The Coastal Zone Management Act is administered by the National Oceanic and Atmospheric Administration (NOAA) and encourages coastal states to develop plans to manage the use of states’ coastal resources. Federally-approved plans to explore, develop and produce energy in Outer Continental Shelf Lands Act lease areas must secure a certification from participating states that the proposed activities are consistent to the “maximum extent practicable” with the state’s enforceable coastal zone management plan. Under the statute, if a state refuses to issue a federal consistency certification, the applicant can appeal that decision to the Department of Commerce.
In March 2019, NOAA released an advanced noticed of proposed rulemaking (ANPRM) to seek public comment on ways to “streamline” federal consistency reviews for offshore energy production. The ANPRM indicates that NOAA also is considering speeding up the appeals process for projects that have not received consistency certifications by limiting the scope of information the Secretary of Commerce can consider on appeal.
New York Attorney General Letitia James led a nine state coalition in April 2019 in filing comments expressing concern about the ANPRM. The comments pointed out that the federal consistency review process could most effectively be streamlined by ensuring that project applicants provide states with comprehensive project information as early as possible in the review process. The attorneys general also questioned whether speeding up the appeals process is necessary as there have only been 18 appeals since 1978 and none since NOAA adopted new consistency review regulations in 2006.