Article by Rachael E. Salcido
An industrial revolution is occurring in our oceans. Human activities once only possible in near-shore areas are now occurring in or are proposed for far-offshore areas: including open ocean aquaculture, wind and wave energy development, and deepwater oil drilling. How will our offshore federalism structure facilitate this significant undertaking? The traditional framework for offshore drilling, principally the Outer Continental Shelf Lands Act (OCSLA) and Coastal Zone Management Act, although rife with conflict and contention, is being utilized as a platform for continued offshore development. Despite its many flaws, this framework was expanded in the Energy Policy Act of 2005 to vest discretion in the Secretary of the Interior to authorize developments of alternative energy projects on the outer continental shelf, or other marine uses of abandoned oil-drilling platforms. Congress effectively transformed OCSLA into a multiple-use statute, but in doing so it provided minimal guidance for the development of an area exceeding the size of the continental United States. I argue that these recent legal reforms perpetuate a competition between the states and the federal government that impedes sustainable development of ocean and coastal areas. The relationship between the states and the federal government is of increasing importance given the continued decline in the health of marine environments, the considerable increases in coastal populations, and large-scale offshore development. Using lessons distilled from significant public lands federalism conflicts, I examine recent proposals to amend the current “cooperative federalism” framework and conclude that the focus on political borders and revenues must be reduced. Contemporary legal tools utilized in the marine ecosystem management context should instead lead the next phase of ocean governance to effectuate a shift from dueling to collaborating sovereigns offshore.
About the Author
Rachael E. Salcido. Professor of Law, University of the Pacific, McGeorge School of Law. B.A. 1996, J.D. 1999, University of California, Davis.
Citation
82 Tul. L. Rev. 1355 (2008)