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Resolving intergovernmental conflicts in marine resource management: The US experience
Ocean & Shoreline Management 12 (1989) 253-269
Resolving lntergovernmental Conflicts in Marine Resource Management: The US Experience
Jack H. Archer Environmental Sciences Program, University of Massachusetts/Boston, Boston, Massachusetts 02125-3393, USA
ABSTRACT Intergovernmental conflict in US marine resource management programs has its source in the federalist system of separate but unequal political sovereigns. The Constitution, however, establishes several principles to guide federal and state governments and the courts in resolving such conflict. Under the supremacy and commerce clauses, the federal government may 'preempt' state authority to manage marine resources. But Congress, representing constitutionally-protected sovereign states, may limit the federal role in marine resource management programs, establish joint federal-state programs, or delegate such authority to the states. This paper examines intergovernmental conflict in four marine resource management areas (coastal resources, fisheries, offshore oil and gas, and marine mammals) and argues that, within this constitutional and political context, intergovernmental conflict in the United States tends to be resolved by expanding the policy and decision-making process to include states, local governments, and organizations whose interests have been insufficiently accommodated in an existing resource management scheme. INTRODUCTION Managing marine and coastal resources in the United States in recent decades has involved significant conflicts among the federal, state, and local governments in such areas as offshore energy and mineral exploration and development, fisheries in the Exclusive E c o n o m i c Z o n e 253 Ocean & Shoreline Management 0951-8312/89/$03.50 (~) 1989 Elsevier Science Publishers Ltd, England. Printed in Northern Ireland
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(EEZ), marine mammals in federal and state waters, and ocean dumping and incineration. Industry, environmentalists, and resource managers at all levels of government expend sizable amounts of energy, time, and funds in attending to these conflicts. With increasing frequency, but not always, their eventual resolution in the courts or by Congress, or as a result of the political process, requires an accommodation between the levels of government in which the interests of each level are recognized and legitimated to varying degrees. More often than not, and for reasons discussed below, the policy and decision-making process applicable to marine and coastal resources management in the United States has been expanded and modified when in conflict to incorporate state and local officials, citizen groups, environmental organizations, and others whose interests have been insufficiently acknowledged and accommodated in an existing resource management scheme. When this result does not occur, the conflict is most likely to continue, or worsen, until policy-makers are forced to confront it once again. In spite of this, the participants in these conflicts sometimes behave as if an entirely different result is desirable or obtainable--that is, they and their interests shall prevail over their opponents. The conflicts between the oil industry and the D e p a r t m e n t of the Interior, on one side, and environmentalists and coastal states, on the other, over the development of offshore energy resources, between fishermen, state and federal officials, and conservationists over the status of marine mammals, and between industry and the coastal states over at-sea incineration of toxic wastes are examples of the sometimes hard-fought and bitter disputes over ocean space, uses, and resources that occur in the United States. These participants may have been conditioned to approach conflict in this manner by a 'winners versus losers' mindset fostered by US legal practice and by our society's venerable litigious traditions. Fortunately, but slowly, we are learning to prefer less conflictive methods of resolving disputes. On occasion, however, the courts have upheld marine resource management decisions reached through cooperative federal-state processes such as that established by the federal consistency provisions of the Coastal Z o n e Management Act. 1 Other federal laws such as the Clean Water and Clean Air Acts 2"3 also provide for cooperative federal-state management to protect air and water quality and permit a substantial degree of participation by state and local governments in managing these resources. Although not generally recognized, the Congress has in some areas waived the overriding sovereign immunity of federal agencies vis-h-vis the states and required that federal
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activities must also meet state standards when resources under state jurisdiction or other state interests are affected by such activities. Both the Clean Water Act and the C Z M A provide examples of such waivers of immunity, and the federal courts with increasing frequency have been willing to enforce these laws when federal agencies have opposed them. 4 This article examines constitutional, legislative, and administrative mechanisms designed to cope with intergovernmental conflict, some of the reasons for continuing conflict in managing marine and coastal resources in the United States, and prospects for improved intergovernmental conflict resolution.
INTERGOVERNMENTAL CONFLICT A N D THE CONSTITUTION
The US Constitution is both the source of conflicts between the federal and state governments in marine resource management and a guide for resolving them successfully. Our federalist system of separate but unequal political sovereigns recognizes that relations between the states and the federal government may be and often are conflictual. As is well known, the Constitution establishes several principles to guide federal and state governments and the courts in settling intergovernmental disputes. The supremacy clause declares that the Constitution itself and the laws and treaties of the federal government are superior to the constitutions and laws of the states (Art. VI). The commerce clause grants to the Congress the power to regulate foreign and interstate commerce (Art. I, sec. 8), and under this power federal regulatory authority has been extended to cover a wide range of both commercial and noncommercial activities, and, pertinent to marine and coastal resources, governmental regulation to protect the environment and to control navigable waters. Yet, the powers of the federal government are 'enumerated powers', and those not delegated to the United States by the Constitution, 'nor prohibited by it to the States', are reserved to the states (Amend. X). Further, principles of federalism (such as the Tenth Amendment) built into the Constitution by the framers and applied by the courts to interpret the reach of both the supremacy and commerce clauses have allowed considerable scope for actions by the states to protect, develop, and otherwise manage their resources, or to engage in any other activity permited to them by their own constitutions and laws. To be invalidated or 'preempted' under the federal supremacy clause, state
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action must contradict or stand 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress' (Hines v. Davidowitz, 312 US 52, 67 (1941)). Congress may also 'occupy' a regulatory area under the commerce clause by enacting appropriate legislation, and thereby 'oust' the states from exercising any authority or jurisdication to regulate in this area in any manner. But, there must be 'persuasive reasons' for the exercise of such sweeping federal authority, either because 'the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained' (Florida Lime & Avocado Growers v. Paul, 373 US 132, 142 (1963)). Assuming that the Congress has acted properly under its own constitutional authority, then the critical factor in determining the scope allowed the states in any subject area, including the management of marine and coastal resources, is whether the Congress has decided that no action by the states will be permitted under any circumstances. This point requires us to consider (and to appreciate) one of the major determinants of Congressional policy and decision-making--the power of the states as constitutionally-protected sovereigns to participate in enacting federal legislation and to secure their own institutional interests. Congress may act to 'preempt' state action in a consitutionally permissible manner, or it may not, thereby allowing the states whatever latitude to act that they may possess in regard to any subject area. Further, the Congress may ratify state actions that otherwise would violate the commerce clause, thereby delegating federal authority to the states over interstate commerce (Southern Pacific Co. v. Arizona, 325 US 761,769 (1945)). The intention of Congress is everything in these matters, and, as indicated above, the states through their representatives participate directly in determining Congressional policy. Too often we fail to appreciate the degree to which state interests penetrate and are interrelated with 'national' interests as represented in the Congress, and we tend to regard these matters, as well as the Congress and the states, as institutionally separate and even antagonistic. A final point noted by Tribe in his treatise on US constitutional law and of interest here concerns the constitutional status and lawgenerating capacity of state governments. 5 He quotes Henry Hart and Herbert Wechsler on the pervasive influence of the 'background' of the immense body of state law against which the Congress acts: Federal legislation.., has been conceived and drafted on an ad hoc basis to accomplish limited objectives. It builds upon legal relationships established by the states, altering or supplanting them
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only so far as necessary for the special purpose. Congress acts, in short, against the background of the total corpus juris of the states in much the way that a state legislature acts against the background of the common law, assumed to govern unless changed by legislation. 6 To summarize briefly the constitutional dimensions of intergovernmental conflict in the United States: our system of federalism 'manages' intergovernmental conflict through a set of malleable constitutional principles (e.g. the supremacy and commerce clauses and the Tenth Amendment of the Constitution). Congress has employed its constitutional powers in response to different pressures and circumstances both to restrict and to enlarge the scope of state action in many subject areas, including marine resource management. Yet, the states are separate sovereigns subject to the supreme powers of the federal government as well as essential and direct participants in the federal legislative process. Their constitutional status and laws profoundly affect actions by the Congress, the executive and the federal judiciary. Thus, the political and legal constraints upon intergovernmental conflict that have developed from this complex and interrelated form of federalism account in large measure for the growing movement toward cooperative federal-state programs to manage marine resources discussed below.
R E S O L V I N G I N T E R G O V E R N M E N T A L CONFLICTS
Legislative mechanisms As has often been noted, the marine resource management regime in the United States is embodied in separate federal laws each typically addressing one class of resources or uses of ocean space: coastal resources, offshore oil and gas, E E Z fisheries, marine mammals, ocean dumping, and marine resource conservation and protection. 7 The mechanisms for resolving intergovernmental conflicts over the management of these resources and uses vary widely from act to act. In two areas examined in this paper (coastal resources and fisheries), these mechanisms are relatively sophisticated and effective. In two other areas (offshore oil and gas and marine mammals), they are rudimentary and ineffective. In the case of ocean incineration, one may argue that they do not exist, although several coastal states have invoked their
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federal consistency authority under the C Z M A to oppose and prohibit proposed at-sea incineration projects. Each area is discussed below.
Coastal resources
Coastal resources are managed in the United States primarily by the states and local governments according to management programs voluntarily developed by the states and approved by the Secretary of Commerce under the Coastal Zone Management Act. In this federal law, the Congress established the policy that the states are the 'key' to effective management of coastal resources, including land, water, air, scenic and esthetic values, and the natural components of the marine and coastal environment (beaches, dunes, estuaries, islands, etc.). The states were encouraged to exercise their full legal authority to manage and protect these resources, and, as an inducement for the states to develop coastal resource management programs, the federal government offered financial and technical assistance to the states and committed itself to act consistently with such programs once they have been reviewed by federal agencies and approved by the Secretary of Commerce. This latter legally-enforceable commitment by the federal government constitutes the 'federal consistency doctrine' and is the principal means by which state and federal agencies consult with each other and resolve any differences regarding federally conducted or permitted activities affecting coastal resources (ref. l, see. 1456). The federal consistency doctrine embraces activities of federal agencies 'directly affecting' coastal resources, which must be consistent 'to the maximum extent practicable' with state coastal policies; federally permitted activities, including oil and gas exploration and development activities carried out under the Outer Continental Shelf Lands Act Amendments of 19785 and affecting the resources or land or water uses of the coastal zone, which must be 'consistent' with state programs; and federally-funded projects involving state agencies and local governments, which must also be 'consistent'. In short, the federal consistency doctrine constitutes both a waiver of sovereign immunity by the Congress and the Executive that would otherwise shield federal agencies in the conduct of their own activities from adherence to the requirements of state law and a delegation of authority to the states over federally permitted and offshore oil and gas activities affecting coastal resources. But this Congressional delegation of authority to the states over coastal resources is not unlimited--federally permitted activities may be allowed to proceed even though inconsistent with state coastal programs if the Secretary of Commerce determines that such activities serve important national interests, including the national
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security interest (33 Code of Federal Regulations 930.121 and 930.122). Federal agencies need not comply with state coastal management policies if prohibited from doing so by federal law (33 Code of Federal Regulations 930.32(a)). It is not surprising that a grant of such substantial authority by the Congress to the coastal states to manage coastal resources might be controversial. Although federal officials representing many agencies participated in the development and approval of state coastal management programs under the CZMA, some of them apparently did not fully appreciate the extent to which state coastal policies would affect federal actions. The Department of the Interior and the oil industry have objected to state authority to review outer continental shelf oil and gas projects, but the federal courts have generally rejected such challenges. However, Interior and the industry successfully challenged the right of coastal states to review proposed oil and gas lease sales for consistency in Secretary of the Interior v. California, 464 US 312 (1984). Following a lengthy review of the legislative history of the CZMA, the Supreme Court held that the Congress did not intend offshore oil and gas lease sales to be included among the federal agency activities subject to the CZMA's consistency provisions, and noted that the coastal states possessed 'considerable authority' under other consistency provisions of the Act to object to oil and gas exploration and development projects in order to protect their interests. This five-tofour decision by the Court has itself proven to be controversial, and the decision has been strongly criticized by legal writers. 9 Generally, however, implementation of the federal consistency doctrine has occurred with relatively little friction between federal and state agencies, or between applicants for federal permits and state officials. The degree of coordination and consultation between federal and state agencies on a wide range of activities affecting coastal resources is attested by the results of a study of state implementation of the CZMA's consistency provisions during 1983/84 by the National Oceanic and Atmospheric Administration ( N O A A ) - - t h e federal agency responsible for the national coastal zone management program. Of the more than 7700 federal agency actions and federally permitted activities reviewed by the coastal states under the federal consistency doctrine during this time, the federal and state agencies were able to agree in practically all cases, and relatively few were unresolved at the end of the review period.l°
Offshore oil and gas The Outer Continental Shelf Lands Act Amendments (OCSLAA 1978), together with the consistency provisions of the CZMA, establish
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the legislative framework for managing offshore oil and gas development in the United States. Under section 18 of the OCSLAA, the Secretary of the Interior must prepare a five-year leasing program indicating the size and location of proposed leasing activity 'as precisely as possible' (ref. 8, sec. 1344). Unless an area of the outer continental shelf is included within the five-year plan, it may not be offered for lease during the period of the plan. Section 18 requires that the Secretary consider technological, environmental, safety, economic and social factors in preparing the leasing program, and that he consult with state governments on aspects of the plan affecting their interests. Yet, it is now clear from the federal court decisions that have considered this matter that, provided the Secretary complies with the procedural requirements of the Act and indicates at least minimally rational reasons for his decision, the O C S L A A lodges considerable discretion in the Secretary of the Interior to schedule the scope and pace of offshore oil and gas development regardless of the views of state and local governments (California v. Watt, 712 F.2d 584 (1983)). Section 19 of the OCSLAA governs the conduct of individual lease sales and development and production activities on the outer continental shelf. According to section 19, the Secretary 'shall accept' the recommendations of state governors and 'may accept' the recommendations of local governments concerning oil and gas lease sales and development and production projects, if he decides that these recommendations are in the 'national interest' (ref. 8, sec. 1345). As in the case of five-year leasing programs under section 18, the Secretary has almost unlimited discretion to determine whether the governor's recommendations are in the national interest, and the courts have deferred to the Secretary's judgment in these matters as well (California v. Watt, 683 F.2d 1253, 1269 (1982); The Tribal Village of Akutan v. Hodel, Civ. No. A85-701 (1988)). The authority of coastal states under the C Z M A to review offshore oil and gas exploration and development projects for consistency with their coastal management programs have already been discussed. This authority has been upheld by the courts because the Congressional delegation to the states in the case of exploration and development projects affecting coastal resources and uses is unmistakably clear in the Act and in its legislative history. 9 But, as noted above, the US Supreme Court has held that the coastal states do not have similar authority over the conduct of offshore oil and gas lease sales. This decision interpreting the CZMA's consistency provisions has limited the role of the states in the management of offshore oil and gas development until the last stages of the process by denying them authority over the conduct of
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lease sales--undoubtedly the most important decision point in the entire process when major commitments of capital to purchase leases and significant environmental and technological decisions are made by the oil industry and the US Department of the Interior. Thus, the states are allowed to participate effectively in the offshore oil and gas decision-making process only after critically important development decisions have been made by federal officials and the industry. The states' authority at these latter stages of exploration and development to halt or prohibit such activities that are inconsistent with their coastal management policies ensures that intergovernmental conflicts, as well as intersectoral conflicts between fishermen and oilmen and conservationists and developers, will occur with increasing frequency and intensity. The record of offshore oil and gas development in the United States since the 1978 amendments validates this observation. 9
EEZ fisheries Fisheries in the US Exclusive Economic Zone are managed pursuant to the Magnuson Fishery Conservation and Management Act." This Act established the 200 nautical mile fishery conservation zone prohibiting foreign fishing off US shores except by permit issued by the US government. Equally important, the MFCMA established regional fishery management councils made up of state and federal officials with authority to prepare fishery management plans for all E E Z fisheries. Although such plans must meet the national standards of the MFCMA, and must be reviewed and approved by the Secretary of Commerce, nevertheless the regional councils have proven to be the principal agency both to develop and conserve fishery stocks in federal waters. The MFCMA also authorizes the Secretary of Commerce to 'preempt' or supersede state management of a fishery that may be found in state waters on two conditions: (1) (2)
the fishery is located predominately in federal waters and is governed by a fishery management plan, and a state has taken or failed to take an action that will substantially and adversely affect the implementation of the plan (Ref. 11 sec. 1856(b)).
Preemption of a state fishery by the Secretary has seldom occurred. Normally, problems arising between the states and the Secretary (or councils) concerning the management of fishery stocks are resolved through the activities of the councils themselves, where the states are assured of a reasonable forum in which they share authority to mediate
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differences among themselves or between the states and federal officials. 12 Yet, a frequent criticism of fishery management under the M F C M A is that there is insufficient coordination between federal and state fishery management. As noted earlier, the M F C M A only applies to fisheries found 'predominately' in federal waters---the E E Z . However, 65 per cent of the commercial and 90 per cent of the recreational harvest of fish are caught in state waters, under state regulation. The management of interjurisdictional fisheries remains a major problem, although federal-state cooperative management of fisheries in federal waters under the MFCMA is generally regarded as effective. 13 Managing marine mammals
Marine mammals are protected by the federal government under the Marine Mammal Protection Act. ~4 This innovative legislation prohibited the 'taking' of any marine mammals except by permit, imposed a 'moratorium' on any takings under the law, and allowed few exemptions from the moratorium except under very strict conditions (such as scientific research and display, takings incidental to tuna fishing operations, Alaskan native subsistence uses). The goal of the Act is the maintenance or restoration of marine mammals at their 'optimum sustainable population' (OSP), a standard that has proven difficult to apply in practice. Nevertheless, the OSP standard has effectively protected marine mammals because, unless a population is determined to be at OSP, it is regarded under the MMPA as 'depleted' and no takings may be permitted. ~5 Before passage of this Act, the states, particularly Alaska and California, played an important role in the management of marine mammals in waters near their shores. The 1972 Act, however, 'preempted' any state action regarding marine mammals, and since this date marine mammals have been largely the concern of federal officials. The MMPA does provide a mechanism by which the states may regain authority to manage marine mammals, but only one state, Alaska, resumed management authority over a stock of marine mammals, and it quickly relinquished such authority in the face of a legal challenge and dropped plans to resume management of nine other species of marine mammals. ~6 In 1981, Congress modified the process by which a state may regain control over marine mammals to require that the state must demonstrate that it has an adequate program to protect and manage marine mammals and that it has the capacity to determine their OSP levels. If these requirements are met, authority to manage marine mammals may be delegated to the state by the federal government
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(Ref. 14., sec. 1379 (c)). But the requirement that the state must be able to determine OSP has discouraged states from seeking management authority under the MMPA. The uncertainties surrounding this standard and the practical difficulties of fixing the OSP for any species of marine mammals make delegation of management authority by the federal government to the states highly unlikely. Thus, the protection and management of marine mammals in US waters remains entirely a federal responsibility and there is little coordination between federal and state officials concerning marine mammals. Ocean incineration In brief, there is no federal legislation to manage the incineration at sea of toxic wastes. The Environmental Protection Agency (EPA) has sought to institute such a program, claiming authority to do so under the Ocean Dumping A c t . 17 This Act, however, is directed at the dumping of any material into ocean waters, except by permit issued by the Administrator of EPA, and does not address the complex problems involved in the burning of large quantities of toxic wastes at sea. Nevertheless, in 1985, E P A proposed to authorize test burns in the Atlantic Ocean and the Gulf of Mexico without first developing a regulatory program. Widespread opposition by the public and coastal states effectively defeated EPA's plans, and the proposal to allow at-sea incineration was withdrawn. There is currently no federal initiative to determine whether ocean incineration of toxic wastes may be an acceptable method to dispose of these materials.~S
Administrative procedures The dichotomy noted earlier between the relatively effective federalstate mechanisms to resolve intergovernmental conflicts in programs to manage coastal and fishery resources and the relatively ineffective federal-state mechanisms in programs to manage offshore oil and gas and to protect marine mammals is largely explained by the presence or absence of administrative procedures to handle such conflicts. This refers to administrative mechanisms that involve federal, state, and local officials in direct, active negotiation and decision-making respecting marine resource management. Of course, the legislation must itself provide for this high degree of involvement and interaction between the levels of government. It is also necessary that the states (and local governments) are empowered by law to exercise authority independent of federal agencies. Coordinative and consultative roles for state and local government in marine resource management have proven
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insufficient in themselves to require federal officials to negotiate courses of action that accommodate state and local interests. This observation may be tested by comparing the administrative process to manage coastal resources under the CZMA with that which governs the offshore oil and gas leasing program and the conduct of lease sales under the OCSLAA. The development of state coastal management programs, although initiated by a federal agency, necessarily involved a high degree of cooperation between federal, state, and local officials. The sovereign status of the coastal states was respected by the Congress in the CZMA, and both the Act and its legislative history clearly indicate that the CZMA does not preempt state authority to manage coastal resources (although federal officials and other have upon occasion so argued). 19The federal consistency doctrine empowers the states to exercise substantial authority over the activities of federal agencies themselves as well as over federally permitted activities affecting coastal resources. The highly interactive process by which thousands of federal and federally permitted activities affecting coastal resources are reviewed annually by state coastal management agencies normally produces an accommodation between federal, state, and private interests in each project or activity, as documented by the N O A A Federal Consistency Study. 1° When agreement cannot be reached, other administrative procedures (mediation between federal and state agencies, appeals by applicants for federal permits to the Secretary of Commerce) or legal actions are available (ref. 1 sec. 1456). In contrast, the preparation and development of the five-year oil and gas leasing program is not the product of negotiation through an administrative process between federal, state, and local officials, but is almost entirely the work of federal officials. That the leasing program may profoundly affect state and local interests is recognized in the OCSLAA, but state and local officials have only a limited right to review and comment on the proposed program, and no indpendent source of authority to oppose it. The same is true of the conduct of individual oil and gas lease sales, in spite of the language of the Act requiring that the Secretary 'shall accept' the recommendations of state governors respecting lease sales. Thus, unlike the administrative process by which federal, state, and local officials negotiate the approval of projects affecting coastal resources, the preparation of the five-year leasing program and the conduct of oil and gas lease sales are predominantly federal matters. It is not surprising that these two critically important stages of the offshore oil and gas process have generated substantial and at time exceedingly bitter intergovernmental conflicts.
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One may find the same contrast in the programs to manage E E Z fisheries and marine mammals, and in EPA's efforts to conduct at-sea incineration on the basis of questionable authority. The regional fishery management councils, whatever their shortcomings, are nonetheless decision-making bodies in which the coastal states share control with the federal government. Intergovernmental conflict is subject to negotiation and accommodation, and disputes have been reasonably settled. On the other hand, the exclusive federal management of marine mammals engenders conflict, 2° and the attempt by E P A to initiate a federal program to conduct ocean incineration ended disastrously-defeated by the combined opposition of coastal states, environmentalists, and the public.
CONCLUSION Returning to the original thesis of this paper--the joining of separate sovereigns in a federalist political system is the source of both the intergovernmental conflicts that have accompanied the development of the US management regime for marine resources and their eventual resolution. Insistence upon the supremacy of federal authority when significant state and local interests are involved has caused and will continue to cause serious intergovernmental conflict in the United States. In response, the states' Congressional representatives have sought and will continue to seek to limit the authority of federal officials by invoking constitutional principles to uphold state action. There is, however, a certain inevitability in any major dispute that an accommodation will be found which recognizes and legitimizes the interests of different levels of government in the United States respecting marine and coastal resources. In some areas (coastal resources and fisheries) this movement toward a genuine, cooperative federal-state management regime is well advanced. In other areas (offshore energy, marine mammal protection, and ocean incineration) this tendency has not developed as far. However, the serious conflicts that persist in these areas command the attention of policy-makers and there are currently several legislative proposals to allow more direct and substantial participation in these areas by state and local governments. 18 In the case of offshore energy development policy, state and local government participation in decision-making has become an issue in the 1988 presidential campaign, thereby increasing the probability that an accommodation between the federal and state governments may soon be reached. 21 The precise manner in which these
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intergovernmental conflicts will be resolved is, of course, difficult to predict. H o w e v e r , as argued in this paper, it is apparent that they will be resolved in a manner that incorporates a substantial decision-making role for state and local governments.
ACKNOWLEDEMENTS Research for this p a p e r was supported, in part, by the P e w Charitable Trust and the Marine Policy and O c e a n M a n a g e m e n t Center, W o o d s Hole Oceanographic Institution.
NOTES AND REFERENCES 1. Coastal Zone Management Act. 1972. US code. 1982. Vol. 16, secs. 1451-64. 2. Clean Water Act. 1972. US code. 1982. Vol. 33, secs. 1251-375. 3. Clean Air Act Amendments. 1977. US code. 1982. Vol. 42, secs. 7401-62. 4. Section 404 of the CWA (33 United States Code 1344(t)) provides, respecting navigable waters within state jurisdiction: Nothing in this section shall preclude or deny the right of any State or interstate agency to control the discharge of dredged or fill material in any portion of the navigable waters within the jurisdication of such State, including any activity of any Federal agency, and each such agency shall comply with such State or interstate requirements both substantive and procedural to control the discharge of dredged or fill material to the same extent that any person is subject to such requirements. This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation. Section 313 (33 United States Code 1323) provides, inter alia: Each [federal agency].., s h a l l . . , comply w i t h . . , a l l . . . S t a t e . . . and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental e n t i t y . . . [This] shall apply (A) to any requirement whether substantive or procedural (including... any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of a n y . . . State, or local administrative authority, and (C) to any process and sanction . . . . This subsection shall apply notwithstanding any immunity of such agencies.., under any law or rule of law. The United States Court of Appeals for the Ninth Circuit has recently interpreted these statutory provisions to require that the US Navy must obtain and conform to the provisions of a permit issued by the State of Washington before the Navy could implement a major dredging and fill
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operation necessary to establish porting facilities for a Carrier Battle Group at Everett, Washington (Friends of the Earth v. US Navy, No. 87-4304, DC No. CV 87-1408 C (9th Cir. March 7, 1988)). Similarly, section 307(c)(1) of the CZMA (16 United States Code 1456(a)) provides: Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs.
5. 6. 7. 8. 9. 10.
The longstanding administrative rule applying this law issued by the Secretary of Commerce, the federal official charged with implementing the CZMA, requires that such federal activities be 'fully consistent' with state programs unless the agency is specifically prohibited by federal law from being fully consistent with state requirements (33 Code of Federal Regulations 930.32(a)). The waiver of sovereign immunity is explicit in both section 307(c)(1) of the CZMA, quoted above, and section 930.32(a) of the federal consistency regulations, which requires federal agencies to consider State-management programs as supplemental requirements to be adhered to in addition to existing agency mandates. Tribe, L., American Constitutional Law. The Foundation Press, Inc., Mineola, New York, 1978, p. 242. Hart, H. & Wechsler, H., The Federal Courts and the Federal System. The Foundation Press, Inc., Mineola, New York, 1973, pp. 470-1. Knecht, R., Cicin-Sain, B. & Archer, J., National ocean policy: a window of opportunity. Ocean Development and International Law, 19 (1988) 113-42. Outer Continental Shelf Lands Act Amendments. 1978. US code. 1982. Vol. 43, secs. 1331-56; 1801-66. Eichenberg, T. & Archer, J., The federal consistency doctrine: coastal zone management and 'new federalism.' Ecology Law Quarterly, 14 (1987) 9-68. NOAA, Draft federal consistency study. Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, Washington, DC, 1985. The Federal Consistency Study (NOAA 1985, I-i) summarizes the data reported by the states and federal agencies for the period 1983/84 as follows: --States concurred with about 93% of the approximately 400 direct Federal activities reviewed under Section 307(c)(1) (including OCS lease sales which were reviewed during [fiscal year 1983] only); --States concurred with about 82% of the approximately 5500 Federally licensed and permitted activities reviewed under Section 307(c)(3)(A) (nearly 5000 of which were Corps of Engineers dredge and fill permits); --States concurred with about 99% of the nearly 435 plans for OCS exploration and development and production reviewed under Section 307(c)(3)(B); and --States concurred with over 99.9% of the nearly 2000 Federal assistance proposals reviewed under Section 307(d).
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11. 12. 13. 14. 15.
16. 17. 18. 19.
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The level of state concurrence with federally permitted activities is actually considerably higher than the rate of 82% reported in the Federal Consistency Study. Of 952 'objections' reported by the Corps of Engineers, 800 were concurrences with conditions by one state--Louisiana. Of these 952 'objections' 855 were resolved, 36 were withdrawn, and only 55 were left unresolved at the end of the Study period. Thus, the actual rate of concurrence by the states was 99%. Magnuson Fishery Conservation and Management Act. 1976. US code. 1982. Vol. 16, secs. 1801-82. Jacobson, J., Conner, D. & Tozer, R., Federal fisheries management. Ocean and Coastal Law Center, University of Oregon School of Law, Eugene, Oregon, 1985. N O A A , An evaluation of the implementation of the Magnuson Fishery Conservation and Management Act. National Marine Fisheries Service, National Oceanic and Atmospheric Administration, 1986. Marine Mammal Protection Act. 1972. US code. 1982. Vol. 16, secs. 1361-407. The OSP standard is defined in the MMPA to mean 'the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the optimum carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element' (MMPA 1972, sec. 1362(8)). 'Optimum carrying capacity' was originally defined in the Act as 'the ability of a given habitat to support the optimum sustainable population of a species or population stock in a healthy state without diminishing the ability of the habitat to continue that function' (MMPA 1972, sec. 1362(8)). The circularity of these definitions was remedied by amendments to the MMPA in 1981 that deleted the definition of 'optimum carrying capacity', but it remains uncertain how and to what degree either the 'optimum carrying capacity of the habitat' or 'health of the ecosystem' may limit OSP levels for marine mammals. Marine Mammal Commission, Annual report of the Marine Mammal Commission. Marine Mammal Commission, Washington, DC, 1985. Marine Protection, Research and Sanctuaries Act. 1972 US code. 1982. Vol. 33, secs. 1401-45. Archer, J. & Bondareff, J., Implementation of the federal consitency doctrine--lawful and constitutional: a response to Whitney, Johnson & Perles. Harvard Environmental Law Review, 12 (1988) 115-56. The US Supreme Court has recently rejected such arguments in California Coastal Commission v. Granite Rock Co., 197 S. Ct. 1419, 1431 (1987) quoting and endorsing the legislative history of the CZMA: [The CZMA] has as its main purpose the encouragement and assistance of States in preparing and implementing management programs to preserve, protect, develop and whenever possible restore the resources of the coastal zone of the United States . . . . There is no attempt to diminish state authority through federal preemption [emphasis in the decision]. The intent of this legislation is to enhance state authority by encouraging and assisting the states to assume planning and regulatory powers over their coastal zones (Senate Report No. 753, 92d Cong., 2d Sess. at 20 (1972)).
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20. Pacific Marine Fisheries Commission, Draft report of the Ad Hoc Committee on marine mammals. Pacific Marine Fisheries Commission, Portland, Oregon, 1987. 21. Botzum, J., (ed.) Coastal Zone Management. Nautilus Press, Washington, DC, 20 May 1988.
Resolving lntergovernmental Conflicts in Marine Resource Management: The US Experience
Jack H. Archer Environmental Sciences Program, University of Massachusetts/Boston, Boston, Massachusetts 02125-3393, USA
ABSTRACT Intergovernmental conflict in US marine resource management programs has its source in the federalist system of separate but unequal political sovereigns. The Constitution, however, establishes several principles to guide federal and state governments and the courts in resolving such conflict. Under the supremacy and commerce clauses, the federal government may 'preempt' state authority to manage marine resources. But Congress, representing constitutionally-protected sovereign states, may limit the federal role in marine resource management programs, establish joint federal-state programs, or delegate such authority to the states. This paper examines intergovernmental conflict in four marine resource management areas (coastal resources, fisheries, offshore oil and gas, and marine mammals) and argues that, within this constitutional and political context, intergovernmental conflict in the United States tends to be resolved by expanding the policy and decision-making process to include states, local governments, and organizations whose interests have been insufficiently accommodated in an existing resource management scheme. INTRODUCTION Managing marine and coastal resources in the United States in recent decades has involved significant conflicts among the federal, state, and local governments in such areas as offshore energy and mineral exploration and development, fisheries in the Exclusive E c o n o m i c Z o n e 253 Ocean & Shoreline Management 0951-8312/89/$03.50 (~) 1989 Elsevier Science Publishers Ltd, England. Printed in Northern Ireland
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(EEZ), marine mammals in federal and state waters, and ocean dumping and incineration. Industry, environmentalists, and resource managers at all levels of government expend sizable amounts of energy, time, and funds in attending to these conflicts. With increasing frequency, but not always, their eventual resolution in the courts or by Congress, or as a result of the political process, requires an accommodation between the levels of government in which the interests of each level are recognized and legitimated to varying degrees. More often than not, and for reasons discussed below, the policy and decision-making process applicable to marine and coastal resources management in the United States has been expanded and modified when in conflict to incorporate state and local officials, citizen groups, environmental organizations, and others whose interests have been insufficiently acknowledged and accommodated in an existing resource management scheme. When this result does not occur, the conflict is most likely to continue, or worsen, until policy-makers are forced to confront it once again. In spite of this, the participants in these conflicts sometimes behave as if an entirely different result is desirable or obtainable--that is, they and their interests shall prevail over their opponents. The conflicts between the oil industry and the D e p a r t m e n t of the Interior, on one side, and environmentalists and coastal states, on the other, over the development of offshore energy resources, between fishermen, state and federal officials, and conservationists over the status of marine mammals, and between industry and the coastal states over at-sea incineration of toxic wastes are examples of the sometimes hard-fought and bitter disputes over ocean space, uses, and resources that occur in the United States. These participants may have been conditioned to approach conflict in this manner by a 'winners versus losers' mindset fostered by US legal practice and by our society's venerable litigious traditions. Fortunately, but slowly, we are learning to prefer less conflictive methods of resolving disputes. On occasion, however, the courts have upheld marine resource management decisions reached through cooperative federal-state processes such as that established by the federal consistency provisions of the Coastal Z o n e Management Act. 1 Other federal laws such as the Clean Water and Clean Air Acts 2"3 also provide for cooperative federal-state management to protect air and water quality and permit a substantial degree of participation by state and local governments in managing these resources. Although not generally recognized, the Congress has in some areas waived the overriding sovereign immunity of federal agencies vis-h-vis the states and required that federal
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activities must also meet state standards when resources under state jurisdiction or other state interests are affected by such activities. Both the Clean Water Act and the C Z M A provide examples of such waivers of immunity, and the federal courts with increasing frequency have been willing to enforce these laws when federal agencies have opposed them. 4 This article examines constitutional, legislative, and administrative mechanisms designed to cope with intergovernmental conflict, some of the reasons for continuing conflict in managing marine and coastal resources in the United States, and prospects for improved intergovernmental conflict resolution.
INTERGOVERNMENTAL CONFLICT A N D THE CONSTITUTION
The US Constitution is both the source of conflicts between the federal and state governments in marine resource management and a guide for resolving them successfully. Our federalist system of separate but unequal political sovereigns recognizes that relations between the states and the federal government may be and often are conflictual. As is well known, the Constitution establishes several principles to guide federal and state governments and the courts in settling intergovernmental disputes. The supremacy clause declares that the Constitution itself and the laws and treaties of the federal government are superior to the constitutions and laws of the states (Art. VI). The commerce clause grants to the Congress the power to regulate foreign and interstate commerce (Art. I, sec. 8), and under this power federal regulatory authority has been extended to cover a wide range of both commercial and noncommercial activities, and, pertinent to marine and coastal resources, governmental regulation to protect the environment and to control navigable waters. Yet, the powers of the federal government are 'enumerated powers', and those not delegated to the United States by the Constitution, 'nor prohibited by it to the States', are reserved to the states (Amend. X). Further, principles of federalism (such as the Tenth Amendment) built into the Constitution by the framers and applied by the courts to interpret the reach of both the supremacy and commerce clauses have allowed considerable scope for actions by the states to protect, develop, and otherwise manage their resources, or to engage in any other activity permited to them by their own constitutions and laws. To be invalidated or 'preempted' under the federal supremacy clause, state
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action must contradict or stand 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress' (Hines v. Davidowitz, 312 US 52, 67 (1941)). Congress may also 'occupy' a regulatory area under the commerce clause by enacting appropriate legislation, and thereby 'oust' the states from exercising any authority or jurisdication to regulate in this area in any manner. But, there must be 'persuasive reasons' for the exercise of such sweeping federal authority, either because 'the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained' (Florida Lime & Avocado Growers v. Paul, 373 US 132, 142 (1963)). Assuming that the Congress has acted properly under its own constitutional authority, then the critical factor in determining the scope allowed the states in any subject area, including the management of marine and coastal resources, is whether the Congress has decided that no action by the states will be permitted under any circumstances. This point requires us to consider (and to appreciate) one of the major determinants of Congressional policy and decision-making--the power of the states as constitutionally-protected sovereigns to participate in enacting federal legislation and to secure their own institutional interests. Congress may act to 'preempt' state action in a consitutionally permissible manner, or it may not, thereby allowing the states whatever latitude to act that they may possess in regard to any subject area. Further, the Congress may ratify state actions that otherwise would violate the commerce clause, thereby delegating federal authority to the states over interstate commerce (Southern Pacific Co. v. Arizona, 325 US 761,769 (1945)). The intention of Congress is everything in these matters, and, as indicated above, the states through their representatives participate directly in determining Congressional policy. Too often we fail to appreciate the degree to which state interests penetrate and are interrelated with 'national' interests as represented in the Congress, and we tend to regard these matters, as well as the Congress and the states, as institutionally separate and even antagonistic. A final point noted by Tribe in his treatise on US constitutional law and of interest here concerns the constitutional status and lawgenerating capacity of state governments. 5 He quotes Henry Hart and Herbert Wechsler on the pervasive influence of the 'background' of the immense body of state law against which the Congress acts: Federal legislation.., has been conceived and drafted on an ad hoc basis to accomplish limited objectives. It builds upon legal relationships established by the states, altering or supplanting them
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only so far as necessary for the special purpose. Congress acts, in short, against the background of the total corpus juris of the states in much the way that a state legislature acts against the background of the common law, assumed to govern unless changed by legislation. 6 To summarize briefly the constitutional dimensions of intergovernmental conflict in the United States: our system of federalism 'manages' intergovernmental conflict through a set of malleable constitutional principles (e.g. the supremacy and commerce clauses and the Tenth Amendment of the Constitution). Congress has employed its constitutional powers in response to different pressures and circumstances both to restrict and to enlarge the scope of state action in many subject areas, including marine resource management. Yet, the states are separate sovereigns subject to the supreme powers of the federal government as well as essential and direct participants in the federal legislative process. Their constitutional status and laws profoundly affect actions by the Congress, the executive and the federal judiciary. Thus, the political and legal constraints upon intergovernmental conflict that have developed from this complex and interrelated form of federalism account in large measure for the growing movement toward cooperative federal-state programs to manage marine resources discussed below.
R E S O L V I N G I N T E R G O V E R N M E N T A L CONFLICTS
Legislative mechanisms As has often been noted, the marine resource management regime in the United States is embodied in separate federal laws each typically addressing one class of resources or uses of ocean space: coastal resources, offshore oil and gas, E E Z fisheries, marine mammals, ocean dumping, and marine resource conservation and protection. 7 The mechanisms for resolving intergovernmental conflicts over the management of these resources and uses vary widely from act to act. In two areas examined in this paper (coastal resources and fisheries), these mechanisms are relatively sophisticated and effective. In two other areas (offshore oil and gas and marine mammals), they are rudimentary and ineffective. In the case of ocean incineration, one may argue that they do not exist, although several coastal states have invoked their
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federal consistency authority under the C Z M A to oppose and prohibit proposed at-sea incineration projects. Each area is discussed below.
Coastal resources
Coastal resources are managed in the United States primarily by the states and local governments according to management programs voluntarily developed by the states and approved by the Secretary of Commerce under the Coastal Zone Management Act. In this federal law, the Congress established the policy that the states are the 'key' to effective management of coastal resources, including land, water, air, scenic and esthetic values, and the natural components of the marine and coastal environment (beaches, dunes, estuaries, islands, etc.). The states were encouraged to exercise their full legal authority to manage and protect these resources, and, as an inducement for the states to develop coastal resource management programs, the federal government offered financial and technical assistance to the states and committed itself to act consistently with such programs once they have been reviewed by federal agencies and approved by the Secretary of Commerce. This latter legally-enforceable commitment by the federal government constitutes the 'federal consistency doctrine' and is the principal means by which state and federal agencies consult with each other and resolve any differences regarding federally conducted or permitted activities affecting coastal resources (ref. l, see. 1456). The federal consistency doctrine embraces activities of federal agencies 'directly affecting' coastal resources, which must be consistent 'to the maximum extent practicable' with state coastal policies; federally permitted activities, including oil and gas exploration and development activities carried out under the Outer Continental Shelf Lands Act Amendments of 19785 and affecting the resources or land or water uses of the coastal zone, which must be 'consistent' with state programs; and federally-funded projects involving state agencies and local governments, which must also be 'consistent'. In short, the federal consistency doctrine constitutes both a waiver of sovereign immunity by the Congress and the Executive that would otherwise shield federal agencies in the conduct of their own activities from adherence to the requirements of state law and a delegation of authority to the states over federally permitted and offshore oil and gas activities affecting coastal resources. But this Congressional delegation of authority to the states over coastal resources is not unlimited--federally permitted activities may be allowed to proceed even though inconsistent with state coastal programs if the Secretary of Commerce determines that such activities serve important national interests, including the national
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security interest (33 Code of Federal Regulations 930.121 and 930.122). Federal agencies need not comply with state coastal management policies if prohibited from doing so by federal law (33 Code of Federal Regulations 930.32(a)). It is not surprising that a grant of such substantial authority by the Congress to the coastal states to manage coastal resources might be controversial. Although federal officials representing many agencies participated in the development and approval of state coastal management programs under the CZMA, some of them apparently did not fully appreciate the extent to which state coastal policies would affect federal actions. The Department of the Interior and the oil industry have objected to state authority to review outer continental shelf oil and gas projects, but the federal courts have generally rejected such challenges. However, Interior and the industry successfully challenged the right of coastal states to review proposed oil and gas lease sales for consistency in Secretary of the Interior v. California, 464 US 312 (1984). Following a lengthy review of the legislative history of the CZMA, the Supreme Court held that the Congress did not intend offshore oil and gas lease sales to be included among the federal agency activities subject to the CZMA's consistency provisions, and noted that the coastal states possessed 'considerable authority' under other consistency provisions of the Act to object to oil and gas exploration and development projects in order to protect their interests. This five-tofour decision by the Court has itself proven to be controversial, and the decision has been strongly criticized by legal writers. 9 Generally, however, implementation of the federal consistency doctrine has occurred with relatively little friction between federal and state agencies, or between applicants for federal permits and state officials. The degree of coordination and consultation between federal and state agencies on a wide range of activities affecting coastal resources is attested by the results of a study of state implementation of the CZMA's consistency provisions during 1983/84 by the National Oceanic and Atmospheric Administration ( N O A A ) - - t h e federal agency responsible for the national coastal zone management program. Of the more than 7700 federal agency actions and federally permitted activities reviewed by the coastal states under the federal consistency doctrine during this time, the federal and state agencies were able to agree in practically all cases, and relatively few were unresolved at the end of the review period.l°
Offshore oil and gas The Outer Continental Shelf Lands Act Amendments (OCSLAA 1978), together with the consistency provisions of the CZMA, establish
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the legislative framework for managing offshore oil and gas development in the United States. Under section 18 of the OCSLAA, the Secretary of the Interior must prepare a five-year leasing program indicating the size and location of proposed leasing activity 'as precisely as possible' (ref. 8, sec. 1344). Unless an area of the outer continental shelf is included within the five-year plan, it may not be offered for lease during the period of the plan. Section 18 requires that the Secretary consider technological, environmental, safety, economic and social factors in preparing the leasing program, and that he consult with state governments on aspects of the plan affecting their interests. Yet, it is now clear from the federal court decisions that have considered this matter that, provided the Secretary complies with the procedural requirements of the Act and indicates at least minimally rational reasons for his decision, the O C S L A A lodges considerable discretion in the Secretary of the Interior to schedule the scope and pace of offshore oil and gas development regardless of the views of state and local governments (California v. Watt, 712 F.2d 584 (1983)). Section 19 of the OCSLAA governs the conduct of individual lease sales and development and production activities on the outer continental shelf. According to section 19, the Secretary 'shall accept' the recommendations of state governors and 'may accept' the recommendations of local governments concerning oil and gas lease sales and development and production projects, if he decides that these recommendations are in the 'national interest' (ref. 8, sec. 1345). As in the case of five-year leasing programs under section 18, the Secretary has almost unlimited discretion to determine whether the governor's recommendations are in the national interest, and the courts have deferred to the Secretary's judgment in these matters as well (California v. Watt, 683 F.2d 1253, 1269 (1982); The Tribal Village of Akutan v. Hodel, Civ. No. A85-701 (1988)). The authority of coastal states under the C Z M A to review offshore oil and gas exploration and development projects for consistency with their coastal management programs have already been discussed. This authority has been upheld by the courts because the Congressional delegation to the states in the case of exploration and development projects affecting coastal resources and uses is unmistakably clear in the Act and in its legislative history. 9 But, as noted above, the US Supreme Court has held that the coastal states do not have similar authority over the conduct of offshore oil and gas lease sales. This decision interpreting the CZMA's consistency provisions has limited the role of the states in the management of offshore oil and gas development until the last stages of the process by denying them authority over the conduct of
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lease sales--undoubtedly the most important decision point in the entire process when major commitments of capital to purchase leases and significant environmental and technological decisions are made by the oil industry and the US Department of the Interior. Thus, the states are allowed to participate effectively in the offshore oil and gas decision-making process only after critically important development decisions have been made by federal officials and the industry. The states' authority at these latter stages of exploration and development to halt or prohibit such activities that are inconsistent with their coastal management policies ensures that intergovernmental conflicts, as well as intersectoral conflicts between fishermen and oilmen and conservationists and developers, will occur with increasing frequency and intensity. The record of offshore oil and gas development in the United States since the 1978 amendments validates this observation. 9
EEZ fisheries Fisheries in the US Exclusive Economic Zone are managed pursuant to the Magnuson Fishery Conservation and Management Act." This Act established the 200 nautical mile fishery conservation zone prohibiting foreign fishing off US shores except by permit issued by the US government. Equally important, the MFCMA established regional fishery management councils made up of state and federal officials with authority to prepare fishery management plans for all E E Z fisheries. Although such plans must meet the national standards of the MFCMA, and must be reviewed and approved by the Secretary of Commerce, nevertheless the regional councils have proven to be the principal agency both to develop and conserve fishery stocks in federal waters. The MFCMA also authorizes the Secretary of Commerce to 'preempt' or supersede state management of a fishery that may be found in state waters on two conditions: (1) (2)
the fishery is located predominately in federal waters and is governed by a fishery management plan, and a state has taken or failed to take an action that will substantially and adversely affect the implementation of the plan (Ref. 11 sec. 1856(b)).
Preemption of a state fishery by the Secretary has seldom occurred. Normally, problems arising between the states and the Secretary (or councils) concerning the management of fishery stocks are resolved through the activities of the councils themselves, where the states are assured of a reasonable forum in which they share authority to mediate
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differences among themselves or between the states and federal officials. 12 Yet, a frequent criticism of fishery management under the M F C M A is that there is insufficient coordination between federal and state fishery management. As noted earlier, the M F C M A only applies to fisheries found 'predominately' in federal waters---the E E Z . However, 65 per cent of the commercial and 90 per cent of the recreational harvest of fish are caught in state waters, under state regulation. The management of interjurisdictional fisheries remains a major problem, although federal-state cooperative management of fisheries in federal waters under the MFCMA is generally regarded as effective. 13 Managing marine mammals
Marine mammals are protected by the federal government under the Marine Mammal Protection Act. ~4 This innovative legislation prohibited the 'taking' of any marine mammals except by permit, imposed a 'moratorium' on any takings under the law, and allowed few exemptions from the moratorium except under very strict conditions (such as scientific research and display, takings incidental to tuna fishing operations, Alaskan native subsistence uses). The goal of the Act is the maintenance or restoration of marine mammals at their 'optimum sustainable population' (OSP), a standard that has proven difficult to apply in practice. Nevertheless, the OSP standard has effectively protected marine mammals because, unless a population is determined to be at OSP, it is regarded under the MMPA as 'depleted' and no takings may be permitted. ~5 Before passage of this Act, the states, particularly Alaska and California, played an important role in the management of marine mammals in waters near their shores. The 1972 Act, however, 'preempted' any state action regarding marine mammals, and since this date marine mammals have been largely the concern of federal officials. The MMPA does provide a mechanism by which the states may regain authority to manage marine mammals, but only one state, Alaska, resumed management authority over a stock of marine mammals, and it quickly relinquished such authority in the face of a legal challenge and dropped plans to resume management of nine other species of marine mammals. ~6 In 1981, Congress modified the process by which a state may regain control over marine mammals to require that the state must demonstrate that it has an adequate program to protect and manage marine mammals and that it has the capacity to determine their OSP levels. If these requirements are met, authority to manage marine mammals may be delegated to the state by the federal government
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(Ref. 14., sec. 1379 (c)). But the requirement that the state must be able to determine OSP has discouraged states from seeking management authority under the MMPA. The uncertainties surrounding this standard and the practical difficulties of fixing the OSP for any species of marine mammals make delegation of management authority by the federal government to the states highly unlikely. Thus, the protection and management of marine mammals in US waters remains entirely a federal responsibility and there is little coordination between federal and state officials concerning marine mammals. Ocean incineration In brief, there is no federal legislation to manage the incineration at sea of toxic wastes. The Environmental Protection Agency (EPA) has sought to institute such a program, claiming authority to do so under the Ocean Dumping A c t . 17 This Act, however, is directed at the dumping of any material into ocean waters, except by permit issued by the Administrator of EPA, and does not address the complex problems involved in the burning of large quantities of toxic wastes at sea. Nevertheless, in 1985, E P A proposed to authorize test burns in the Atlantic Ocean and the Gulf of Mexico without first developing a regulatory program. Widespread opposition by the public and coastal states effectively defeated EPA's plans, and the proposal to allow at-sea incineration was withdrawn. There is currently no federal initiative to determine whether ocean incineration of toxic wastes may be an acceptable method to dispose of these materials.~S
Administrative procedures The dichotomy noted earlier between the relatively effective federalstate mechanisms to resolve intergovernmental conflicts in programs to manage coastal and fishery resources and the relatively ineffective federal-state mechanisms in programs to manage offshore oil and gas and to protect marine mammals is largely explained by the presence or absence of administrative procedures to handle such conflicts. This refers to administrative mechanisms that involve federal, state, and local officials in direct, active negotiation and decision-making respecting marine resource management. Of course, the legislation must itself provide for this high degree of involvement and interaction between the levels of government. It is also necessary that the states (and local governments) are empowered by law to exercise authority independent of federal agencies. Coordinative and consultative roles for state and local government in marine resource management have proven
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insufficient in themselves to require federal officials to negotiate courses of action that accommodate state and local interests. This observation may be tested by comparing the administrative process to manage coastal resources under the CZMA with that which governs the offshore oil and gas leasing program and the conduct of lease sales under the OCSLAA. The development of state coastal management programs, although initiated by a federal agency, necessarily involved a high degree of cooperation between federal, state, and local officials. The sovereign status of the coastal states was respected by the Congress in the CZMA, and both the Act and its legislative history clearly indicate that the CZMA does not preempt state authority to manage coastal resources (although federal officials and other have upon occasion so argued). 19The federal consistency doctrine empowers the states to exercise substantial authority over the activities of federal agencies themselves as well as over federally permitted activities affecting coastal resources. The highly interactive process by which thousands of federal and federally permitted activities affecting coastal resources are reviewed annually by state coastal management agencies normally produces an accommodation between federal, state, and private interests in each project or activity, as documented by the N O A A Federal Consistency Study. 1° When agreement cannot be reached, other administrative procedures (mediation between federal and state agencies, appeals by applicants for federal permits to the Secretary of Commerce) or legal actions are available (ref. 1 sec. 1456). In contrast, the preparation and development of the five-year oil and gas leasing program is not the product of negotiation through an administrative process between federal, state, and local officials, but is almost entirely the work of federal officials. That the leasing program may profoundly affect state and local interests is recognized in the OCSLAA, but state and local officials have only a limited right to review and comment on the proposed program, and no indpendent source of authority to oppose it. The same is true of the conduct of individual oil and gas lease sales, in spite of the language of the Act requiring that the Secretary 'shall accept' the recommendations of state governors respecting lease sales. Thus, unlike the administrative process by which federal, state, and local officials negotiate the approval of projects affecting coastal resources, the preparation of the five-year leasing program and the conduct of oil and gas lease sales are predominantly federal matters. It is not surprising that these two critically important stages of the offshore oil and gas process have generated substantial and at time exceedingly bitter intergovernmental conflicts.
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One may find the same contrast in the programs to manage E E Z fisheries and marine mammals, and in EPA's efforts to conduct at-sea incineration on the basis of questionable authority. The regional fishery management councils, whatever their shortcomings, are nonetheless decision-making bodies in which the coastal states share control with the federal government. Intergovernmental conflict is subject to negotiation and accommodation, and disputes have been reasonably settled. On the other hand, the exclusive federal management of marine mammals engenders conflict, 2° and the attempt by E P A to initiate a federal program to conduct ocean incineration ended disastrously-defeated by the combined opposition of coastal states, environmentalists, and the public.
CONCLUSION Returning to the original thesis of this paper--the joining of separate sovereigns in a federalist political system is the source of both the intergovernmental conflicts that have accompanied the development of the US management regime for marine resources and their eventual resolution. Insistence upon the supremacy of federal authority when significant state and local interests are involved has caused and will continue to cause serious intergovernmental conflict in the United States. In response, the states' Congressional representatives have sought and will continue to seek to limit the authority of federal officials by invoking constitutional principles to uphold state action. There is, however, a certain inevitability in any major dispute that an accommodation will be found which recognizes and legitimizes the interests of different levels of government in the United States respecting marine and coastal resources. In some areas (coastal resources and fisheries) this movement toward a genuine, cooperative federal-state management regime is well advanced. In other areas (offshore energy, marine mammal protection, and ocean incineration) this tendency has not developed as far. However, the serious conflicts that persist in these areas command the attention of policy-makers and there are currently several legislative proposals to allow more direct and substantial participation in these areas by state and local governments. 18 In the case of offshore energy development policy, state and local government participation in decision-making has become an issue in the 1988 presidential campaign, thereby increasing the probability that an accommodation between the federal and state governments may soon be reached. 21 The precise manner in which these
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intergovernmental conflicts will be resolved is, of course, difficult to predict. H o w e v e r , as argued in this paper, it is apparent that they will be resolved in a manner that incorporates a substantial decision-making role for state and local governments.
ACKNOWLEDEMENTS Research for this p a p e r was supported, in part, by the P e w Charitable Trust and the Marine Policy and O c e a n M a n a g e m e n t Center, W o o d s Hole Oceanographic Institution.
NOTES AND REFERENCES 1. Coastal Zone Management Act. 1972. US code. 1982. Vol. 16, secs. 1451-64. 2. Clean Water Act. 1972. US code. 1982. Vol. 33, secs. 1251-375. 3. Clean Air Act Amendments. 1977. US code. 1982. Vol. 42, secs. 7401-62. 4. Section 404 of the CWA (33 United States Code 1344(t)) provides, respecting navigable waters within state jurisdiction: Nothing in this section shall preclude or deny the right of any State or interstate agency to control the discharge of dredged or fill material in any portion of the navigable waters within the jurisdication of such State, including any activity of any Federal agency, and each such agency shall comply with such State or interstate requirements both substantive and procedural to control the discharge of dredged or fill material to the same extent that any person is subject to such requirements. This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation. Section 313 (33 United States Code 1323) provides, inter alia: Each [federal agency].., s h a l l . . , comply w i t h . . , a l l . . . S t a t e . . . and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental e n t i t y . . . [This] shall apply (A) to any requirement whether substantive or procedural (including... any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of a n y . . . State, or local administrative authority, and (C) to any process and sanction . . . . This subsection shall apply notwithstanding any immunity of such agencies.., under any law or rule of law. The United States Court of Appeals for the Ninth Circuit has recently interpreted these statutory provisions to require that the US Navy must obtain and conform to the provisions of a permit issued by the State of Washington before the Navy could implement a major dredging and fill
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operation necessary to establish porting facilities for a Carrier Battle Group at Everett, Washington (Friends of the Earth v. US Navy, No. 87-4304, DC No. CV 87-1408 C (9th Cir. March 7, 1988)). Similarly, section 307(c)(1) of the CZMA (16 United States Code 1456(a)) provides: Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs.
5. 6. 7. 8. 9. 10.
The longstanding administrative rule applying this law issued by the Secretary of Commerce, the federal official charged with implementing the CZMA, requires that such federal activities be 'fully consistent' with state programs unless the agency is specifically prohibited by federal law from being fully consistent with state requirements (33 Code of Federal Regulations 930.32(a)). The waiver of sovereign immunity is explicit in both section 307(c)(1) of the CZMA, quoted above, and section 930.32(a) of the federal consistency regulations, which requires federal agencies to consider State-management programs as supplemental requirements to be adhered to in addition to existing agency mandates. Tribe, L., American Constitutional Law. The Foundation Press, Inc., Mineola, New York, 1978, p. 242. Hart, H. & Wechsler, H., The Federal Courts and the Federal System. The Foundation Press, Inc., Mineola, New York, 1973, pp. 470-1. Knecht, R., Cicin-Sain, B. & Archer, J., National ocean policy: a window of opportunity. Ocean Development and International Law, 19 (1988) 113-42. Outer Continental Shelf Lands Act Amendments. 1978. US code. 1982. Vol. 43, secs. 1331-56; 1801-66. Eichenberg, T. & Archer, J., The federal consistency doctrine: coastal zone management and 'new federalism.' Ecology Law Quarterly, 14 (1987) 9-68. NOAA, Draft federal consistency study. Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, Washington, DC, 1985. The Federal Consistency Study (NOAA 1985, I-i) summarizes the data reported by the states and federal agencies for the period 1983/84 as follows: --States concurred with about 93% of the approximately 400 direct Federal activities reviewed under Section 307(c)(1) (including OCS lease sales which were reviewed during [fiscal year 1983] only); --States concurred with about 82% of the approximately 5500 Federally licensed and permitted activities reviewed under Section 307(c)(3)(A) (nearly 5000 of which were Corps of Engineers dredge and fill permits); --States concurred with about 99% of the nearly 435 plans for OCS exploration and development and production reviewed under Section 307(c)(3)(B); and --States concurred with over 99.9% of the nearly 2000 Federal assistance proposals reviewed under Section 307(d).
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11. 12. 13. 14. 15.
16. 17. 18. 19.
Jack H. Archer
The level of state concurrence with federally permitted activities is actually considerably higher than the rate of 82% reported in the Federal Consistency Study. Of 952 'objections' reported by the Corps of Engineers, 800 were concurrences with conditions by one state--Louisiana. Of these 952 'objections' 855 were resolved, 36 were withdrawn, and only 55 were left unresolved at the end of the Study period. Thus, the actual rate of concurrence by the states was 99%. Magnuson Fishery Conservation and Management Act. 1976. US code. 1982. Vol. 16, secs. 1801-82. Jacobson, J., Conner, D. & Tozer, R., Federal fisheries management. Ocean and Coastal Law Center, University of Oregon School of Law, Eugene, Oregon, 1985. N O A A , An evaluation of the implementation of the Magnuson Fishery Conservation and Management Act. National Marine Fisheries Service, National Oceanic and Atmospheric Administration, 1986. Marine Mammal Protection Act. 1972. US code. 1982. Vol. 16, secs. 1361-407. The OSP standard is defined in the MMPA to mean 'the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the optimum carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element' (MMPA 1972, sec. 1362(8)). 'Optimum carrying capacity' was originally defined in the Act as 'the ability of a given habitat to support the optimum sustainable population of a species or population stock in a healthy state without diminishing the ability of the habitat to continue that function' (MMPA 1972, sec. 1362(8)). The circularity of these definitions was remedied by amendments to the MMPA in 1981 that deleted the definition of 'optimum carrying capacity', but it remains uncertain how and to what degree either the 'optimum carrying capacity of the habitat' or 'health of the ecosystem' may limit OSP levels for marine mammals. Marine Mammal Commission, Annual report of the Marine Mammal Commission. Marine Mammal Commission, Washington, DC, 1985. Marine Protection, Research and Sanctuaries Act. 1972 US code. 1982. Vol. 33, secs. 1401-45. Archer, J. & Bondareff, J., Implementation of the federal consitency doctrine--lawful and constitutional: a response to Whitney, Johnson & Perles. Harvard Environmental Law Review, 12 (1988) 115-56. The US Supreme Court has recently rejected such arguments in California Coastal Commission v. Granite Rock Co., 197 S. Ct. 1419, 1431 (1987) quoting and endorsing the legislative history of the CZMA: [The CZMA] has as its main purpose the encouragement and assistance of States in preparing and implementing management programs to preserve, protect, develop and whenever possible restore the resources of the coastal zone of the United States . . . . There is no attempt to diminish state authority through federal preemption [emphasis in the decision]. The intent of this legislation is to enhance state authority by encouraging and assisting the states to assume planning and regulatory powers over their coastal zones (Senate Report No. 753, 92d Cong., 2d Sess. at 20 (1972)).
lntergovernmental conflicts in marine resource management
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20. Pacific Marine Fisheries Commission, Draft report of the Ad Hoc Committee on marine mammals. Pacific Marine Fisheries Commission, Portland, Oregon, 1987. 21. Botzum, J., (ed.) Coastal Zone Management. Nautilus Press, Washington, DC, 20 May 1988.