Summary
- Summarizes the four consistency appeals received and decided by National Oceanic and Atmospheric Administration (NOAA) in the last year.
- Provides a few general takeaways from the four decisions.
Increase in Consistency Appeals Pursuant to the Coastal Zone Management Act: Are States Taking a More Active Role in Protecting Their Coastal and Marine Resources?
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After almost a decade of silence, the National Oceanic and Atmospheric Administration (NOAA) received and decided four Coastal Zone Management Act (CZMA) consistency appeals in the last year alone. This isn’t too surprising as states have increasingly initiated more stringent environmental protections in recent years, choosing not to wait for and rely on federal standards, but it is not yet clear whether the recent appeals are a sure sign that states will begin to more frequently or more aggressively pursue relief from federal projects through the CZMA. In any event, the appeal decisions offer unique insight into the CZMA appeal process and shed light on how states and project applicants alike can be successful—or not—in these procedures.
In accordance with the CZMA, federal actions that have reasonably foreseeable effects on a state’s coastal zone must be consistent with the affected state’s federally approved coastal management program. 16 U.S.C. § 1456(c)(3)(A). If a state determines an action would be inconsistent with the state’s program, the state may object to an applicant’s federal permit (or license). Id. Objections preclude the federal agency from issuing any license or permit unless, on appeal by the applicant, NOAA finds that the activity is either consistent with the objectives or purposes of the CZMA (Ground I) or is otherwise necessary in the interest of national security (Ground II). Id.; 15 C.F.R. § 930.120.
The objection process provides states a rare opportunity to exercise control over federal actions but it has rarely been utilized. Of the four appeals decided in the past year, NOAA sustained only one—the Jordan Cove Energy Project in Oregon, which remains on hold today for various reasons. The four appeal decisions are briefly summarized and linked below but it is important to understand the appeal process and NOAA’s legal reasoning in order to best prepare for increased engagement by states aiming to protect their coastal resources or otherwise limit federal reliance on nonrenewable energy resources (as best detailed in the Jordan Cover Energy Project, below).
A few general takeaways from the decisions below: (1) ensure the record on appeal is robust and sufficient to provide NOAA a thorough understanding of a project’s impacts; (2) if a project is arguably necessary in the interest of national security, ensure the record details the specific link between the proposed project and the national security threat—broad generalities are insufficient to overcome this high bar; and (3) NOAA will typically defer to other federal agencies with expertise in certain areas so project applicants and states alike should ensure they understand the respective federal agencies’ conclusions with regard to adverse coastal impacts and national security interests.
Jordan Cove Energy Project, L.P. and Pacific Connector Gas Pipeline, LP, decided February 8, 2021 (Oregon; State Objection Sustained)
The Jordan Cove Energy Project involved a proposal to site, construct, and operate a liquefied natural gas (LNG) export terminal and associated 229-mile natural gas pipeline and compressor station in Oregon. Notably, this is the same project opposed by youth plaintiffs in the now-dismissed climate change litigation in Juliana v. United States. The LNG terminal and associated facilities would be located in Coos County, Oregon, on the bay side of the North Spit of Coos Bay and produce up to 7.8 million metric tons per annum of LNG for export to overseas markets—traveling in from a proposed natural gas transmission pipeline that would connect to supply basins in the U.S. Rocky Mountains and western Canada. Because Oregon’s coastal management plan identifies U.S. Army Corps of Engineers (USACE) and Federal Energy Regulatory Commission (FERC) as activities that would affect Oregon’s coastal zone and/or resources, they are subject to CZMA federal consistency review. The project applicants submitted a joint consistency determination to the state’s relevant department for review and, ultimately, timely objected to the certification on the basis that the project was inconsistent with the CZMA and the state’s enforceable policies.
The project applicants appealed on the basis of Ground I, arguing the project was consistent with the CZMA and state program. After extensive briefing by the parties, and comments from a federally recognized tribe located within the coastal area to be affected by the project, however, NOAA determined there was “insufficient evidence within the decision record to adequately evaluate several of the Project’s adverse coastal effects.” The deficient record was, at least in part, due to the re-initiation of section 7 consultation in accordance with the Endangered Species Act (ESA) due to a substantial revision to the project’s design and schedule. NOAA concluded the appeal record was devoid of complete, developed, and reliable scientific information about the revision’s effects to ESA-listed species, critical habitat, and essential fish habitat (EFH). And because the modified project anticipated increased effects for certain species on top of the project’s already-extensive effects, the likelihood and potential extent of effects to ESA-listed species and EFH appeared high, thus requiring a robust, developed, and reliable scientific record in order for NOAA to balance those effects against the national interest furthered by the project. NOAA further determined the record was lacking with respect to effects on cultural and historic resources and the cumulative effects of the overall project.
Because the permittees, as appellants, failed to carry their burden of submitting sufficient evidence in support of their appeal, NOAA was unable to engage in meaningful analysis to determine whether the project would be consistent with the objectives or purposes of the CZMA. The record deficiencies thereby precluded NOAA from overriding the state’s consistency objection.
Electric Boat Corporation, decided November 16, 2020 (New York; State Objection Denied)
New York’s Department of State objected to a consistency certification submitted by the Electric Boat Corporation (EBC) for a proposed USACE permit that would allow EBC to dispose of 890,000 cubic yards of dredged material in the Eastern Long Island Sound Dredged Material Disposal Site (ELDS). EBC builds, repairs, and maintains submarines for the U.S. Navy and has proposed the dredging projects in order to accommodate a new class of submarines and provide new docking, berthing, and launching infrastructure. EBC analyzed various disposal site options and opted for open-water disposal for the dredged material. The Long Island Sound Regional Dredging Team agreed that there were no practical alternatives to the chosen discharge method of open-water disposal at ELDS. New York objected to the project, arguing that the project failed to meet the objectives and enforceable policies of the state’s coastal program and that EBC failed to consider alternative disposal sites identified by the state.
In response to the objection and NOAA’s notice in the Federal Register inviting federal agencies to comment on the appeal, the Navy submitted comments requesting that NOAA override the state’s objection in “the interest of national security” because of the project’s direct support for the new submarine program and then outlined how any further delay or non-approval would continue to impair the Navy’s program while increasing costs.
EBC argued that the state’s objection should be overruled because it had sufficiently shown that the project was necessary in the interest of national security. The state argued that the applicant could not “leapfrog” past the Ground I analysis—whether the project is consistent with the CZMA, which would require an analysis of reasonable alternatives. But NOAA concluded that it may base its decision solely on Ground II (national security) without any Ground I analysis. In the decision, NOAA concluded that the plain language of the statutory text was clear and that “satisfaction of either ground is sufficient to override a state objection,” further finding that “Ground I and Ground II ‘are independent and an affirmative finding on either is sufficient to override’ a state objection” (internal citations omitted).
A Ground II analysis requires that an appellant demonstrate that a “national defense or other national security interest would be significantly impaired were the activity not to go forward as proposed,” 15 C.F.R. § 930.122, and establish a “specific link” between the proposed project and a significant impairment of national security if the proposed project is not allowed to proceed as proposed. The state argued that appellant failed to meet this high burden because, inter alia, both the appellant and the Navy provided only “general comments on how alternatives would ‘negatively impact’ the national defense because use of the alternatives would ‘likely’ delay its schedule and be more expensive.”
Ultimately, NOAA found the record, briefing, and robust comments from the Navy did meet this high burden as EBC has established a “specific link” between the dredging project and a significant delay in the submarine program were the dredging not to move forward as planned. Important for future cases involving a crucial time line, it is notable that NOAA recognized that the project’s construction schedule had actually shifted since the initial permit application but deferred to the timeline presented by the Navy during the appeal process as NOAA “appreciates that construction schedules often come into clearer focus as more information becomes available.”
WesternGeco G&G, decided June 15, 2020 (North Carolina & South Carolina; State Objections Denied)
At issue in both North Carolina’s and South Carolina’s objections was WesternGeco’s application to Bureau of Ocean Energy Management (BOEM) to conduct a geological and geophysical seismic survey for oil and gas exploration in the Mid- and South Atlantic Outer Continental Shelf. The proposed survey would use sound waves to determine potential oil and gas resources beneath the ocean floor; and seismic testing is known to cause impacts on certain marine fauna. Although WesternGeco sought and received incidental harassment authorization pursuant to the Marine Mammal Protection Act and ESA to account for impacts on certain species and federal agencies had also required certain mitigating activities, both Carolinas objected to the consistency determinations on the basis of adverse impacts to their coasts. Interestingly, neither North Carolina or South Carolina objected to other seismic survey applicants within a similar time period but both states explained this discrepancy in their briefing and provided scientific studies that had been published in the time since they had previously concurred with similar studies.
Because the surveys were not directly tied to national security, WesternGeco was appealing the objection pursuant to Ground I—that the project is consistent with the objectives or purposes of the CZMA. To satisfy the first element of Ground I—that the project furthers the national interest—WesternGeco asserted that providing data to assess oil and gas resource potential on the Atlantic outer continental shelf with minimal physical impact would permit BOEM to continue understanding the resources available (as it is required to do by law) and be able to best meet national energy demands. The states argued the project didn’t constitute development of the coastal zone because the activity would occur further offshore and that it would unnecessarily harm the coastal zone, the opposite of explicit national interests to protect the coastal zone. NOAA concluded that the CZMA is not “confined to activities occurring only in the coastal zone” and that the adverse coastal effects of a proposed activity are considered in the second, not the first, element. NOAA therefore found that the project would further national interests.
Arguing that WesternGeco couldn’t satisfy the second element—that the national interest furthered by the project outweighs the project’s adverse coastal effects—the states provided various studies and literature alongside its briefing to demonstrate the adverse impacts of seismic surveys on fish, zooplankton, turtles, and more. Because WesternGeco disputed the science presented by the states, NOAA deferred to the federal agency with the expertise in this area—National Marine Fisheries Service (NMFS). Ultimately, NOAA agreed with certain NMFS (as well as BOEM) findings that any impacts to fishing would be “negligible to minor” and could be partially mitigated. NOAA also deferred to NMFS with regard to impacts on sea turtles: “extremely low and discountable.” Because WesternGeco had also already engaged in consultation pursuant to the ESA with regard to impacts to protected whales, NMFS had issued incidental harassment authorizations and other mitigation requirements required various mitigation. NOAA concluded that the mitigation and the thorough analysis conducted by NMFS illustrated the state’s concerns had already largely been addressed and that the record actually failed to show any significant adverse coastal effects.
The state of North Carolina did not contest the third element—that there is no reasonable alternative available that would permit the project to be conducted in a manner consistent with the enforceable policies of the states’ programs. South Carolina, however, provided a list of potential alternatives in its brief and argued that WesternGeco failed to adequately analyze reasonable alternatives. Because the CZMA regulations state that “NOAA shall not consider an alternative unless the state agency submits a statement . . . that the alternative would permit the activity to be conducted in a manner consistent with the enforceable policies of the management program,” 15 C.F.R. § 930.121(c), NOAA concluded that the state actually misstated the respective burdens and also failed to sufficiently describe an alternative that is consistent with the state’s policies, essentially conceding this element.
Overall, NOAA determined that the project would further the national interest in a significant or substantial manner, the national interest furthered by the survey outweighed any adverse coastal effects, and there was no reasonable alternative available. The states’ objections, therefore, would not bar the federal agencies from issuing any necessary licenses or permit to conduct the proposed survey.
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