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 suciently 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 oshore development,
overshing, 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)aord sucient 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
oshore 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).
3. Pub. L. No. 95-372, 92 Stat. 629 (1978) (codied 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 plaintis,
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
eective 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 oering
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 Oce (GAO) recently discussed
the diculties 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 Oshore 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).
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.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.