CHAPTER 12 Coordination of Roles of Different Sovereigns in Permitting Resources Projects — Easier Than Herding Cats?

JurisdictionUnited States
Natural Resources & Environmental Administrative Law and Procedure
(Nov 1999)

Coordination of Roles of Different Sovereigns in Permitting Resources Projects — Easier Than Herding Cats?

Christopher G. Hayes
Ireland, Stapleton, Pryor & Pascoe, P.C.
Denver, Colorado

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I. Most resource development projects in the United States require permits, approvals or acquiescence from more than one level of government. The federal government, states and tribes coexist in a matrix of sovereign authority, in which all of their regulatory requirements must be satisfied as a condition of a project's permitting or approval. Federal land management and environmental regulatory agencies operate under federal statutes and regulations that generally give them extensive mandates and concomitant powers to execute them. States and tribes, understandably, seek to retain and exercise their own sovereign authority to the greatest extent possible. The challenge to the governments is to resolve questions of sovereignty in a way that permits them to work effectively together; the challenge to proponents is to avoid having their projects and permit applications trampled in the fight.

A. Federal, tribal and state governments may have statutory and regulatory requirements that are not fully consistent with one another1 . As a general rule, if federal requirements do not preempt those of the states or tribes, then all requirements must be satisfied, and it is usually up to the person seeking permits or regulatory approvals to find a way to reconcile conflicts.

B. Where there are overlapping or conflicting authorities, approval criteria and decision timelines may interfere with one another, drawing out decisions until the longest timeline has been satisfied.

C. Multiple permitting agencies may have conflicting agendas. This of course may manifest itself in relationships among agencies all at one level of government, as well as those representing two (or three) sovereigns.

D. Obviously, multiple approval requirements may present as many opportunities for appeal of whatever decision finally emerges.

For all of these reasons, it is important for proponents to understand the nature of the relationships among the different levels of government, to be able to work effectively to move the cats all in the same direction at about the same speed, to the extent possible.

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II. Sovereignty, Preemption, Cooperative Federalism

The United States Constitution recognizes the states and Indian tribes as sovereign entities, which possess powers that do not derive from the federal government but are inherent in their sovereignty2 .

A. States and tribes may exercise their inherent authority without federal approval, subject to the limitations imposed on them by the Federal Constitution, by their own constitutions and by valid acts of Congress that preempt a given field of authority. So, for example, the states have a general police power that allows them to act to protect the health, safety, and common welfare of persons within their jurisdiction, which they may exercise subject to constitutional constraints.

B. The federal government, on the other hand, is a government of enumerated powers rather than inherent ones. As such, it may only act to effectuate those powers granted to it by the constitution3 . It does not have an inherent police power to act for the general welfare4 .

C. The federal government derives its authority directly from the citizens of the United States, not from the states, and Congress does not need to act through the states when it wants to exercise its enumerated powers. Congressional action is limited by the Constitution and the Tenth Amendment. It is not limited by any requirement of state cooperation. State action that conflicts with a valid exercise of Congressional authority is invalid5 ; the necessary and proper clause gives the federal government the authority to exercise its enumerated powers, unhindered by conflicting state laws.6

D. When Congress acts, it may choose to "preempt the field" in which it is acting, thus denying to the states any authority to act as sovereigns with respect to that

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area of action7 . Conversely, it may act without preempting the field, thus leaving "interstices" in which the states may act as long as they do not encroach on federal power8 .

E. However, Congress need not resort only to preemption. It may enact statutory and regulatory programs that attempt to enlist the states in the exercise of power, subject to federal standards and oversight. This approach is usually called cooperative federalism. Because cooperative federalism relies on a mixture of partial preemption and incentives to the states, it is not always completely clear whether it is a delegation of federal power, or a true joint exercise of sovereign power.9

1. Under the cooperative federalism model, Congress enacts a statute that gives the states something like the following choice:

a. A state may choose to adopt the federal statutory program, in which case it agrees to enact a state statutory or regulatory program that is subject to the approval of the federal agency administering the federal program. The state may receive significant benefits from the federal government for doing so. The federal agency retains significant oversight authority, which it uses to ensure that the state program conforms with, and advances the goals of, the federal program. The federal program may require that the state waive its 11 th Amendment immunity against suit in Federal courts.
b. Conversely, the state may decline to participate in the federal program. Usually, the federal statute provides in that case that the appropriate federal agency will administer the program directly in that state. This effects a preemption of state authority in that area.

2. However, Congress may not enact a statute that simply tells the states that they must regulate a certain area. Such an effort to direct state action through federal legislation is too great a violation of states' sovereignty.10

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III. Coordination of State and Federal Roles

Cooperative federalism is the preferred model (at least, preferred by Congress) for state and federal interaction in the environmental regulatory arena. When done properly, it provides fairly clearly delineated lines of authority, a meaningful role for the states, and a fallback authority when the states don't toe the federal line. However, cooperative federalism does not answer every question. Not all regulatory systems rely on it, and it has its own particular limitations.

A. Coordination in those areas not regulated under cooperative federalism.

There are a number of significant areas of regulation that are not organized under cooperative federalism principles.11 Among them, NEPA and reclamation permitting represent perhaps the most challenging coordination problems. NEPA contains substantial requirements mandating a coordinated review process. In addition, a number of states have their own "little NEPA" statutes which govern the procedures under which state agency action must be evaluated for its environmental effects.

Reclamation permitting in oil and gas and non-coal mining is typically a state function. In states with substantial public lands, however, the state rules (and the state agencies that implement them) must coordinate with the requirements imposed on public lands mineral development by federal statutes and regulations.12

1. NEPA Coordination Issues.

a. NEPA is a consultation and disclosure statute. As such, it provides for extensive cooperation and coordination among federal and state agencies, the public, and non-federal project proponents. The statute itself contemplates that states may prepare Environmental Impact Statements to satisfy the federal statute under certain circumstances, 13 and the Act's implementing regulations contemplate state agencies acting as joint lead agencies

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in the environmental review process.14 In addition, the regulations require federal agencies to cooperate with state and local agencies to the fullest extent possible, to reduce duplication of effort.15 Further, states or tribal agencies may be designated as "cooperating agencies" for purposes of preparing an EIS; these are agencies having special expertise with respect to a specific environmental issue.16

b. NEPA cooperation between federal and state agencies is intended to reduce duplication of effort. The Council on Environmental Quality states that such cooperation "shall to the fullest extent possible include:

(1) Joint planning processes.

(2) Joint environmental research and studies.

(3) Joint public hearings (except where otherwise provided by statute).

(4) Joint environmental assessments [and environmental impact statements]."17

c. Finally, the CEQ regulations provide:

"To better integrate environmental impact statements in state or local planning processes, statements shall discuss any inconsistency of a proposed action with any approved state or local plan and laws (whether or not federally sanctioned). Where an inconsistency exists, the statement should describe the extent to which the agency would reconcile its proposed action with the plan or law."18

d. Clearly, Congress and the Council on Environmental Quality contemplated that lead agencies, cooperating agencies, federal project proponents, and state and local governments should all be coordinating their efforts in the preparation of EAs and EISs. The hoped-for result is well-considered federal action, with decisions made in broad daylight, informed by the best data available.

2. Reclamation Permitting Coordination.

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Hardrock mine reclamation permitting provides numerous points of potential conflict between the sovereigns, and, consequently, numerous opportunities to seek coordination. Nearly all of the western public lands states...

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