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The BP Macondo Well Exploration Plan: Wither the Coastal Zone Management Act?

November 2010

Citation: 40 ELR 11079

Issue: 11

Author: Sam Kalen

The Deepwater Horizon spill of April 20, 2010, serves as an acute reminder of the potentially devastating consequences of coastal activities. During the 1950s and 1960s, the nation earnestly began to explore how to protect our marine and coastal communities. Then, in 1972, the U.S. Congress passed the Coastal Zone Management Act (CZMA), and shortly thereafter it enacted the Outer Continental Shelf Lands Act (OCSLA) Amendments of 1978. Both acts recognize the fragility of our marine and coastal environments and, at least optically, emphasize the importance of outer continental shelf (OCS) energy development, and yet neither statute--at least as implemented to date-- appears sufficiently robust to protect our resources for the future. By the late 1990s, it became apparent to many that existing programs were not adequately protecting our coasts and marine environment. Today, "[i]ncreasing impacts on the world's oceans from coastal and offshore development, overfishing, a changing climate and increased levels of carbon dioxide, natural events, and other sources are straining the health of marine ecosystems and the Great Lakes." Our present challenge, therefore, is to ensure that our programs do as much as possible to: (1) protect our marine and coastal environments; (2) bolster the resiliency of these environs to withstand ecological changes; and (3) afford sufficient flexibility to adapt to changing ecological conditions.

This Article explores some of the reasons why the CZMA in particular appears to have become rendered of little relevance to this challenge, particularly as a tool for examining offshore oil and gas development. Indeed, in recent inquiries into the administration of the Minerals Management Service (MMS) program, the CZMA and its role receives virtually no mention. Perhaps even more telling, in the lawsuits against the U.S. Department of the Interior's (DOI's) limited moratoria against future exploratory drilling, the plaintiffs, including the state of Texas, argue that the DOI should have consulted with coastal states before imposing the moratoria, yet there is no mention of the CZMA in the complaints, even though consultation is a critical component of the Act. This is understandable: historically, the coastal zone management (CZM) program has been slow to develop, with considerable reluctance by the DOI to apply the program to OCS energy development, and instead, the OCSLA and the National Environmental Policy Act (NEPA) dominate and eclipse most of the discussion about the OCS oil and gas program.

Sam Kalen is Assistant Professor of Law, University of Wyoming College of Law.

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