AGs emphasize any changes must be “consistent with Congress’ intent to promote cooperative federalism" under the Act.
"NOAA should not, under the guise of enhancing predictability and without any demonstrated justification, simply shift the balance of authority away from the States.”
FOR IMMEDIATE RELEASE
April 26, 2019
Contact: Christopher Gray
Washington, D.C. — New York Attorney General Letitia James led a multi-state coalition of nine state attorneys general in submitting comments critical of the National Oceanic and Atmospheric Administration’s (NOAA) proposal to “streamline” how the federal government reviews whether energy projects proposed for federal waters are consistent with state interests, as reflected in state coastal zone management plans prepared under the Coastal Zone Management Act.
The attorneys general warned that NOAA’s proposal could unlawfully restrict states’ rights to get complete information about offshore activities that might impinge on legitimate state interests, as well as states’ rights to challenge incorrect or unsupported consistency determinations made by NOAA under the Coastal Zone Management Act.
Under the Act, NOAA is required to ensure that new offshore oil and gas and wind energy projects are consistent with coastal management plans that states have developed in consultation with the federal government. States also have the right to obtain timely information regarding new federal offshore energy plans, review that information, and raise objections if they are inconsistent with approved state coastal zone management plans. NOAA hears such objections and makes a final “federal consistency” determination that states, in turn, can appeal to the Secretary of Commerce.
In their comment letter, the coalition of attorneys general questioned the need for changing the agency’s current review process, noting that the vast majority of federal proposed offshore energy projects have not raised the Act’s consistency issues. The AGs also noted that potential concerns about process delays are misplaced. To the extent that there are delays, they typically stem from the federal government’s withholding of key information about specific energy projects needed by states to complete their reviews on a timely basis.
The coalition also called attention to the rarity of industry appeals under the consistency review process. There have been more than 10,600 exploration plans and more than 6,000 development and production plans approved since 1978, but there have been only 18 cases in which industry has appealed a state objection. Additionally, the AGs noted that NOAA has already updated its review process to address the same industry concerns outlined in its ANPR twice since 2000, and there have been no industry appeals filed since NOAA’s last update in 2006.
“With this attempt to undermine states’ legal authority to review new energy projects in the Outer Continental Shelf the Trump administration is once again demonstrating its distorted view of cooperative federalism and states’ rights,” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center. “Rather than accept the consequences that some of its future offshore oil and gas projects may not be consistent with approved state coastal management plans, the administration is looking to preemptively disempower states from exercising their rights to object to non-complying federal projects under the Coastal Zone Management Act — making a mockery of cooperative federalism principles embodied in the Act.”
In addition to New York, the attorneys general of California, Maryland, Massachusetts, New Jersey, North Carolina, Oregon, Rhode Island and Washington also joined the multi-state coalition.
In enacting the Coastal Zone Management Act of 1972, Congress declared that “it is the national policy . . . to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations.” The Coastal Zone Management Act is administered by NOAA, and encourages coastal states and territories to develop coastal zone management plans. Currently, 34 of 35 eligible states and territories have federally approved coastal zone management plans in place.
States that develop and secure federal approval of a coastal zone management plan are able to conduct reviews of federal agency actions that may affect their coastal zone. The law states that “each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs.” This key principle of the Act is commonly known as “federal consistency.”
The federal consistency requirements of the Act apply to energy exploration, development and production activities in areas leased under the Outer Continental Shelf Lands Act (OCSLA). Plans submitted to the Interior Department regarding such activities must be accompanied by a certification that the activities are consistent with the management plan of the relevant state. The state may concur with or object to the consistency certification; if the state takes no action within six months, its concurrence is presumed. If a state objects to the certification, the applicant may appeal to the Commerce Secretary.
ABOUT THE STATE ENERGY & ENVIRONMENTAL IMPACT CENTER
The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to working with state attorneys general to protect and advance clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit our website.