<em>California Coastal Commission v. Norton</em>: A Coastal State Victory in the Seaweed Rebellion

Abstract

I. INTRODUCTION There has been a great deal of federal-state conflict regarding outer continental shelf (OCS) energy development, which is known as the Seaweed Rebellion. (2) California, which has experienced eleven OCS lease sales off its coast since 1961, (3) has been a leader of the Seaweed Rebellion. California has been involved in litigation regarding the tidelands controversy, (4) the disposition of section 8(g) revenues under the Outer Continental Shelf Lands Act (OCSLA), (5) and the development of the Department of Interior's (Interior's) five-year OCS leasing programs pursuant section 18 of the OCSLA. (6) This article examines California's utilization of the Coastal Zone Management Act (CZMA) influence OCS energy development. A brief history of the conflicts between California and the federal government regarding OCS energy development is set forth. The Ninth Circuit's decision in the latest battle, California Coastal Commission v. Norton, (7) is analyzed. The article concludes that the Ninth Circuit was correct in holding that the suspension of thirty-six OCS leases off California are subject state consistency review pursuant section 307(c)(1) of the CZMA. Furthermore, the Ninth Circuit properly determined that Interior should not have categorically excluded the OCS lease suspensions from National Environmental Policy Act (NEPA) analysis because the suspensions constituted extraordinary circumstances. Finally, the current Bush administration and congressional efforts regarding OCS energy development and the California leases are examined. II. OCS CONFLICTS OFF CALIFORNIA'S COAST REGARDING THE CZMA The CZMA of 1972 establishes a policy ... preserve, protect, develop, and where possible, restore or enhance the resources of the Nation's coastal (8) Coastal states are encouraged assume planning and regulatory functions over their coastal zones. The CZMA accomplishes this in two ways. First, the coastal states receive grants develop and administer coastal zone management (9) Second, federal activities that affect the coastal zone must be conducted in a manner that is consistent to the maximum extent practicable with state coastal zone management programs. (10) The California Coastal Commission (Commission), which was established by the California Coastal Act in 1972, (11) regulates activities along the California coast. The Commission developed the California Coastal Management Program (CCMP) that was submitted the National Oceanic and Atmospheric Administration (NOAA) for approval. (12) In September 1977, several petroleum groups and companies brought suit, challenging NOAA's approval of the CCMP. The petroleum industry alleged that the program lacked specificity and did not adequately consider the national interest in energy facility siting. The federal district court upheld NOAA's approval, declaring that the program did not have include detailed criteria establishing a sufficiently high degree of predictability enable a private user of the coastal zone say with certainty that a given project must be deemed 'consistent' therewith. (13) The industry's contention that the affirmative accommodation of energy facilities was made a quid pro quo for program approval was rejected. (14) The Ninth Circuit affirmed. (15) The controversy regarding state consistency review of OCS lease sales began in 1979. (16) The Commission requested a consistency determination for lease sale forty-eight, asserting that the Final Notice of Sale (FNOS) affected the California coastal zone by conclusively establishing the size of the lease sale, the location of the tracts be leased, the timing of the lease sale, and lease stipulations. (17) Interior refused, arguing that federal pre-leasing activities did not directly affect the coastal zone. The dispute was referred the Department of Justice (DOJ), which concluded that the issue is a factual question be decided on a case-by-case basis. …