Contemporary federalism and new regimes of ocean governance: Lessons from the case of outer continental shelf oil development

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  • ELSEVIER Ocean & Coastal Management 23 (1994) 7 47 © 1994 Elsevier Science Limited Prinled in Northern Ireland. All righls reserved (1964-5691/94/$07 410 Contemporary Federalism and New Regimes of Ocean Governance: Lessons from the Case of Outer Continental Shelf Oil Development Charles Lester Center for Public Policy Research, Campus Box 330, Department of Political Science, University of CO at Boulder, Boulder, CO 80309-0330, USA ABSTRACT Based on the case of US outer continental shelf oil development, this paper argues that if effective, democratic self-government is to be achieved in the ocean policy sector, new institutions must respond first and foremost to a fundamental tension in the US governmental system, i.e. the tension between the need to promote consensual and effective outcomes in the common interest, and the need for the democratic representation of particular interests. The paper proposes two strategies for pursuing such institutional reform. First, scholars should conduct comparative research of the relative capacity of institutional frameworks to promote effective yet cooperative and participatory policymaking for a wide range of existing ocean and coastal resource problems. Second, scholars and practitioners should pursue new institutional forms of ocean governance, based on an evaluation of the policies, institutions and actors related to particular resource problems, and the potential for integration among these factors. 1 INTRODUCTION Using the case of US outer continental shelf oil development, this paper examines three traditional concerns of federalism--intergovernmental policy administration, decisionmaking power, and democratic self- government--to develop the following observations for consideration in the pursuit of new regimes of ocean and coastal governance: (1) the administrative context of ocean and coastal policy is defined by a complex, interdependent network of multiple inter- governmental policy actors and instititutions, not monolithic 7
  • 8 Char&s Les~r state and federal actors as is often assumed by prescribed legislative frameworks for ocean policy decision making; (2) state and local governments and other non-governmental actors may retain real power in the implementation of federal pro- grams within a complex policy network, notwithstanding the primary implementation authority and power vested in federal actors by federal ocean and coastal policy statutes; and (3) the decentralization of decisionmaking power in a complex policy network in turn may not provide sufficient institutional mechanisms for promoting compromise and social problem- solving, and may obscure political responsibility, thereby under- mining the capacity of the US system for effective yet demo- cratic self-government. The remainder of the paper discusses the implications of these three observations in considering new regimes of ocean governance. The paper argues that if effective, democratic self-government is to be achieved in the ocean policy sector, new governmental institutions must respond to a fundamental tension in the US system: that between the need to promote consensual and effective outcomes in the common interest, and the need for the democratic representation of particular interests. The paper proposes two strategies for pursuing such institu- tional reform in the ocean governance sector. First, scholars should conduct comparative research of the relative capacity of institutional frameworks to promote effective yet cooperative and participatory policymaking for a wide range of existing ocean and coastal resource problems. Second, scholars and practitioners should pursue the incremental promotion of more effective and participatory institutional forms of ocean governance, based on an evaluation of both the policies, institutions, and actors related to particular resource problems, and the potential for integration among these factors. This strategy is presented as a practical approach to ocean policy reform in times of limited governmental resources, public resistance to new governmental regulation, and the fragmentation of specialized regula- tory authority among multiple federal, state and local agencies. 2 THE CASE STUDY: OCS DEVELOPMENT IN THE UNITED STATES The implementation of US outer continental shelf (OCS) oil develop- ment policy is an apt case study for considering the role of contem- porary federalism in the ocean and coastal policy sector. First, similar
  • Contemporary federalism and new regimes of ocean governance to many other areas of ocean and marine policy in the United States, OCS development raises important issues for multiple layers of government--local, state, national and international. 1 Second, because the OCS is federally-owned, the distribution of the costs and benefits of OCS development is generally asymmetric--local environmental im- pacts and national economic benefits--making this policy area prone to intergovernmental conflict. 2 Third and most significant, the federal statutory program authorizing OCS development was explicitly crafted by the Congress to facilitate cooperative decisionmaking between the federal government and coastal state governments. Thus, this policy area provides an excellent opportunity to examine our aspirations to effective policymaking and implementation through 'cooperative federalism' .3 2.1 Historical overview of the OCS oil development program The history of the US OCS oil development program 4 may be considered in three periods: early program development and the evolution of property rights on the OCS (1900-1969); policy reform in response to conflicts between environmental and developmental inter- ests (1970-1978); and policy implementation deadlock (1978-1992). A brief discussion of the first two periods is important for understanding the evolution of the federalism context of OCS development. A discussion of the last period, implementation deadlock, is important for assessing the issues of intergovernmental policy administration, de- cisionmaking power, and democratic self-government. 2.1.1 1900-1969: Defining OCS development rights The earliest US offshore oil drilling and production took place on piers extending from the shore in Summerland, California, in 1896. 5 The petroleum industry's first successful open-water activities began in 1938, with the discovery of the Creole field in the Gulf of Mexico, 1.5 miles (1 mile = 1.61 km) offshore and in 26 feet (1 foot = 0.304 m) of water? These early offshore development efforts were managed by coastal states and their right to do so was a reasonably well-settled proposition. Indeed, in 1934, the federal Department of Interior rejected a series of applications from oil companies to drill offshore California on the grounds that these lands were outside the federal government's jurisdiction. Nor did the Congress express a federal interest in offshore lands.3,6
  • l0 Charles Lester This federal 'non-interest' in offshore oil was soon reversed, though, largely due to the efforts of Secretary of the Interior Harold Ickes, who was extremely concerned with what he perceived as wasteful develop- ment practices taking place under state auspices. ~ Through Ickes's lobbying efforts between 1937 and 1945, the question of title to the continental shelf developed into a heated debate. The Department of the Navy also jumped into the fray, arguing that the conservation of oil resources was vital to national security. By 1945, representatives of the federal government had begun to appreciate more fully the significance of the oil resources on the continental shelf. Soon thereafter President Truman himself proclaimed that the natural resources of the continen- tal shelf were subject to the federal government's control: '[h]aving concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. ''° Following Truman's proclamation, the Justice Department appealed to the federal courts to enjoin further leasing of offshore oil tracts by California.~l By 1947, the OCS title question had made it to the US Supreme Court where it was decided by the court that the federal government possessed 'paramount rights' in the submerged lands of the 'Califor- nian' continental shelf. 12 This decision effectively ended the states' rights to offshore oil resources. From the states' perspective, though, the decision challenged a long history of state prerogatives in coastal waters, including such activities as commercial fishing regulation and port management. The states were also afraid that the taking of their offshore oil portended future encroachments by the federal government into state-owned resources. ~3 Accordingly, the coastal states appealed to the Congress for legislative redress. This political agitation left the issue of title to the continental shelf clouded in uncertainty, essentially shutting down offshore development in the Gulf of Mexico as oil companies waited to see who would control the continental shelf. This in turn put more pressure on the political branches of government to solve what had come to be called the 'tidelands controversy'. '4 By 1952, the controversy over the development rights to the continental shelf had reached such proportions that it became an issue in the Presidential campaign. Eisenhower pledged that, if elected, he would return to the states their traditional entitlement in the continen- tal shelf, j4 In 1953, Eisenhower made good on his promise, working with the Congress to pass two statutes. First, the Submerged Lands Act
  • Contemporary federalism and new regimes of ocean governance 11 (SLA) granted the coastal states title to the submerged lands and resources of the 'marginal sea'--a 3-mile wide band of water adjacent to coastal states. ~5 17 Second, the Outer Continental Shelf Lands Act (OCSLA) established that the submerged lands and resources of the outer continental shelf--beyond 3 miles--'appertain[ed] to the United States and [were] subject to its jurisdiction, control, and power of disposition'. '~ This statute also granted to the Secretary of the Interior the power to lease and regulate the resources of the outer continental shelf. The Department of Interior (DOI) has since established four OCS regions--the Atlantic, the Gulf of Mexico, the Pacific and Alaska-- which contain 26 separate planning areas for OCS development. Between 1954 and 1970, nearly 1.7 billion (109 ) barrels of oil were produced from OCS tracts leased by DOI in the Gulf of Mexico and Southern Pacific regions, generating over one billion dollars in produc- tion royalties for the US treasury. '9 As for the states, Louisiana, Texas, California and Alaska collectively produced over 1.5 billion barrels of oil from offshore leases in their waters during this same time period. '~ 2.1.2 1970-1978: Policy reform After a relatively calm period of steady development in the Gulf of Mexico, Alaska and Southern California, offshore oil development became highly controversial again in the early 1970s. This time, however, the issue was the protection of the marine and coastal environment versus increased domestic oil supply, and not who would share in the tremendous profits from OCS development. To begin with, in 1969 there was a devastating offshore oil blowout near Santa Barbara which inundated local beaches with upwards of 50 000 barrels of oil. z° This spill forever changed the face of OCS development ('Remember Santa Barbara' is still the rallying cry for anti-OCS development forces) for it dramatically illustrated the potential environmental impacts of OCS development. The Santa Barbara spill also is often credited as being a primary catalyst for the emergence of the modern environmen- tal movement in the United Sates. 21'22 Notwithstanding the Santa Barbara spill, though, the federal govern- ment continued to pursue OCS development. Indeed, President Nixon directed DOI in 1971 to expand the OCS leasing program and promulgate a five-year leasing schedule to enhance the predictability of the OCS development program. 23 DOI's proposed development under this new Presidential mandate provoked both Congressional represen- tatives from vulnerable coastal states and environmentalists, who had
  • 12 Charles Lester been mobilized by the Santa Barbara spill. In an early flexing of its environmental muscle, the Natural Resources Defense Council (NRDC) challenged a planned lease sale offshore Louisiana for failing to meet the requirements of the National Environmental Policy Act (NEPA). e4 The DC Circuit Court of Appeals upheld a district court's preliminary injunction, on the grounds that DOI had failed to consider adequately alternative sources of fuel in the Environmental Impact Statement (EIS) for the saleY The delay of the sale while DOI remedied its EIS was a harbinger of a conflict that would continue to expand. The OCS political conflict really began to heat up with the unfolding of the Arab oil embargo of 1973. In response to the embargo, DOI had hurriedly tried to accelerate OCS oil development even further, particularly in areas that had not yet seen any OCS development such as Northern California, the North-east, and Alaska, in order to increase domestic oil supply. Coastal states and environmental groups opposed this attempt to accelerate OCS development, however. Given the potential impacts of offshore OCS development to state coastal environments, vividly demonstrated in the case of Santa Barbara, the states felt that their views should be given more consideration in what had previously been a completely discretionary OCS decisionmaking process within DOI . 26 In addition, many felt that there was insufficient scientific information concerning the risks of offshore drilling to justify an accelerated development program. Based on these concerns, coastal states and environmental groups subsequently delayed DOI's rushed development efforts by bringing numerous legal and political challenges to the federal OCS leases being offered to private industry. Between 1972 and 1978, five more lawsuits were brought, each attempting to enjoin a lease sale for failing to meet the requirements of various environmental statutes. 27 By 1975, it was clear that the federal OCS program was in need of reform. The OCS development impasse between environmental and energy development interests was broken in 1978 when the Congress amended the Outer Continental Shelf Lands Act. The primary goal of the amendments was to promote the 'expeditious' yet 'environmentally sound' development of offshore resources. 2~ The key to doing this, Congress thought, was to base development decisions on open political dialogue and the comprehensive assessment of scientific information. Accordingly, the amended OCSLA mandated formal legal participation rights for affected coastal states through a federal-state consultation mechanism. The Congress also required DOI to prepare comprehensive five-year OCS leasing plans discussing the environmental, economic
  • Contemporary federalism and new regimes of ocean governance 13 and social trade-offs of various OCS development options, as well as support all development decisions with complete environmental analy- sis, structured by the environmental impact statement process of NEPA. The sense of the Congress was that this new 'rational' process of OCS decisionmaking would produce authoritative OCS leasing proposals that were not only well considered and administratively feasible, but that were agreeable to all parties and therefore not subject to litigation delays. This synthetic, participatory and 'cooperative' process would, in turn, provide predictability to the OCS leasing program, leading to a more stable domestic oil supply. Thus, the Ad Hoc Select Committee for the OCS stated: '[The amended OCSLA will also provide] new opportunities to the energy industry. In general, state and public participation will increase the knowledge, and reduce the fears, of exploitation opponents. Revised procedures will limit frivolous lawsuits, and expedite all court actions. Cooperation, and thus more certainty, will be provided [my italic]. '29 In short, the 1978 OCSLA amendments were explicitly crafted to help resolve the offshore oil political conflict by establishing a rational and participatory dialogue among the proponents and opponents of offshore oil, with special attention being paid to the relationship between the federal government and coastal states. 2.1.3 1978-1990: Policy implementation deadlock The 95th Congress's aspirations for ending the OCS development impasse were short lived. After a brief period of attempted 'balance' under President Carter and Secretary of Interior Cecil Andrus, respon- sibility for implementing the new OCS decisionmaking process was passed to President Reagan and the provocative administration of James Watt. Within two weeks of taking over DOI, Secretary Watt reversed an Andrus decision concerning proposed OCS development in Northern California, by re-including sensitive OCS acreage in a lease sale offering that Andrus had agreed not to offer for development?" This action, as well as other controversial administrative decisions by Secretary Watt that soon followed, 4,~ effectively undermined any notion of 'balance' that might have been built into the amended OCSLA. More important, it reinstilled the sense of bitter conflict that had grown around the OCS program prior to 1978, virtually assuring that the goal of balance embodied in the new legislation would not be achieved any time soonY Although Secretary Watt was soon forced out of the Reagan
  • 14 Charles Lester administration, the damage had been done and the OCS program continued to be a subject for litigation and judicial oversight. Since the passage of the 'balanced' 1978 OCSLA amendments, the program experienced at least a twofold increase in the lease sale litigation rate over the pre-amendment rate--a total of 19 suits. The California Coastal Commission itself challenged four of five California lease sales and all three of the five-year leasing plans produced by DOI between 1978 and 1990. The state of Massachusetts took every lease sale proposed for the north Atlantic to court, and other states such as Florida, Alaska and North Carolina, either threatened or took legal action as well. 33 Regulatory and legal conflicts at the exploration and production phases of OCS development also undermined the 1978 goals of the Congress. Chevron's Point Arguello project offshore Santa Barbara County is a classic case. Although this significant domestic oil find (discovered in the early 1980s) was ready to be produced for several years, the project remained stalled because of a conflict between Santa Barbara County, the California Coastal Commission and Chevron, concerning the viability of pipelining as opposed to the tankering of the project's oil to Los Angeles refineries. The conflict was so entrenched that not even pressure from the Department of Energy during the Persian Gulf War could resolve it. Only in 1992 did oil, albeit a fraction of its potential, finally begin flowing from the Point Arguello project, some 12 years after Chevron had acquired its development rights from the Department of the Interior? 4 Legal challenges and regulatory delays were just the beginning, though, of the downward spiral of the new OCSLA statute. Beginning in 1983, the House of Representatives Appropriations Committee prohibited DOI from conducting lease sales in numerous OCS regions by attaching spending moratoria to the DOI's annual budget appropriations? 5 Each year the amount of OCS acreage put off limits by the committee increased as coastal state representatives became more adept at getting the Appropriations Committee to protect their interests. In response to the growing prohibitions of the Appropriations Committee, DOI and Secretary Donald Hodel began to pursue direct negotiations with certain coastal state congressional representatives. Although at times it appeared that several deals were close to being made, the attempted negotiations eventually broke down in ac- rimonious admonitions of fault. 3~ The conflict surrounding the OCS program only grew worse. Finally, much as in 1952, grass roots politics pushed the OCS
  • Contemporary federalism and new regimes of ocean governance 15 development issue into the Presidential electoral debate of 1988. In California, city and county populations passed referenda that restricted the siting of onshore OCS support facilities. 37 Thousands of citizens showed up at a DOI public hearing in Mendocino, California to protest potential OCS development. In June of 1988, then Vice President Bush announced that if elected, he would defer the proposed Northern California OCS development to assure that 'the national treasure of the California coastline [would] not be harmed'. 3~ Following his election, President Bush assembled a task force to address the problem of the stalled OCS program. The Bush administration was under a tremendous amount of political pressure to respond favorably to environmentalists on the OCS issue. Although not strictly related to the issue of OCS development, two oil tanker spills, the Exxon Valdez in the spring of 1989 and the Huntington Beach (Southern California) spill in the spring of 1990, fanned the flames of public opposition to OCS development. 3~ Then, in the summer of 1990, Bush made a decision that went well beyond most environmentalist's expectations. Based in part on the findings of the task force (which were never officially released to the public), President Bush placed much of the OCS off-limits to oil exploration and development until the year 2000. 3" In short, by 1990, the OCS program was essentially stymied in all regions except for the Gulf of Mexico and certain sub-regions of Alaska--the federally-mandated program of environmentally-sound OCS development was in a state of deadlock. The next section considers this outcome of deadlock in terms of some of the traditional concerns of federalism. 2.2 Federalism and the OCS program 2.2.1 Intergovernmental policy administration: increasing complexity Although the OCS development story is often framed as a traditional federal-state confl ict , 3'17'31 such a focus risks losing sight of what is perhaps the most salient feature of the US governmental system today, namely, increasing fragmentation and complexity. To be sure, no matter what domestic US federal policy is being examined, the federal-state schism is but one aspect of a general governmental fragmentation that includes, among other things, the institutional separation of executive, legislative and judicial powers, the distribution of power across federal, state and local sovereigns, and the increasing proliferation of specialized social programs, regulatory agencies and
  • 16 Charles Lester interest groups that is so distinctive of the modern administrative state .40 For example, in order to understand fully the implementation of the 1978 OCSLA amendments, one must look beyond the implementation of the federal-state consultation mechanism that Congress embraced as the centerpiece of its 'cooperative' design21 This is not to say that the workings of this mechanism (section 19 of the OCSLA) are not a factor in explaining continuing OCS litigation and ultimately the OCS policy deadlock; many problems with the implementation of section 19, including abuse of administrative discretion by DOI and legal am- biguity, have been identified as contributing to the failure of the OCSLAA scheme. 4"31 Rather, implementation of, and litigation under, the section 19 mechanism must be understood within the context of a complex legal environment of previously existing statutes. Thus, the specific Congressional attention to the consultation needs of coastal states, embodied in the passage of section 19 of the OCSLA amend- ments, simply added another formal administrative and legal mechan- ism to an already rich array of statutory programs through which states could bring a judicial challenge to DOI's implementation of the OCS program. Over the years, coastal states have continued to challenge federal OCS leasing proposals not only under the OCSLA, but also under such statutes as the Coastal Zone Management Act, the National Environmental Policy Act, the Endangered Species Act, the Marine Protection, Research and Sanctuaries Act, the Marine Mammal Protec- tion Act, and the Administrative Procedures Act. Nor are 'coastal states' the only potential litigants under these statutory programs. Challenges to federal OCS policy may also be brought by national, state and local public interest groups such as the Natural Resources Defense Council (NRDC), state chapters of the Sierra Club, or Get Oil Out (GO0; a local interest group of Santa Barbaran origin); or by individual oil companies like Chevron and industry coalitions such as the American Petroleum Institute (API). Moreover, in many states a monolithic entity known as 'the state' simply does not exist. For example, many state Attorney General offices have authority to bring legal challenges independent of the Governor's office. The Massachusetts Attorney General, for instance, has played an integral role in the OCS leasing process in the North-east separate and apart from the OCSLA-mandated role of the Governor's of f ice . 42 In California, the 'state' is further fragmented by the existence of the California Coastal Commission, which also has authority to bring legal challenges independent of the Governor. In short, emphasizing the federal-state legal interface, as if the states were monolithic actors,
  • Contemporary federalism and new regimes of ocean governance 17 and section 19 the only relevant legal conduit, grossly simplifies the intergovernmental policy implementation process. Moreover, the complexity of the legal and political context of OCS policy implementation just described is but a piece of the larger institutional fragmentation that has shaped the OCS policymaking process. Although the discussion in Section 2.1 was not able to develop the story of OCS policy implementation in all of its detail, it is important to recognize that OCS development policy has been crafted by, among others, congressional subcommittees with jurisdiction over various aspects of marine policy; the Congressional appropriations committees and subcommittees; various federal agencies as well as sub-agencies (for example, the Minerals Management Service within the Department of the Interior); executive branch actors other than DOI such as the Office of Management and Budget and Presidential task forces; federal, state and local electoral politics; and numerous courts--district, appellate and supreme--at both the state and federal level. 43 Figure 1 illustrates some of the numerous institutions and actors that make up the OCS policy 'network'. It should be evident that to Fig. 1. The OCS policy system.
  • 18 Charles Lester cast the OCS policy conflict as a question of federal-state relations is to miss the better part of the story. Still, observing the reality of the fragmented complexity of OCS policy implementation is hardly a revelation. Govermental fragmenta- tion or, in the context of federalism, 'intergovernmental' complexity, has been a concern of political scientists for some time. At least since Lowi's The End of Liberalism, 44 political theorists, students of public law and policy scholars have been concerned with the role of interest group politics and administrative complexity in an increasingly pluralis- tic US governmental system. As the significance of our fragmented policy system and the growth of interest groups has become more apparent, our pictures of the policy process have evolved from simple iron triangles to more complicated policy networks and advocacy coalition models. The observation that many actors and institutional forces are collectively responsible for OCS policy outcomes merely frames the OCS story in terms of an increasingly common observation: that complexity and fragmentation are now defining characteristics of the public policy process in the United States, including most areas of ocean and coastal policy. 45~ Nonetheless, in order to pursue policy reforms and, in the case of this paper, new regimes of ocean governance, one must first frame the appropriate questions. To return to the example of OCSLA section 19, it may be the case that policy reforms addressed to this one section, such as reallocating the burden of proof or adjusting the standard of judicial review, may improve aspects of the OCS decisionmaking process. It is unclear, however, that such incremental reforms, premised on the central significance of a formalistic federal-state consultation mechanism, will do anything to assuage the decisionmaking and policy administration problems associated with the larger OCS context of legal, bureaucratic and political complexity. 3'~'~ In short, starting with the assumption of institutional fragmentation and intergovernmental complexity in the ocean and coastal policy process, and ultimately mapping out such complexity for individual policy contexts, may be a crucial initial framing exercise for pursuing effective policy reforms. 2.2.2 Decisionmaking power: decentralized implementation The history of offshore development fits the general pattern of increasing 'nationalization' or 'centralization' of social policy and regulatory programs in the United States¢ I At the outset, the federal government was disinterested in the potential resources of the OCS and states 'occupied' this policy field. Over time, however, federal decision- makers and politicians realized the value of OCS oil, particularly for
  • Contemporary federalism and new regimes of ocean governance 19 the nation's growing energy needs and national security. With help from the federal judiciary, the federal government asserted the national interest in developing the OCS. It was only through an act of Congress that the maginal sea was ultimately ceded back to the states, while the federal government maintained control over the OCS. At the same time that the federal government has come to occupy the field of OCS oil development, however, it cannot be said that it has been able to exert its 'paramount' authority over OCS policy as Truman would have liked. As summarized earlier, coastal states have been able to dramatically shape and in some cases entirely thwart federal OCS development--when they have wanted--through constant litigation, congressional lobbying, and grass roots political opposition. In Califor- nia there was a general history of support for offshore oil development through the mid-1960s and indeed, the state collected millions of dollars in royalties and production taxes from oil development within state waters between the early 1900s and 1969. 52 Since the Santa Barbara spill, however, the federal government and the oil industry have had to fight tooth and nail simply to continue developing areas of the California OCS already partially developed, let alone open up new areas to leasing and exploration. All of this despite a federal statutory mandate for 'expeditious' OCS development. A similar story may be told about the North-east, Florida and parts of Alaska. 4 It is only in those places where local and state economies have had a strong interest in oil development that OCS development has continued apace or grown more intense. This includes much of Alaska and, of course, the Gulf of Mexico, whose experience with offshore oil development is completely opposite to those states where environmental opposition has been effective in halting new develop- ment. In fact, in the Gulf, coastal states have been active in litigation with the federal government not over whether OCS development should go forward, but rather over the fair distribution of the revenues from the oil development taking place on the OCS? 3 Coastal states, then, have each exerted their particular political authority and interests over the OCS program. In this sense, implementation of the 'federal' OCS program, in terms of decisionmaking power, has been dispersed among multiple federal, state and local actors. Similar to the observation of intergovernmental complexity in the OCS policy arena, the observation that coastal state interests have been able to exercise considerable influence in the implementation of OCS policy is an important framing task for the consideration of effective regimes of ocean governance. This is particularly true for those inclined to diminish the importance of state and local participation in any given
  • 20 Charles Lester national policymaking process, as was the Reagan/Watt administration in the case of OCS development. For if the OCS implementation story illustrates anything, it is that interests not accommodated meaningfully in one phase or sector of the policy process, such as the administrative process of DOI, likely will be accommodated in some fashion else- where. In this sense, the provocative and 'nationalistic' approach of Secretary Watt was self-defeating with respect to the goal of OCS development. 32 To be sure, few would doubt the authority, power, and even the desirability of having the national government assert its will in most policy fields if it so desired. Such assertions of national authority have been crucial in many instances to the development of strong social policy, particularly environmental policy, in the United States. But barring a serious threat to national security, it is difficult to imagine the policy scenario where states (not to mention other actors) would not be able to exert some influence over policy implementation, either through the judicial system or the representation of states in the Congress? 4 The case of Chevron's Point Arguello project is a perfect example. Even in the midst of a 'war' that was premised at least in part on the US national interest in a reliable oil supply, the federal government was not able (or lacked sufficient will) to overcome the state and local opposition to this project. In terms of the traditional federalism focus on state sovereignty or decisionmaking power, the OCS conflict illustrates that state and local power to shape the policy implementation process can be significant notwithstanding the existence of federal statutory mandate and in this case, even federal ownership of the resources in question. Indeed, the reality of contemporary federalism in the United States is that policy implementation is often quite decentralized, a fact that is directly related to the fragmentation and increasing complexity of the policy process. In short, a second important reality to address in the pursuit of effective regimes of ocean governance is the existence of decentralized decisionmaking power. 2.2.3 Democratic self-government: prescription for deadlock ? The observations of increasing administrative complexity and de- centralized decisionmaking power within the context of OCS policy implementation frame a final traditional concern of federalism for assessing the OCS development case: the tension between the desire for an effective and efficient governmental decisionmaking process and the desire to maintain the democratic or self-governing character of this process? 5 The implementation story of OCS development policy raises
  • Contemporary federalism and new regimes of ocean governance 21 this tension by suggesting a direct link between the failure to effectively implement the 1978 legislative goal of 'expeditious OCS development' (i.e. 'deadlock') on one hand, and the democratic representation of multiple, conflicting interests in a complex intergovernmental policy process on the other. However, the suggestion that the OCS story raises this tension presumes that there is something problematic with the outcome of policy deadlock. That is, many people may feel that the outcome of deadlock in the arena of OCS oil development is not only the optimum (i.e. correct) OCS development policy but that it was derived through the healthy operation of a pluralistic governmental process. Therefore, to consider the tension between effective decision- making and democratic decisionmaking, it is necessary to address head on, albeit briefly, the aspects in which the outcome of 'deadlock' in both the OCS policy arena and more generally, perhaps, may be problematic. The first reason that we should be concerned about the OCS development deadlock, particularly if we are focusing on the develop- ment of new regimes of ocean governance, is simply that it illustrates how truly ineffective the US implementation process can be when a public policy is controversial. As suggested, in terms of the Congresionally-mandated goal of 'expeditious' OCS development em- bodied in the 1978 OCSLA amendments (which continues to be valid law on the books), the federal OCS program is an unmitigated failure. 56 This is not to deny that the outcome of no OCS development may be 'in the public interest' in 1993 in light of changes in public opinion, shifts in Congressional coalitions, and most important, changes in the oil market that alleviated the oil supply crisis mentality of the 1970s. Rather, it is to argue that if there is at least a little doubt about whether 'deadlock' is the optimum public policy (discussed in more detail in a moment), we must be concerned with the capacity of the US system to achieve our policy goals as articulated by Congress. One need only look to other 'less controversial' areas of public policy, such as the regulation of air and water pollution and toxic waste sites, to find examples of similar failures in implementation. 57'58 In other words, there is no reason to think that more environmentally-friendly policies (or, more impor- tantly, new regimes of ocean governance), either existing or adopted by Congress in the future, would not also go the way of the goal of 'expeditious OCS development'. A second reason that the outcome of deadlock may be a cause for concern is that it is far from clear that no OCS development is the optimum national policy for the United States. For example, even an environmentalist might argue that while OCS development has been stymied, US reliance on foreign oil imports and thus the presence of oil
  • 22 Charles Lester tankers in US coastal waters has increased, in turn generating a higher risk of oil spills than would OCS development (oil imports have remained around 50% in the 1990s)/" Moreover, compared to other ocean and coastal oil pollution sources, including natural seepage from the ocean floor, the contribution of OCS production is relatively small (2% of the total). 6° Thus, the extreme concern over the environmental risks of OCS development (at least in the case of oil spills) may be somewhat misdirected. 6' A stronger argument that OCS development deadlock may be non-optimum, however, lies in the fact that two months following the 1990 Bush moratoria on OCS leasing, Iraq invaded Kuwait, provoking the Persian Gulf War. From the perspective of overall energy policy, it seems odd that opportunities for new domestic oil resources, while admittedly posing a risk of environmental damage, would be foregone at the same time that Americans were risking their lives in a war that was in part about the US interest in stable oil supplies. In a recent Congressional battle about continuing the OCS legislative moratoria, Representative Tauzin from Louisana observed that such legislation was 'an incredible policy statement', in light of the decision to send Americans to 'risk their lives to defend foreign oil fields'. 62 Of course, it also seems absurd to forgo increased energy conservation efforts, which would also decrease foreign oil dependence, simultaneous with pursuing an oil war. None the less, the juxtaposition of OCS deadlock and the Gulf War raises at least some doubt about the overall rationality of the outcome of 'deadlock' in terms of national energy policy. There are many other policy arguments to be made for why 'deadlock' may or may not be the best OCS development policy. 63 Still, such a debate must eventually address the procedural argument that regardless of one's opinion, the outcome of deadlock was rationally and democratically derived, and is therefore ipso facto correct. This raises a third reason for concern about deadlock, namely, that it is unclear in what sense the OCS decisionmaking process may be considered either rational or democratic. As suggested by the earlier discussions of administrative complexity and decentralized decisionmaking power, the overall policy outcome of deadlock was not reached through accom- modation or bargaining among the conflicting interests of the OCS debate. Rather, it was the product of an ad hoc 'veto politics'--the use of countervailing power in available institutional and political forums by multiple actors to thwart the policy goals of their opposition. Not that the practice of veto politics is illegitimate for indeed, the US gov- ernmental system is often thought of as being premised, fundamentally, on such mechanisms of countervailing power. 64 We should simply be
  • Contemporary federalism and new regimes of ocean governance 23 clear that the governmental mechanisms that produced OCS deadlock were not ones that promoted reasoned deliberation between representatives of the major conflicting positions on either the question of national OCS development policy or in any given instance of attempted regional development. Instead, the existing institutional mechanisms of the OCS decisionmaking process, because of their unconsolidated and essentially disintegrated character, encouraged disagreement and enhanced conflict. A brief example focusing on the dynamics of the OCS lease sale process is illustrative. The OCS leasing process: incentives for conflict. Beyond the adversarial and provocative administration of the OCS leasing program early in the Reagan administration, the dynamics of individual OCS lease sale decisions were shaped by at least three important institutional phenomena that undermined deliberation and problem-solving. First, the decisionmaking process of the Minerals Management Service (MMS; the agency within the Department of Interior responsible for implementing the OCSLA program) did not, in the opinion of many, provide meaningful opportunities for incorporating environmental con- cerns into OCS leasing decisions. ~5 There were various reasons for this, including (1) a general historical, cultural and professional bias within MMS that promoted the view that OCS development was not environ- mentally harmful; (2) geologic and economic uncertainty that made it appear more reasonable to ask regional or site-specific environmental questions after leasing (and exploration) decisions were made; 6~ and (3) the Congressional mandate to the MMS to expeditiously develop the OCS which, in fairness to MMS, remained a significant component of the MMS mission statement in the OCSLA. Overall, these factors created an 'opaque' and seemingly unresponsive bureaucratic context for OCS leasing decisions, particularly from the perspective of environ- mentalists. This, in turn, provoked more adversarial interactions, and discouraged problem-solving between the MMS and opponents of OCS development. Second, in contrast to the emphasis on environmental research and rational problem-solving embraced by the 1978 OCSLA amendments, the use of the NEPA EIS process and other environmental assessment techniques in the OCS leasing process did not lead to the reduction of environmental and scientific uncertainty. Again, there were many reasons for this, including the rigid and formal implementation of the EIS process by DOI; ~7 the critical and often politicized structure of the EIS process which over time exponentially expanded the scientific uncertainties associated with any given OCS leasing proposal; "~ and
  • 24 Charles Lester simply the sheer magnitude of environmental uncertainty associated with the problem of OCS development, a problem that was aggravated by the Watt administration's massive expansion of the OCS acreage offered for leasing. 69 In one Alaskan lease sale, for example, these factors combined to completely undermine the resolution of informa- tion conflicts: whereas officials of the State of Alaska had identified eight 'information gaps' at the beginning of the EIS process that they felt needed to be addressed by MMS before they would support an OCS leasing proposal, these same officials specified 38 'significant information needs' that needed to be addressed at the end of the EIS process. TM This expansion in scientific uncertainty was the natural outgrowth of many participants in the EIS process systematically and critically responding to the information produced by the MMS over a period of at least two years. More importantly, in this case, and in many other OCS lease sales, this expanding environmental uncertainty further undermined problem-solving efforts, promoted disagreement, and fostered litigation. Finally, the availability of judicial review for challenging OCS leasing proposals provided a significant incentive to OCS policy participants to abandon attempted compromise and problem-solving, particularly in the context of an unresponsive bureaucracy and expanding environ- mental uncertainty. It was also extremely likely that the judicial forum would be used because of the multiple actors involved in OCS leasing disputes and the multiple legal hooks discussed earlier that were available to them for legitimate challenges. For example, section 19 of the OCSLA designates state Governors as the official representatives in federal OCS leasing decisions. However, when a Governor's office was considering whether to strike a deal or litigate with DOI over a given lease sale, he or she was typically heavily influenced by their con- stituents' political opinions, as opposed to the merits of any given leasing proposal. This made litigation a more likely outcome than compromise in part because it was easier to sue DOI, and look good politically, than to explain to a volatile public why compromise might be an acceptable option. This is apparent in the history of several proposed North Atlantic lease sales in the 1980s. 7t If the Governor of Massachusetts had cooperated with DOI on these leasing proposals, it was likely that he would have been named in a lawsuit brought by other state interests, including environmental and fishing groups. Because of this threat of being taken to court (and of being put in the same political camp as DOI), Massachusetts' 'gubernatorial' OCS policy decisions were often shaped considerably by an environmental advocacy group, the Conser-
  • Contemporary federalism and new regimes of ocean governance 25 vation Law Foundation (CLF), which had strong organizational and political incentives to litigate, particularly during the Reagan/Watt years. The threat of being sued by CLF, and thus the incentive in turn to sue DOI, is revealed in a Massachusetts state memorandum that actually recommended that the Governor cooperate with DOI in an ongoing lease sale proposal: The subtleties of this rather complex procedure [the OCS leasing process] will not be readily understood by the public and some environmental groups who may view the settlement as providing less than optimal protection to resources of importance to the Com- monwealth. We will continue to work with these groups, but cannot assure that their disappointment will not lead to independent litigation against DOI, the Commonwealth, or both. 72 Ultimately, the Governor decided to litigate in this case, as CLF had encouraged, which reaped definite political rewards for the Governor. This is apparent in another State of Massachusetts memo discussing the option of the state opposing a subsequent OCS lease sale altogether, wherein the Massachusetts Coastal Zone Management Office noted: 'IT]here is considerable public support for this position [litigation]. The Governor scored many points for this strong stance on [the previous sale] and his success in the courts. '73 This example clearly illustrates the strong incentives to litigate with DOI that were presented to a politically astute Governor, notwithstanding any efforts to compromise that may have been made on the part of DOI and MMS officials. TM Together, an unresponsive bureaucracy, continuing environmental uncertainty, and incentives for litigation played a significant role in undermining problem-solving and cooperation within individual OCS lease sale decisionmaking processes. They were also significant in promoting conflict at the OCS five-year planning stage. 4 More gene- rally, other mechanisms and decision paths of the US policy system provided further incentives for the opposing parties in the OCS development debate to engage in veto politics and thus avoid substan- tive policy exchanges. Whereas the 1978 OCSLA amendments were premised on cooperative consultation and bargaining between the federal government, coastal states and environmental interests, the reality of OCS policy implementation was that the interested parties either withdrew into insulated bureaucratic forums or 'defected' to alternative policymaking forums, such as the courts and the Congres- sional appropriations process, to avoid sitting down and bargaining with their opposition. In short, the OCS decisionmaking process was so fragmented, and vested decisionmaking power in so many actors, that
  • 26 Charles Lester it provided ample opportunities for disagreement, challenge, recalcit- rance, obstruction and, ultimately, veto--hardly a paradigm of reasoned deliberation and democratic decisionmaking. Notwithstanding the non-deliberative character of the OCS policy process, though, it is difficult to contemplate not having the basic power to challenge or veto a public policy decision, particularly in such controversial situations as OCS oil development policy. None the less, the significance of institutional structure must be considered in the abstract because in any given context of public policy, a governmental mechanism that is useful for one political coalition in creating 'dead- lock' may be its downfall in another. For example, in the case of OCS policy, the House Appropriations Committee has been the environmentalist's saving grace. In the case of the Old Growth Forest conflict, however, environmentalists have suffered for use of that forum by logging interests. 75 Thus, the inability of the governmental system to effectively implement policy goals, may be of generic concern, regard- less of one's opinion on any given public policy. The emergence of the rhetoric of 'gridlock' in the mainstream presidential debate of 1992 and its continuing influence in Congress in 1993 is yet another indicator of the generic character of the problem of policy deadlock. 77 As for academic policy analysis, there is growing evidence that the US system is not providing appropriate structures for effective governance. TM Finally, there is at least one other aspect in which the outcome of deadlock may not seem rational or democratic. This is the argument that the intergovernmental policymaking process is so complex, and specialized interactions so chaotic, that it is difficult to assign political responsibility for any given policy outcome. Laurence O'Toole sum- marizes this argument: Increasingly important in the intergovernmental policy process [is] a great number of specialists across governmental levels--especially in administrative agencies charged with executing [a] program, legisla- tive committees with responsibility for [a] substantive area, and pressure groups with a strong interest in [a] program... In these chains of influence, it [is] increasingly difficult for anyone, even major officials like governors or mayors or presidents, to decipher just who [is] causing what to happen intergovernmentally. When responsibility is so diffused, the mechanisms of democratic government cannot readily ensure that policy reflects the will of the people or the people's representative. 7~ In the case of OCS policy, O'Toole's point is substantiated by the fact that the DOI's administrative policies, sanctioned and indeed
  • Contemporary federalism and new regimes of ocean governance 27 mandated by a federal statute, are circumvented on an annual basis by a Congressional budget committee. Meanwhile, from a bureaucratic perspective, the OCS program continued to be conducted throughout the 1980s as if 'expeditious development' was a primary and appropri- ate policy of the US Congress. More generally, a wide spectrum of interests aspired to have their policy positions implemented through various institutional forums, without any coordination among them. The policy outcome of such interactions was deadlock. But how are we to assign political responsibility for this outcome? Is it the responsibility of Congress? A set of federal district court judges? Or perhaps environmental interest groups should take credit for the policy? If no OCS development is the optimum policy, should the Congress once again amend, through a deliberative process, the OCSLA, and simply ban drilling in such frontier regions as Northern California? Rather than making such a fundamental change in offshore oil policy, the governmental system has operated to promote ad hoc modifications and decisions that have both prolonged the conflict and obscured political responsibility. Surely this challenges our notions of democratic or legitimate policymaking--there is little evidence to suggest, for example, that 'no drilling' is based on a clear Congressional consensus or in the public interest. Moreover, even if it is in the public interest, the method in which we have achieved this outcome cannot be characterized as 'rational'--it is purely a function of the 'irrationality' of a complex and interdependent network of policy participants. ~° To summarize, the four troubling aspects of the OCS deadlock just discussed suggest a final lesson that builds on the first two lessons of the OCS story: the decentralization of decisionmaking power throughout a complex policy network may not provide sufficient institutional mecha- nisms for promoting compromise and social problem-solving, and may obscure political responsibility, thereby undermining the capacity of the US system for effective, democratic self-government. The next section considers the implications of the three lessons of the OCS story for the project of building new regimes of ocean and coastal governance. 3 IMPLICATIONS FOR NEW REGIMES OF OCEAN GOVERNANCE The three lessons of the OCS development story, and in particular the third, frame a basic problem that must be addressed in any proposal
  • 28 Charles Lester for ocean governance: the tension between the need to promote consensual and effective outcomes in the common interest, and the need for the democratic representation of particular interests. 81 In point of fact, this problem has been generally recognized in the ocean policy sector for quite some time. ~2 But how should this tension be framed for the purposes of concrete institutional reform? Specifically, the lessons drawn in Section 2 suggest a need for institutional forums that (1) respond to the difficulties created by existing institutional complexity; (2) meaningfully accommodate the participation of multiple authorities and interests; and (3) provide incentives for consensus and collective decisionmaking. Obviously each of these needs may be related to the others. An ambitious (and important) approach to these needs might be to consider structural reforms at the Constitutional level, such as pursuing more parliamentary forms of government, ~3 limitations on the judicial review of administrative decisionmaking, ~4 or the institution of Euro- pean 'corporatist' structures of governmental regulationY Such an approach may not be the most effective short-run strategy for actually building real-world institutions for ocean governance, however, because it raises many controversial questions about the fundamental nature of American government. 86 The next two sections, therefore, will con- centrate instead on more limited strategies for pursuing institutional reforms that address the three needs identified above, and that are drawn from a brief assessment of actual governmental initiatives in the ocean policy area. Hopefully this discussion will provide a practical framework for both scholars and practitioners to apply in the building of new regimes of ocean governance. 3.1 Assessing problem-based regimes of governance: a theoretical strategy One increasingly common response to institutional complexity is to propose what might be termed 'problem-based' structures of govern- ment. Broadly defined, these are governmental structures designed to be responsive to the natural relationships or problems of the environ- ment, as opposed to artificial political jurisdictions. The pursuit of 'ecosystem management' by the federal government is probably the best recent exampleY In the case of ocean management, a good example is found in the California legislature's recent passage of the California Ocean Resources Management Act (CORMA), for the
  • Contemporary federal&m and new regimes of ocean governance 29 primary purpose of coordinating the multiple and overlapping state ocean resource regulatory programs. 8~ In addition to the goal of 'coordination', the CORMA is supposed to 'outline a clear statement of functional responsibility for state ocean resources management [my italic]'. 89 In this case, 'functional responsibility' is referring to a system of governance premised on the idea that the 'exclusive economic zone, the territorial sea, state waters, and terrestrial environment [function as] an interdependent system'. ~ Thus, for the CORMA, the 'problem' of ocean governance is defined by the nature of the ocean resource. Accordingly, the Act seeks to establish a process of government that is functionally responsive to this resource and the natural relationships encompassed therein. Proposals for problem-based government often suggest some type of regional or subregional governmental structure that can encompass the various fragmented government agencies and special interests that may be concerned with a particular policy or problem. ~2"9~-93 A management authority, for instance, might be created for a discrete estuary or wetland ecosystem--the impacts to which define a certain geographically-based 'problem'--in order to aggregate and coordinate the various special interests that may have jurisdiction over the resource. The goal of such a management structure is, of course, to reach consensus among the parties about how to best manage a resource that more than likely implicates numerous substantive and political governmental jurisdictions. But what are the primary features of such 'problem-based' structures of government? Are there generali- zations about such structures that can be applied across the field of ocean governance generally? More important, how do they address the three lessons as drawn from the case study of OCS development policy? Table 1 presents a typology of some existing 'problem-based' efforts in the ocean and marine policy area, some of which involve OCS policy, along two dimensions: geographic and issue scope. Each of the governmental efforts listed in the table attempts to establish programs or forums that overlay complex marine policy arenas, where informa- tion can be gathered and exchanged, competing interests and policies can be aggregated, and consensus policies may be pursued. That said, the two dimensions recognize that ocean and coastal problems occur on a wide range of geographic scales, usually defined by the features of a natural system (ocean, fishery, estuary, etc.) but also shaped by political and social factors (nation, state, county). Ocean and coastal problems may also be framed as single-issue problems (oil development, fishing) or as multi-issue problems (management of impacts to an estuary or 'the coastal zone').
  • 30 Charles Lester TABLE 1 Typology of problem-based governmental programs Single issue Multi-issue International International Whaling Commission UN Environmental Program (IWC) (UNEP) Regional Seas Program (e.g. Great Lakes) OCS Policy Committee within Dept. Federal Coastal Zone of Interior (OCSLA) Management Program (16 National Regional Subregional Local Fisheries Management Councils-- Magnuson Act of 1976 (16 U.S.C. 1801) Tri-County Socioeconomic Monitoring Program (OCS-Calif.) Minerals Management Service 'Hard Bottom Committee' U.S.C. 1451) California Ocean Resource Management Act (CORMA) EPA National Estuary Program--SF Estuary Project Joint-Review Panels for Environmental Review under CEQA The typology also illustrates that there is wide range of possible governmental programs along a dimension not explicitly illustrated-- governmental function. Thus, some of the examples listed are long- range planning and management efforts (e.g. EPA's estuary program); others are regulatory programs (Coastal Zone Management Act); while still others are project-specific (Californian Environmental Quality Act (CEQA) Joint-Review Panels). The Tri-County Socio-economic Monitoring Program in Southern California (San Luis Obispo, Santa Barbara and Venturo Counties) is primarily an information monitoring program, although it also facilitates the development of mitigation measures for discrete OCS projects. ~4 The 'Hard Bottom Committee' of the Minerals Management Service in the Pacific region was established to address the discrete issue of offshore drilling impacts to hard substrates (reef communities) on the continental shelf in the Santa Barbara Channel and Santa Maria Basin. ~~ The OCS Policy Committee is a body within the Department of the Interior, composed of representatives from industry, government and environmental organizations, in theory established to address broad policy conflicts over the OCS program/'~' In short, a wide variety of government functions is implicit in Table 1. When one begins to reflect on the ocean programs in the typology, it is clear that there are many other dimensions or variables upon which the programs could be compared, including institutional structure
  • Contemporary federalism and new regimes of ocean governance 31 (formal-informal); 'intergovernmental range of represented interests' (federal-state-local? state-state? state-local? etc.); 'nature of autho- rity' within the body or program (vertical, horizontal, shared?); 'relative authority' of the body vis-h-vis existing programs and authorities (are decisions binding on other decisionmaking bodies? advisory? etc.); nature of 'costs and benefits' defining the problem area (diffused, concentrated?); and so forth2 7 In some cases, such as the relatively recent CORMA, it may not yet be clear of what the governing regime will consist, if anything. The multivariate complexity of various problem-based governmental efforts suggests the need for a theoretical strategy that may help identify structures and forms of governance that are more successful than others in complex policy contexts. Thus, it is one thing to call for regional and/or problem-based governance in the ocean and coastal policy sectors as a reform strategy; it is another to specify exactly what suitable ocean and coastal regions might be, for what purpose they are being articulated, who the key players are, what form the regional governing structure should take, etc. For example, the current OCS governing regime relies on 'regional' offices that conduct lease sale planning and regulatory oversight of post-lease exploration and de- velopment activities. The key questions for understanding the effectiveness of this regional structure (not to mention its role in the policy outcome of 'deadlock'), though, have to do with who participates and how, and how policymaking authority is distributed within this forum and relative to other forums such as the OCS program headquarters in Washington, DC. 32 This is why the 'International' layer is included in the typology--understanding these organizations and their particular processes may inform the structuring of organizations within the US federal system, even though there is not really a global 'sovereign' of which to speak2 ~ Evaluating the relative success of various governmental forms as well as their relative performance against the three needs identified above is not a simple matter, though. There are many possible ways to measure the success of a governmental program, including assessing substantive outcomes, decisionmaking processes, and institutional structures. There are also many potential measures of success within each of these categories including goal achievement (was the OCS developed or not?), efficiency (how effectively was a goal achieved?), fairness (were interested parties allowed to participate?), and distribution (who are the winners and losers?). Other measures might include the substantive wisdom of a policy (was it 'right'?); the stability of a policy agreement (how easily was consensus reached, if at all, and 'how much' of a
  • 32 Charles Lester consensus was it?); the capacity of a policy forum for coordination and integration (how well does a regime aggregate and/or consolidate disparate interests?); the relationship of institutional structure to outcomes (what are the political and organizational incentives estab- lished by various regimes?); various professional norms and standards (for example, economic, legal and scientific measures); and less traditional notions of success such as dignity, creativity and deliberativeness.'~-"~l The project of comparative evaluation may be made more complex by the fact that each of the questions developed for measuring success may have different measures of comparison depending on the type of process or forum being examined. For example, 'legislation' might be a successful consensus outcome for a planning process whereas 'site selection' may represent success for an administrative 'NIMBY' prob- lem. Thus, there is a need for more systematic consideration and translation of existing and proposed methods for evaluating institutional forums. The sub-discipline of 'alternative dispute resolution' has considered such problems extensively and it may be an appropriate place to look to in order to develop comparative methodologies for the ocean and coastal policy arena."" Even if 'success' is a difficult variable to measure, though, more systematic comparative research will at least provide some insight into likely outcomes and trade-offs for similar situations. For example, a comparison of state coastal management programs may reveal that the structure of the independent Commission (such as that used in California) provides autonomy vis-h-vis other state interests such as a Governor, but that it is also more susceptible to local political pressure. In then considering new regimes of ocean governance, there will at least be some data as to the trade-offs of establishing such a Commission (indeed, susceptibility to local interests may be a positive value to some while negative to others). To summarize, one strategy for pursuing new regimes of ocean governance is to develop resource-oriented, problem-based structures of policymaking. To be effective, though, such a strategy may necessit- ate more rigorous comparative analysis of governmental forums, particularly of those designed to be responsive to the relationships of natural resource systems, in order to discover which structures and circumstances are most effective in promoting balanced, effective and participatory policies. To do such research, more attention needs to be focused on the dimensions of alternative institutions, on specifying the variables that are being measured, and on strong comparative research designs. In particular, research needs to focus on methods that will
  • Contemporary federalism and new regimes of ocean governance 33 address the tension between consensus and pluralism illustrated by the OCS story and that pervades the US system of government. If well conceived, such theoretical research might yield proposals for new institutional forms that better achieve the value of meaningful self- government that is inherent in the idea of federalism. In short, given a complex system, the challenge is to find structures and processes that are responsive to diverse sets of interests, and that promote consensus building among these interests. 3.2 Achieving problem-based governance: practical realities At the same time that comparative research should be pursued on a theoretical level, what hope is there for actually achieving problem- based governance in the ocean and coastal policy sectors? The social and political realities of today suggest that the best strategy to pursue may be one that incrementally builds inter-agency relationships and forums necessary for more functional structures of ocean governance. In other words, we should not be hoping for the implementation of new comprehensive schemes of ocean and coastal policy. There are at least three reasons for this. First, notwithstanding the election of the Cl inton-Gore ticket and the likely additional support for environmental and conservation programs on the federal level, there is little support among the public for new bureaucratic structures and programs. In California, for example, the Wilson administration has been pursuing a strategy of governmental 'streamlining' and consolidation, in an effort to decrease the regulatory costs to business. 1°2 The California Environmental Protection Agency (CaI-EPA) is one institution that has become a 'collection point' for state regulatory programs--at least the ones under the Governor's direct control. 1°3 This interest in integration, consolidation, and even the rolling back of government bureaucracy is being pursued on the federal level as well. "~ Indeed, one of Clinton's campaign promises was to cut back the overall size of the federal bureaucracy. This is now being pursued through Vice President Gore's 'reinventing government' initiative. Moreover, the Clinton administration is more than occupied with other competing public policies such as health care reform and the budget deficit. In short, strategies for achieving ocean governance may want to adopt a low profile and a maxim of 'no new agencies'. The second factor counseling an incremental strategy of reform, at least in states like California, is the dire state of the economy and the
  • 34 Charles Lester state's budget. California has been unable to balance its budget in recent years and this has had a tremendous impact on existing agencies and ocean programs, to say nothing of the implementation prospects of relatively new programs such as the CORMA. The California Coastal Commission, for example, was hit with budget cuts approaching 20% in the 1992-1993 fiscal year. Needless to say, maintaining core statutory functions, without taking on new responsibilities, becomes a priority under such circumstances. Although CORMA does have funding to move forward under the auspices of the California Resources Agency, it is not yet clear what it will be able to achieve in terms of new programs for ocean governance in today's awful budget climate. Finally, under any circumstances change is difficult. In the case of ocean policy, change is made increasingly difficult by the vesting of traditional regulatory authority in many specialized agencies. Again, in the case of California, for example, coastal wetlands are regulated by multiple and often conflicting federal, state and local agencies including the US Army Corps of Engineers, the EPA, the US Fish and Wildlife Service, the California Department of Fish and Game, the California Coastal Commission, and the State Water Quality Control Boards. Although there may be good policy reasons for simplifying the complexity of this multi-permit process, ~ modifying any given regula- tory authority may be like pulling teeth, particularly if it suggests the handing over of one agency's jurisdiction to a rival agency, thereby diminishing the relative authority of that agency. Thus, institutional change must be pursued slowly and carefully if it is to be successful on the day-to-day level of implementation. Given these three constraints, what practical initiatives can be pursued? First, any effort should take into account the lessons drawn from the case study of OCS policy. New governmental initiatives must accommodate local authority and interests, respond to complexity, and provide incentives for consensus. Second, these efforts must, within reason, be implemented with existing resources, both financial and institutional. Two examples may illustrate these points. Recently, the California Coastal Commission initiated an effort to bring together many of the significant federal, state, regional and local actors concerned with ocean management in the Monterey Bay area, in order to consider the opportunities for programmatic integration, cost efficiencies, information and database sharing, etc. "'7 The effort was prompted by the recent designation of the Monterey Bay as a marine sanctuary by NOAA. ~°~ The various actors and programs that may be involved in this 'Monterey Bay Initiative' include NOAA, EPA, the Coastal Commission's nonpoint source pollution and new cumulative
  • Contemporary federalism and new regimes of ocean governance 35 impacts assessment projects, 1°9 the State Water Quality Control Board, the National Estuarine Research Reserve at Elkhorn Slough (another NOAA program), the Association of Monterey Bay Area Governments (AMBAG), the US Geological Survey, and others. The overall purpose of the Monterey Bay initiative is to provide more effective governance for the ocean and coastal resources of the Monterery Bay region; thus, it is a resource-based initiative, circum- scribed by the geomorphological, socioeconomic and environmental problems that together define the 'Monterey Bay region'. In the near term special emphasis may be placed on water quality and nonpoint source pollution in the region. In the long run, though, other larger social, economic and research-related goals may be facilitated. For example, the military base of Fort Ord has been targeted as a likely candidate for conversion to non-military uses; establishing a marine and ocean center for consolidated research and management efforts has been proposed as one possible use. Overall, it is hoped that this ad hoc effort to pool resources will evolve into a more established and coherent scheme of governance for the Monterey Bay region that includes the integrated sharing of resource information. A second informative example of a new governance regime is the EPA's National Estuary Project for the San Francisco Bay. ~' The Estuary project encompasses a discrete regional ecosystem ranging from the Bay to the edges of the delta as well as the Sacramento and San Joaquin Rivers. The project is a 'five-year cooperative effort to promote more effective management of the San Francisco Bay-Delta Estuary and to restore and maintain the Estuary's water quality and natural resources'. The project has brought together over 100 represen- tatives from the private and public sector, including elected officials from the 12 Bay-Delta counties, environmental groups, and business and industry. These representatives are in the midst of a public process that has included a Management Conference for identifying five management priorities, the development of a 'status and trends' report concerning the estuary resources by numerous subcommittees and technical working groups, and the development of recommendations for a draft action plan. Nine informal public hearings on the draft program were conducted in September of 1992. Although EPA's Estuary Program is obviously being implemented with more than previously existing funds, it serves as a good example of a problem-based regime of government, constructed from the 'bottom up'; thus, it is mindful, at least in theory, of the need to meaningfully accommodate local authority, as opposed to more insulated bureau- cratic decision processes such as that utilized by DOI in the 1980s. The
  • 36 Charles Lester project is also vested with sufficient authority (the Estuary Program was created by Congress in the Water Quality Act of 1987) ~ and formal governmental support to provide incentives for meaningful participa- tion by the various parties involved. Finally, it is also bringing together and coordinating existing agencies and interests in an effort to decrease jurisdictional complexity and overlap for the purpose of building a consensus management plan for the estuary. Although it is still too early to tell how effective this structure will be in actually protecting the resources of the estuary, the program may serve as a useful model for other government initiatives in the ocean and coastal sector. The two examples of ocean governance just discussed suggest at least five tasks for both scholars and practitioners to consider in their pursuit of new regimes of ocean governance. The first four tasks are more clearly in the province of scholars and policy analysts whereas the fifth is much more of an applied task, albeit one that academics may also profit from, particularly if they are interested in pursuing new regimes of ocean governance in practice as well as in theory. The tasks, in a proposed logical sequence, are: (1) identify geographic regions that define ocean and coastal 'problems'--for example, estuaries, bays, watersheds, littoral cells, ocean basins, etc; (2) identify the full range of interests and institutions that may stake a claim in an identified problem; (3) identify existing institutional forums or actors that might serve as 'aggregation points' and facilitators for the various stake- holders. A good example is the recent Growth Management Consensus Project sponsored by the California State University, Sacramento. CSUS provided a non-partisan, non-political forum to attempt the building of a state-wide consensus on growth management issues; ~ 12 (4) identify and compare policy mandates of existing regulatory agencies; consider jurisdictional overlaps and opportunities for integration or consolidation; similarly, identify programs and research agendas within government, the non-profit and private sectors, and academia, that might be effectively joined to produce economies of scale; and (5) drawing from the policy evaluations of tasks 1-4, encourage policy actors to undertake initiatives like the California Coastal Commission's Monterey Bay Initiative, designed to build inter- governmental and inter-institutional networks of shared infor- mation, resources and decisionmaking. 1~3
  • Contemporary federalism and new regimes of ocean governance 37 As with the theoretical strategy of comparative research, these five tasks may be helpful in the development of governmental structures and processes that are responsive to diverse sets of interests, and that promote consensus building among these interests. 4 CONCLUSION This paper began by applying the lens of federalism to the case of OCS oil development policy in the US in order to develop a framework for considering new regimes of ocean and coastal governance. From this case study, three lessons were drawn that together suggested that the most compelling impediments to effective ocean governance may be institutional complexity, decentralized decisionmaking power, and the lack of sufficient incentives for consensus and coordination. More generally, the OCS story suggested that these problems may ultimately undermine the capacity of the US system to promote effective yet democratic self-government--a primary value within federalism theory. A brief assessment of the OCS development 'deadlock' was integral to this argument. Based on this evaluation of the OCS case, the paper then argued that any proposal for new regimes of ocean governance must respond, first and foremost, to a fundamental tension in the US system: that between the need to promote consensual and effective outcomes in the common interest, and the need for the democratic representation of particular interests. Specifically, scholars and practitioners must pursue the development of institutional forums that (1) respond to the difficulties created by existing institutional complexity; (2) meaningfully accommodate the participation of multiple authorities and interests; and (3) provide incentives for consensus and collective decisionmaking. One approach that may beneficially support this goal is for scholars to conduct comparative research of problem-based regimes of government that may overlay multiple and fragmented jurisdictions. Another approach for both scholars and practitioners is to incrementally promote more effective and participatory institutional forms of ocean governance, based on an evaluation of the policies, institutions, and actors related to particular resource problems, and the potential for integration among these factors. Overall, these strategies may foster an important link between the practical creation of new regimes of ocean governance and
  • 38 Charles Lester the fundamental need for effective yet democratic self-government that is embodied in the ideal of federalism. NOTES AND REFERENCES 1. Lester, C., The search for dialogue in the administrative state: the politics, policy and law of offshore oil development. PhD dissertation, University of Califonia, Berkeley, 1991, Chapter 2, pp. 24-54. 2. Cicin-Sain, B., Offshore oil development in California: Challenges to governments and to the public interest. Public Affairs Report, 27 (1986) 27-31. 3. Miller, D. S., Offshore federalism: evolving federal-state relations in offshore oil and gas development. Ecology Law Quarterly, 11 (1984) 401-50. 4. This historical overview relies primarily on Lester, C., The search for dialogue in the administrative state: The politics, policy, and law of offshore oil development. PhD dissertation, University of California, Berkeley, 1991. 5. Minerals Management Service, Offshore resource evaluation program: background & functions. OCS Report MMS 85-0091, US Dept. of Interior, Washington, DC, 1986, p. 9. 6. This historical discussion of history relies primarily on Bartley, E., The Tidelands Oil Controversy: A Legal and Historical Analysis. University of Texas Press, Austin, TX, 1953. 7. Mead, W. J., et al., Offshore Lands: Oil and Gas Leasing and Conservation on the Outer Continental Shelf. Pacific Institute for Public Policy Research, San Francisco, CA, 1985, pp. 9-11. 8. Lee, E., Decision to lease outer continental shelf lands. Coastal Zone Management Journal, 2 (1975) 33. 9. See Ref. 6, Chapter 7. 10. Presidential Proclamation No. 2667, 10 Federal Register 12 303 (1945). 11. See US v. California, 332 US 19 (1947). 12. US v. California. The United State's 'paramount powers' in the continen- tal shelf derived from the Constitutionally-defined role of the US and its position in the 'family of nations'. Thus, these powers transcended the mere title or property interest. See Miller, pp. 407-10, for a complete discussion of this case. The Supreme Court affirmed the federal government's continental shelf rights in two subsequent cases concerning Louisiana and Texas: US v. Louisana, 339 US 699 (1950); US v. Texas, 339 US 707 (1950). 13. See Ref. 6, Chapters 1-3 and 13. 14. Whitaker, J., Striking a Balance: Environment and Natural Resources Policy in the Nixon-Ford Years. American Enterprise Institute, Washing- ton, DC, 1976, p. 261. 15. Pub. L. No. 83-31, 67 Stat. 29 (1953) (codified as amended at 43 U.S.C. secs. 1301-15 (1976 & Supp. V 1981). The concept of the 'marginal' or
  • Contemporary federalism and new regimes of ocean governance 39 'territorial' sea is an artifact of the need to define the limits of 'territorial protection' for purposes of international law. The Reagan administration extended the territorial sea from three to twelve miles in 1988. 16. -Archer, J. & Bondareff, J., The role of congress in establishing US sovereignty over the expanded territorial sea. Territorial Sea Journal, 1 (1990) 117. 17. Wilder, R., Cooperative governance, environmental policy, and manage- ment of offshore oil and gas in the United States. Ocean Development and International Law, 24 (1993) 41-62. 18. Pub. L. No. 83-212, 86 Stat. 462 (1953) (codified as amended at 43 U.S.C. secs. 1331-56 (1976 & Supp. V 1981)). 19. US Department of Interior, Minerals Management Service, Federal Offshore Statistics: 1991. Leasing, Exploration, Production and Revenues as of December 31, 1991. OCS Rpt MMS 92-0056, US Dept. of Interior, Herndon, V.A, 1992. 20. Kallman, R., Coastal Crude: In a Sea of Conflict. Blake Printery & Publishing Co., 1984. Nash, A. E., Mann, D. & Olsen, P. G., Oil Pollution and the Public Interest: A Study of the Santa Barbara Oil Spill. Institute of Governmental Studies, University of California, Berkeley, CA, 1972. 21. Baldwin, M. & Page, J. (eds) Law and the Environment. Walker Publishing, New York, 1970. 22. Kraft, M. & Vig, N., Environmental policy from the seventies to the nineties: continuity and change. In Environmental Policy in the 1990s, ed. N. Vig & M. Kraft Congressional Quarterly Press, Washington DC, 1990. 23. Public Papers of the Presidents, Special Message to Congress on Energy Resources, President Nixon, 4 June 1971, p. 709. 24. 42 U.S.C. 4321 et seq. 25. For example, Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972); 337 F. Supp. 165 (1971). 26. See generally, US House of Representatives, H. Rep. 95-590, 95th Cong., 1st Sess., 20 -August 1977, p. 50. 27. For final dispositions see, Sierra Club v. Morton, 510 F.2d 813 (5th Cir. 1975); Southern California Ass'n of Governments v. Kleppe, 413 F.Supp. 563 (D.D.C. 1976); Alaska v. Andrus, 580 F.2d 465 (D.C. Cir. 1978); County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2d Cir. 1977), cert. denied 434 US 1064 (1978); Commonwealth of Massachusetts v. Andrus, 594 F.2d 872 (lst Cir. 1979). 28. See 43 U.S.C. 1330 et seq. 29. US House of Representatives, H. Rep. 95-590, 95th Cong., 1st Sess. 20 -August, 1977 p. 50. 30. Department of Interior News Release, 10 April 1981. 31. For a more detailed discussion of Watt's implementation of the amended OCSLA, see Van de Kamp, J. K. & Saurenman, J. A., Outer Continental Shelf Oil and Gas Leasing: What Role for the States? Harvard Environmental Law Review, 14 (1990) 73-134. 32. See Ref. 4, Chpt. 3, pp. 55-89. 33. This litigation rate estimate compares litigation rates for the OCS program from its beginning in 1954 through 1978, with the period
  • 40 Charles Lester 1978-1990. Other than the two NEPA challenges in the early 1970s, however, the Gulf of Mexico litigation rate is essentially constant or zero. Thus the increase is really accounted for by the high litigation rates accompanying frontier lease sale offerings, which were not really begun until the mid-1970s. Nonetheless, what is clear is that the OCSLA amendments did not 'ameliorate' the tendency of OCS lease sales to be challenged in court. 34. For an overview of Point Arguello, see Minerals Management Service, Pacific Update: August 1987-November 1989. US Department of the Interior, Washington, DC, 1990; and California Coastal Commission, Adopted Commission Findings and Conditions on Appeal of County Issued Coastal Development Permit. A-4-STB-92-16, A-4-STB-92-17, 1992. 35. See Ref. 4, Chpt. 8, pp. 226-57. 36. Oil War II. The Los Angeles Times Magazine, 18 October 1987. 37. See Save our shores, Final Report on the Oil Information Program. Santa Cruz, CA, 10 April 1992. 38. See Ref. 31, p. 117, n. 171, citing remarks of Vice President Bush. 39. Statement by the President, The White House, Office of the Press Secretary, 26 June 1990. 40. Sunstein, C., After the Rights Revolution: Reconceiving the Regulatory State. Harvard University Press, Cambridge, MA, 1990, Chapter One, pp. 11-46, for an overview of the development of the modern administrative state. 41. Section 19 of the OCSLAA states, in part: 'Any Governor of any affected State... may submit recommendations to the Secretary regarding the size, timing, or location of a proposed sale...' 43 U.S.C. 1345(a). 42. See Ref. 4, Chpt. 7, pp. 185-225; also, Massachusetts v. Andrus, 594 F.2d 872 (1979); Conservation Law Foundation v. Watt, 560 F.Supp. 561,570 (1983). 43. For such a detailed discussion, see Ref. 4. 44. Lowi, T., The End of Liberalism: The Second Republic of the United States. W. W. Norton, New York, 1969. 45. For examples, see Heclo, H., Issue networks in the federal establishment. In The New American Political System, ed. King. American Enterprise Institute, Washington, DC, 1978, pp. 87-124. 46. Sabatier, P., An advocacy coalition framework of policy change and the role of policy-oriented learning therein. Policy Sciences, 21 (1988) 129-68. 47. Heintz, T., Advocacy coalitions and the OCS leasing debate: A case study in policy evolution. Policy Sciences, 21 (1988) 213-38. 48. Jenkins-Smith, H. C., Explaining change in policy subsystems: analysis of coalition stability and defection over time, Journal of Political Science 35 (Nov. 1991), 851-80. 49. Cicin-Sain, B. & Knecht, R., US ocean resources and the EEZ. Ocean Development and International Law, 15 (1985) 289-320. 50. See Van de Kamp, J. K. & Saurenman, J. A., Outer continental shelf oil and gas leasing: what role for the states? Harvard Environmental Law Review, 14 (1990) 73-134, for an example of an excellent analysis (and prescription) that does tend to remain narrowly focused on 'the states' as
  • Contemporary federalism and new regimes of ocean governance 41 if it is not only clear what these entities are but that certain legal adjustments to the participation rights of states might sufficiently address the problems of OCS decisionmaking. 51. Scheiber, H. N., The condition of American federalism: an historian's view. In American Intergovernmental Relations, ed. L. J. O'Toole, Congressional Quarterly, Washington, DC, 1985, pp. 51-7. Beer, S. H., The modernization of American federalism. Publius, 3 (1973) 49-95. 52. California Coastal Commission, Draft Summary of Offshore Oil and Gas in California. San Francisco, 1992. Hodgsen, S. F. (ed.), Drilling Through Time: 75 Years with California's Division of Oil and Gas. Department of Conservation, Division of Oil and Gas, Sacramento, CA, 1990. 53. More recently, however, the state of Louisiana has become increasingly agitated over what it perceives as the lack of response of the federal OCS program to the cycles of the global petroleum market. With such a high proportion of its economic base invested in oil development, market fluctuations, such as the dramatic drop in prices in the mid-1980s, can be devastating to the Louisianan economy. In 1992, the state of Louisiana finally brought suit asking the federal government to discontinue its efforts to develop the Gulf of Mexico OCS until it takes measures to 'smooth out' the socio-economic impacts of development in the state. On the relationship of OCS development to socio-economics in Louisiana, see Gramling, R. & Freudenberg, W., A closer look at local control: communities, commodities and the collapse of the coast, Paper on file with author. 54. In short, the Supreme Court may have been absolutely correct when it observed, in the significant federalism case of Garcia v. San Antonio Metropolitan Transit Authority, that the ability of the states to participate in the federal political process ensures that 'laws that unduly burden the States will not be promulgated'. See Garcia v. San Antonio Metropolitan Transit Authority, 105 S.Ct. 1005 (1985), where the court held that the state's rights in the federal system are essentially protected by their representation in the Congress, not in any judicially protected notions of state's rights that might be inherent in the Constitution. 55. For a brief historical and theoretical discussion, see Scheiber, H. N., Constitutional structure and the protection of rights: federalism and separation of powers. In Power Divided: Essays on the Theory and Practice of Federalism, ed. H. N. Scheiber & M. Feeley. Institute of Governmental Studies, Berkeley, CA, 1989, pp. 17-29. 56. The offshore oil development deadlock clearly represents a failure in terms of the Congressional goal of 'predictable' development. Because of continuing litigation and conflict, particularly the ad hoc involvement of the Congress through the appropriations process, the OCS decision- making process has been completely unpredictable outside of the Gulf of Mexico. In such circumstances, companies are less inclined to bid in lease sales because of the uncertainty of their investment. Indeed, in the fall of 1990, the last exploratory drilling rig left the Pacific region for the more hospitable waters of the Gulf of Mexico. One oil company executive, after declaring the write-off of huge losses due to regulatory delays, deemed the entire OCS process 'irrational' (San Francisco Chronicle, 25 January 1990, p. 1). Another stated that if there were a future lease sale
  • 42 Charles Lester 57. 58. 59. offshore California that no one should expect to see his company in the bidding process (Washington Post, 7 May 1990, p. 1). Still other firms have sold their interests in certain OCS tracts because environmental opposition has reduced the chances for the commerciality of potential finds ('Oil firms drop two leases', San Luis Obispo Telegram-Tribune, 15 May 1992, p. 58). Far from the Congressional goal of predictable, expeditious development, oil companies hesitate to participate in the OCS leasing process at all. See generally, APE Policies are driving oil industry from the US. Oil and Gas Journal, 25 November 1991, p. 21; Industry decries sharp decline in US offshore activity. Oil and Gas Journal, 11 May 1992. For a general discussion, see Rosenbaum, W., Environmental Politics and Policy. Congressional Quarterly Press, Washington, DC, 1991. Concerning air pollution regulation, see Bryner, G., Blue Skies, Green Politics: The Clean Air Act of 1990. Congressional Quarterly Press, Washington, DC, 1993. The most recent DOI Five Year plan for OCS development states: The risks and impacts associated with the tankering of imported oil far exceed those associated with offshore exploration and development. In the last 20 years there have been no spills greater than 20 000 barrels from OCS production and transportation. During the same period at least 32 tanker spills greater than 20000 barrels have occurred in US coastal waters, with approximately two-thirds of those from foreign tankers. 60. 61. 62. 63. US Department of Interior. Outer Continental Shelf Natural Gas and Oil Resource Management, Comprehensive Program, 1992-1997, Proposed Final, April 1992, p. 100. State of Washington, Coastal (/Vashington: A Synthesis of Information. University of Washington, Seattle, 1989, p. 32. Other potentially adverse environmental impacts of OCS development include the disposal of drilling muds and other exploration and produc- tion by products into the ocean; impacts to hard substrate marine habitats; interference with commercial fishing and marine species such as whales or the California sea otter; onshore impacts of related facilities such as habitat impacts and air pollution; and socio-economic impacts often associated with extractive industrial activities (boom-bust problems). Ocean Science News, 34, Nautilus Press, Washington, DC, 1992, p. 1. For example, OCS development would have favorable impacts on the US trade deficit (by decreasing imports). It may also contribute favorably to US energy policy generally as a resource assessment program, apart from any intended goal of increased OCS production. Thus, much of the OCS remains unexplored and information necessary for effective energy planning--resource estimates--is still unknown. In addition, the time from an initial leasing phase to the actual production of oil can be quite long, even without litigation and political delays--up to 15 years in places like Alaska where conditions are harsh. The US would not be able to simply turn on the offshore oil 'tap' in the event of another oil crisis. One
  • Contemporary federalism and new regimes of ocean governance 43 might wonder how volatile (and thus environmentally unsound) energy policy might become if the price of gas went through the roof and Americans were again standing in gas lines. Finally, it is worth consider- ing that the costs and benefits of OCS development vary by region, in part because they are socially constructed (witness the Gulf of Mexico), but also because of geological, marine and environmental differences of each OCS region. Thus, one might argue that a proposal to explore for what in all likelihood is natural gas, 40 miles off the coast of North Carolina, is substantively different to a proposal to explore for heavy crude oil 3 miles off the cost of Big Sur. See for example, US Department of Interior, Final Environmental Report on Proposed Exploratory Drilling Offshore North Carolina. Minerals Management Service, Herndon Vir- ginia, August 1990. 64. Madison, J., The Federalist No. 10. In The Federalist Papers: A Collection of Essays Written in Support of the Constitution of the United States, ed. R. P. Fairfield. Johns Hopkins University Press, Baltimore, 1981, pp. 16-23. 65. For a lengthy discussion of factors shaping the Minerals Management Service, see Ref. 4, Chpt. 4, pp. 85-112. 66. Nine out of ten exploration wells are so-called 'dry holes'. See Ref. 4, Chpt. 4, pp. 85-112. 67. For example, in the case of a proposed North Atlantic OCS lease sale, one participant commented: In reviewing the research conducted in the North Atlantic, I believe that the program has been excellent--the objectives of the research program have been well focused and the principal investigators are among the top in their fields. We have been troubled by the leasing schedule, not the Environmental Studies Program, because the MMS has been leasing in areas where the research had yet to be completed or progressed to a stage where some preliminary conclusions are available. A good example of this is the proposed leasing of the submarine canyons in Sale 52 where the draft EIS had been printed before preliminary data was available on the sediment transport mechanisms of [these] canyons. State of Massachusetts, Correspondence, Massachusetts Coastal Zone Management Office to MMS Environmental Studies Program Director, 4 June 1985. 68. See Ref. 4, Chpt. 5, pp. 113-46. 69. For example, in one OCS lease for the North Atlantic, the State of Massachusetts noted: The [Draft Environmental Impact Statement[ averages environmental risks over such a broad area, that its conclusions are always that the risks are 'minor'. However, there are discrete regions of the sale area that may be more sensitive than others, due to their geological, biological, or oceanographic characteristics. State of Massachusetts, Comments on Sale 82 DEIS, 5 August 1983. 70. State of Alaska, Comments on Lease Sale 92, 1985.
  • 44 Charles Lester 71. For a detailed discussion of the history of OCS leasing in the North Atlantic from which this example is exerpted, see Ref. 4, Chpt. 7, pp. 147-84. 72. State of Massachusetts, Memorandum, Coastal Zone Management Direc- tor to Massachusetts Governor, 16 February 1983. 73. State of Massachusetts, Memorandum, CZM Office to Secretary of CZM, 29 December 1983. 74. See Ref. 4, Chpt. 7, pp. 147-84, for an example of such compromise on the part of DOI. 75. Sher, V. & Stone, C., Eroding the landscape, eroding the laws: congres- sional exemptions from judicial review of environmental laws. Harvard Environmental Law Review, 15 (1992) 435-91. 76. Hoberg, G., From logroll to logjam: structure, strategy, and influence in the old growth forest conflict. Paper presented at the 1993 American Political Science Association Meetings. 77. See, for example, articles in the National Journal, No. 39, 25 September 1993. 78. For a general discussion of the problem of 'adversarial legalism', and another coastal management case study (Port Management), see Kagan, R., Adversarial legalism. Journal of Policy Analysis and Management, 10 (Summer 1991) 369-406. 79. O'Toole, 12-13. (See Ref. 51.) 80. See Ref. 4, Chapt. 9, pp. 258-87, for more extended argument along these lines. 81. Crozier and others have deftly summarized this problem: A primary function of politics is to aggregate the various interests in society so as to promote common purposes and to create coalitions behind policies and leaders. In a democratic society this process takes place through complicated processes of bargaining and compromise with government, within and between the political parties, and through electoral competition. The multiple sources of power in a democratic society insure that any policy decision, when it is made, usually has to have at least the tacit support of a majority of those affected by and concerned with it. In this sense, consensus-building is at the heart of democratic politics. At the same time, however, the opportunities which democratic politics offers to particular opinions, interests, and groups to be represented in the political process necessarily tend to stimulate the formulation and articulation of such opinions, interests, and groups. While the common interest is in compromise and consensus, it is often beneficial to the particular individual or group to differentiate its interest from other interests, to assert that interest vigorously, and at times to be intransigent in defending that interest against others. In a democracy, in short, the top political leaders work to aggregate interests; the political process often works to disaggregate them. Crozier, M. et al., The Crisis of Democracy: Report on the Governability of Democracies to the Trilateral Commission. New York University Press, New York, 1975, p. 165.
  • Contemporary federalism and new regimes of ocean governance 45 82. Cicin-Sain and Knecht have summarized: Although... the essence of the American pluralist federal system is based on multiple points of decision which will always entail some measure of duplication, fragmentation, and overlap, the poly- centric nature of marine management, where no general-purpose government exists, and where intersectorial connections are few or nonexistent, does not provide a sufficient level of governance for conflict management. The problems of the current system will ultim- ately lead to pressures for a more integrated, general-purpose approach. Cicin-Sain, B. & Knecht, R., US Ocean Resources and the EEZ. Ocean Development and International Law, 15 (1985) 289-320. Also, see generally, Formulating Marine Policy: Limitations to Rational Decision- Making. Proceedings of the 2nd Annual Conference held at the Center for Ocean Management Studies, University of Rhode Island, Kingston, RI, 19-21 June 1978. 83. Sundquist, J. L., Constitutional Reform and Effective Government. Brookings Institute, Washington, DC, 1986. 84. Rabkin, J., Judicial Compulsions: How Public Law Distorts Public Policy. Basic Books, New York, 1989. 85. Badaracco, J. L., Loading the Dice: A Five Country Study of Vinyl Chloride. Harvard Business School Press, Boston, MA, 1985. 86. For more in-depth arguments concerning the OCS policy dilemma and 'Constitutional questions', see Ref. 4, Chpt. 10, pp. 288-319. 87. For example, US Department of Agriculture, Forest Service, et al. Forest ecosystem management: an ecological, economic, and social assessment. Report of the Forest Ecosystem Management Assessment Team, July, 1993. 88. California Public Resources Code sec. 36 000 et seq. (1990). 89. Ref. 88, sec. 36 001(h). 90. Ref. 88, sec. 36 001(h). 91. Cicin-Sain, B. et al., Improving Ocean Management Capacity in the Pacific Coast Region: State and Regional Perspectives. National Coastal Re- sources Research and Development Institute, Publication No. W-91-004, 1990. 92. Lima, J. T. & McGinnis, M., California ocean use management: An assessment of two integrating approaches. In The Second International Symposium on Coastal Ocean Space Utilization, Collected Papers, Marine Science Institute, Univ. of California, Santa Barbara, CA, 1991. 93. Rabe, B. G. & Zimmerman, J. B., Cross-media environmental integration in the Great Lakes Basin. Environmental Law, 22 (1992) 253-79. 94. See for example, Santa Barbara County, Tri-county Socioeconomic Monitoring Program: 1988 impact estimates and forecasts for Santa Barbara County (1990). 95. See US Dept. of Interior, Minerals Management Service, Pacific Region, Recommendations of the Special Subcommittee on the Effects of Oil and Gas Exploration on Hard Bottom Substrate. Presented to the Pacific Regional Technical Working Group, 3 May 1991. 96. Although the Committee has recently produced some significant studies
  • 46 Charles Lester and recommendations concerning certain OCS policy questions, the body has exerted little real authority in the overall scheme of OCS policymak- ing. See, for example, Minerals Management Service, Improving the Process for Developing the 5-Year OCS Oil & Gas Leasing Program. Report of the Task Group OCS Policy Committee, US Dept. of Interior, Washington, DC, 1988; and Ref. 4, Chpt. 10. 97. See Ref. 92 for other examples of regional organizations and their relative characteristics. 98. This is also consistent with the argument made earlier that the immediate concerns of federalism today should no longer be the 'linear' federal- state relationship per se but rather the process of policymaking and implementation in light of the chaotic complexities of inter and intra governmental relations. Land-based regimes of regional or 'problem- based' government might also be included in any comparisons of ocean governance structures---cross-issue or 'cross-sector' research could be important for isolating what, if anything, is distinctive about the ocean and coastal sectors. 99. For examples of the complexity involved in evaluating policymaking outcomes, processes, and institutions, see Bartlett, R. V., Evaluating environmental policy. In Environmental Policy in the 1990s, ed. N. J. Vig & E. Kraft, Congressional Quarterly Press, Washington, DC, 1993. 100. Bingham, G., Resolving Environmental Disputes: A Decade of Experi- ence. Conservation Foundation, Washington, DC, 1986. 101. Susskind, L. & Cruikshank, J., Breaking the Impasse: Consensual Appro- aches to Resolving Public Disputes. Basic Books, New York, 1987. 102. See Council on California Competitiveness, California's Jobs and Futures. 23 April 1992. 103. See State of California, Governor's Reorganization Plan No. One, 1991 (16 April 1991) (creating California Environmental Protection Agency). 104. Strock, J. M., Helliker, P. E. & Chain D. W., Integrated pollution prevention: CAL-EPA's perspective. Environmental Law, 22 (1992) 311-31. 105. See Environmental Law, 22 (1992), for a comprehensive look at the pros of cons of 'integration' in the environmental sector. 106. See Glickfeld, M., Rising from the regulatory swamp. Land Use Forum, Summer (1992) 257-61. 107. Remarks of Peter Douglas, Executive Director, California Coastal Commission, Ocean Governance Study Group, Berkeley, CA, 10-13 January 1993. 108. See National Oceanic and Atmospheric Administration, Final Manage- ment Plan for the Monterey Bay Sanctuary. US Dept. of Commerce, Washington, DC, 1992. 109. The nonpoint source program was established under section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 and the cumulative impacts program is authorized by section 309 of this act. 110. For an overview, see US EPA, Draft Comprehensive Conservation and Management Plan for the Bay and Delta: a summary for public review. San Francisco Estuary Project, 12 July 1992. 111. 33 U.S.C. 1251 et seq.
  • Contemporary federalism and new regimes of ocean governance 47 112. See Sherry, S., Growth management: The consensus project. Land Use Forum: A Journal of Law, Policy & Practice, Winter (1992) 91-4. 113. For a similar observation and other practical strategies for pursuing new institutional forms, see Godschalk, D., Negotiating intergovernmental development conflicts: practice-based guidelines. J. Am. Planning Association, Summer (1992) 368-78.