu-

lations to which the leases would be subject. These

choices determine, or at least influence, whether oil will

be transported by pipeline or ship, which areas of the

coastal zone will be exposed to danger, the flow of ves-

sel traffic, and the siting of on-shore construction.” DOL

Pet. at 13a.”

“A decision of the Department of the Interior to offer thousands

of acres of the OCS for development “is regarded as among the

most significant Federal actions affecting the Coastal Zones.” Staff

of Senate Comm. on Commerce, 93d Cong., 2d Sess., Outer Con-

tinental Shelf Oil and Gas Development and the Coastal Zone

79 (Comm. Print 1974).

"In this respect it is analogous to the subdivision of land by

local governments. Just as Interior retains the right to approve

exploration and development on the subdivided tracts, so local

governments retain the authority to approve or deny building per-

mits for homes on lots created pursuant to a subdivision of land.

Nevertheless, a local government's approval of the subdivision itself

is considered to be the major land use decision because it deter-

mines which areas will be made available for development and

which areas will require support services. Moreover, just as Interior

sets stipulations in its lease sale, local governments also typically

attach conditions to their approval of a subdivision map that deter-

mine the primary conditions under which development will be

allowed to proceed, if at all. See generally J. Rose, Legal Founda-

tions of Land Use Planning 315-54 (1979).

“Indeed, outside this litigation, the Department of Interior

has characterized the effect of an OCS lease in the same manner:

32

One significant decision made in offering an OCS area

for leasing is the selection or deletion of particular

tracts, Thus, tracts under consideration for leasing may

lie in proximity to what Congress identified in the CZMA

as a “coastal resource of national significance,” such as a

“eoastal wetland, beach, dune, barrier island, reef, estu-

ary, or fish and wildlife habitat.” 16 U.S.C. 4 1453(2). To

the extent these areas of national significance have been

identified in a coastal management program pursuant to

Congress’ mandate, and provisions to protect these re-

sources have been established therein, leasing for oil or

gas development anywhere in their vicinity may be unde-

sirable—regardless of its precise ultimate location.”

“., the leasing of OCS land sets in motion a process which can

affect interests at all levels, and many decisions are made in that

process which, in part, determine the manner in which any sub-

sequent development may take place.” Department of Interior,

Bureau of Land Management, Intergovernmental Planning Pro-

gram for OCS Oil and Gas Leasing, Transportation and Related

Facilities 4 (1979). As Interior has further stated:

“The tentative scheduling of an area for OCS leasing is a

major decision in that it establishes the resource use conflict

by identifying the potential new use (oil and gas extraction )

that will possibly conflict with present uses (fishing, recreation,

transportation, etc.)....

Stipulations, operating orders and tract deletion are the most

prominent administrative mechanisms through which to apply

environmental information. (Note: Stipulations are formulated

and required at the lease sale stage. ).”

Department of Interior, Bureau of Land Management, Study

Design for Resource Management Decisions: OCS Oil and Gas

Development and the Environment 2-1 (1978).

**As part of its objections to the leasing of certain tracts in

the Santa Maria Basin in Lease Sale 53, the California Coastal

Commission noted that “a large spill in the Santa Maria Basin,

where BLM predicts 3.25 large spills over the life of the producing

fields could jeopardize the entire population of the threatened sea

otter.” J. A. at 124. Moreover, contrary to petitioners’ character-

ization, the Commission was concerned also about the protection

of additional important resources, other than the sea otter. Id.

at 122.

33

Similarly, the topography or weather conditions of an

area may make valuable resource areas particularly vul-

nerable to OCS development.” Consistency with a man-

agement program which takes cognizance of these condi-

tions may require that no development—again. regardless

of its precise location—be allowed within that area. As a

final example of a matter of concern in a management pro-

gram, a tract under consideration for leasing may be

unduly close to established pathways for ocean vessel

traffic.* Depending on the circumstances, sufficient infor-

mation may clearly exist in any of these situations to

make decisions at the lease sale stage as to whether or

not particular tracts should be offered.

The second important decision made at the leasing

stage is the inclusion of particular stipulations as terms

of the lease sale. As the District Court noted, stipulations

may be drafted to “influence the flow of vessel traffic, the

placement of platforms and drilling structures, as well as

the siting of on-shore construction ... [and to] determine

what equipment is to be used and what training is to be

provided by lessees to those working on the tracts.” DOI

Pet. at 45a-46a. For example, lease sale stipulations, to-

gether with tract selections, can provide assurance (or at

least preserve the option) that pipelines, environmentally

preferable in some cases to tankering as a means of bring-

ing oil to shore, will be required in connection with the

“The Coastal Commission expressed particular concern, for

example, about the proximity of Lease Sale 53 to rocky areas along

central and northern California with small coves or bays, where

cleanup of oil spills would be difficult and the heaviest damage to

marine life would occur. J.A. at 124. It also noted that wind and

wave conditions near Elkhorn Slough, a National Estuarine Sanctu-

ary, and Tomales Bay, adjacent to the Point Reyes National Sea-

shore, would make containment of oil spills nearly impossible in

those areas. Id.

“The Coastal Commission's comments on Lease Sale 53 expressed

concern about this problem. See J.A. at 124.

ot

development of tracts.** Indeed, as the Coastal Commis-

sion has itself noted in the context of Lease Sale 53, lease

sale stipulations may be an effective alternative for avoid-

ing the necessity of tract deletions, in order to protect

resources identified as valuable in the coastal manage-

ment program. J.A. at 77.

Without question, in some instances the decisions re-

quired to tailor OCS development to the provisions of a

coastal management program will be appropriately made

on a tract-by-tract basis when individual exploration or

development plans are submitted to the state for consis-

tency review under Section 307(c)(3)(B). Other decisions,

as described above, are inherent in the selection or dele-

tion of tracts and the setting of stipulations, and can thus

only be made at the lease sale stage. As the Ninth Circuit

observed regarding Lease Sale 53:

“(Ajt this stage all the tracts can be considered

together, taking into account the cumulative effects

of the entire lease sale, whereas at the latter stages

consistency determinations would be made on a tract-

by-tract basis under § 307(c)(3).” DOI Pet. at 13a.

In sum, these are “consistency problems which cannot

be reviewed at all” under Section 307(c)(3)(B) or “for

which such [later consistency] review comes too late.”

J.A. at 43.

B. Contrary to Petitioners’ Assertions, Sufficient Infor-

mation Exists to Make These Consistency Determina-

tions at the Lease Sale Stage.

Petitioners assert that a host of “uncertainties” at the

OCS leasing stage make it impossible to “guarantee” that

all subsequent development will be consistent with a coastal

management program. DOI Br. at 43. However, they do

“Thus, tracts can be aggregated and leased concurrently so

that they afford the greatest potential for sufficient oil develop-

ments occurring together to justify pipelines as an economical

matter.

30

not take account of the information which is both available

at the leasing stage and sufficient to make the kinds of deter-

minations described above, and they improperly charac-

terize the consistency review as requiring impossible

“cnarantees.” Their own practices in prior lease sales belie

the abstract arguments made here.

For many of the coastal management concerns associ-

ated with a particular lease sale, it is simply immaterial

that there may be a “series of sequential unknowns” (DOL

Br. at 45) which make it impossible for the Secretary to

predict with certainty at the lease sale stage whether or

precisely where OCS development will occur. If proposed

tracts are in proximity to a particularly sensitive wildlife

habitat or particularly volatile seas, he need not await

the expenditures of significant sums of money by the oil

companies in planning and exploration before deciding

that these tracts are simply not appropriate for any kind

of oil development.” Alternatively, these environmental

conditions may dictate certain lease sale stipulations in

order to achieve consistency with a management program,

“Nor does Interior correctly portray the state of its own knowl-

edge at the time a lease sale is made. Several years of preparation

and study by Interior precede each lease sale. In addition to the

information developed and reviewed in the draft and final environ-

mental impact statements on Lease Sale 53, for example, special

studies were done that included oil spill risk analyses, alternative

oil and gas transportation scenarios, analyses of the sensitivity of

marine life in the area to development disturbances, and air

quality modeling of projected impacts of the lease sale. Moreover,

as a part of these presale preparations, Interior and the oil industry

expend considerable effort to determine the size and location of

potential oil reserves. See, e.g., Final Environmental Impact State-

ment on OCS Lease Sale No. 53, C.R. 3, Cal. Exh. L-2 at 1-9—1-13.

As the District Court held, the activities that occur during this

period, including the call for nominations of tracts, the preparation

and circulation of an environmental impact statement, and the

publication of a final notice of sale, “define and establish the basic

parameters for subsequent development and production.” DOI

Pet. at 45a.

36

as previously noted—regardless of the precise location of

development thereafter."

At bottom, the asserted handicaps in making these kinds

of determinations stem from a fundamental misconception

of the nature of the consistency obligation. The applica-

tion of Section 307(c)(1) to the lease sale does not require

that the Secretary of the Interior issue impossible “guar-

antees,” based upon “speculative assumptions” that all

“hypothetical future activities” will be consistent with a

coastal management program. DOI Br. at 49.

The essential inquiry in consistency review is not one

which requires the capacities of a soothsayer. Rather, as

the California Coastal Commission stated in its comments

on Lease Sale 53, the question is whether the available

information allows the Department of the Interior “on

balance, at this time under the Management program to

determine that there is no way to develop those tracts

‘In the example drawn by the Solicitor General (DOI Br. at

46), if there is “an unacceptably high risk” of an oil spill in the

area of a particularly valuable fish or wildlife habitat but no

similar concern associated with the potential development of

“commercially valuable natural gas,” the solution might be a lease

stipulation that industry would only be allowed to produce gas

and not oil on these tracts. Similarly, “if it may be possible,” as the

Solicitor General surmises, to develop a plan later that “will

reduce the risk of an oil spill to a level acceptable to the state”

(DOI Br. at 46), then it may also be “possible” to draft stipulations

at the OCS leasing stage to provide the requisite assurances that

development would not be allowed in the absence of such reduced

risk. On the other hand, the Secretary might determine, based on

the requirements of the management program, that it was not pos-

sible to reduce the risk to an acceptable level and delete the tracts

at the outset. In any of these circumstances, industry and state and

local governments would be able to proceed with their planning

with an understanding of where development will be allowed and

under what conditions, based on the Secretary's application of the

coastal management program.

37

consistent with the policies of the California Coastal Act.”

J.A. at 78 (emphasis added).”

Indeed, the phased decisionmaking process established

under OCSLA, upon which petitioners place such heavy

reliance, does not require that all important decisions be

deferred to later stages of the OCS process, as petitioners

imply. DOL Br. at 27-35; WOGA Br. at 21-31. Decisions

are made at each stage appropriate to the level of infor-

mation available at that stage. As stated by the Court of

Appeals for the District of Columbia Circuit, in reviewing

Interior’s five-year leasing program, the procedures

embodied in the 1978 OCSLA Amendments are “pyramidic

in structure, proceeding from broad-based planning to an

increasingly narrower focus as actual development grows

more imminent.” California v. Watt, 668 F.2d 1290, 1297

(D.C. Cir. 1981). In that case, the court rejected the same

arguments made by Interior here, that the information at

early stages of the OCS process was too “speculative” to

consider:

“Although the continual collection and assimilation of

pertinent information must of course continue

throughout the OCS process, and although the specu-

lative nature of any information may well affect the

weight the Secretary attaches thereto in drawing up

the leasing program, 4 18(a)(2) nonetheless requires

the Secretary at the program stage to consider every

factor listed therein on the basis of the best informa-

tion available, and to base the leasing prograin upon

the information thereby obtained.” Jd. at 1307,

“In its initial review of Lease Sale 53, the Commission deter-

mined that the information available at the time required the

deletion of only 31 of the 113 tracts in the Santa Maria Basin of

the OCS. The Commission made clear that it was not implying

that “all development of the other 82 tracts would be consistent”

when exploration or development plans were submitted, but only

that there were no reasons, on at that time to determine

that there was “no way” to develop those tracts consistently with

the management program. J.A. at 75.

38

In fact, in past lease sales the Department of Interior

has made the very kinds of determinations that would be

required of it in consistency review. For example, in Lease

Sale 48, which preceded Lease Sale 53, Interior deleted

24 tracts in the Santa Barbara Channel at the lease sale

stage expressly for a purpose similar to one of the state's

concerns in Lease Sale 538—"“|t)he objective of protecting

the valuable seabird and marine mammal rookeries” in

that part of the sale area.’ In addition, Interior has pre-

viously conceded that imposition of lease stipulations can

substantially reduce adverse coastal impacts which would

otherwise occur.”

There is simply no practical foundation for petitioners’

arguments that there is insufficient information at the lease

sale stage to render meaningful determinations of con-

sistency.

C. Deferral of Consistency Review to the Exploration and

Development Phase Defeats the Essential Purposes of

the CZMA.

If the strictures of a coastal management program are

applied only to individual exploration or development

plans on a tract-by-tract basis, then the broader concerns

of the management program will be foregone entirely.

**Letter from Secretary Andrus to Governor Brown (June 29,

1979). Similarly, in partial response to some of the other concerns

expressed by the State of California with respect to Lease Sale 48,

Secretary Andrus determined that there would be no petroleum

exploration rigs in the vessel precautionary area outside the Ports

of Los Angeles and Long Beach; determined that there would be

no oil or development within six miles of the Santa Barbara Chan-

nel Islands, thus protecting the wildlife there from disturbance and

preserving the option of designating that area as a marine sanc-

tuary; and made the addition of petroleum reserves in the west-

ern Santa Barbara Channel more likely, thereby increasing the

prospects for adequate oil production in that area to justify con-

struction of a pipeline in place of tankers to carry oil to market. Id.

‘*Solicitor’s Opinion (October 1979), C.R. 3, Cal. Exh. L-11 at 8;

Alaska v. Andrus, 580 F.2d 465, 471, 478 (D.C. Cir. 1978).

39

Moreover, the impetus which the CZMA was intended to

give to early intergovernmental coordination—among

federal, state and local governments—in dealing with

coastal management problems, will be frustrated. Indeed,

the federal government would thereby be excused from

all responsibility to assure that /ts activities are consistent

with coastal management programs. In all of these

respects, petitioners’ attempt to avoid consistency review

at the lease sale stage defeats the basic purposes for Con-

gress’ enactment of the CZMA.

vidence presented by respondents in the District

Court graphically demonstrated the piecemeal and random

manner in which the exploration and development plans in

the Santa Barbara Channel, for example, were submitted

by the lessees for the state’s consistency review under

Section 307(c)(3)(B). Affidavit of Mari Gottdiener, J.A.

at 152-155. In the two and one half years after the federal

approval of California's management program, 27 differ-

ent exploration or development plans were submitted ran-

domly for different tracts within this single area. Jd, The

broader concerns of the California coastal management

program—e.g., determination of which areas should be pro-

tected from the risk of oil spills, which modes of oil trans-

portation should be employed and where on-shore support

facilities should sensibly be located—are impossible to ad-

dress when consistency review is this fragmented.

In California v. Watt, 668 F.2d 1290, 1306 (D.C. Cir.

1981), the court noted that “[w]hen a decision is being made

on a particular lease sale, or a particular exploration,

development or production plan, the focus of the inquiry

is on the propriety of that particular lease sale or plan.”

Accordingly, the court concluded that it was impossible to

address the broader concerns of OCS development (in that

case, the five vear leasing program) “in the context of a

decision on the placement of a particular exploratory

well.” Id. at 1806 (emphasis added). Yet, this is precisely

40

the burden which petitioners here seek to thrust upon

state and local governments by suggesting that consistency

review can be deferred to the exploration and development

phases.

In reviewing the five year leasing program, the court in

California v. Watt emphasized that the earlier steps in

the OCS process become “the basis for future planning by

all affected entities, from federal, state, and local gov-

ernments to the oi] industry itself” (668 F.2d at 1299) and

held that Congress therefore did not “envision the defer-

ral” of Interior's consideration of the relevant factors until

some later date when more information would be available.

668 F.2d at 1305, These same concerns underlie the Ninth

Circuit’s ruling in the instant case:

“Thus, a major purpose of the CZMA is to avoid

conflict and encourage cooperation between the federal

and state governments in developing a comprehensive

plan for long-term management of the resources in

the coastal zone. 16 U.S.C. 44 1451, 1452. To effectuate

this purpose, the state must be permitted to become

involved at an early stage of a significant and com-

prehensive activity, such as Lease Sale 53, that will

eventually have an appreciable impact on the coastal

zone. The narrow definition urged upon us by the

federal appellants would preclude this early involve-

ment.” DOT Pet. at 14a."

Finally, it bears emphasis that if consistency review is

not undertaken at the lease sale stage, but is deferred to

the time when exploration or development plans are sub-

mitted, then the “federal activity” in OCS development

“Despite the Solicitor General's contrary assertion (DOI Br, at

42), “the immediate purpose of Section 307(c)(1)'s consistency

requirement is , . . to provide coastal states with an opportunity

to participate in the initial decisionmaking or planning stages of

federal activities on the outer continental shelf.” See S.Rep. No.

783, 96th Cong., 2d Sess, 11 (1980) (“intergovernmental coordi-

nation for purposes of OCS development commences at the earlicst

practicable time”).

41

escapes consistency review altogether and the Secretary

of the Interior will never be required to take into account

the coastal management program in this context. Once

the lease sale occurs, the initiative passes to industry. The

later review is confined to plans for specific tracts sub-

mitted by each lessee, in the order and time of its own

choosing, and it is the applicant—not the Secretary—

who must certify consistency at that stage under Section

307(¢) (3), From a practical standpoint, the lease sale is

thus the only stage at which certain matters can be decided

effectively—or, indeed, at all—by the federal government.

D. The Consistency Review Process Required Under Sec-

tion 307(c)(1) Is Not Rendered Superfiuous by the

OCSLA Consultation Process at the Lease Sale Stage.

Petitioners also argue that Section 307(c)(1) is super-

fluous because of the opportunities for consultation ac-

corded the states prior to OCS leasing under Section 19

of OCSLA, 43 U.S.C. 4 1345, DOI Br. at 42, Indeed, peti-

tioner WOGA argues that consistency review at the leasing

stage is unnecessary because the coastal management

program may be considered by the Secretary of the Inte-

rior through the back door of the consultation process

under Section 19 of OCSLA. WOGA Br. at 26, 27. However,

it is for Congress to decide whether its goals can be

achieved through one statute or two, and it is clear that

OCSLA and the CZMA were enacted to serve markedly

different objectives (and establish distinctive procedures,

as discussed supra at note 15),

The basic orientation of the CZMA and OCSLA differ

considerably, As the District Court concluded in American

Petroleum Institute v. Knecht, 456 F.Supp. 889, 919 (C.D.

Cal. 1978), aff'd, 609 F.2d 1306 (9th Cir, 1979):

“The CZMA was enacted primarily with a view to

encouraging the coastal states to plan for the man-

agement, development, preservation, and restoration

of their coastal zones by establishing rational processes

hy which to regulate uses therein, Although sensitive

42

to balancing competing interests, it was first and fore-

most a statute directed to and solicitous of environ-

mental concerns.”

On the other hand, in Commonwealth of Massachusetts v.

Andrus, 594 F.2d 872, 885 (1st Cir, 1979), the Court

described the “emphasis” of OCSLA as the “exploitation of

oil, gas and other minerals, with, to be sure, all necessary

protective controls.” Accordingly, it would be a mistake

to assume that the same objectives could be achieved

through the application of OCSLA that were intended to

he achieved by Congress through the specific mechanisms

set forth in CZMA,

This Court has, moreover, recently rejected a similar in-

vitation to determine whether particular federal laws are

“redundant or unnecessary.” Hodel v. Virginia Surface

Mining and Reclamation Association, 452 U.S, 264, 283

(1981), As stated in the Hodel case; “The short answer to

this argument is that the effectiveness of existing laws in

dealing with a problem indentified by Congress is ordinarily

a matter committed to legislative judgment.” Jd, See also

Chemical Manufacturers’ Ass'n v, Environmental Protec-

tion Agency, 673 F.2d 507, 512 (D.C, Cir. 1982),

For the same reason, it is inappropriate for petitioners

to argue that Congress’ omission from the text of OCSLA

of a specific reference to Section 307(c)(1) of the CZMA

somehow disqualifies the latter provision from applying to

OCS leasing.*’ Indeed, there are a number of statutes which

‘Petitioners argue that because OCSLA makes specific reference

to the application of consistency review at the exploration and

development stages of the OCS process, the omission from the

statute of any reference to its application at the leasing stage is

dispositive, See WOGA Br, at 21-31, However, as both petitioners

concede, the legislative history of OCSLA itself shows congressio-

nal understanding that “under the [CZMA] . . . certain activities

including lease sales and approval of development and production

plans must comply with ‘consistency’ requirements, , . .” H.R.Rep.

590, 95th Cong,, Ist Sess, 153 n.52 (1977). This unqualified state-

ment, consistent with other Congressional expressions of intent

43

have application to OCS development which are not re-

ferred to in OCSLA.” Accordingly, there is no warrant for

any restrictive reading of the consistency requirement in

Section 307(c)(1) of the CZMA by reason of the existence

of the OCSLA consultation process, or any provision in

OCSLA itself,

IV. THE DECISIONS OF THE LOWER COURTS DO

NOT PORTEND AN INCREASE IN LITIGATION

OR A REDUCTION OF ENERGY DEVELOPMENT

OR A LOSS OF FEDERAL-STATE COOPERA.

TION

Petitioners raise the specter of additional litigation and

reductions in OCS development and federal-state coopera-

tion as the likely products of the decisions below. Although

such contentions are more appropriately addressed to Con-

gress’ legislative judgment, there is no warrant for peti-

discussed supra at note 14, certainly does not fit petitioners’ char-

acterization of it as “a meager indication” (WOGA Br. at 26 n. 19)

or a “hint” (DOI Br, at 34 n. 26) of congressional intent. Even so,

petitioners have omitted the immediately succeeding statements

in the report which underscore Congress’ intent with respect to

OCS leasing:

“Except for specific changes made by Title IV and V of the

1977 Amendments, nothing in this Act is intended to amend,

modify or repeal any provision of the Coastal Zone Manage-

ment Act. Specifically, nothing is intended to alter procedures

under that Act for consistency if a State has an approved

Coastal Zone Management Plan.” H.R.Rep. No, 590, supra

at 153 n, 52.

In fact, Congress formalized this intent in the savings clause of

the OCSLA, 43 U.S.C, § 1866, which specifically provides that

“nothing in this chapter shall be construed to amend, modify or

repeal any provision of the Coastal Zone Management Act of 1972.”

“These statutes include the Marine Protection, Research and

Sanctuaries Act, 16 U.S.C, §§ 1431 et seq., the Federal Water Pol-

lution Control Act, 33 U.S.C. §§ 1151 et seq., the Endangered Spe-

cies Act, 16 U.S.C, §§ 1531 et seq., and the Deepwater Ports Act, 33

U.S.C, §§ 1501 et seq.

44

tioners’ apprehensions that adherence to the decisions

below will cause any disruption of OCS activities.

Consistency determinations are now being prepared by

the Department of the Interior on all OCS lease sales

without any apparent undue burden. See DOT Pet. at 19

n.18. In fact it is certainly arguable that there will be less

delay and disruption of OCS leasing if coastal management

programs are applied in Section 307(c)(1) consistency re-

view at the lease sale stage, under the decisions of the

lower courts, than if the states and local governments are

relegated to review of individual exploration and develop-

ment plans under Section 307(c)(3)(B) at a later stage of

the process. As the District Court found:

“Tf the state is consulted only after the plans are drawn

and the parameters for exploration and development

are set, as a practical matter, it will be relegated to

the defensive role of objecting to the proposals of

individual lessees as they are presented. Thus, the com-

prehensive planning in accordance with the manage-

ment plan cannot occur and there will be no opportunity

for the orderly decisionmaking envisioned by the

draftsmen of the CZMA.” DOI Pet. at 46a.

NOAA has similarly observed that “implementation of

this requirement at the OCS pre-lease sale stage should

lead to minimization of adverse coastal environmental and

socio-economic impacts, thereby reducing conflicts with af-

fected states and avoiding delay in the exploitation of off-

shore energy resources.” 44 Fed. Reg. 37142 (1979) (empha-

sis added). Indeed, after California’s objections to Lease

Sale 48 were cormmunicated to the Secretary of the Interior,

the Department of Interior (although refusing to make a

consistency determination) did subsequently delete the

tracts which California found objectionable and California

did not bring suit. Thus, WOGA’s characterization of the

45

CZMA process as “merely a prelude to later federal litiga-

tion” (WOGA Br. at 14) is misplaced.”

Finally, petitioners assert that the lower courts’ con-

struction of “directly affecting” makes it impossible for

a federal agency to determine “which of its activities

will be implicated by the state program” and renders its

participation in the development of management programs

superfluous. DOI Br. at 25 & n. 21. However, petitioners’

arguments are belied by their own participation in the

development of California’s management program. In its

comments on the program prior to federal approval, the

Department of the Interior specifically addressed the issue

of whether the program applied to OCS leasing under con-

sistency review. California Coastal Management Program,

C.R. 3, Cal. Exh. L-18, Attachment J at 20. Both WOGA

and the American Petroleum Institute, as well as Exxon

Corporation, also commented on the OCS implications of

the management program. See, e.g., id. at 29, 33, 34, 37, 40."

Petitioners’ apprehensions are, moreover, beside the

point. Congress has determined that the national interest

in the coastal zone is best served by federally funded and

approved coastal management programs, developed by

states in cooperation with the federal government.

Throughout its deliberations over the original enactment

of the CZMA and its subsequent amendments and reautho-

rization, it has expressed its concern about the impact of

OCS development on the coastal zone, and it has on a

"In addition, the Coastal Commission concluded, in its com-

ments on Lease Sale 53, that there had been relatively fewer con-

sistency review problems on the tracts that were included in Lease

Sale 48 but were reviewed in this mediation process, than in the

case of tracts from earlier lease sales consummated before Cali-

fornia’s management program went into effect. J.A. at 117-118.

“Moreover, as discussed supra at 22-28, petitioners can scarcely

claim to be surprised by the lower courts’ construction of “directly

affecting,” since it was based on the legislative history of the

CZMA’s original enactment in 1972, subsequent Congressional

statements on the subject and the NOAA regulations.

46

number of occasions unequivocally expressed its intent

that OCS leasing be conducted consistently with approved

coastal management programs. The lower courts did no

more than give effect to this intent, as well as Congress’

own formulations of what it meant by “directly affect-

ing.” Petitioners’ reliance upon “policy considerations”

and the provisions of a different statute—which do not

conflict with the interpretations of the CZMA in the courts

below—provides no support for a contrary interpretation.

CONCLUSION

The judgment of the Court of Appeals for the Ninth

Cireuit that Section 307(c)(1) of the CZMA requires the

Secretary of the Interior to make a consistency determi-

nation concerning Lease Sale 53, should therefore be

affirmed.

Respectfully submitted,

Rocer Beers

COUNSEL OF RECORD

KXaTHRYN Burkett Dickson

Wituiam M. Boyp

Of Counsel

Brers anp Dickson

380 Hayes Street, Suite One

San Francisco, California

94102

(415) 861-1401

Counsel for Respondents

County of Humboldt et al.*

*With assistance from

Joel R. Singer