April 20, 1979
79-28 MEMORANDUM OPINION FOR THE GENERAL COUNSEL, DEPARTMENT OF COMMERCE, AND THE SOLICITOR, DEPARTMENT OF THE INTERIOR
Coastal Zone Management Act (16 U.S.C. § 1456(c)(1))—Outer Continental Shelf Lands— Applicability of Section 307(c)(1) to Department of the Interior Preleasing Activities Directly Affecting the Coastal Zone—Repeals by Implication
This responds to your request that we address the issue whether the preleasing activities o f the Secretary o f the Interior relating to the Outer Continental Shelf1 are subject to the consistency requirement o f § 307(c)(1) o f the Coastal Zone Management Act, 16 U .S.C . § 1456(c)(1). Section 307(c)(1) provides:
Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those ac tivities in a m anner which is, to the maximum extent practicable, consistent with approved state management programs.
The Department o f the Interior (Interior) asserts that its preleasing ac tivities relating to the Outer Continental Shelf lands do not directly affect the Coastal Zone, and that the applicability o f § 307(c)(1) to those ac tivities was superseded by the Coastal Zone Management Act Am end ments o f 1976 and the Outer Continental Shelf Lands Act Amendments of 1978. The Department o f Commerce disagrees. In its view, the statutory language “ directly affecting the coastal zone” [emphasis added] must be read as “ significantly affecting the coastal zone;” the significance o f these
1 The preleasing activities o f the Secretary of the Interior include calls for nom inations (ascertainment o f tracts that the industry would like to have offered for lease, and that other parties believe should not be leased), tract selection, the preparation o f an environm ental im pact statem ent, consultation with the Governors, and individual tract selection.
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activities must be considered in terms o f “ primary, secondary, and cumulative effects” on the Coastal Zone; and the two am endatory acts have no bearing on the scope o f § 307(c)(1).
We have examined the materials submitted with your request, as well as the complex pertinent legislative histories. We conclude (1) that neither the Coastal Zone Management Act Am endm ents o f 1976 nor the O uter Conti nental Shelf Lands Act Am endm ents o f 1978 affect the application of § 307(c)(1) to O uter Continental Shelf land preleasing activities; (2) that § 307(c)(1) applies only to activities directly affecting the Coastal Zone; and (3) that the Attorney General is not authorized to resolve the factual ques tion whether and to what extent any o f the preleasing activities o f the Department o f the Interior under the O uter Continental Shelf Lands Act directly affect the Coastal Zone.
I.
The Coastal Zone Management Act, 86 Stat. 1285, 16 U .S.C . § 1451 et seq., is primarily concerned with the effective management, beneficial use, protection, and development o f the Coastal Zone. Section 302(a), 16 U .S.C . § 1451(a). The Coastal Zone extends seaward to the outer limit of the United States territorial sea, inland to the shore line, and to a limited extent to the adjacent shore lands. Section 304(1), 16 U .S.C . § 1453(1).2 The Act is administered by the Secretary o f Commerce. Section 304(15), 16 U .S.C . § 1453(15). The Act provides for the development and ad ministration by the States o f State management programs for the Coastal Zone. Those programs require the approval o f the Secretary o f Com merce. Sections 305, 306, 16 U.S.C. §§ 1454, 1455.
The O uter Continental Shelf Lands Act o f 1953, as amended, provides that the Secretary o f the Interior shall administer the program o f oil and gas leasing on the O uter Continental Shelf. Sections 5 and 6, 43 U.S.C. §§ 1334, 1335. The O uter Continental Shelf consists generally o f the submerged lands lying seaward o f the Coastal Zone o f which the subsoil and seabed appertain to the United States and are subject to its jurisdic tion and control. § 2(a), 43 U .S.C . § 1331(a).
The basic issue is whether and to what extent the preleasing activities of the Secretary o f the Interior under the Outer Continental Shelf Lands Act are subject to the provisions o f § 307(c)(1) o f the Coastal Zone Manage ment Act.
A. The Coastal Zone Management Act Amendments o f 1976
Section 6 o f the Coastal Zone Management Act Amendments o f 1976
2 Section 2(e) o f the O uter C ontinental Shelf Lands A ct, as added by § 201(b) o f the Am endm ents o f 1978, 43 U .S.C . § 1331(e), uses the same definition.
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added to § 307(c)(3) a new paragraph (B).3 The Department o f the Interior contends that this paragraph is intended to constitute the exclusive m ethod by which, and the only stage at which, the consistency o f all aspects o f the Outer Continental Shelf Lands leasing process, including preleasing activi ties, with the State management programs is to be determined and that the new paragraph pro tanto supersedes the consistency requirement o f §307 (c)(1). We cannot concur in that interpretation o f the 1976 Amendments.
The enactment o f § 307(c)(3)(B) originated from a dispute between the Department o f the Interior and the Department o f Commerce concern ing the proper interpretation o f § 307(c)(3), now § 307(c)(3)(A).4 That
' Section 307(c)(3)(B), as am ended by the O uter Continental Shelf Lands Act Am endment o f 1978, § 504, provides:
(B) After the management program o f any coastal state has been approved by the Sec retary under section 1455 o f this title, any person who submits to the Secretary o f the In terior any plan for the exploration or development of, or production from , any area which has been leased under the O uter Continental Shelf Lands Act (43 U .S.C . 1331 et seq.) and regulations under such Act shall, with respect to any exploration, develop m ent, or production described in such plan and affecting any land use or water use in the coastal zone o f such state, attach to such plan a certification that each activity which is described in detail in such plan complies with such state’s approved management pro gram and will be carried out in a m anner consistent with such program . No Federal o f ficial or agency shall grant such person any license or permit for any activity described in detail in such plan until such state or its designated agency receives a copy o f such cer tification and plan, together with any other necessary data and inform ation, and until—
(i) such state or its designated agency, in accordance with the procedures required to be established by such state pursuant to subparagraph (A), concurs with such per son’s certification and notifies the Secretary and the Secretary o f the Interior o f such concurrence;
(ii) concurrence by such state with such certification is conclusively presumed as provided for in subparagraph (A), except if such state fails to concur with or object to such certification within three m onths after receipt o f its copy o f such certification and supporting inform ation, such state shall provide the Secretary, the appropriate federal agency, and such person with a written statem ent describing the status o f review and the basis for further delay in issuing a final decision, and if such statem ent is not provided, concurrence by such state with such certification shall be conclusively presumed; or
(iii) the Secretary finds, pursuant to subparagraph (A), that each activity which is described in detail in such plan is consistent with the objectives o f this chapter or is otherwise necessary in the interest o f national security. If a state concurs or is con clusively presumed to concur, or if the Secretary makes such a finding, the provisions o f subparagraph (A) are not applicable with respect to such person, such state, and any Federal license or permit which is required to conduct any activity affecting land uses or water uses in the coastal zone o f such state which is described in detail in the plan to which such concurrence or finding applies. If such state objects to such cer tification and if the Secretary fails to make a finding under clause (iii) with respect to such certification, or if such person fails substantially to comply with such plan as subm itted, such person shall submit an amendm ent to such plan, or a new plan, to the Secretary o f the Interior. W ith respect to any amendm ent or new plan subm itted to the Secretary o f the Interior pursuant to the preceding sentence, the applicable time period for purposes o f concurrence by conclusive presum ption under subparagraph (A) is 3 m onths.
4 Section 307(c)(3)(A) provides:
(3)(A) A fter final approval by the Secretary o f a state’s management program , any applicant for a required Federal license or permit to conduct an activity affecting land or (Continued)
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paragraph provides that, after a State’s management program has been approved by the Secretary o f Commerce, an applicant for a Federal permit or license for an activity affecting the Coastal Zone must include in the ap plication a certification that the proposed activity complies with the State’s program, and that the activity will be conducted in accordance with that program .5 The Departm ent o f the Interior contended that leases in the O uter Continental Shelf did not come within the purview o f the provision; the Department o f Commerce took the opposite position.
This dispute came to the attention o f Congress during its consideration o f the Coastal Zone Act Amendments o f 1976. Both legislative committees concluded that § 307(c)(3) is intended, and indeed always was intended, to cover leases, and reported out bills amending § 307(c)(3) by adding the word “ lease” to the words “ license or perm it” already included in the paragraph. S. Rept. 94-277, pp. 19, 36-37, 53, 59; H. Rept. 94-878, pp. 4, 52, 67-68, 48.
The Senate concurred in the committee report. The bill passed by it amended § 307(c)(3) to include the word “ lease.” 121 C o n g r e s s i o n a l R e c o r d 23050, 23086.6 W hen the bill reached the floor o f the House it contained the same provision. 122 C o n g r e s s i o n a l R e c o r d 6124. The amendment o f § 307(c)(3), however, was stricken on motion o f Congress man duP ont because he felt, on the basis o f testimony received from the Administration and the industry, that more time was needed to evaluate the full impact o f the proposed amendm ent. He continued:
(Continued)
water uses in the coastal zone o f that state shall provide in the application to the licens ing or permitting agency a certification that the proposed activity complies with the state’s approved program and that such activity will be conducted in a manner consistent with the program . A t the same time, the applicant shall furnish to the state or its designated agency a copy o f the certification, with all necessary inform ation and data. Each coastal state shall establish procedures for public notice in the case o f all such cer tifications and, to the extent it deems appropriate, procedures for public hearings in con nection therewith. At the earliest practicable time, the state or its designated agency shall notify the Federal agency concerned that the state concurs with or objects to the appli c an t’s certification. If the state or its designated agency fails to furnish the required notification within six m onths after receipt o f its copy o f the applicant’s certification, the state’s concurrence with the certification shall be conclusively presumed. No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant’s certification or until, by the state’s failure to act, the concurrence is conclusively presum ed, unless the Secretary, on his own initiative or upon appeal by the applicant, finds, after providing a reasonable opportunity for detailed com m ents from the Federal agency involved and from the state, that the activity is con sistent with the objectives o f this chapter or is otherwise necessary in the interest o f national security. ’ Slate concurrence in the certification is presumed if it fails to object within 6 months after receipt o f a copy o f the applicant’s certification. The permit or license may not issue unless the State concurs in the certification o r is presumed to have concurred, or unless the Secretary o f Commerce finds that the activity is consistent with the objectives o f the Act or otherwise necessary in the interest o f national security.
6 See also the explanation o f the provision by Senator Hollings, who was in charge o f the legislation. 121 C o n g r e s s i o n a l R e c o r d 23053.
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By striking it in the House bill and leaving it in the bill that has already passed the Senate we will be giving ourselves a little bit of flexibility in the conference to either adopt the language as the Senate put it in or adopt some other language we feel would be more beneficial and at the same time protect the rights o f the States.
So the purpose o f this amendment is not to get rid o f the word “ lease” but to allow us time to work on the problem a little bit longer. [122 C o n g r e s s i o n a l R e c o r d 6128.]
Representative M urphy, who was in charge o f the legislation in the House, accepted the amendm ent, pointing out that even if an applicant were granted a lease the statute required permits and licenses to be subject to the consistency requirement o f § 307(c)(3). Ibid. This observation appears to have been related to the position taken by the Department o f the Interior concerning the interminable delays that would result if every lease and related permit and license were to be subject to the procedures of § 307(c)(3), a m atter that could bring about repeated delays. See the letter from Secretary o f the Interior Kleppe to the Director, Office o f Manage ment and Budget, dated May 24, 1976.
The conference report adopted by both Houses provided that § 307(c)(3) should be divided. The original paragraph became § 307(c)(3)(A), and the committee added a new paragraph (B). See, footnote 3, supra. The import o f the new paragraph is that an individual or organization submitting to the Secretary o f the Interior a plan for the exploration, development of, or production from, an area leased under the continental Shelf Lands Act must submit a certification similar to the one required under paragraph (A). If the State agreed to the certification o r did not object within 6 months, or if the Secretary o f Commerce made a finding o f consistency, subsequent requests for permits or licenses required for activities described in detail in such plan would not have to go through the conform ity pro cedures provided for in paragraph (A).
The conference report contains the following explanation o f the am end ment:
Also, under the substitute, any subsequent OCS [Outer Conti nental Shelf] Federal license or permit required for activities specified in any exploration, development, and production plan are presumed to be consistent once the plan is certified as being so consistent. This im portant change will significantly expedite OCS oil and gas development. Under present Department o f Interior regulations, Federal permits are required for a large number o f individual activities, including geophysical explora tion, bottom sampling, well drilling for exploration or produc tion, pipeline right-of-w ay, structure placem ent, waste discharge, and dredging and filling operations. Thus, separate consistency determination on each activity, described in detail in an exploration, development or production plan, will not be necessary. [H. Rept. 94-1298, pp. 30-31.]
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The explanation o f the conference report on the floor o f the Senate by Senator Hollings contained the following observation:
Third, a new incentive for expediting determ ination o f whether particular off-shore energy activity is consistent with a coastal State’s approved management program, on an overall plan basis rather than on an individual license/permit by license/permit basis; * * *. [122 C o n g r e s s i o n a l R e c o r d 21230.]
The am endment was thus designed to overcome the difficulties adverted to by Secretary Kleppe, namely, that a new conform ity review under § 307(c)(3), involving a 6-m onth delay, would be required every time the lessee o f O uter Continental Shelf Lands had to apply for a new license or permit.
The Departm ent o f the Interior believes that paragraph (B) embodies an exclusive provision concerning the consistency requirement of the Outer C ontinental Shelf lands leasing process with Coastal Zone State manage ment plans, and that it therefore supersedes § 307(c)(1) with respect to the entire process, including the preleasing stage. It relies on the doctrine of repeal by implication. The Supreme C ourt, however, has consistently ap plied the rule that a repealing intention o f the legislation to repeal must be clear and manifest; that every attem pt must be made to reconcile the statutes involved; and that a repeal by implication will be found only where there is a “ positive repugnancy” between the statutes. Morton v. Mancari, 417 U.S. 535, 549-551 (1974); Borden v. United States, 308 U.S. 188, 198-199 (1939).
In our view, the relationship between § 307(c)(1) and 307(c)(3)(B) does not meet these rigorous standards, at least not for the preleasing period.1 The two provisions can readily coexist during that period and there is no “ positive repugnancy.” There is nothing explicit or implied in the 1976 Amendments to the effect that the procedure set forth in § 307(c)(3)(B) provides the only consistency requirement for the O uter Continental Shelf land leasing process. Paragraph (B) is designed to relieve the lessee o f the burdens and delays resulting from successive consistency determinations for the many license and permit applications that may follow the grant of a lease and the approval o f an exploration, development, or produciton plan. U nder § 307(c)(3)(B) there will be a single consistency review follow ing the submission o f the plan and that review will cover any future ac tivities described in detail in the plan. Section 307(c)(3)(B) thus simplifies the regulatory process during the postleasing period. It has no bearing on the consistency requirements antedating that stage o f the leasing process. It is well possible that some o f the preleasing activities o f Interior will give
’ We need not examine the question, not presented by your inquiry, whether once a plan for the exploration, or developm ent, or production envisaged by § 307(c)(3)(B) has been filed, that paragraph becomes the exclusive procedure for the determ ination o f the consistency require ment, covering both the Departm ent o f the Interior and the lessee, or whether the Department o f the Interior remains subject to the additional consistency requirement o f § 307(c)(1).
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rise to consistency problems that cannot be reviewed at all under the para graph (B) procedure, or for which such review comes too late. It is our opinion that with respect to preleasing activities § 307(c)(1) and § 307(c)(3)(B) can both be given effect, and accordingly that the enact ment o f § 307(c)(3)(B) does not disclose any clear and manifest legislative intent to supersede, and does not supersede, the applicability o f § 307(c)(1) to those preleasing activities o f Interior relating to the O uter Continental Shelf lands that come within the scope o f that section.
B. The Outer Continental Shelf Lands Act Amendments o f 1978 The second statute that according to Interior supersedes § 307(c)(1) regarding leases is the O uter Continental Shelf Lands Act Amendm ents o f 1978. Section 208 o f that Act adds to the Outer Continental Shelf Lands Act of 1953 a num ber o f new sections containing specific procedures for the O uter Continental Shelf lands leasing program. Some o f those pro visions are expressly adjusted to the Coastal Zone Management Act. (See especially the repeated references to §§ 306 and 307(c)(3)(B) o f the Coastal Zone Management Act in § 25 o f the O uter Continental Shelf Lands Act, added by the 1978 Amendments, 43 U .S.C . § 1351.)
The most significant apparent conflict between the 1978 Amendments and § 307(c)(1) appears in § 19 o f the O uter Continental Shelf Lands Act, 43 U .S.C. § 1345, entitled “ Coordinaton and Consultation with Affected State and Local Governm ents.” Pursuant to § 19(c), the Governor o f a State, or the executive officer o f an affected local government, may sub mit to the Secretary o f the Interior recommendations regarding the size, timing, or location o f a proposed lease sale or with respect to a proposed ------development-or production-plan.- It-provides that the Secretary_of the In -____ terior shall accept those recommendations unless he decides that they do not provide for a reasonable balance between the national interest [in in creasing oil production] and the well-being o f the citizens o f the affected State. The pertinent committee reports say that no “ State should have a veto power over OCS [Outer Continental Shelf] oil and gas activities.” S. Rept. 95-284, p. 78; H. Rept. 95-590, p. 153.
Although we might be inclined to find a clear legislative intent that the recommendations referred to in § 19(c) were designed to take the place o f the conformity requirement o f § 307(c)(1) o f the Coastal Zone Manage ment Act, the language and legislative history o f the 1978 Amendments refute that intent.
Section 608(a) o f the 1978 Amendments provides expressly that:
Except as otherwise expressly provided in this Act, nothing in this Act shall be construed to am end, modify, or repeal any pro vision o f the Coastal Zone Management Act o f 1972 * * *.
More specifically, the section-by-section analysis o f § 19 in the House report contains the following footnote expressly disclaiming any congres sional intent to modify by implication the consistency requirements o f the Coastal Zone Management Act:
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The committee is aware that under the Coastal Zone Manage m ent Act o f 1972, as am ended in 1976 (16 U .S.C . 1451 et seq.), certain OCS [Outer Continental Shelf] activities including lease sales and approval o f development and production plans must comply with “ consistency” requirements as to coastal zone m anagement plans approved by the Secretary o f Commerce. Ex cept for specific changes made by Titles IV and V o f the 1977 Am endm ents, nothing in this Act is intended to amend modify or repeal any provision o f the Coastal Zone Management Act. Specifically, nothing is intended to alter procedures under that Act for consistency once a State has an approved Coastal Zone M anagement Plan. [H. Rept. 95-590, p. 153, fn. 52.]8 We conclude that neither the Coastal Zone Management Act Amendment o f 1976 nor the O uter C ontinental Shelf Lands Act Amendments o f 1978 affect the application o f the consistency requirement o f § 307(c)(1) o f the Coastal Zone M anagement Act to the preleasing activities o f the D epart ment o f the Interior.
II.
Having determined that the preleasing activities o f the Secretary o f the Interior are subject to the conform ity requirement o f § 307(c)(1) o f the Coastal Zone M anagement Act, we reach the second question posed in the submission. Interior contends that, if § 307(c)(1) applies at all to its preleasing activities, it applies only to those activities which, according to the plain statutory language o f the paragraph, directly affect the Coastal Zone.
The implementing regulations issued by the Department o f Commerce in 1978, however, substitute the term “ significantly” for the statutory word “ directly” and define “ significantly” in terms o f “ primary, second ary, and cumulative effects.” 15 CFR §§ 930.30, 43 F.R. 10518-10519. The Departm ent explains its departure from the statutory language on the ground that, while the various provisions relating to the consistency re quirement are not uniform in language, the legislative history is “ replete” with statements that Congress intended to cover all Federal activities capable o f significantly affecting the Coastal Zone. See 43 F.R. 10511. In our view, the legislative history does not justify the departure.
Prior to the conference, the text o f § 307(c)(1), as passed by both Houses o f Congress, subjected all Federal activities in the Coastal Zone, to the consistency requirement. Senate: 118 C o n g r e s s i o n a l R e c o r d 14190 (§ 314(b)(1)); House: 118 C o n g r e s s i o n a l R e c o r d 26502 (§ 307(c)(1)). The conference committee changed Federal activities “ in the Coastal
‘ The H ouse report was subm itted in 1977. Title V o f the 1978 Am endm ents contains ex press am endm ents to the Coastal Zone M anagement Act. Section 504 modifies § 307(c) (3)(B)(ii).
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Zone” to the present statutory language o f “ directly affecting the Coastal Z one.” The explanatory statement in the conference report does not ex plain why the committee departed from the language com m on to the bill as it had passed both H ouses.9 The statem ent, however, indicates a full awareness that the different paragraphs o f § 307(c) applied different standards o f Federal impact on the Coastal Zone: § 307(c)(1), “ directly affecting;” § 307(c)(2), “ in the Coastal Z one;” 10 § 307(c)(3), “ similar consideration.”
In the light o f this history o f the words “ directly affecting,” we are unable to accept an interpretation that would dilute “ directly,” first to “ significantly” and then to “ primarily, secondarily, and cumulatively.”
Finally, in our discussion o f the question o f repeal by implication we have pointed out that § 307(c)(1) and § 307(c)(3)(B) are separate provisions dealing with different stages o f the leasing process. We have concluded that the provision concerning the postleasing process does not necessarily repeal a provision addressed to the preleasing stage. Similarly, when the statute provides for different impact requirements at different stages of the leasing process, there is no need, and indeed no justification, for an at tempt to obliterate those express statutory differences by regulation. It is our opinion that the conform ity requirement o f § 307(c)(1) applies only to the preleasing activities o f the Department o f Interior directly affecting the Coastal Zone. The question whether those activities or any o f them di rectly affect the Coastal Zone is essentially one o f fact which the A ttorney General is not authorized to address. See 28 Op. A tt’y Gen. 218, 22 (1910); 39 Op. A tt’y Gen. 425, 428 (1940).
L eo n U lm an
D eputy Assistant A ttorney General Office o f Legal Counsel
' “ They (the conferees) also agreed that as to Federal agencies involved in any activities directly affecting the State coastal zone and any Federal participation in development p ro j ects in the coastal zone , the Federal agencies must m ake certain that their activities are to the maximum extent practicable consistent with approved State management programs. In addi tion, similar consideration o f State management programs must be given in the process o f is suing Federal licenses or permits for activities affecting State coastal zones.” H. Rept. 92-1544, p. 14. [Emphasis added.]
10 The regulations issued by the D epartm ent o f Commerce extend the “ significantly affect” tests even to § 307(c)(2), which in terms applies only to activities “ in the Coastal Z one.”