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

• Date: 01 November 2010

11-2010 NEWS & ANALYSIS 40 ELR 11079

The BP Macondo Well Exploration

Plan: Wither the Coastal

Zone Management Act?

by Sam Kalen

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

The Deepwater Horizon spill of April 20, 2010, serves

as an acute reminder of the potentially devastating

consequences of coastal activities. Du ring the 1950s

and 1960s, the nation earnestly began to explore how to pro-

tect our marine and coastal communities.1 en, in 1972,

the U.S. Congress passed the Coastal Zone Management Act

(CZMA),2 and shortly thereafter it enacted the Outer Con-

tinental Shelf Lands Act (OCSLA) Amendments of 1978.3

Both act s recognize t he fragility of our marine and coastal

environments and, at least optically, emphasize the impor-

tance of outer continental shelf (OCS) energy development,

and yet neither statute—at least as implemented to date—

appears suciently robust to protect our resources for the

future. By the late 1990s, it became apparent to many that

existing programs were not adequately protecting our coasts

and marine environment. Today, “[i]ncreasing impacts on

the world’s oceans from coastal and oshore development,

overshing, a cha nging climate a nd increased levels of car-

bon dioxide, natura l events, and other sources are straining

the health of marine ecosystems and the Great L akes.”4 Our

present challenge, therefore, is to ensure that our programs

do as much as possible to: (1)protect our marine and coastal

environments; (2)bolster the resiliency of these environs to

withstand ecological changes; and (3)aord sucient ex-

ibility to adapt to changing ecological conditions.

is Article explores some of the reasons why the CZMA

in pa rticular appears to have become rendered of little rel-

evance to this chal lenge, particularly as a tool for examining

oshore oil and gas development. Indeed, in recent inquiries

into the administration of the Minerals Management Ser-

vice (MMS) program, the CZMA and its role receives virtu-

1. See, e.g., U.S. C  M S, E,  R-

, O N   S: A P  N A, H.R.

D. 91-42 (1969).

2. 16 U.S.C. §§1451-1466, ELR S. CZMA, §§302-319.

3. Pub. L. No. 95-372, 92 Stat. 629 (1978) (codied as amended in scattered

sections of 43 U.S.C.).

4. Kara Schwenke et al., Networks of Marine Protected Areas: What Are ey and

Why Are ey Needed?, 26 J. M E. 3 (2010).

ally no mention.5 Perhaps even more telling, in the lawsuits

against the U.S. Department of the Interior’s (DOI’s) limited

moratoria against future exploratory drilling, the plaintis,

including the state of Texas, argue that the DOI should have

consulted with coastal states before imposing the moratoria,

yet there is no mention of the CZMA in the complaints, even

though consultation is a critical component of the Act.6 is

is understandable: historically, the coastal zone management

(CZM) program has been slow to develop, with considerable

reluctance by the DOI to apply the program to OCS energy

development, and instead, the OCSLA and t he National

Environmental Policy Act (NEPA)7 dominate and eclipse

most of the discussion about the OCS oil and gas program.

I. The CZMA: An Overview

In response to the growing awareness of the need for more

eective management of our ocean and coastal resources,8

Congress passed the CZMA “to encourage and assist States

in developing and implementing management programs to

preserve, protect, develop and where possible, to restore or

enhance the resources of our nation’s coast by the exercise

of planning and control with respect to activities occurring

in their coastal zones.”9 rough the inducement of oering

grants, the Act encouraged states to develop coasta l man-

agement plans (CMPs) that would wrest control from local

communities, which at the time were perceived to be less

able than the state to address the comprehensive problem

5. When the U.S. Government Accountability Oce (GAO) recently discussed

the diculties with the MMS’ implementation of NEPA, it tellingly omitted

any mention of the CZMA in its report. U.S. GAO, O  G M-

: K E  C  P A  E

I O, GAO-10-852 (June 17, 2010).

6. First Amended Complaint, Ensco Oshore Co. v. Salazar, Civ. No. 10-CV-

01941-MLCF-JCW (E.D. La., led July 20, 2010); Petition for Judicial Re-

view and Request for Injunctive Relief, State of Texas v. Salazar, Civ. No. 10-

CV-02866 (S.D. Tex., led Aug. 11, 2010).

7. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

8. See, e.g., U.S. C’  M S, E’  R., O N  T

S: A P  N A, H.R. D. N. - (1969).

9. H.R. R. N. 96-1012, at 14 (1980), reprinted in 1980 U.S.C.C.A.N. 4362.

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