American Petroleum Institute v. Knecht

NOS. 78-623, -684 (D.D.C. September 6, 1978)

Granting defendants' motion for summary judgment, the court decides that it lacks jurisdiction to consider challenges to the approval by the National Oceanic and Atmospheric Administration (NOAA) of the Massachusetts and Wisconsin coastal zone management programs. Plaintiffs, oil companies and an industry trade association, challenged the conclusions of NOAA that the state plans comply with the Coastal Zone Management Act (CZMA), alleging that application of the consistency provisions in § 307 of the CZMA to their activities would cause them serious injury. The court concludes that plaintiffs have not presented a justiciable case or controversy ripe for adjudication, however, because they have not demonstrated any legally cognizable injury resulting from the federal approval so as to provide standing. Plaintiffs have failed to show that the approvals will have any immediate and practical impact upon them, and the asserted injuries are too speculative to meet the required causal connection with the challenged federal approval.

Counsel for Plaintiffs
John T. Smith II
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Counsel for Defendants
Michael W. Reed
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2779

Raymond M. Roder, Ass't Attorney General
114 E. State Capitol, Madison WI 53702
(608) 266-0764

[8 ELR 20886]

Robinson, J.:

Order

In accordance with the Memorandum filed herewith, it is by the court this 6th day of September 1978,

ORDERED, that defendants' Motion for Summary Judgment is hereby GRANTED; and it is

FURTHER ORDERED, that plaintiffs' Motion for Summary Judgment is hereby DENIED; and it is

FURTHER ORDERED, that this action is hereby dismissed.

Memorandum

These cases arise under the Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. § 1451 et seq. Plaintiffs¹ in these actions challenge the conclusions of the Assistant Administrator of the National Oceanic and Atmospheric Administration that the Massachusetts Coastal Zone Management Program (MCZMP) and the Wisconsin Coastal Zone Management Program (WCZMP) comply with the requirements of the CZMA. These actions are before the court on Cross-Motions for Summary Judgment. For the reasons stated below, this court concludes that this court lacks [8 ELR 20887] jurisdiction because the plaintiffs in these actions have not presented a justiciable case or controversy ripe for adjudication, and have not demonstrated any injury resulting from the federal approval of the MCZMP or WCZMP so as to provide standing. In separate Orders accompanying this Memorandum, this court shall grant summary judgment for defendants and deny summary judgment for plaintiffs.

In neither action before this court have plaintiffs demonstrated that the approval of the MCZMP or the WCZMP will have any "immediate and practical impact" upon them. See Abbott Laboratories v. Gardner, 387 U.S. 136 (1967; Diamond Shamrock Corp. v. Costle, __ F.2d __ [8 ELR 20488] (D.C. Cir. May 30, 1978). Plaintiffs shall suffer no "distinct and palpable injury" with a "fairly traceable causal connection" to approval of the programs. See Duke Power Co. v. Carolina Environmental Study Group, Inc., __ U.S. __ [8 ELR 20545] (June 26, 1978).

In Civil Action 78-623, plaintiffs have filed affidavits setting forth their alleged injuries. Plaintiffs' primary complaint² is that, if at some time in the future a lease sale is held on the outer continental shelf offshore of Massachusetts, and if they bid for and win leases to produce oil or gas, then exploration, development, or production activities which require a federal permit would be subjected to the consistency requirements of § 307(c)(3)(B).³ Plaintiffs assert that delays resulting from application of the consistency requirements would cause them serious injuries.

Plaintiffs' asserted activities on the outer continental shelf are much too speculative to permit this court to find any legally cognizable injury. Moreover, it is not now clear how much delay, if any at all, will result from application of the consistency provisions of § 307(c).⁴

Intervenor-Plaintiff Greater Boston Chamber of Commerce argues only one issue, that lease sales on the outer continental shelf are not subject to the consistency requirements of § 307(c)(3)(A) or (B). There is no controversy between the parties as to this issue, and this court shall not issue an advisory opinion on the issue.⁵

In Civil Action 78-684, plaintiff alleges injuries to its members as a result of federal approval of the WCZMA. No affiant alleges any specific present or planned future activities within the scope of the WCZMP; therefore, any asserted injury from application of the Act's consistency requirements is only speculative. And as in Civil Action 78-623, it is not clear how much delay, if any at all, would result from application of the consistency provisions of § 307(c).⁶

Finally, the required causal connection between the activity complained of and the asserted injury, see Warth v. Seldin, 422 U.S. 490 (1975), does not exist in either case before this court. The delays which plaintiffs complain of, if they occur, are built into the statutory scheme by Congress, and any injury which might result from this delay would not create a justiciable controversy.

For these reasons, neither action before this court presents a justiciable case or controversy ripe for adjudication, and no plaintiff has demonstrated any legally cognizable injury providing standing. Therefore, this court shall grant summary judgment for defendants and deny summary judgment for plaintiffs in Civil Actions 78-623 and 78-684.

1. Plaintiffs referred to herein include American Petroleum Institute, Atlantic Richfield Company, Chevron U.S.A., Inc., Continental Oil Company, Exxon Corporation, Gulf Oil Corporation, Mobil Oil Corporation, and Shell Oil Company, in Civil Action No. 78-623, and American Petroleum Institute in Civil Action No. 78-684. Intervenor-plaintiff in Civil Action No. 78-623 Greater Boston Chamber of Commerce will be discussed separately in this Memorandum.

2. Only one plaintiff, Shell Oil Company, asserts the existence of plans for activities affecting land or water uses in the coastal zone which might be subject to the consistency requirements of § 307(d)(3)(A). See Affidavit of T. J. Connolly. Approval of the MCZMP would have only minimal effect on these activities since they would be subject to Massachusetts state law in any event.

3. Section 307(c) of the CZMA provides:

(3)(A) After final approval by the Secretary of a state's management program, any applicant for a required Federal license or permit to conduct an activity affecting land or water uses in the coastal zone of that state shall provide in the application to the licensing or permitting agency a certification that the proposed activity complies with the state's approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the applicant shall furnish to the state or its designated agency a copy of the certification, with all necessary information and data. Each coastal state shall establish procedures for public notice in the case of all such certifications and, to the extent it deems appropriate, procedures for public hearings in connection therewith. At the earliest practicable time, the state or its designated agency shall notify the Federal agency concerned that the state concurs with or objects to theapplicant's certification. If the state or its designated agency fails to furnish the required notification within six months after receipt of its copy of the applicant's certification, the state's concurrence with the certification shall be conclusively presumed. No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant's certification or until, by the state's failure to act, the concurrence is conclusively presumed, unless the Secretary, on his own initiative or upon appeal by the applicant, finds, after providing a reasonable opportunity for detailed comments from the Federal agency involved and from the state, that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security.

(B) After the management program of any coastal state has been approved by the Secretary under section 1455 of this title, any person who submits to the Secretary of the Interior any plan for the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.) and regulations under such Act shall, with respect to any exploration, development, or production described in such plan and affecting any land use or water use in the coastal zone of such state, attach to such plan a certification that each activity which is described in detail in such plan complies with such state's approved management program and will be carried out in a manner consistent with such program. No Federal official or agency shall grant such person any license or permit for any activity described in detail in such plan until such state or its designated agency receives a copy of such certification and plan, together with any other necessary data and information, and until —

(i) such state or its designated agency, in accordance with the procedures required to be established by such state pursuant to subparagraph (A), concurs with such person's certification and notifies the Secretary and the Secretary of the Interior of such concurrence;

(ii) concurrence by such state with such certification in conclusively presumed, as provided for in subparagraph (A); or

(iii) the Secretary finds, pursuant to subparagraph (A), that each activity which is described in detail in such plan is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security.

If a state concurs or is conclusively presumed to concur, or if the Secretary makes such a finding, the provisions of subparagraph (A) are not applicable with respect to such person, such state, and any Federal license or permit which is required to conduct any activity affecting land uses or water uses in the coastal zone of such state which is described in detail in the plan to which such concurrence or finding applies. If such state objects to such certification and if the Secretary fails to make a finding under clause (iii) with respect to such certification, or if such person fails substantially to comply with such plan as submitted, such person shall submit an amendment to such plan, or a new plan, to the Secretary of the Interior. With respect to any amendment or new plan submitted to the Secretary of the Interior pursuant to the preceding sentence, the applicable time period for purposes of concurrence by conclusive presumption under subparagraph (A) is 3 months.

4. The CZMA provides an administrative appeals for persons who feel that application of the consistency requirement has caused them injury by denying certification. This would only come into play in the eventuality that plaintiffs do conduct activities in the outer continental shelf which are subject to consistency requirements, and that their activities are found to be inconsistent with the MCZMP.

5. Therefore, this court need not determine intervenor-plaintiff's standing to raise this issue.

6. In addition, the WCZMP is not so vague, as plaintiff asserts, so as to cause additional delays due to difficulty in determining the Act's requirements for certification of consistency. Delays due to uncertainty in the regulatory climate would not constitute a judicially cognizable injury; nor would the possibility of delays from lawsuits brought to interpret the WCZMP.