Federal consistency and ocs oil and gas development: A review and assessment of the “directly affecting”; controversy

Abstract

Attempts by the federal government, notably the Department of the Interior, to accelerate development of hydrocarbon resources on the Outer Continental Shelf have resulted in litigation between coastal states and the federal government. A principal issue involved has been whether federal consistency provisions contained in the Coastal Zone Management Act apply to federal lease sale decisions. Language contained in this statute (Section 307(c)(l)) requires federal activities directly affecting the coastal zone to be conducted in a manner consistent, to the maximum extent practicable, with state coastal zone management programs.

This paper reviews the evolution of this controversy in intergovernmental relations since its inception, and describes various proposals which have been made to define the term “directly affecting.”; Events involved in OCS Lease Sales Nos. 48, 53, and 68, offshore California, are described to illustrate the varying state/federal perspectives on federal consistency requirements. This assessment concludes that voluntary consistency determinations by federal agencies would best promote harmonious state/federal relations in developing hydrocarbon resources on the Outer Continental Shelf.     

The Wilderness Act and Fish Stocking: An Overview of Legislation, Judicial Interpretation, and Agency Implementation

Many high-elevation lakes in designated wilderness are stocked with native and nonnative fish by state fish and game agencies to provide recreational fishing opportunities. In several areas, this practice has become controversial with state wildlife managers who support historical recreational use of wilderness, federal wilderness managers who assert that stocking compromises some of the ecological and social values of wilderness, and different public groups that support one or the other position. Herein we examine this controversy from the perspective of the 1964 Wilderness Act, its judicial interpretation, the policies of the federal agencies, and formal agreements between federal and state agencies. Although some state stocking programs restore native fish populations, other programs may compromise some of the ecological and social values of wilderness areas. Further, although current federal regulations recognize state authority for fish stocking, judicial interpretation gives federal agencies the authority for direct involvement in decisions regarding fish stocking in wilderness. Where there are differences of opinion between state and federal managers, this judicial interpretation strongly points to the need for improved cooperation, communication, and coordination between state wildlife managers and federal wilderness managers to balance recreational fishing opportunities and other wildlife management activities with wilderness values. Received 28 March 2000; Accepted 16 August 2000.     

From river to farm: an evaluation of genetic diversity in wild and aquaculture stocks of <Emphasis Type="Italic">Brycon amazonicus</Emphasis> (Spix &; Agassiz, 1829), Characidae,Bryconinae

In Europe, the so-called Water Framework Directive was established to achieve a good ecological status of natural water bodies by 2015. In the case of heavily modified and artificial water bodies, the principle of a good ecological potential (GEP) applies. Methods have been developed for the evaluation of natural water bodies. However, these methods do not take the uniqueness of the assessment of heavily modified and artificial water bodies into consideration. On behalf of a working group on water issues of the federal states and the federal government (called LAWA), a nationwide assessment method of the GEP has been developed and its application has been verified within the framework of a practical project. Federal Waterways were not sufficiently considered. Hence we have been prompted to develop an assessment method for heavily modified and artificial water bodies, especially for federal waterways. Nearly 80% of the German federal water bodies are designated as heavily modified and artificial. The inclusion of federal waterways allows the unique characteristics of large rivers to be integrated in the methodological framework. Hereinafter, the results of the first working steps of the investigation as well as the methodological framework will be presented.     

Towards a theory of ethnic separatism

In the decades between 1896 and the mid-1960s it was unusual for the federal government to act to defend or advance Black Americans' interests. In this article two such rare instances are analysed. Both occurred in the 1920s, a decade with a distinctive political complexion. In 1923 Black Americans called upon the federal government's Veterans Bureau [VB] to make good its assurance that African Americans would staff a newly opened hospital in Tuskegee, Alabama, for blacks. At the end of the decade, the Superintendent of Prisons was petitioned to abrogate the new practice at the federal penitentiary in Atlanta, Georgia, of leasing out exclusively Black American prisoners to local governments for contract work. Each case was formulated and justified within the prejudicial framework of segregated race relations, but Black Americans sought fair treatment within its unsalubrious confines. The cases demonstrate the capacity of the federal government to act on racial issues when political circumstances permitted.     

US policies on human embryonic stem cells

The United States is a federal union with separate state jurisdictions. In part owing to the sometimes heated debate about public support for human embryonic stem-cell (ESC) research, there has been restricted federal support and little central regulation of this research to date. Instead, guidelines developed by scientific organizations have set principles for oversight and good practice for this research. These guidelines are functioning well, have influenced developing state regulations and, one hopes, will affect any future federal regulation.     

New hope for dedicated genetically engineered bioenergy feedstocks?

The unique regulatory requirements and costs of genetic engineering (GE) are likely to inhibit commercialization of dedicated bioenergy crops due to the relatively small current market. Two recent regulatory approvals for GE plants, however, may signal a shift in policy and an opening of a door to a streamlined federal regulatory pathway for commercialization for non‐food plants. The change, however, may shift regulatory battles from the federal to the state and local level, as each state has independent authority to regulate plants under respective noxious weed/plant protection statutes. This previously dormant state regulatory power could result in even more complex barriers to commercialization of GE bioenergy crops‐‐replacing the regulatory delays embedded in the federal system with regulatory chaos at the state and local level.     

U.S. Federal Initiatives to Support Biomass Research and Development

This article provides a brief overview of federal initiatives in the United States to support biomass research, demonstration, and development. The interest in the biomass industry and U.S. federal efforts to spur development of, increased production of, and use of biopower, biofuels, and biobased products, collectively known as the "biomass industry", are discussed. A growing level of leadership from the executive branch of the federal government and support by the U.S. Congress are documented. Five important policy drivers that support this heightened emphasis on biomass for power, fuels, and products are identified and discussed. The current status of U.S. dependence on these renewable energy sources is briefly outlined. Federal biomass funding activity for the current fiscal year by the U.S. Department of Agriculture and the U.S. Department of Energy, two major federal participants in research, demonstration, and development for this industry, is briefly outlined. This funding commitment is placed into an overall context of total federal support for all research and development. Finally, the article suggests future market penetration targets for this industry, emphasizes the importance of infrastructure development necessary to support the industry's growth, and notes the payoff from such development for farmers, foresters, rural communities, and the environment.     

Are legislative frameworks in Canada and Ontario up to the task of addressing invasive alien species?

As a signatory to the international Convention on Biological Diversity (CBD), Canada has committed to prevent, control, and eradicate invasive alien species (IAS). Yet, despite developing policy on biodiversity and IAS, the federal government has been criticized for its inaction on biological invasions over the past decade. In Canada’s most populous province, Ontario, similar concerns have been raised about the provincial government’s approach to dealing with IAS. The ongoing criticism of government response suggests that an effective legislative framework to guide and coordinate action on IAS may be lacking in Canada. In this paper, we examined how well existing legislation at the federal and Ontario levels addresses IAS threats, and thus contributes to CBD commitments. We reviewed a total of 98 pieces of legislation, comprised of 55 federal acts, two federal omnibus bills, and 41 Ontario acts. Of these, 20 federal and 12 Ontario acts were found to cover IAS either intentionally or incidentally, but IAS was not the central focus of most legislation. No consistent terminology existed across legislation referring to IAS, further highlighting a lack of focus on the issue. Legislation on IAS was administered by several different ministries both federally and in Ontario, but coordination of action among agencies was not explicitly addressed in laws and regulations. While many acts provided broad powers of enforcement, most provisions were not directly linked to IAS prevention and management. In general, Canada’s legislative framework on IAS is fragmented, and this complicates the development of a coordinated approach to the problem.     

Legal regimes for seabed hard mineral mining: Evolution at the federal and state levels

Abstract

During the last decade U.S. government and industry interest in seabed hard minerals has shifted from areas beyond national jurisdiction to those within national jurisdiction. A variety of factors—technical, economic, political, legal—are behind this trend. This article focuses on the legal aspects of federal and state efforts to encourage and regulate seabed minerals exploration activities, prospective avoidance of conflicts between seabed mining and other ocean uses, federal‐state relations in seabed minerals development, and the special situation of mineral deposits spanning the federal‐state boundary offshore.     

Federal communication about obesity in the Dietary Guidelines and checkoff programs

The new Dietary Guidelines for Americans focus on obesity prevention. They recommend increased consumption of whole grains, fruits, vegetables, fish, and low-fat dairy products, within a balanced diet whose total calories have been moderately reduced. Meanwhile, other well-known and well-funded federally sponsored consumer communications promote increased total consumption of beef, pork, and dairy products, including energy dense foods such as bacon cheeseburgers, barbecue pork ribs, pizza, and butter. These latter communications are sponsored by the federal government's commodity promotion programs, known as "checkoff" programs. The programs are established by Congress, approved by a majority of the commodity's producers, managed jointly by a producer board and the U.S. Department of Agriculture, and funded through a tax on the producers. The federal government enforces the collection of more than 600 million US dollars annually in mandatory assessments, approves the advertising and marketing programs, and defends checkoff communication in court as the federal government's own message-in legal jargon, as its own "government speech." Federal support for promoting fruits and vegetables is small by comparison. The checkoff programs recently have become more clearly identified as federal programs. After a recent decision by the U.S. Supreme Court upholding the constitutionality of the checkoff programs, calls for consistency with the Dietary Guidelines may get louder. The current inconsistencies in federal communication undermine the effectiveness of the Dietary Guidelines as an antidote to the shortcomings of the private sector market for information about weight and obesity.     

The brutal politics of health care

The 1998 federal budget received less than glowing reviews for its provisions regarding health care, but Charlotte Gray says this lack of health care initiatives should surprise no one. After all, there won''t be a federal election for another 3 years.     

Understanding Generic Soil Cleanup Levels: Implication on Agricultural Chemicals

Federal and state regulatory water quality standards have existed in the US for more than a decade while none existed for soil. More recently, the US Environmental Protection Agency (US EPA) developed a procedural model to determine minimum contaminant levels in soil that may require further investigation at the federal level. This model to determine federal soil screening levels (SSLs) by the US EPA has been slightly modified to determine state regulatory soil residual contaminant levels (RCLs) in Wisconsin. We present simplified equations for use on semivolatile compounds to evaluate these regulatory soil levels in residential settings, and in the process, we show where regulatory federal and state soil contaminant levels may differ. Establishing generic soil cleanup levels requires determining the smallest of the acceptable contaminant levels that are still considered protective of human health for all exposure pathways of concern. For the protection of direct human exposure pathways, the State of Wisconsin uses residential assumptions which are generally more conservative than federal defaults to determine acceptable levels. However, when indirect ingestion pathway via leaching through groundwater is considered, the federal generic SSLs may be more conservative than Wisconsin's generic RCLs when an organic contaminant's sorption coefficient, K_oc, falls between 4123 and 39,000?ml/g for non-carcinogens, and between 8568 and 45,525?ml/g for carcinogens. The simplified equations are used on several agricultural chemicals with current generic SSLs. Agricultural chemicals are unique because, unlike other compounds, they are designed for dispersal into the environment at legal application rates, and their generic cleanup levels may be developed based on their legal use rates. However, both the generic US EPA and Wisconsin models imply that if some agricultural chemicals are found at depth, even at use-rate levels, groundwater quality may be adversely affected.     

Improving Compliance in U.S. Federal Fisheries: An Enforcement Agency Perspective

Fisheries enforcement is frequently overlooked in the U.S. federal fisheries management process. However, absent high levels of compliance, without fisheries enforcement even the most robust fisheries management plan may fail. Coupling past studies of compliance in fisheries with studies of regulatory enforcement, this paper identifies several measures for increasing the effectiveness of U.S. federal fisheries enforcement. Implementing these measures into the United States Coast Guard's fisheries law enforcement program will make the Agency's enforcement efforts more effective, potentially increasing the level of compliance in federal fisheries.­     

Usutu virus activity in Austria, 2001-2002

Usutu virus (USUV), a member of the mosquito-borne clade within the Flaviviridae family, was responsible for avian mortality in Austria in 2001. In 2002, the virus continued to kill birds, predominantly blackbirds. High numbers of avian deaths were recorded within the city of Vienna and in surrounding districts of the federal state of Lower Austria, while single die-offs were noticed in the federal states of Styria and Burgenland. A total of 72 birds were submitted for laboratory examination, 30 of which tested positive for USUV by immunohistochemistry and/or polymerase chain reaction. Laboratory-confirmed cases of USUV infection originated from the federal states of Vienna and Lower Austria only. The data show that (i) USUV has managed to overwinter and has been able to establish a transmission cycle in Austria, (ii) the virus seems to have become a resident pathogen of Austria with a tendency to spread to other geographic areas, and (iii) the surveillance of dead blackbirds is a useful sentinel system for monitoring USUV activity.     

Local Perceptions of Federal Block Grants

We report the results of a survey of California county medical societies and county health officers on federal health block grants. Survey respondents agreed that the existing network of health services funded through the federal block grants and the current statelocal apparatus for providing these services are sound. Most respondents do not recommend major changes in the service system, and most support a strong state role in administering programs under the block grants.     

Assessing a decade of public health preparedness: progress on the precipice?

September 11 and the subsequent anthrax attacks marked the beginning of significant investment by the federal government to develop a national public health emergency response capability. Recognizing the importance of the public health sector's contribution to the burgeoning homeland security enterprise, this investment was intended to convey a "dual benefit" by strengthening the overall public health infrastructure while building preparedness capabilities. In many instances, federal funds were used successfully for preparedness activities. For example, electronic health information networks, a Strategic National Stockpile, and increased interagency cooperation have all contributed to creating a more robust and prepared enterprise. Additionally, the knowledge of rarely seen or forgotten pathogens has been regenerated through newly established public health learning consortia, which, too, have strengthened relationships between the practice and academic communities. Balancing traditional public health roles with new preparedness responsibilities heightened public health's visibility, but it also presented significant complexities, including expanded lines of reporting and unremitting inflows of new guidance documents. Currently, a rapidly diminishing public health infrastructure at the state and local levels as a result of federal budget cuts and a poor economy serve as significant barriers to sustaining these nascent federal public health preparedness efforts. Sustaining these improvements will require enhanced coordination, collaboration, and planning across the homeland security enterprise; an infusion of innovation and leadership; and sustained transformative investment for governmental public health.     

A model for integrating wildlife science and agri-environmental policy in the conservation of declining species

We examined a case study where a successful wildlife-friendly model for intensively managed hayland was developed from field data and implemented locally as policy by a federal agency. Farmers were ensured a first hay-harvest with high protein content; after a 65-day delay (compared to the normal 35–40-day cutting cycle) farmers took a second harvest of greater quantity but decreased quality. Farmers were paid $247–333/ha in 2008–2010 to offset costs associated with the decreased nutritional content caused by the approximately 25-day second harvest delay. Bobolink (Dolichonyx oryzivorus) reproductive rates improved from 0.0 to 2.8 fledglings per female per year. Creation and implementation of this policy required communication among scientists, federal agricultural agencies, farmers, and state and federal fish and wildlife departments. Data collection, analyses, and communication processes served as an effective global model for practitioners to apply to other agricultural products and taxa. © 2011 The Wildlife Society.     

Options for biodiversity conservation in managed forest landscapes of multiple ownerships in Oregon and Washington,USA

We examine existing and developing approaches to balance biodiversity conservation and timber production with the changing conservation roles of federal and nonfederal forest land ownerships in the US Pacific Northwest. At landscape scales, implementation of the reserve-matrix approach of the federal Northwest Forest Plan in 1994 was followed by proposals of alternative designs to better integrate disturbance regimes or to conserve biodiversity in landscapes of predominantly young forests through active management without reserves. At stand scales, landowners can improve habitat heterogeneity through a host of conventional and alternative silvicultural techniques. There are no state rules that explicitly require biodiversity conservation on nonfederal lands in the region. However, state forest practices rules require retention of structural legacies to enhance habitat complexity and establishment of riparian management areas to conserve aquatic ecosystems. Habitat Conservation Plans (HCPs) under the US Endangered Species Act provide regulatory incentives for nonfederal landowners to protect threatened and endangered species. A state-wide programmatic HCP has recently emerged as a multi-species conservation approach on nonfederal lands. Among voluntary incentives, the Forest Stewardship Council certification comprehensively addresses fundamental elements of biodiversity conservation; however, its tough conservation requirements may limit its coverage to relatively small land areas. Future changes in landscape management strategies on federal lands may occur without coordination with nonfederal landowners because of the differences in regulatory and voluntary incentives between ownerships. This raises concerns when potentially reduced protections on federal lands are proposed, and the capacity of the remaining landscape to compensate has been degraded.