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Authors

Bruce Kuhse

Document Type

Article

Abstract

The Coastal Zone Management Act of 1972 (CZMA) was one of many laws enacted during the "environmental decade spanning the late 1960s to the mid 1970s designed to bring a national focus on the protection and management of natural resources. In the case of the CZMA, the entire "coastal zone" of the United States, territories, and other island holdings was deemed worthy of this national interest. The CZMA was unlike the other environmental laws in two major respects: it relied on the voluntary program implementation by the coastal states, and it did not establish mandatory standards for compliance. Instead, the CZMA sought to "encourage" state participation through federal financial grants and the creation of a new "federal consistency" doctrine. The federal consistency doctrine generally requires federal agencies, applicants for federal permits, and applicants for federal project funds to be consistent with approved state management programs for activities affecting the coastal zone. Thus, a state may stall, or even stop, a federal agency activity far removed from the boundaries of the state by objecting that the activity is not consistent with the state's management program and that the activity affects the state's coastal zone. Although there are provisions for administrative appeal to the Secretary of Commerce to assert some exceptions to the consistency requirement, the doctrine serves as an inverse preemption of federal authority and an unnecessary burden on federal agencies and applicants. This Article will discuss the provisions of the CZMA that focus on this fundamentally flawed consistency doctrine, the court decisions that have shaped the development of the doctrine, and the key 1990 amendments to the CZMA enacted in response to the court decisions. This will be followed by a discussion of the application of the consistency requirements, with cases and consistency appeals examples that illustrate the unnecessary, unfair, and costly administrative burden imposed on federal agencies and permit applicants. CZMA's federal consistency doctrine will be examined in light of Constitutional Federalism and Supremacy doctrines, plus other federal environmental laws with mandatory regulatory standards, that render the doctrine not only obnoxious, but also superfluous. Finally, this article will note the Clinton administration's proposals for CZMA amendments and the controversy concerning the 1999 reauthorization bill that was introduced but not passed by Congress.

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