All along the coasts of the United States, as the lands give way to the sea, another transition takes place as well. Federal law washes over state law until at last, miles out to sea, federal law rules exclusively. The dynamic natural environment contributes to the fact that land-based activities affect the seas, and vice versa. As a result, federal law may not adequately protect federal interests and state laws may be insufficient to protect a state's coastal zone from activities that take place in distant federal waters. How can government fashion a system that serves both federal and state interests? The answer: cooperation through a partnership contract arrangement, an option that has been employed since 1972. In an era of increasing battles over the proper roles of federal and state power, the Coastal Zone Management Act (CZMA) stands as a useful example of a vehicle that mutually benefits the federal and state governing authorities and the areas they govern. The CZMA achieves this result under a theory as close to contract as federalism. The CZMA provides federal funds to states to manage their coastal areas in accordance with a set of federal guidelines. The CZMA does not mandate state participation, but, rather, makes the states an offer. The benefits of this cooperative or contractual federalism relationship can be seen in the number of states that have accepted the offer and have adopted state coastal management programs, which serve the dual purpose of protecting not only the coasts of the individual states, but the entire nation's coastal zone. One aspect of the CZMA, the consistency provision, allows states a voice in activities that are outside of the state territory, but which may affect the state's coastal zone. Critics of the CZMA argue that the federal government bargained badly in constructing the contractual nature of the relationship and that the CZMA, or at least certain features of the cooperative federalism relationship, including the consistency provision, ought to be abolished. In his article, The Federal Consistency Requirements of the Coastal Zone Management Act: It's 7ime to Repeal This Fundamentally Flawed Legislation, Bruce Kuhse makes an impassioned plea to eradicate what he characterizes as a costly, burdensome, and ill-conceived instrument in the form of the consistency provision, due to what he claims are its reverse pre-emption effects on federal activity and authority. This brief article is designed to address some of the arguments made by Mr. Kuhse, to provide the reader with a different perspective on the CZMA federalstate relationship, and to posit the argument that the consistency provision is not a cession of federal authority, but, rather, even in its limited strength, a persuasive material element which attracts states to participate in the system.
John A. Duff,
The Coastal Zone Management Act: Reverse Pre-Emption Or Contractual Federalism?,
Ocean & Coastal L.J.
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol6/iss1/5