Adam Regar
Consistency Review of Federal Permitting of Offshore Wind Farms: Is the Coastal Zone
Management Act A Viable Method of Augmenting Environmental
Standards in the Permitting Process?
I. Introduction.
Nantucket Sound, a beautiful water body off the coast of Massachusetts, faces the
construction in its waters of the United States’ first offshore wind farm. The wind farm, expected
to generate 420 megawatts (MW) of power at peak output, will cover a twenty-six square mile
tract of the Sound and contain nearly 160 wind turbines, each standing over 400 feet tall.1 While
the production of wind energy holds great promise for renewable energy development, the
magnitude of this project in such an environmentally prized area has caused a stir among all
involved.
Cape Wind Associates, LLC, is a private development company who has obtained a
permit from the Army Corps of Engineers to construct a data tower in Nantucket Sound. The
data tower will collect information pertinent to the siting of an offshore wind farm on Horseshoe
Shoal, a small area located on the Outer Continental Shelf and within Nantucket Sound. Cape
Wind’s proposal carries with it significant environmental benefits, including no greenhouse gas
emissions during operation, negligible quantities of water consumption, low cost energy
production, and generation of electricity from a clean renewable resource—wind. Such a project,
1
Alliance to Protect Nantucket Sound, Inc. v. United States Department of the Army, 288 F.Supp. 2d 64, 68 (D.
Mass. 2003).
1
while apparently benevolent and benign, has met great resistance from parties reluctant to allow
this unprecedented project in such a pristine area.
The resistance, comprised of local citizens and citizen activist groups, has mounted a
legal campaign to halt Cape Wind’s project. Two different citizen activist groups, Ten Taxpayer
Citizen Group and Alliance to Protect Nantucket Sound, have filed causes of action in federal
court. Ten Taxpayer argued Massachusetts had permitting jurisdiction while Alliance argued the
Corps’ erred on several fronts when it granted the data tower permit. Both challenges made their
way to the United States Court of Appeals for the First Circuit, and both challenges failed. Thus,
a conundrum arises. What can concerned citizens do to safeguard their local environment when
they consider the federal permitting procedures in place simply inadequate? This paper will
address the prospect of using the Coastal Zone Management Act (CZMA) to augment a
perceived inadequacy of environmental standards in federal permitting.
Part Two of this paper will discuss the legal issues, which arose under Cape Wind’s
permit application. Part Three will explore the underlying issue facing offshore wind farm
permitting: a perceived lack of federal environmental safeguards in the permitting process. Part
Four asserts the CZMA’s consistency review provision provides an added layer of environmental
protection for residents concerned with augmenting federal standards. Part Four also notes
neither Ten Taxpayer nor Alliance used CZMA to argue the Corps’ permit for the data tower was
invalid because it constituted a federal action inconsistent with Massachusetts’ coastal zone
management plan (CZMP). Part Five of the paper concludes, while consistency review under
CZMA may provide a tool for those wishing to slow or stop an offshore wind project, larger
issues affecting the national interest, such as global warming and climate change, weigh against
consistency review when used to inhibit truly beneficial projects.
2
II. Legal Issues Facing Offshore Wind Farms: The Case of Nantucket Sound
In order for Cape Wind to construct its data tower, the company must apply for a permit
from the Army Corps of Engineers. The Corps’ permitting authority for such projects comes
from the Outer Continental Shelf Lands Act, which regulates the extraction of oil, gas, and
mineral resources from the Outer Continental Shelf—that portion of ocean lying seaward of the
three-mile jurisdictional line of the states.
A. Jurisdiction.
Ten Taxpayer Citizens Group, a citizen activist group opposed to the Cape Wind project,
filed suit in Massachusetts federal district court and sought to stop the Corps from issuing a data
tower permit. Ten Taxpayer argued the state of Massachusetts, not the Corps, had jurisdiction
over permitting in Nantucket Sound and relied on the Magnuson-Stevens Act for their authority.
1. State Permitting Authority Under the Magnuson-Stevens Fishery and
Conservation Act is Limited by the Outer Continental Shelf Lands Act.
Under the Magnuson-Stevens Act, Congress granted to Massachusetts authority to
regulate fishing in all of Nantucket Sound, including OCS lands.2 Ten Taxpayer relied on this
grant of authority as well as Title 310 of the Code of Massachusetts to argue Cape Wind must
obtain a permit from the state in order to construct a data tower in Nantucket Sound.3 The district
court, however, noted Congress limited the scope of the act to those activities involving fishing,
and regulation of non-fishing activity, even if for the protection of fish, did not constitute a valid
element of state jurisdiction.4
2
16 U.S.C. § 1856(a)(2) (2005); Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC, 278 F.Supp. 2d 98,
100 (1st Cir. 2004).
3
278 F.Supp. 2d at 100.
4
278 F.Supp. 2d at 101.
3
The United States Court of Appeals for the First Circuit upheld the district court’s
finding looked to whether the Massachusetts statutes applied to Nantucket Sound, and if they
did, whether their application to the data tower would be inconsistent with federal law.5 The
circuit court found the Massachusetts statutes did not apply to the construction of a data tower on
Horseshoe Shoal.6 As to the second prong of its inquiry, the court found OCSLA does not allow
states to require permits or licenses for construction of data towers on the OCS, as doing so
would create an inconsistency between state and federal law.7 Further, the court found the
Massachusetts statutes apply to the OCS only as surrogate law and only as federal law. The court
also held OCSLA does not permit states to require permits or licenses for construction of a data
tower on the OCS, as nowhere in the Magnuson-Stevens Act did Congress amend the
jurisdictional element of OCSLA.8
While the courts in the Ten Taxpayer cases ruled Massachusetts lacked permitting
jurisdiction over OCS lands in Nantucket Sound, another plaintiff, Alliance to Protect Nantucket
Sound, Inc., alleged, among other things, the Army Corps of Engineers also lacked permitting
authority on OCS lands for the purpose of constructing a data tower.
2. The Outer Continental Shelf Lands Act Expands Corps’ Permitting
Authority Under Section 10 of the Rivers and Harbors Act of 1899.
In the Alliance case, when deciding whether the Corps had permitting authority, the
district court determined a permit from the Corps was required before a party may construct any
5
Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC, 373 F.3d 183, 194 (1st Cir. 2004).
373 F.3d at 194 (holding the jurisdictional terms “tide waters,” “filled tidelands,” and “waterways” used in the
Massachusetts laws did not include Horseshoe Shoal). The circuit court upheld the lower court’s decision holding
the Magnuson-Stevens Act did not grant jurisdiction to Massachusetts for the purposes of regulating activities other
than fishing. Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC, 278 F.Supp. 2d 98 (D.Mass. 2003).
7
373 F.3d at 196. (citing § 1333(a)(3) of OCSLA, which states the provisions of OCSLA allowing state law to
provide surrogate federal law do not provide a basis for any state interest or jurisdiction over OCS lands).
8
373 F.3d at 196-97.
6
4
structure in navigable waters.9 The court found OCSLA extended the Corps’ permitting authority
under the Rivers and Harbors Act of 1899 to include OCS lands and reasoned the 1978
amendments to OCSLA had not altered the Corps’ jurisdiction. 10 Alliance argued the Corps
lacked jurisdiction to issue a permit because the data tower would not serve the purpose behind
OCSLA—to govern the extraction of resources.11 The district court read the terms “may be” in §
1333(e) of OCSLA (stating jurisdiction extends to structures “which may be erected thereon for
the purpose of exploring for, developing, or producing resources therefrom…”) to be an
inclusive, but not exhaustive, list of possible activities for which one may use a structure on the
OCS.12 The circuit court, finding the statutory text ambiguous, looked to the legislative intent
behind § 1333 and found the Corps did have authority to issue a permit for Cape Wind’s data
tower.13
While the circuit court has ruled § 10 of the RHA, as applied through OCSLA, grants
permitting authority to the Corps for data tower construction, questions still remain whether
these statutes provide the Corps with permitting jurisdiction for OCS wind farms. The courts
have yet to decide the issue of offshore wind farm permitting authority, but they have found
unavailing several other arguments seeking to tighten environmental standards for offshore wind
farm permitting.
C. Property Interest in OCS Lands.
Alliance’s challenges did not stop with jurisdiction. Alliance also argued the Corps, when
it issued the data tower permit before verifying if Cape Wind had a legitimate property interest in
9
288 F.Supp.2d at 71.
288 F.Supp. 2d at 72-74; 43 U.S.C. § 1333(a)(1), (e) (2005).
11
288 F.Supp. 2d at 74.
12
288 F.Supp. 2d at 74-75.
13
Alliance to Protect Nantucket Sound, Inc. v. United States Department of the Army, 398 F.3d 105, 109-11 (1st
Cir. 2005).
10
5
the OCS lands, violated its own permitting standards. Alliance asserted Cape Wind does not and
will not possess the requisite property interest necessary under the Corps’ permitting
requirements. The district court found in favor of the Corps, reasoning Chevron deference
applied to the Corps’ interpretation of its regulation requiring a permit applicant demonstrate
sufficient property rights as a prerequisite for a permit.14 The circuit court affirmed, looking to
the agency’s rules to determine whether the Corps’ interpretation of the property interest
requirement was reasonable.15 Reasoning the Corps’ determination was entitled to deference, the
circuit court found the Corps’ decision not to enter into property disputes (but to merely remind
the permit applicant of the property interest requirement) constituted a valid interpretation of
Corps regulations.16
D. National Environmental Policy Act.
Alliance also challenged the Corps’ decision not to make public its NEPA-mandated
environmental assessment (EA) and consequent finding of no significant impact (FONSI).17 The
district court reviewed the Corps’ decision under the arbitrary and capricious standard of the
Administrative Procedure Act (APA) but found the Corps acted within its reasonable
discretion.18 Current law requires the Corps to publish the EA and FONSI only in limited
circumstances, as when the proposed action is without precedent.19 The district court asked
whether the construction of a data tower in Nantucket Sound constituted such limited
14
288 F.Supp. 2d at 76-77. The regulations require the permit applicant sign the application, and the signature
constitutes an affirmation the applicant does or will possess the necessary property interest in order to carry out
construction of the data tower. Id. at 77.
15
398 F.3d at 111-13.
16
398 F.3d at 112-13.
17
398 F.3d at 114-16.
18
398 F.3d at 114-16.
19
398 F.3d at 115. Circulation of the EA and FONSI for public comment allows the public to hear and address any
environmental issues. See 40 C.F.R. § 1501.4(b), (e)(2), (e)(2)(i), and (e)(2)(i) (2005).
6
circumstances, and found it did not, as construction of structures similar to the data tower has
occurred in Nantucket Sound before.20
On appeal, the circuit court affirmed the district court’s ruling. Unlike the district court,
however, the circuit court engaged in a more searching analysis of the Corps’ compliance with
NEPA requirements. In its determination, the court considered four factors: circulation of the EA
and FONSI for public comment, analysis of alternatives to the data tower, consideration of the
data tower application separate from the wind energy plant application, and removal of the data
tower.21
The circuit court relentlessly found in favor of the Corps on all four factors. The court
determined the Corps’ decision to not circulate the EA and FONSI because the data tower was
comparable to other similarly-constructed piers and structures was “eminently reasonable [and]
entitled to deference.”22 The second factor required the Corps to briefly consider alternatives to
the data tower project and the impacts of the alternatives, and, as with the fist factor, the circuit
court found the “Corps’ treatment of project alternatives was reasonable.”23 While the Council
on Environmental Quality regulations required the Corps to consider cumulative or connected
actions as one application, the court found this third factor also weighed in favor of the Corps, as
the data tower and wind energy plant applications did not constitute such actions.24 Alliance’s
final NEPA claim also failed under the circuit court’s scrutiny. While the Corps did not include
in its EA a discussion of the environmental consequences of removing the data tower from
Nantucket Sound, the court found such a discussion unnecessary. In fact, the court considered
20
398 F.3d at 115-16.
288 F.Supp. 2d at 78-82.
22
288 F.Supp. 2d at 79.
23
288 F.Supp. 2d at 79-80.
24
288 F.Supp. 2d at 80.
21
7
Alliance’s argument “without merit” as no evidence demonstrated the removal of the data tower
would cause any additional environmental consequences beyond the tower’s construction.25
While the district and circuit courts found in favor of the Corps and Cape Wind
throughout the challenges raised by Alliance and Ten Taxpayer, it is important to note the
underlying issues in these cases. Surely, one may conclude Ten Taxpayer and Alliance do not
concern themselves with the merits of administrative permitting procedure in and of itself.
Rather, the litigants’ NEPA, APA, OCSLA, RHA, and Magnuson-Stevens Act challenges
represent the tools with which opponents of Cape Wind’s offshore wind farm may challenge
what they consider a flawed project. What Ten Taxpayer and Alliance seek are tougher
environmental standards for siting of offshore wind farms.
III. Problems with the Permitting Process: A Perceived Lack of Environmental Standards.
While the legal challenges mentioned above, on their face, indicate little about what
offshore wind farm opponents view as the real problem, an inference can be made they are
concerned about the quality of their environment and the potential negative results of an offshore
wind facility in their backyard. Critics argue, while renewable energy certainly provides a benefit
and offshore wind farms do have their place in the United States economy, the permitting
process for offshore wind farms is inadequate. Authors complain agencies permitting offshore
wind energy projects need more specific Congressional direction and greater input from agencies
such as the National Marine Fisheries Service and the National Oceanic and Atmospheric
Association.26 A balancing test beyond, but not inconsistent with, the Corps’ public interest
25
288 F.Supp. 2d at 82.
Guy R. Martin, Odin A. Smith, The World’s Largest Wind Energy Facility in Nantucket Sound? Deficiencies in
the Current Regulatory Process for Offshore Wind Energy Development, 31 B.C. ENVTL. AFF. L. REV. 285, 315
(2004).
26
8
evaluation should apply, as well. 27 This test should include the consideration by the permitting
agency of finances, aesthetics, environment, historic preservation, fish and wildlife values,
tourism, property values, and impacts on commercial and recreational fishing. Rigorous
environmental standards beyond those set forth by the Corps should establish specific parameters
through which to evaluate offshore wind energy projects.28
Critics also favor ocean zoning—a process similar to the land-based concept where land
(in this case, the ocean) is divided up into parcels most suitable for specific activities. States may
engage in ocean zoning through its CZMP and may provide guidance to Corps permitting of
offshore wind farms.29 Such a zoning program would define coastally-dependent uses and
apportion ocean uses by priority.30
While protection of ocean ecosystems is paramount for beachfront states, achieving
recommendations like those set forth above may enforcement mechanisms beyond those used by
Alliance and Ten Taxpayer. For example, the regulatory obstacles, having a property interest in
the OCS lands, passing the Corps’ public interest review, and undergoing review under NEPA
and the APA, failed to invalidate the Corps’s data tower permit. Admittedly, some parties may
determine this array of regulatory hurdles adequately safeguards their environmental and
economic interests. On the other hand, parties such as Ten Taxpayer and Alliance who believe
the Corps permitting process does not provide enough protection, may want a regulatory
framework forcing the Corps and any other federal permitting agencies to address additional
factors they consider imperative to ensuring environmental security. Such a mechanism may be
27
Id. at 319-20.
Id. at 321.
29
Michael Shulz, Questions Blowing in the Wind: The Development of Offshore Wind as a Renewable Source of
Energy in the United States. 38 NEW ENG. L. REV. 415 (2004); Robert H. Russell, Neither Out Far Nor In Deep:
The Prospects for Utility-Scale Wind Power in the Coastal Zone. 31 B.C. ENVTL. AFF. L. REV. 221, 256 (2004).
30
Russell, supra note 29, at 256.
28
9
available under the Coastal Zone Management Act—a statute which, unlike those mentioned
above, allows states to augment federal environmental standards by developing a detailed state
CZMP. 31 Under CZMA states can prescribe additional procedures and environmental
considerations for federal permitting actions affecting the state’s coastal zone.
IV. Safeguarding Environmental Standards Using the Coastal Zone Management Act’s
Consistency Review Provision.
While states cannot hold veto power over federal permitting on OCS lands, states
arguably may tighten the standards under which federal agencies grant permits for OCS
activities. Augmenting environmental standards in federal permitting begins with OCLSA, which
provides for state law to act as surrogate law when the state law can fill gaps in federal law and
when the state law is not inconsistent with federal law.32 In fact, when the circuit court in Ten
Taxpayer decided the jurisdiction issue, it evaluated not whether Congress gave Massachusetts
authority under the Magnuson-Stevens Act to regulate Horseshoe Shoal but whether the Act is
applicable and whether its “application to Cape Wind’s construction of the [data tower] would be
inconsistent with federal law.”33 While the court ultimately found Magnuson Stevens
inconsistent with federal law, CZMA, on the other hand, operates with OCSLA operate to
provide states with a consistency requirement of their own. Through CZMA, a state may actually
require federal permitting actions to be consistent with state law.
A. Purpose of the Coastal Zone Management Act: Environmental Protection and
State Empowerment.
31
16 U.S.C.A. § 1451 et seq. (2005).
373 F.3d 183, 194.
33
373 F.3d 183, 194. The court found the Act did not apply to Horseshoe Shoal, and it was not consistent with
applicable federal law. Id.
32
10
As federalism has become an issue in regulating shoreline uses,34 CZMA allows states to
formulate a CZMP in order to further the protection of a state’s coastal zones, including the
“natural, commercial, recreational, ecological, industrial, and esthetic resources….”35 The
findings of Congress express the obvious intent of CZMA to provide states the authority to
protect their coastal zone.36 In fact, Congress found the habitat areas in the coastal zone
“ecologically fragile and consequently extremely vulnerable to destruction by man’s
actions…essential to the well being of all citizens [and in danger of] being irretrievably damaged
or lost…[and are actually being] damaged by ill-planned development….”37 With such strong
findings from Congress, a state seeking to augment the environmental safeguards of federal
offshore wind farm permitting may institute a CZMP requiring the agency scrutinize more
closely any offshore wind farm project affecting the state. CZMA places a check on OCSLA
actions in these circumstances. Because an overriding premise behind CZMA posits effective
coastal management can come from state-level planning,38 CZMA appears to be a tool for
ratcheting down loose federal environmental standards. While offshore wind farm permitting
under OCSLA has not met a CZMA consistency challenge, proponents of such a review may
succeed.
B. Consistency Review: A State Can Challenge a Federal Permitting Action on the
Outer Continental Shelf.
34
Russell, supra note 29, at 232. Authors argue a trend away from federal regulation of the coastal zone towards
state regulation has emerged. Id. at 234. Such a trend will favor those using CZMA to challenge OCSLA offshore
wind farm permitting.
35
16 U.S.C. § 1451(b) (2005); Russell, supra note 29, at 235-36.
36
16 U.S.C. § 1451(d), (e), (g) (2005); American Petroleum Institute v. Knecht, 456 F.Supp. 889, 919 (D.C. Cal.
1978) (stating CZMA was “first and foremost a statute directed to and solicitous of environmental concerns.”).
37
456 F.Supp. at 919.
38
Russell, supra note 29, at 235.
11
CZMA regulates what is loosely known as the coastal zone, which, depending upon the
state, includes varied areas of land and sea.39 For the state of Massachusetts, the coastal zone
includes all of Cape Cod and its offshore islands. 40 While the coastal zone includes a state’s
coastal waters and adjacent shorelands, the coastal zone extends only to the outer limit of state
title and does not include lands subject to federal title.41 While the offshore area under scrutiny in
Nantucket Sound lies outside of state owned lands and under federal ownership, Nantucket
Sound lies surrounded by Cape Cod and the other Massachusetts islands. Thus, federal actions
taking place on Horseshoe Shoal likely will have an impact on the Massachusetts coastal zone.
While coastal management under CZMA is largely a state and local issue, the CZMP of a
particular state must meet federal approval.42 Once meeting federal approval, a state’s
implementation and maintenance of a CZMP enables the state to have conditional power to block
federal decisions, such as permitting an offshore wind farm under OCSLA.43 Such a procedure
for blocking federal decisions is called consistency review.44
CZMA consistency review allows states to review the coastal impact of federal actions
occurring in federal waters as well as federal permitting of private actions in federal waters.45
Under CZMA consistency review—an enforcement mechanism available to the state, as CZMA
does not have a citizen suit provision—a state can object to federally permitted projects if the
project conflicts with an enforceable component of a state’s approved CZMP.46 The power
granted to a state under the consistency requirements is broad. In fact, a federal action need only
39
Id. at 235, n. 81.
MASS. CODE tit. 301 § 21.99 (2005).
41
16 U.S.C. § 1453(1) (2005).
42
Russell, supra note 29, at 237.
43
Id.
44
16 U.S.C. § 1456(c) (2005). A senate report from CZMA’s enactment in 1972, stated it is essential for federal
agencies to administer their programs consistent with the state’s coastal zone management programs. Senate Report
No. 92-753 (1972) reprinted 1972 U.S.C.C.A.N. 4776, 4793.
45
16 U.S.C. § 1456 (2005)
46
16 U.S.C. § 1456(c)(3) (2005); Russell at 246.
40
12
have potential impacts in a state’s coastal zone for the state to have consistency review authority
for those acts.47 Such an action may stop or force the modification of a federal action.
Under the consistency review process, a state files an objection with the Secretary of
Commerce, who then reviews the objection.48 A federal action may go forward notwithstanding
state objection if the Secretary, after reviewing the state’s objection, determines either the federal
action is consistent with the objectives of CZMA or the action is otherwise necessary in the
interest of national security.49 While national security often provides a broad sweep of
interpretation, CZMA restricts such activity to endeavors not likely to include offshore wind
farm permitting. In fact, regulations define “necessary in the interest of national security” as a
federal action (e.g., license or permit activity) where “a national defense or other national
security interest would be significantly impaired were the activity not permitted to go forward as
proposed.”50 As mentioned, if the Secretary does not make a finding of national security, a
federal action may still go forward if the Secretary finds the action consistent with CZMA. In
order for a federal action to satisfy the consistency requirement, the Secretary must find the
activity substantially or significantly furthers the national interest as defined in the act, the
national interest furthered outweighs the activity’s adverse coastal impacts, and no reasonable
alternative exists where the activity may be carried out consistent with state management plan.51
While satisfying either of these consistency objection exceptions may appear difficult, Congress
has included energy siting as a federal activity promoting the national interest.52
C. Will Consistency Review Work for Offshore Wind Farm Permitting?
47
Russell, supra note 29, at 251, n. 167.
16 U.S.C. § 1453(16) (2005).
49
16 U.S.C. § 1456(c)(3)(A) (2005).
50
15 C.F.R. § 930.122 (2005).
51
15 C.F.R. § 930.121 (2005).
52
65 F.R. 77124, 77150 (Dec. 8, 2000). Codified as 15 C.F.R. Part 930 (2005); American Petroleum Institute v.
Knecht, 456 F.Supp. 889, 919 (D.C. Cal. 1978) (finding the 1976 CZMA amendments made clear the planning for
and siting of energy facilities was of national interest).
48
13
Because the Cape Wind project represents the first United States permitting of an
offshore wind farm, no precedent directly on point exists for challenges by states to agency
permitting of offshore wind farms located on the OCS. States, however, have extensively used
the CZMA consistency requirements to review federal permitting under OCSLA for oil and gas
leases and under Section 10 of the RHA.53 When the permitted activity affects any land, water,
or natural resource use in the coastal zone, Congress has explicitly included federal permitting
affecting areas outside a state’s coastal zone in the consistency review process.54 In fact, while
the United States Supreme Court in 1984 held OCS oil and gas leases do not directly affect the
coastal zone,55 Congress invalidated the Court’s holding when it amended CZMA in 1990. The
amendment made subject to consistency review federal permitting directly affecting (including
permitting with reasonably foreseeable indirect effects) any land, water, or natural resource use
in the coastal zone.56 While Congress made clear CZMA consistency review includes federal
OCS permitting under OCSLA and § 10 of the RHA, the Secretary of the Interior’s consistency
objection override powers have indicated energy extraction may be consistent with CZMA. 57
One example indicating energy extraction is consistent with CZMA comes from Florida,
where the state objected to an oil company’s exploratory well drilling permits issued by the
Department of the Interior. Florida argued the possibility of an oil spill conflicted with the state’s
pollution control statutes, as the objective of CZMA is to protect the environment, and allowing
53
Andrew Solomon, Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990: Is There Any
Point?, 31 Environmental Law 151, 155 (Winter 2001).
54
Patrick J. Gibbons, Too Much of a Good Thing? Federal Supremacy and the Devolution of Regulatory Power:
The Case of the Coastal Zone Management Act, 48 Naval L. Rev. 84, 106 (2001).
55
Secretary of Interior v. California, 464 U.S. 312, 314 (1984).
56
Gibbons, supra note 54, at 106; 16 U.S.C. § 1456(c)(1)(A) (2005) (as amended by Pub. L. No. 101-508 § 6208(a)
(1990).
57
Interestingly, national security overrides have not come from the Department of Defense. Rather, the Departments
of the Interior and Energy have used them in the name of national energy self-sufficiency to protect OCS
development for energy extraction. Gibbons, supra note 54, at 104.
14
oil and gas exploration did not achieve that objective.58 While the Secretary denied a national
security justification for the permit, the Secretary did find the permit consistent with CZMA.59
The Secretary found energy self-sufficiency constituted a national objective under CZMA, as
national interest included not only protection of natural resources, but also their development.60
Thus, if the Secretary will find oil and gas exploration consistent with the interests of CZMA, it
may be difficult for a state to successfully argue a consistency objection to federal permitting of
offshore wind farms, as no toxic elements, such as petroleum or carbon dioxide, inhere in the
generation of wind energy.
Alternatively, if a state drafts a CZMP with enough specificity, the state may empower
itself enough to make a winning consistency objection. A state addressing a coastal zone issue
within its federally approved CZMP will prompt the Secretary to uphold the state’s consistency
objection unless, as mentioned previously, the Secretary finds the federal action is consistent
with CZMA or in the interest of national security.61 A state’s well-crafted and detailed CZMP
thus provides a sturdy basis for consistency review and valuable tool for affecting OCS
development.62
During OCS leasing under OCSLA, the Minerals Management Service must submit to
the state a consistency determination regarding the lease sale of OCS lands, and the state may
then begin its consistency review of the agency’s action.63 At this early stage (i.e., before the
actual lease sale takes place), the state may consider and challenge the siting of the entire lease
Bruce Kuhse, The Federal Consistency Requirements of the Coastal Zone Management Act of 1972: It’s Time to
Repeal this Fundamentally Flawed Legislation, 6 Ocean & Coastal L.J. 77, 103-04 (2001).
59
Id. at 103-04.
60
Id. In balancing whether the interest here outweighed the coastal impact, the Secretary considered routine
operations impacts, cumulative effects, effects from accidents such as oil spills, and coastal use impacts. Id at 104.
61
M. David Kurtz, Managing Alaska’s Coastal Development: State Review of Federal Oil and Gas Lease Sales, 11
Alaska L. Rev. 377, 385 (1994).
62
Kurtz, supra note 61, at 385.
63
Id. at 392, 395.
58
15
area.64 If a state chooses to object later, at the exploration or development stage, for example, the
state is limited to a review limited to sub-areas within the lease area specifically addressed in the
exploration or development permit at issue.65 State challenges at the early lease sale stage,
however, do not always prevail.66
V. Conclusion: The Coastal Zone Management Act Offers Augmented Environmental
Protection, but Will the Consistency Requirement Reach Federal Permitting of Offshore
Wind Farms?
By and large, CZMA promotes consistency among states and the federal government
when it comes to federal permitting directly or indirectly affecting a state’s coastal zone. Such a
statute provides a federal permitting check, which, because jurisdiction over the OCS lies with
the federal government, otherwise may not occur. Thus, a state wishing to toughen the federal
environmental standards applied to offshore wind farm permitting under OCSLA should draft
those standards in its CZMP. Once the tighter standards are in place, a state may challenge any
federal agency action inconsistent with the state plan. The Secretary, however, may likely find
wind energy generation constitutes a national interest (energy self-sufficiency) outweighing its
coastal detriments.
Alternatively, if a state such as Massachusetts successfully brought a CZMA consistency
objection to the federal permitting of a wind farm in Nantucket Sound, consistency review may
then enable local interests to defeat an otherwise regionally beneficial project. Because states
may draft their CZMPs broadly, a state may easily argue a federally permitted project is
64
Id. at 398.
Id.
66
An Alaska environmental group challenged the Alaska Department of Natural Resources’ consistency
determination. The Alaska Supreme Court found a lease cannot be inconsistent with the transportation and utility
route element of the state CZMP when a cause, such as a discovery of a viable oil deposit or the establishment of a
drill site, for siting, designing, or constructing transportation and utility routes arises. Trustees for Alaska v. State
Dept of Natural Resources, 851 P.2d 1340, 1346 (Alaska 1993); see Kurtz, supra note 61, at 400.
65
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inconsistent with the plan.67 While the Secretary has not made any consistency objection rulings
relating to a federal agency’s permitting of a wind farm on the OCS, decisions relating to oil and
gas leases under OCSLA may predict how the Secretary will decide the issue, as current law
indicates offshore wind farm permitting also will occur under OCSLA and in the name of
national energy self-sufficiency. The success of CZMA consistency challenges to federal
permitting of OCS wind farms remains unseen, but at the moment, CZMA consistency
requirements remain available to those wishing to challenge such actions.
67
Russell, supra note 29, at 240.
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