Secretary of the Interior v. California
Citation: 14 ELR 20129
No. No. 82-1326, 464 U.S. 312/20 ERC 1201/(U.S., 01/11/1984) Rev'd
The Court, reversing the Ninth Circuit, 12 ELR 21084, rules that the sale of outer continental shelf (OCS) oil and gas leases does not "directly affect" the coastal zone and thus does not require a consistency determination under § 307(c)(1) of the Coastal Zone Management Act (CZMA). The Court first finds that the language of § 307(c)(1) is inconclusive and that the interpretation of that language by the administering agency, the National Oceanic and Atmospheric Administration, has so vacillated over the years as to be of no help.
Analysis of the legislative history persuades the Court to rule that Congress did not intend to subject lease sales to the § 307(c)(1) consistency requirements. The Court interprets a 1972 conference committee change in § 307(c)(1) language from requiring consistency determinations for federal activities "in" the coastal zone to requiring them for federal activities "directly affecting" the zone as a compromise between conflicting House and Senate definitions of the coastal zone itself. The former had included lands under federal jurisdiction, the latter had excluded them. Since neither predecessor bill extended § 307(c)(1) beyond the three-mile limit of the territorial sea, the implication is that the insertion of the "directly affecting" language, which is not explained in the conference report, was not intended to expand the reach of the provision beyond the three-mile limit. The Court finds further support for this analysis in statements during the House and Senate floor debates that the CZMA was not intended to reach to the OCS and in the rejection of two Senate and two House provisions that would have clearly applied CZMA requirements to activities on the OCS.
The Court also finds confirmation for its narrow reading of § 307(c)(1) in other CZMA provisions. It concludes that OCS lease sales are the type of activity covered by § 307(c)(3), which imposes consistency requirements on private parties acting pursuant to federal permits or licenses, not by § 307(c)(1), which addresses federally conducted or supported actions. Section 307(c)(3) imposes no consistency requirements on the sale of a lease and, in 1976, Congress voted down an amendment that would have inserted the word "lease" in § 307(c)(3). Instead, Congress added a new § 307(c)(3)(B) requiring consistency determinations by private parties seeking permits or licenses to explore or develop already-issued OCS leases. The Court finds that this fine distinction between lease sales and issuance of exploration permits is confirmed by reference to the Outer Continental Shelf Lands Act (OCSLA), which was amended in 1978 to limit the rights granted through purchase of a lease and to require federal approval before exploration or other development activities could commence on leased OCS tracts. The OCSLA amendments expressly require consistency determinations prior to issuance of a permit to explore on an OCS lease, but not before. Congress stated that the reason for the division of OCS leasing activities in the OCSLA amendments was to avoid premature environmental review. Moreover, the fragmentation of the leasing process achieved by the 1978 OCSLA amendments erases any argument respondents may have had that lease sales "directly affect" the coastal zone under § 307(c)(1).
A dissent argues that § 307(c)(1) does require a consistency determination prior to an OCS lease sale. The minority finds the plain meaning of "directly affecting" to encompass activities outside the coastal zone itself and concludes that this reading is supported by the legislative history. The four dissenters reason that both the House and Senate versions of the CZMA shared the purpose of protecting the resources of the coastal zone from adverse effects of federal actions wherever situated. The dissent also argues that the broader reading of § 307(c)(1) is necessary to accomplish that purpose, because the sale of an OCS lease is a commitment to develop the energy resourcesthat may be found there and starts in motion a chain of events that directly affects coastal resources. The dissent also argues that a passage in the legislative history of 1976 amendments to the CZMA to the effect that § 307(c)(1) covers OCS lease sales was wrongly dismissed by the majority. The minority reasons that the history was not merely post-enactment legislative history but a contemporaneous explanation of a decision not to add new provisions explicitly applying § 307(c)(3) to OCS leasing. They counter the majority's arguments concerning the OCSLA with the point that the 1978 amendments to that statute established consistency requirements only for post-lease sale activities because Congress believed that § 307(c)(1) already applied them to the only federal action in the lease process, the lease sale itself.
Counsel for Petitioners
Lawrence G. Wallace, Richard G. Wilkins; Rex E. Lee, Solicitor General
Department of Justice, Washington DC 20530
Peter R. Steenland Jr., Anne S. Almy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Counsel for Intervenor
E. Edward Bruce
Covington & Burling
P.O. Box 7566, Washington DC 20044
Counsel for Respondents
Trent W. Orr
Natural Resources Defense Council, Inc.
25 Kearny St., San Francisco CA 94108
Beers & Dickson
380 Hays St., Suite 1, San Francisco CA 94102
Theodore Berger; John K. Van De Kamp, Attorney General
3580 Wilshire Blvd., Los angeles CA 90010
Counsel for Amici Curiae
H. Bartow Farr III, Robert D. Luskin
Onek, Klein & Farr
2550 M St. NW, Washington DC 20037