Neg- Its

Its = replacement for preceding subject

Its is possessive and refers to the party preceding its use the USFG
US istrict !ourt "
(United States District Court for the District of the Virgin Islands, Division of St. Thomas
and St. John, A! "arine Aviation # Trans$. v. Cassin, %&&' U.S. Dist. ()*IS +&,&,,-
(e.is/0011
The Court inadvertentl2 used the 3ord 4his4 3hen the Court intended to use the 3ord
4its.4 The $ossessive $ronoun 3as intended to refer to the $art2 $receding its use55A!.
Indeed, that reference is consistent 3ith the undis$uted facts in this case, 3hich indicate
that Cassin com$leted an a$$lication for the insurance $olic2 and su6mitted it to his
agent, Theodore Tunic7 # Com$an2 (4Tunic74/. Tunic7, in turn, su6mitted the
a$$lication to A!8s under3riting agent, T( Dallas. (See 9l.8s "em. of (a3 in Su$$. of
"ot. for Summ. J. :./
Grammatically# this refers to the United States Federal Government
$anderino "% ; Justice, Su$reme Court of 9enns2lvania
(Sigal, A$$ellant, v. "anufacturers (ight and <eat Co., =o. %>, Jan. T., ?+'%, Su$reme
Court of 9enns2lvania, @:& 9a. %%,A %++ A.%d >@>A ?+'B 9a. ()*IS >&&A @@ Cil # as
De$. %?@, (e.is/
Cn its face, the 3ritten instrument granting easement rights in this case is am6iguous.
The same sentence 3hich refers to the right to la2 a ?@ inch $i$eline (singular/ has a later
reference to 4said lines4 ($lural/. The use of the $lural 4lines4 ma7es no sense 6ecause the
onl2 $revious reference has 6een to a 4line4 (singular/. The 3riting is additionall2
am6iguous 6ecause other 7e2 3ords 3hich are 4also ma2 change the siEe of its $i$es4 are
dangling in that the $ossessive $ronoun 4its4 6efore the 3ord 4$i$es4 does not have an2
su6Fect $receding, to 3hich the $ossessive $ronoun refers. The dangling $hrase is the
6eginning of a sentence, the first 3ord of 3hich does not 6egin 3ith a ca$ital letter as is
customar2 in normal )nglish GHHH?&I usage. Immediatel2 $receding the 4sentence4
3hich does not 6egin 3ith a ca$ital letter, there a$$ears a dangling GH%B>I semicolon
3hich ma7es no sense at the 6eginning of a sentence and can hardl2 relate to the
$receding sentence 3hich is alread2 $ro$erl2 $unctuated 62 a closing $eriod. The a6ove
deviations from acce$ted grammatical usage ma7e difficult, if not im$ossi6le, a clear
understanding of the 3ords used or the intention of the $arties. This is $articularl2 true
concerning the meaning of a dis$uted $hrase in the instrument 3hich states that the
grantee is to $a2 damages from 4. . . the rela2ing, maintaining and o$erating said
$i$eline. . . .4 The instrument is am6iguous as to 3hat the 3ords 4. . . rela2ing . . . said
$i$eline . . .4 3ere intended to mean.
Its = o&nership
'ossessive means (o&ning) $erriam *ebster
("erriam Je6ster, %&?@ access date, htt$K00333.merriam5
3e6ster.com0dictionar20$ossession/0011
K the condition of having or o&ning something
K something that is o3ned or $ossessed 62 someone
la3 K the crime of having something that is illegal (such as a drug or 3ea$on/
+hat means the USFG must o&n the development or e,ploration
Supreme !ourt of -.lahoma %/
(S3indall v. State )lection 1oard, ?>, C7la. +', (e.is/0011
<o3ever, I vie3 another $hase of the act 3hich is not considered in the maForit2
o$inion. It is m2 o$inion that the e.$ression, 4its nominees,4 should have 6een
construed 62 this court. <ad this court so construed those 3ords, it 3ould have assisted
the State )lection 1oard in the furtherance of its ministerial duties, and 3ould have set
to rest the immediate Luestion. It is m2 theor2 that the correct inter$retation to $lace
u$on those 3ords, 4its nominees,4 is to the effect that those 3ords do not mean all the
nominees of an2 $articular $art2. The 3ord 4its4 is the $ossessive case, or the $ossessive
adFective of 4it4, meaning of or belonging to it0 Je6ster8s International Dictionar2. In
other 3ords, the e.$ression, 4its nominees,4 as a$$lied to the De$u6lican $art2, means
nominees of it (the De$u6lican $art2/. The 3ords, 4nominees4 of the 4De$u6lican $art2,4
do not and necessaril2 cannot mean all the nominees of the De$u6lican $art2. Those
3ords, ho3ever, do mean more than one nominee. It seems reasona6le to conclude, in
the a6sence of an e.$ression li7e 4all of its nominees,4 or 3ords of similar im$ort, that it
3as not the intent of the (egislature to ma7e those 3ords, 4its nominees,4 all inclusive. It
seems to me that a fair and reasona6le inter$retation 3ould 6e that those 3ords su$$ort
and em6race the thought e.$ressed 62 the =e3 Mor7 statute, to 3it, that it is the
intention of the candidate to su$$ort generall2 at the ne.t general election the nominees
of the $art2 from 3hich he see7s his nomination, or that it is his intention to su$$ort a
maForit2 of the candidates of that $art2.
+he industry &ould possess and maintain the development projects that
violates the core meaning of (its)
1ppelate !ourt of Illinois 23
(<ulett v. Central Illinois (ight Co.,- ,B Ill. A$$. Bd ?+:, (e.is/0011
The $laintiff res$onded to the motion for summar2 Fudgment to the effect that as to 3ho
o3ned or controlled the 3ires is immaterial, since CI(CC 3as reLuired to maintain and
ins$ect all electric su$$l2 lines carr2ing its electricit2 and had failed to do so. In su$$ort
of this contention the $laintiff relies u$on Illinois Commerce Commission eneral Crder
?>& 55 Devised, and effective as of June ?, ?+>B, 3hich $rovides as follo3sK
4+. eneral "aintenance DeLuirements.
)ach $u6lic utilit2 o$erating a s2stem of $o3er or communication lines shall maintain
its Gitalics in originalI s2stem of lines in such condition as 3ill ena6le it to furnish safe,
adeLuate and de$enda6le service.
9o3er and communication lines and their associated eLui$ment shall com$l2 3ith the
$rovisions of this eneral Crder 3hen $laced in service, and shall thereafter 62
s2stematicall2 ins$ected, and 3hen necessar2, 6e su6Fected to tests to determine their
fitness for the service reLuired of them, and for conditions of safet2. An2 defects revealed
62 such ins$ections and tests 3hich could cause or create an unsafe condition, shall 6e
$rom$tl2 corrected. If such corrections are not immediatel2 underta7en, a record of the
condition found shall 6e made in the $ro$er $lant office of the utilit2. Defective lines or
their associated eLui$ment shall 6e $laced in good o$erating condition, or other3ise
effectivel2 disconnected or removed.4 ()m$hasis added./
The $ur$ort of the trial Fudge8s order is to this court clear in that a Luestion of la3 is
$resented, namel2, 3hether or not the Commerce Commission eneral Crder ?>& $laces
a dut2 u$on CI(CC to maintain, re$air and ins$ect the electrical lines in Luestion, even
though the2 are not and never have 6een o3ned or controlled 62 the $o3er com$an2. Je
note, ho3ever, that the $laintiff attem$ts to challenge the sufficienc2 of the Vol7 affidavit
3hich denies o3nershi$ or control of the lines 62 CI(CC. It is the $laintiff8s argument
that the affidavit referred to records as to $remises located at ,%? Tremont To3nshi$,
Tremont, Illinois, and that the descri6ed $remises have not 6een esta6lished as the $lace
3here the $laintiff 3as inFured. Je find no merit in this contention since it is G?+,I
$atentl2 clear from the record that there 3as no concern on the $art of the trial court or
the $arties to this action concerning the Vol7 affidavit or 3here the $laintiff 3as inFured.
It should 6e noted that the $laintiff did not file a counteraffidavit and conseLuentl2
admitted that CI(CC did not o3n or control the electrical line. (See Carruthers v. 1. C.
Christo$her # Co. (?+'@/, :' Ill. %d B'>, B?B =.).%d @:'./ To raise on a$$eal the Luestion
of o3nershi$ a$$ears to 6e an effort on the $art of the $laintiff to o6fuscate the true
issue, to53it, the meaning and effect of eneral Crder ?>&.
Je have set forth the $ertinent $rovisions of the order and attention should 6e directed
to the 3ord its located in the first $aragra$h and 3hich 3e have em$hasiEed. The 3ord
its as used is a $ronoun and is 6eing used in its possessive form. 12 the use of the 3ord
it is clear that each $u6lic utilit2 s2stem shall maintain the $o3er lines 3hich it o&ns.
(Its) doesn4t refer to people e,cludes corporations
United States District Court for the 5astern istrict of !alifornia 63
((AN)(A=D VI((A) CJ=)DS ASS8= v. D)AT A")DICA= I=S. CC., %&?& U.S.
Dist. Ct. "otions ()*IS %B>>',- (e.is/
If 2ou read the $rovision in the manner suggested 62 (a7eland, the $rovision 3ould
readK 4invasion of the right of $rivate occu$anc2 of a room...that a $erson occu$ies 62 or
on 6ehalf of Gthat $erson8sI o3ner, landlord or lessor.4 A $erson does not, and cannot,
have an o3ner. )ven using grammatical rules, (a7eland8s argument is nonsensical. The
3ord 4its4 is a $ronoun and the $ossessor2 form of the 3ord 4it4, 3hich is used to refer to
things not people. It is grammaticall2 incorrect to use the 3ord 4its4 to refer to a
$erson. The a$$ro$riate $ronoun for a $erson is 4his4, 4her4, or 4their4. Therefore, the
$ronoun 4its4 must necessaril2 refer to the 4thing4 G+I in the clause it follo3s, i.e. the
room, d3elling or $remises. (a7eland could not find la3 to su$$ort its $osition so it
resorted to citing o6scure grammatical rules. Unfortunatel2 for (a7eland, even grammar
$rinci$les su$$ort Travelers8 $osition that the $lain and unam6iguous language of the
$olic2 demonstrates it o3ed no dut2 of defense to (a7eland.
Its = sole
(Its) is singular and possessive
Updegrave 76 ; anal2st O "C=)M "agaEine for %&P 2ears
(Jalter, ).$lanation of QI9 Code Address 9ur$ose-, ,5?+,
htt$K00333.su$remela3.org0ref0Ei$code0u$degrav.htm/
"ore s$ecificall2, loo7ing at the ma$ on $age ?? of the =ational QI9 Code Director2, e.g.
at a local $ost office, one 3ill see that the first digit of a QI9 Code defines an area that
includes more than one State. The first sentence of the e.$lanator2 $aragra$h 6eginsK 4A
QI9 Code is a numerical code that identifies areas 3ithin the United States and its
territories for $ur$oses of ...4 Gcf. %> C!D ?.?5?(c/I. =ote the singular possessive
$ronoun 8its8# not 8their8 , therefore carr2ing the im$lication that it relates to the
4United States4 as a cor$oration domiciled in the istrict of ! olum6ia (in the singular
sense/, not in the sense of 6eing the :& States of the Union (in the plural sense/. The
ma$ sho3s all the States of the Union, 6ut it also sho3s D.C., 9uerto Dico and the Virgin
Islands, ma7ing the e.$lanator2 statement literall2 correct.
1+9 USFG 1ction = its
1ction that facilitates private development still violates (its)
!onboy 7% ; Judge on United States District Court for the Southern District of =e3
Mor7
(Nenneth, (andmar7 JestR v. United States 9ostal Serv.,- ,@& !. Su$$. ++@, (e.is/
Conclusion
As the US9S has em$hasiEed, the u6iLuitous actions and inactions of federal agencies
affect the li7elihood of $rivate underta7ings, as 3ell as their 6enefits and 6urdens, in
innumera6le 3a2s. In this conte.t, it 3ould ma7e no sense to reLuire federal agencies to
assess the environmental im$act of $rivate actions over 3hich the2 have no control,
solel2 on the 6asis of the incidental effects of federal action on the $rivate action.
!ortunatel2, there is no indication that in enacting =)9A Congress intended to do so.S In
this case, the US9S has $artici$ated, on an arms5length 6asis, in a private
development. !actuall2, its actions 3ere merel2 incidental to the $rivate develo$ment
and, legall2, the develo$ment has 6een insulated from US9S control. Accordingl2, this
Court holds 4reasona6le under the circumstances4 the US9S8s im$licit determination
that the environmental im$act of the 9roFect as a 3hole did not have to 6e considered in
the environmental assessment underl2ing the !C=SI.
1+9 Funding = its
-&nership is .ey provision of federal funds doesn4t ma.e it (its) project
'aget " ; JD, long and 3idel2 recogniEed as one of this countr28s leading $ractitioners
of environmental la3 and litigation
(David, A(I5A1A CCUDS) C! STUDM "AT)DIA(S )nvironmental Im$act AssessmentK
=)9A and Delated DeLuirements Cos$onsored 62 the )nvironmental (a3 Institute,
(e.is/0011
I. IssueS 5 At 3hat $oint does federal $artici$ation in a $roFect contem$lated 62 a
nonfederal entit2, such as a $rivate entit2 or a state or local government, federaliEe the
action and render the entire $roFect su6Fect to the reLuirements of the =ational
)nvironmental 9olic2 Act (4=)9A4/TS 5 The 3a2 in 3hich an action is defined determines
the sco$e of the $roFect for federal $ur$oses.S 5 =onfederal actions are not su6Fect to
=)9A reLuirements. Save the 1a2, Inc. v. U.S. Arm2 Cor$s of )ngineers, >?& !.%d B%%,
B%> (:th Cir. ?+,&/A ett2s6urg 1attlefield 9reservation Assoc. v. ett2s6urg College,
'++ !. Su$$. ?:'?, ?:'' (".D. 9a. ?++%/.S 5 !ederal agencies are su6Fect to =)9A
reLuirements if a $ro$osed $roFect involves a 4maFor federal action significantl2 affecting
the Lualit2 of the human environment.4 @% U.S.C. U @BB%(%/ (C/.S 5 If su6Fect to =)9A
reLuirements, the federal agenc2 must conduct an )nvironmental Assessment (4)A4/
and issue a !inding of =o Significant Im$act (4!C=SI4/ or an )nvironmental Im$act
Statement (4)IS4/.S 5 The =)9A sco$e of anal2sis is significant 6ecauseKS 5 It is freLuentl2
determinative of the need for an )IS.S 5 1ecause =)9A a$$lies to at least the federal
com$onent of a $ro$osal, the greater the 4federaliEation4 of the action the greater the
li7elihood of significant environmental im$acts.S 5 Inclusion of the nonfederal $ortion of
a $ro$osed $roFect as $art of the =)9A sco$e of anal2sis often converts a t2$ical !C=SI
into an )IS.S 5 !ederal agencies must com$l2 3ith the alternatives anal2sis in Section
?&%(%/ ()/ even if the2 do not have to $re$are an )IS. @% U.S.C. U @BB%(%/ ()/A <anl2 v.
Nleindienst (II/, @'? !.%d ,%B (%d Cir. ?+'%/, cert. denied, @?% U.S. +&, (?+'B/.S 5
Inclusion of the nonfederal $ortion of a $ro$osed $roFect as $art of the =)9A sco$e of
anal2sis increases the sco$e of the alternatives anal2sis 6ecause the federal agenc2 must
consider alternatives to the entire $roFect, not Fust alternatives to the federal $ortion of
the $ro$osed $roFect.S 5 Inclusion of the nonfederal com$onent of a $ro$osal as $art of
the overall federal action ma2 trigger other additional $rovisions of federal la3, such asS 5
U ?&> of the =ational <istoric 9reservation Act, ?> U.S.C. U @'&f.S 5 !lood$lain
"anagement, ).ecutive Crder =o. ??+,,.S 5 9rotection of Jetlands, ).ecutive Crder =o.
??++& (does not a$$l2 to issuance 62 federal agencies of $ermits to $rivate $arties for
activities involving 3etlands on nonfederal $ro$ert2/.S 5 If more than one federal agenc2
is involved in a $roFect $ro$osed 62 a nonfederal entit2, the federal agencies must
consider the cumulative federal involvement in determining the sco$e of the =)9A
anal2sis. See @& C.!.D. UU ?:&,.' # ?:&,.%:(a/ # (c/.S II. Common Situations Involving
the 4Small <andle4 IssueS 5 =onfederal actions that reLuire federal $ermits or a$$rovals.S
5 Arm2 Cor$s of )ngineers8 (the 4Cor$s4/ issuance of a $ermit $ursuant to Section ?& of
the Divers and <ar6ors Act, BB U.S.C. U @&B, for 3or7 in naviga6le 3aters of the United
States and0or $ursuant to Section @&@ of the Clean Jater Act, BB U.S.C. U ?B@@, for
discharges of fill or dredged material into 3aters of the United States (including federal
3etlands/.S 5 Construction of marina associated 3ith u$land develo$ment (e.g.,
commercial or residential/.S 5 Construction of marina associated 3ith entertainment
facilities.S 5 Com$onents of a residential or commercial develo$ment are in 6oth u$land
and regulated 3aters.S 5 Cther com6inations of in53ater activit2 and u$land activit2KS 5
Utilit2 lines.S 5 Diver or 3etlands crossing or filling as $art of a larger develo$ment or
trans$ortation $roFect.S 5 Discharge outfalls from u$land industrial $lant.S 5 Secretar2 of
the Interior a$$roval of Indian contracts.S 5 (ocal road im$rovements associated 3ith
high3a2 im$rovements reLuiring !ederal <igh3a2 Administration (4!<JA4/ a$$rovals
or funding.S 5 =onfederal actions eligi6le for federal assistance.S 5 "ass transit s2stems.S 5
<igh3a2 construction.S 5 <ousing develo$ments.S 5 <UD mortgage insurance.S 5 <UD
funding for a $ortion of a $roFect.S III. <o3 To Determine Jhen A =onfederal Action
<as 1een !ederaliEedS 5 There are no clear standards for determining the $oint at 3hich
federal involvement transforms a nonfederal $roFect into federal action. United States v.
Southern !lorida Jater "anagement District, %, !.Bd ?:>B, ?:'% (??th Cir. ?++@/. 4The
touchstone of maFor federal activit2 constitutes a federal agenc28s authorit2 to influence
nonfederal activit2.4 Id.A Sierra Clu6 v. <odel, ,@, !.%d ?&>,, ?&,+ (?&th Cir. ?+,,/A see
@& C.!.D. U ?:&,.?,. 9ut another 3a2, does the federal agenc28s involvement $rovide it
3ith the a6ilit2 to influence materiall2 the environmental im$acts of the $lanned non5
federal activit2TS 5 The Cor$s follo3s its o3n =)9A regulations. In ?+,&, the Cor$s
$u6lished a version of regulations that did not s$ecif2 ho3 it should determine the sco$e
of its =)9A anal2sis 3hen issuing $ermits for actions com6ining 6oth federal and
nonfederal com$onents. In the same 2ear, the !ifth and )ighth Circuits decided to limit
this sco$e to the federall2 controlled or regulated as$ects of such $roFects. These
immediatel2 follo3ing !ifth and )ighth Circuit seminal cases addressed the 4small
handle4 issue and $rovide the essential historical antecedents for the $romulgation of the
Cor$s8 Sco$e of Anal2sis regulations, BB C.!.D. U B%:, A$$. 1('/(6/ (?++@/.S 5 Jinne6ago
Tri6e of =e6ras7a v. Da2 (4Jinne6ago4/, >%? !.%d %>+ (,th Cir. ?+,&/. A nonfederal
$ro$osal 3as made to construct a >'5mile $o3er line. A$$ro.imatel2 ?.%: miles of the
>'5mile $o3er line 3ould cross the "issouri Diver, triggering the need for a Cor$s
Section ?& $ermit, $ursuant to BB U.S.C. U @&B. 1efore issuing the $ermit, the Cor$s
$re$ared an )A on the im$act of the ?.%: mile river crossing. The )A concluded that
there 3ere no significant environmental im$acts associated 3ith the river crossingA thus,
an )IS 3as not reLuired.S 9laintiff then commenced a la3suit, alleging noncom$liance
3ith =)9A 6ecause the Cor$s did not assess the environmental effects of the entire >'5
mile $o3er line. 9laintiff argued that 3ithout the Section ?& $ermit, the $o3er line
3ould not 6e 6uiltA therefore, the Cor$s had sufficient control over the $ro$osal to
reLuire an environmental anal2sis of the entire transmission line $roFect, 3hich 3ould
undou6tedl2 reLuire an )IS.S The District Court denied the $laintiff8s reLuest for a
$ermanent inFunction to 6ar the construction of the $ro$osed $o3er line. The $laintiff
a$$ealed from that decision, arguing, inter alia, that the District Court had erred in
holding that the issuance of a Cor$s $ermit to cross the "issouri Diver 3as not a 4maFor
federal action4 3ithin the meaning of =)9A.S In revie3ing the District Court decision,
the United States Court of A$$eals for the )ighth Circuit (4Court4/ em$lo2ed 6oth an
4ena6lement4 (or legal control/ and a factual (or veto control/ test in determining
3hether the Cor$s should have considered the environmental im$acts of the entire
$roFect. The Court stated that in 4ena6lement4 cases, 4federal action is a legal condition
$recedent to accom$lishment of an entire nonfederal $roFect.4 Id. at %'%. The Court
found that BB U.S.C. U @&B 3as too narro3 to 6e construed as a grant of legal control over
the entire $roFect.S The Court then loo7ed to the Cor$s8 factual, or veto control, over the
$roFect. In a$$l2ing this test, it articulated three factors to aid in determining 3hether
the Cor$s8 factual control reLuired an environmental assessment of the entire $roFectKS
(?/ the degree of discretion e.ercised 62 the agenc2 over the federal $ortion of the
$roFectAS (%/ 3hether the federal government has given an2 direct financial aid to the
$roFectA andS (B/ 3hether 4the overall federal involvement 3ith the $roFect GisI sufficient
to turn essentiall2 $rivate action into federal action.4S Id. The Court stated that, although
the Cor$s had 6road discretion to assess environmental im$acts, the discretion had to 6e
e.ercised 3ithin the sco$e of the agenc28s authorit2. Under Section ?&, the Cor$s had
authorit2 to consider the environmental im$acts regarding onl2 areas in and affecting
naviga6le 3aters. Thus, the Cor$s had no authorit2 to consider the environmental
im$acts of the entire $ro$osed >'5mile $o3er line. The Court also found that the federal
government 3as not $roviding an2 direct or indirect funding for the $roFect. Therefore,
the Court of A$$eals concluded that the Cor$s did not have sufficient control or
res$onsi6ilit2 to reLuire an environmental assessment of the entire $roFect.S 5 Save the
1a2, Inc. v. United States Arm2 Cor$s of )ngineers (4Save the 1a24/, >?& !.%d B%% (:th
Cir. ?+,&/. A nonfederal $ro$osal to construct and o$erate a massive titanium dio.ide
manufacturing facilit2 involved issuance of a Cor$s $ermit for the construction of a
%%&&5foot, %@4 $i$eline to discharge % million gallons $er da2 of industrial 3aste3ater
into the 1a2 of St. (ouis. The Cor$s $re$ared an )A, issued a Statement of !indings 3ith
the conclusion that there 3ould 6e no adverse effects on air Lualit2 and onl2 tem$orar2
effects on 3ater Lualit2, and issued the $ermit authoriEing 6uilding the outfall $i$eline.S
9laintiffs initiated a la3suit, arguing that the grant of the $i$eline construction $ermit
3as a 4maFor federal action significantl2 affecting the Lualit2 of the human environment4
and reLuired $re$aration of an )IS. The District Court, ho3ever, concluded that the )A
3as reasona6le and 6ased on su6stantial evidence and that the Cor$s 3as not reLuired to
consider the environmental conseLuences of the entire $roFect, 6ut onl2 the effects of the
construction and maintenance of the outfall $i$e. Thus, the District Court found that the
activit2 3as not a maFor federal action significantl2 affecting the Lualit2 of the human
environment. 9laintiffs then a$$ealed the district court decision. The United States
Court of A$$eals for the !ifth Circuit (4Court4/ held that issuance of the Cor$s $ermit for
the outfall $i$e 3as not a sufficient ne.us 6et3een the Cor$s and the construction of the
$lant to ma7e the agenc2 a $artner in such construction and there62 4federaliEe4 its
construction, i.e., the grant of the $i$eline construction $ermit 3as not a 4maFor federal
action4 3ithin the meaning of =)9A. The Court found that, in granting the $ermit, the
Cor$s 3as limited to considering the environmental effects of the construction and
o$eration of the $i$eline itself. The environmental conseLuences of the effluent 3ere a
factor to 6e e.cluded from the Cor$s consideration.S The Court also noted that the
$i$eline 3as not necessar2 to o$erate the $lantA another method of discharge, not
reLuiring a Cor$s $ermit, 3as availa6le. Although disclaiming the ado$tion of a 46ut for4
te.t, the Court found that there 3as insufficient federal involvement to 4federaliEe4
construction of the industrial $lant.S 5 In ?+,@, the Cor$s $ro$osed an amendment to its
=)9A regulations that 3ould have codified Jinne6ago and Save the 1a2. The
Administrator of the )nvironmental 9rotection Agenc2 (4)9A4/, $ursuant to the Clean
Air Act, @% U.S.C. U '>&+(a/ (?+,%/ must revie3 $ro$osed =)9A com$liance regulations.
The Administrator did not a$$rove the Cor$s8 amendment, and, therefore, the $ro$osed
regulation 3as referred to the Council on )nvironmental Vualit2 (4C)V4/. @% U.S.C. U
'>&+(6/ (?+,%/. Cn June ,, ?+,', the C)V a$$roved the amendment su6Fect to a fe3
$ro$osed modifications. :% !ed. Deg. %%:?%&5%% (?+,'/. Cn !e6ruar2 B, ?+,,, the Cor$s
revised and $u6lished the amendmentA the revision ado$ted the C)V8s $ro$osals. :B
!ed. Deg. B?%&, B?%? (?+,,/. This Cor$s regulation, set forth in $ertinent $art 6elo3,
re$resents the most s2stematic effort to address the 4small handle4 issueKS 5 Cor$s Sco$e
of Anal2sisK (?/ In some situations, a $ermit a$$licant ma2 $ro$ose to conduct a s$ecific
activit2 reLuiring a De$artment of the Arm2 (DA/ $ermit (e.g., construction of a $ier in a
naviga6le 3ater of the United States/ 3hich is merel2 one com$onent of a larger $roFect
(e.g., construction of an oil refiner2 on an u$land area/. The district engineer should
esta6lish the sco$e of the =)9A document (e.g., the )A or )IS/ to address the im$acts of
the s$ecific activit2 reLuiring a DA $ermit and those $ortions of the entire $roFect over
3hich the district engineer has sufficient control and res$onsi6ilit2 to 3arrant !ederal
revie3.S (%/ The district engineer is considered to have control and res$onsi6ilit2 for
$ortions of the $roFect 6e2ond the limits of Cor$s Furisdiction 3here the !ederal
involvement is sufficient to turn an essentiall2 $rivate action into a !ederal action. These
are cases 3here the environmental conseLuences of the larger $roFect are essentiall2
$roducts of the Cor$s $ermit action.S T2$ical factors to 6e considered in determining
3hether sufficient 4control and res$onsi6ilit24 e.ists includeKS (i/ Jhether or not the
regulated activit2 com$rises 4merel2 a lin74 in a corridor t2$e $roFect (e.g., a
trans$ortation or utilit2 transmission $roFect/.S (ii/ Jhether there are as$ects of the
u$land facilit2 in the immediate vicinit2 of the regulated activit2 3hich affect the location
and configuration of the regulated activit2.S (iii/The e.tent to 3hich the entire $roFect
3ill 6e 3ithin Cor$s Furisdiction.S (iv/ The e.tent of cumulative !ederal control and
res$onsi6ilit2.S A. !ederal control and res$onsi6ilit2 3ill include the $ortions of the
$roFect 6e2ond the limits of Cor$s Furisdiction 3here the cumulative !ederal
involvement of the Cor$s and other !ederal agencies is sufficient to grant legal control
over such additional $ortions of the $roFect. These are cases 3here the environmental
conseLuences of the additional $ortions of the $roFects are essentiall2 $roducts of
!ederal financing, assistance, direction, regulation, or a$$roval (not including funding
assistance solel2 in the form of general revenue sharing funds, 3ith no !ederal agenc2
control over the su6seLuent use of such funds, and not including Fudicial or
administrative civil or criminal enforcement actions/.S 1 . . . .S C . . . .S (B/ . . . . In an2 case,
once the sco$e of anal2sis has 6een defined, the =)9A anal2sis for that action should
include direct, indirect and cumulative im$acts on all !ederal interests 3ithin the
$urvie3 of the =)9A statute. The district engineer should, 3henever $ractica6le,
incor$orate 62 reference and rel2 u$on the revie3 of other !ederal and State agencies.S
BB C.!.D. U B%:, A$$. 1, U ('/ (6/ (?++@/.S The Cor$s regulations also $rovide certain
e.am$les of common $ermitting actions that ma2 im$licate the 4small handle4 issue. In
"ontrose 9ar73a2 Alternatives Coalition v. U.S. Arm2 Cor$s of )ngineers, @&:
!.Su$$.%d :,' (D. "d. %&&:/, the $laintiffs challenged the Cor$s8 failure to $re$are an
)IS for a locall2 $lanned and financed high3a2 $roFect, for 3hich a Cor$s $ermit 3as
needed to fill &.+@ acres of federal 3etlands. The Cor$s limited the sco$e of its
)nvironmental Assessment to the area of filling and the area of road3a2 immediatel2 on
either side of it. In doing so the Cor$s relied on one of the e.am$les in its regulations,
3hich $rovideKS !or those regulated activities that com$rise merel2 a lin7 in a
trans$ortation or utilit2 transmission $roFect, the sco$e of anal2sis should address the
!ederal action, i.e., the s$ecific activit2 reLuiring a DA $ermit and an2 other $ortion of
the $roFect that is 3ithin the control or res$onsi6ilit2 of the Cor$s of )ngineers (or other
!ederal agencies/.S !or e.am$le, a :&5mile electrical transmission ca6le crossing a ? ?0@
mile 3ide river that is a naviga6le 3ater of the United States reLuires a DA $ermit.
=either the origin and destination of the ca6le nor its route to and from the naviga6le
3ater, e.ce$t as the route a$$lies to the location and configuration of the crossing, are
3ithin the control or res$onsi6ilit2 of the Cor$s of )ngineers. Those matters 3ould not
6e included in the sco$e of anal2sis 3hich, in this case, 3ould address the im$acts of the
s$ecific ca6le crossing.S B%: C.!.D. U B%:, A$$. 1, U '(6/(B/. The court held that the Cor$s8
regulations 3ere entitled to deference, and found that the case at issue resem6led the
e.am$le Luoted. Cn the $laintiffs8 motion for $reliminar2 inFunction, the court held that
the Cor$s8 regulations 4e.$ressl2 contem$late the a$$ro$riate sco$e of the Cor$s8
environmental revie3 for this t2$e of construction and state that $roFects such as GthisI
are not federaliEed.4 @&: !.Su$$.%d at :++. Thus, it held that the $laintiffs 3ere unli7el2
to succeed on the merits of the action and denied the motion.S Judicial reliance on the
Cor$s8 regulations has also had the contrar2 resultK nullification of the Cor$s8
determination of the a$$ro$riate sco$e of anal2sis 3here it does not com$ort 3ith the
regulations. Chio Valle2 )nvironmental Coalition v. United States Arm2 Cor$s of
)ngineers (4Chio Valle2 )nvironmental Coalition4/, @'+ !.Su$$.%d >&' (S.D. J. Va.
%&&'/, involved a mountainto$ removal coal mining o$eration for 3hich Cor$s a$$roval
3as needed to fill streams in the adFacent valle2s 3ith mining over6urden. The Cor$s
limited the sco$e of its =)9A anal2sis to effects on the Furisdictional 3aters. The court
held that 3hile the actual mining $ortion of the $roFect 3as $ro$erl2 e.cluded from the
anal2sis, the Cor$s im$ro$erl2 failed to e.amine effects on the 3ooded valle2s that 3ere
6eing filled along 3ith the streams. The Court 6ased its holding on one of the e.am$les
$rovided in the Cor$s regulations, 3hich $rovidesK 4GiIf an a$$licant see7s a DA $ermit
to fill 3aters or 3etlands on 3hich other construction or 3or7 is $ro$osed, the control
and res$onsi6ilit2 of the Cor$s, as 3ell as its overall !ederal involvement 3ould e.tend
to the $ortions of the $roFect to 6e located on the $ermitted fill.4 BB C!D U B%:, A$$. 1 U
'(6/(B/.S Similarl2, in 1a27ee$er v. U.S. Arm2 Cor$s of )ngineers, %&&> J( %'??:@'
().D. Cal. Se$t. %&, %&&>/, the court invo7ed another e.am$le from the Cor$s8
regulations in holding that the agenc28s =)9A anal2sis for a dredging $roFect 3as
ina$$ro$riatel2 circumscri6ed. In that case, the 9ort of Stoc7ton sought a Section ?&
$ermit to dredge the 6erthing areas for t3o doc7s, 3hich the Cor$s characteriEed as a
4demonstration $roFect4 to hel$ gauge the $otential ecological im$acts of dredging
several other 6erthing areas, for the ultimate $ur$ose of greatl2 e.$anding the 9ort8s
o$erations. In its =)9A assessment, the Cor$s onl2 e.amined the effects of this initial
$hase of dredging. The court granted a $reliminar2 inFunction enFoining the dredging on
the 6asis that the $laintiffs had sho3n a li7elihood of success on the merits of their claim
that the Cor$s should have assessed the im$acts of the entire $ort e.$ansion $roFect.S
Cne critical 6asis for the court8s decision 3as another e.am$le in the Cor$s8 regulations,
$rovidingKS GAI shi$$ing terminal normall2 reLuires dredging, 3harves, 6ul7heads,
6erthing areas and dis$osal of dredged material in order to function. 9ermits for such
activities are normall2 considered sufficient !ederal control and res$onsi6ilit2 to 3arrant
e.tending the sco$e of anal2sis to include the u$land $ortions of the facilit2.S BB C.!.D. U
B%:, A$$. 1 U '(6/(B/. The court additionall2 noted that )9A and the =ational "arine
!isheries Service, in commenting on the a$$lication, had reLuested that the Cor$s loo7
at the entire $roFect in one integrated anal2sis and that the Cor$s8 o3n statements
reflected the fact that the initial round of dredging 3as for the $ur$ose of ena6ling the
larger $roFect (thus refuting the Cor$s8 4$ost5hoc4 assertion that the dredging activities
had an inde$endent utilit2/.S The Chio Valle2 )nvironmental Coalition court
distinguished, on the 6asis of the magnitude of the fill involved, a case in 3hich the court
refused to hold the Cor$s to the 4construction over filled areas4 e.am$le, Sierra Clu6 v.
U.S. Arm2 Cor$s of )ngineers, @:& !.Su$$.%d :&B (D.=.J. %&&>/. That case involved a
large commercial develo$ment 3hich 3ould reLuire filling of a total of '.>+ acres of
dis$ersed 3etlands (,W of the total $roFect area/. The Cor$s limited its =)9A anal2sis to
im$acts on the 3etlands from the filling, and did not anal2Ee the effects of the overall
$roFect or even those $ortions of the $roFect that 3ould 6e constructed on filled areas.
The court u$held the Cor$s8 !C=SI against the $laintiff8s argument that the Cor$s
regulations themselves reLuired such an anal2sis, holdingKS Contrar2 to the Arm2 Cor$s8s
inter$retation and a$$lication of its o3n regulations, under 9laintiffs8 inter$retation a
$rovision that is $lainl2 set forth merel2 as an 4e.am$le4 3ould control the outcome in
effectivel2 all cases 3here a $ermit a$$licant $ro$oses to conduct activities reLuiring a
$ermit as a com$onent of a larger $roFect. Such an inter$retation is contrar2 to the $lain
language of the regulations G3hichI reLuire 4careful anal2sis of all facts and
circumstances surrounding the relationshi$.4S Id., @:& !.Su$$.%d at :?,. Jhile not
rel2ing on it as a factor in its decision, the court did note the fact that the $roFect had
alread2 6een su6Fect to an e.tensive state )IS.S 5 The C)V regulations afford onl2 limited
guidance for determining the a$$ro$riate sco$e of anal2sis. The2 define 4maFor !ederal
action4 to includeKS actions 3ith effects that ma2 6e maFor and 3hich are $otentiall2
su6Fect to !ederal control and res$onsi6ilit2. "aFor reinforces 6ut does not have a
meaning inde$endent of significantl2 (U ?:&,.%'/. Actions include the circumstance
3here the res$onsi6le officials fail to act and that failure to act is revie3a6le 62 courts or
administrative tri6unals under the Administrative 9rocedure Act or other a$$lica6le la3
as agenc2 action.S (a/ Actions include ne3 and continuing activities, including $roFects
and $rograms entirel2 or $artl2 financed, assisted, conducted, regulated, or a$$roved 62
federal agenciesA ne3 or revised agenc2 rules, regulations, $lans, $olicies, or $roceduresA
and legislative $ro$osals (UU ?:&>.,, ?:&,.?'/. Actions do not include funding assistance
solel2 in the form of general revenue sharing funds, distri6uted under the State and
(ocal !iscal Assistance Act of ?+'%, B? U.S.C. ?%%? et seL., 3ith no !ederal agenc2 control
over the su6seLuent use of such funds.S @& C.!.D. U ?:&,.?, (?++@/. This definition has
6een found to 6e entitled to su6stantial deference. Save 1arton Cree7 Ass8n v. !ederal
<igh3a2 Admin., +:& !.%d ??%+, ??B@ (:th Cir. ?++%/.S IV. Judicial A$$lication Cf Sco$e
of Anal2sis !actorsS 5 4Deasona6l2 close causal relationshi$4S 5 Cnl2 environmental
effects that have a 4reasona6l2 close causal relationshi$4, a7in to $ro.imate cause in tort
la3, 3ith the federal agenc28s determination need 6e considered in determining 3hether
an )IS is needed. Those effects 3hich the federal agenc2 has no $o3er to $revent are not
4effects4 of the federal action that 3ould enter this anal2sis. De$artment of
Trans$ortation v. 9u6lic CitiEen (49u6lic CitiEen4/, :@? U.S. ':%, ?%@ S.Ct. %%&@ (%&&@/.S
5 4)na6lement4 or (egal Control v. Veto or !actual ControlS 5 )na6lement or legal control
occurs 3hen the federal action is a legal $recedent to accom$lishing the nonfederal
$roFect. (andmar7 JestR v. United States 9ostal Service (4(andmar7 JestR4/, ,@& !.
Su$$. ++@ (S.D.=.M. ?++B/, aff8d, @? !.Bd ?:&& (%d Cir. ?++@/A oos v. Interstate
Commerce Commission, +?? !.%d ?%,B, ?%+@ (,th Cir. ?++&/A =atural Desource Defense
Council, Inc. v. U.S. )nvironmental 9rotection Agenc2, ,%% !.%d ?&@ (D. D.C. ?+,'/. See
also Dingsred v. Duluth, ,%, !.%d ?B&: (,th Cir. ?+,'/ (no federal action 3as a legal
condition $recedent to construction of $ar7ing ram$ ne.t to Indian 6ingo facilit2/.S 5 In
cases involving issuance of a $ermit 62 the Cor$s $ursuant to Section ?& of the Divers
and <ar6ors Act, BB U.S.C. U @&B, n? the issuance of the $ermit cannot 6e construed to
$rovide legal control over the entire $roFect. Save Cur Jetlands, Inc. v. Sands, '?? !.%d
>B@, >@@ n.+ (:th Cir. ?+,B/.S 5 The same anal2sis a$$lies to cases involving issuance of a
Cor$s $ermit $ursuant to Section @&@ of the Clean Jater Act, BB U.S.C. U ?B@@. "acht v.
S7inner, +?> !.%d ?B (D.C. Cir. ?++&/ (3here state light rail $roFect reLuired Section @&@
$ermit to cross 3etlands, Cor$s8 a6ilit2 to $revent the $ro$osed route insufficient to
federaliEe $roFect, even cou$led 3ith additional federal funding for $reliminar2
engineering studies and state )IS8s/.S 5 To determine 3hether the federal agenc2 has veto
or factual control over the nonfederal $roFect, the Fudiciar2 has identified four some3hat
overla$$ing factorsKS 5 the degree of discretion e.ercised 62 the agenc2 over the
nonfederal $ortion of the $roFect, Save 1arton Cree7 Assoc. v. !ederal <igh3a2 Admin.,
+:& !.%d ??%+, ??B@ (:th Cir. ?++%/AS 5 3hether the federal government has given an2
direct financial aid to the nonfederal $roFect, Save 1arton Cree7 Assoc. v. !ederal
<igh3a2 Admin., +:& !.%d ??%+, ??B: (:th Cir. ?++%/AS 5 3here federal funding of a non5
federal $roFect is 4active,4 or 4$rogrammatic,4 and $rovided in furtherance of a funding
agenc28s goals, it is more li7el2 to 6e accom$anied 62 indicia of control sufficient to
federaliEe, the $roFect. (andmar7 JestR (4(andmar7 Jest4/, ,@& !. Su$$. ++@, ?&&'
(S.D.=.M. ?++B/, aff8d, @? !.Bd ?:&& (%d Cir. ?++@/A San !rancisco Tomorro3 v. Domne2,
@'% !.%d ?&%?, ?&%% (+th Cir. ?+'B/ (<UD ur6an rene3al loans and grants/A =amed
Individual "em6ers of San Antonio Conservation Societ2 v. Te.as <igh3a2 De$8t, @@>
!.%d ?&?B, ?&%@5%: (:th Cir. ?+'?/, cert. denied, @&> U.S. +BB (?+'%/ (federal funding of
over half the cost of a state high3a2 $roFect/.S 5 The mere $ossi6ilit2 of future federal
financial assistance does not enhance a funding agenc28s degree of control over the non5
federal $roFect for 3hich it is $roviding funds. Save 1arton Cree7 Ass8n v. !ederal
<igh3a2 Administration, +:& !.%d ??%+, ??B: (:th Cir. ?++%/, cert. denied, :&: U.S. ?%%&
(?++%/A Chic7 v. <ills, :%, !.%d @@:, @@, (?st Cir. ?+'>/ (<UD not reLuired to evaluate
future $hases of $roFect 3here there 3as no evidence it 3ould $artici$ate further in the
develo$ment/A Touret v. =ational Aeronautics and S$ace Administration (4Touret4/, @,:
!.Su$$.%d B, (D.D.I. %&&'/ (even in com6ination 3ith federal funding of ??W of the costs
of construction of la6orator2 6uilding, $otential to attract federal research grants did not
federaliEe the $roFect/. This has 6een held to 6e the case even 3here the $roFect has 6een
designed, under the advice of a federal agenc2, to $reserve the o$tion of federal funding.
Village of (incolnshire v. Illinois De$artment of Trans$ortation, %&&% J( %'>?%' (=.D.
Ill. !e6. %', %&&%/. Cf. "ar2land Conservation Council, Inc. v. ilchrist (4ilchrist4/, ,&,
!.%d ?&B+ (@th Cir. ?+,>/ ($ossi6ilit2 of federal funding for high3a2 $roFect one element
leading court to hold that $roFect 3as federal action/.S 5 An additional indicia of the
e.tent of federal involvement is the $ro$ortion of federal funding to the overall cost of
the $roFect. Na "a7ani 8C7ohala Chana Inc. v. Jater Su$$l2, %+: !.Bd +::, +>& (+th Cir.
%&&%/A see Touret, su$ra. chuaS 5 3hether the overall federal involvement 3ith the
$roFect is sufficient to turn an essentiall2 nonfederal action into a federal action.
(andmar7 JestR, ,@& !. Su$$. ++@ (S.D.=.M. ?++B/, aff8d, @? !.Bd ?:&& (%d Cir. ?++@/A
oos v. Interstate Commerce Commission, +?? !.%d ?%,B, ?%+> (,th Cir. ?++&/A Dingsred
v. Duluth, ,%, !.%d ?B&: (,th Cir. ?+,'/A Jinne6ago Tri6e of =e6ras7a v. Da2, >%? !.%d
%>+, %'% (,th Cir. ?+,&/A see @& C.!.D. U ?:&&.>(c/ (C)V guidance indicates that a
nonfederal $roFect does not 6ecome a maFor federal action merel2 6ecause there is some
incidental federal involvement (:% !ed. Deg. %%:?' (June ?%, ?+,'//.S 5 3hether the larger
non5federal $roFect 3ill go for3ard even if the federal action does not occur. Sugarloaf
CitiEens Ass8n v. !)DC, +:+ !.%d :&, (@th Cir. ?++%/ (no federal 4control4 3here the state
authorit2 could have 4la3full2 disregarded4 certain !)DC criteria and constructed its
facilit2, al6eit 3ithout o6taining certain !)DC 6enefits/A S2lvester v. United States Arm2
Cor$s of )ngineers, ,,@ !.%d B+@, @&&5@&? (+th Cir. ?+,+/ (although resort com$le.
could not have 6een 6uilt as $lanned 3ithout federal 3etlands $ermit for its golf course,
6ecause the resort could have gone for3ard 3ithout a golf course, need for the $ermit
$rovided insufficient control to federaliEe the entire com$le./A Save the 1a2, Inc. v.
United States Arm2 Cor$s of )ngineers, >?& !.%d B%% (:th Cir./, cert. denied, @@+ U.S.
+&&, ?&? S. Ct. %>+ (?+,&/ (3here alternative method of effluent discharge availa6le
3hich did not reLuire Cor$s $ermit, the entire $lant did not reLuire federal environment
revie3/A 9roetta v. Dent, @,@ !.%d ??@>, ??@, (%d Cir. ?+'B/ ($roFect not federaliEed
3here alternative non5federal funding availa6le/A Touret v. =ational Aeronautics and
S$ace Administration, @,: !.Su$$.%d B, (D.D.I. %&&'/ (ne3 research 6uilding 3as not a
federal $roFect des$ite federal funding used for its construction 3here universit2 had
$lanned to construct 6uilding 6efore a$$l2ing for federal funds/.
Federal funding doesn4t change o&nership that4s the .ey variable !
!ircuit legal opinion agrees
'aget " ; JD, long and 3idel2 recogniEed as one of this countr28s leading $ractitioners
of environmental la3 and litigation
(David, A(I5A1A CCUDS) C! STUDM "AT)DIA(S )nvironmental Im$act AssessmentK
=)9A and Delated DeLuirements Cos$onsored 62 the )nvironmental (a3 Institute,
(e.is/0011
5 =onfederal 9roFects )ligi6le !or !ederal Assistance
5 CitiEens Alert Degarding the )nvironment, ?&% !ed.A$$.. ?>', %&&@ J( ?BB>>@@ (D.C.
Cir. June ?:, %&&@/. The $laintiffs sought an inFunction to $rohi6it the construction of a
se3er $i$eline 62 the Jefferson To3nshi$ Se3er Authorit2 until after )9A com$leted its
revie3 of the $roFect $ursuant to =)9A. The federal action in Luestion 3as a $ro$osed X
?.: million grant from )9A. "ost funding for the X ?: million $roFect had come from the
State of 9enns2lvania, 3hich in turn had received a grant through a state5administered
revolving fund $rogram funded 62 )9A.
At the time of the suit, )9A8s direct grant had not 2et 6een issued $ending revie3 of the
$roFect under =)9A. The Authorit2 decided to 6egin construction, using the state
revolving fund grant. 9laintiffs sought an inFunction 6arring an2 construction until )9A
com$leted its =)9A revie3.
The D.C. Circuit held that )9A8s $artici$ation 3as not su6stantial enough to federaliEe
the entire $roFect. !irst, 3ith res$ect to the state revolving fund, 5'1 lac.ed
substantial control over the distri6ution of funds 62 the state. The $laintiffs
challenged )9A8s a$$roval of 9enns2lvania8s $rogram for dis6ursing the funds, 6ut this
challenge 3as time56arred under the si.52ear statute of limitations for actions against
the United States, as the a$$roval had occurred in ?++?.
The court 3ent on to hold that the direct grant 62 )9A 3as also insufficient to
federali:e the project# 6ecause the 3ithholding of the grant 3ould $resent no legal
im$ediment to the se3er $i$eline, 3hich 3as under the discretionar2 Furisdiction of state
and local agencies. =or 3ould the denial of the funding $revent construction of the se3er
line as a $ractical matter, as it re$resented onl2 a small fraction of the overall cost of the
$roFect.
+he prospect of future funding is not control
'aget " ; JD, long and 3idel2 recogniEed as one of this countr28s leading $ractitioners
of environmental la3 and litigation
(David, A(I5A1A CCUDS) C! STUDM "AT)DIA(S )nvironmental Im$act AssessmentK
=)9A and Delated DeLuirements Cos$onsored 62 the )nvironmental (a3 Institute,
(e.is/0011
The $o3er to influence the outcome of a la3suit 62 advocac2 and negotiation is not
s2non2mous 3ith a federal agenc28s authorit2 to e.ercise control over a nonfederal
$roFect that reLuires federal a$$roval as a legal $recondition to im$lementationY The
rendering of advice and technical consultation to aid in the defense of the Settlement
Agreement in legal $roceedings does not significantl2 affect the environment and does
not federaliEe the State activities. The $ossi6ilit2 that federal funding 3ill 6e $rovided in
the future is not sufficient to federali:e a state project, even 3hen such funding is
li7el2.
$aintaining private o&nership means the !' severs (its) even if it
receives federal cash
Steel "; 5 Senior District Judge
(United States District Court for the District of Dela3are, Jilmington <ousing
Authorit2 v. Doc72 "arciano Constr. Co.,- @&' !. Su$$. %%,/
It is true that the <ousing Act of ?+@+, as amended, Title @% U.S.C. U ?@?>, e.$ands the
coverage of the 1acon5Davis Act to 4contracts in connection 3ith the develo$ment or
administration of !ederal $roFects and the furnishing of materials and la6or for such
$roFects4 (em$hasis 62 the Court/. @% U.S.C. U ?@&%('/ defines a 4federal $roFect4 as 4an2
$roFect o3ned or administered 62 the Authorit24, and the 4Authorit24 is defined to mean
4the United States <ousing Authorit24, @% U.S.C. U ?@&%(?B/, no3 7no3n as the 9u6lic
<ousing Authorit2 (49<A4/. % The construction of the im$rovements on the $ro$erties
7no3n as )astla7e and South6ridge in Jilmington 3ere federall2 assisted contracts
under the United States <ousing Act of ?+B'. <o3ever, the $roFect 3as not 8o&ned or
administered4 62 the United States <ousing Authorit2 and hence not a 4federal $roFect4
to 3hich @% U.S.C. U ?@?> (e.$anding the coverage of the 1acon5Davis Act/ a$$lied.S The
claimants concede that the $roFect is not o3ned 62 the 9<A. The2 maintain, ho3ever,
that the $roFect is administered 62 the 9<A. This argument that the $roFect is
administered 62 the 9<A finds four5sLuare refutation in the fact that the 9<A rendered
financial assistance to the J<A. This 3as authoriEed 62 the 9u6lic <ousing Act onl2 if
the $roFect 3as to 6e administered 62 the J<A. @% U.S.C. U ?@&%(??/ $rovidesKS 4The
Authorit2 shall enter into contracts for financial assistance 3ith a State or State agenc2
3here such State or State agenc2 ma7es a$$lication for such assistance for an eligi6le
$roFect 3hich, under the a$$lica6le la3s of the State, is to 6e develo$ed and
administered 62 such State or State agenc2.4S Since federall25assisted housing $roFects
must 6e $roFects 4administered4 62 state and local housing authorities such as J<A,
these $roFects are not 4federal $roFects4 3ithin the meaning of the <ousing Act. Several
courts have faced this same Luestion although in a different conte.t and have held that
locall2 o3ned and o$erated housing $roFects are not 4federal $roFects.4 B
1+9 1ssociation = its
1ssociation is not control
'aget " ; JD, long and 3idel2 recogniEed as one of this countr28s leading $ractitioners
of environmental la3 and litigation
(David, A(I5A1A CCUDS) C! STUDM "AT)DIA(S )nvironmental Im$act AssessmentK
=)9A and Delated DeLuirements Cos$onsored 62 the )nvironmental (a3 Institute,
(e.is/0011
The =inth Circuit also held that the advisor2 role of the federal agencies did not rise to
the level of 4discretionar2 involvement or control over4 the entire $roFect, as 4the final
decision5ma7ing $o3er remained at all times 3ith DJS Gde$artment of 3ater su$$l2I.4
%+: !.Bd at +>?.
1+9 <icensing=permitting = its
<icensing of private development is distinct from federal development
>ender 6/ ; o$erating division of the (e.is=e.is rou$, $u6lishes anal2tic legal
research information authored 62 e.$erts in the legal communit2
("atthe3 # co., Jater and Jater Dights, @5B+ Jaters and Jater Dights U B+.&%, U
B+.&%. S$ecial 9ro6lems in 9roFect 9lanning, Construction and C$eration,- (e.is/
Section @'&f to date has had its greatest im$act on federal licensing of private
development,%% and additional federal statutes have 6een enacted to increase the
control of federal agencies over $rivate use of archaeological resources.%B Jith regard to
federal develo$ment of its o3n $roFects, additional $rotection for historic and
archaeological interests ma2 6e afforded under =)9A%@ or s$ecific authoriEation
statutes, and in ?+,> the Secretar2 of the Arm2 3as generall2 authoriEed to $reserve,
restore and maintain- historic $ro$erties located 3ithin 3ater $roFect 6oundaries that
are in the =ational Degister of <istoric 9laces.%:
'ermitting doesn4t mean it4s federal
1ulic. ? ; JD O Jidener Universit2 School of (a3, Cor$orate Counsel, riffin
Industries ((C
(1radle2, A(I5A1A CCUDS) C! STUDM "AT)DIA(S, Jetlands (a3 and Degulation,-
Cos$onsored 62 the A1A Section of )nvironment, )nerg2, and Desources and the
)nvironmental (a3 Institute, (e.is/
See Colorado Diver Indian Tri6es v. "arsh, >&: !. Su$$. ?@%: (C.D. Cal. ?+,:/A Sierra
Clu6 v. "arsh, '>+ !.%d ,>, (?st Cir. ?+,:/. These cases 3ere cited 62 the )9A as
su$$ort for its o6Fections to the Cor$s8 $ro$osed sco$e of anal2sis regulations in ?+,@. In
the former case, a develo$er $lanning a ?:>5acre residential and commercial
develo$ment a$$lied for a Cor$s $ermit to sta6iliEe an adFacent river 6an7, 3hich 3as
necessar2 for the develo$ment to $roceed. The court there reLuired the $rivate
develo$ment to 6e evaluated in the =)9A document as a li7el2 occurrence resulting from
the issuance of a $ermit. See, generall2, >&: !. Su$$. at ?@%,5?@B@. The latter involved
the $ro$osed construction of a cause3a2 from the mainland to an island, and reLuired
the =)9A anal2sis to include among the effects of $ermit issuance the industrial
develo$ment on the island that 3ould 6e stimulated 62 construction of the cause3a2.
'>+ !.%d at ,''5',. As noted 62 the Cor$s in its res$onse to )9A8s o6FectionsK
These cases did not hold the Cor$s $ermits 4federaliEed4 the unregulated $rivate
develo$ment so as to render the $rivate action !ederal actions for =)9A $ur$oses.
Dather, among the numerous legal $ro6lems found 62 each court, the cases reLuired the
Cor$s to consider the $rivate develo$ment li7el2 to occur as a result of the issuance of
the Cor$s $ermit. Such anal2sis is $art of an acce$ted =)9A reLuirement to consider the
environmental effects of !ederal action . . . .
Vuoted in Colorado Diver Indian Tri6es, >&: !. Su$$. at ?@%,5B@A see also (andmar7
JestR v. U.S. 9ostal Service, ,@& !. Su$$. ++@, ?&?& (S.D.=.M. ?++B/ (s72scra$er not
indirect effect of 9ostal Service $artici$ation in $roFect 3here 6uilding 3ould 6e 6uilt
regardless of 9ostal Service decision/A =atural Desources Defense Council v. )9A, ,%%
!.%d ?&@, ?%? n.%' (D.C. Cir. ?+,'/ (im$acts of siting of $rivate facilit2 are not 4effects4 of
)9A issuance of =9D)S $ermit/.
Cf. reater Mello3stone Coalition v. !lo3ers, B:+ !.Bd ?%:', ?%'% n.?: (?&th Cir. %&&@/K
The a$$eals court o6served that the distinction made in the =)9A0@&@ sco$e of anal2sis
6et3een the im$acts of $ermitted discharges and those of inde$endent u$land
develo$ments (as set forth in Jetlands Action =et3or7 and S2lvester/ does not $ro$erl2
a$$l2 to the alternatives anal2sis under Section @&@. In this case, the court o6served that,
although $ortions of the su6Fect residential and golf develo$ment located on u$lands
3ere argua6l2 inde$endent of the $ortions for 3hich a Section @&@ $ermit 3as reLuired,
the Cor$s8 @&@(6/(?/ anal2sis $ro$erl2 too7 into account the im$act of the develo$ment
as a 3hole on 6ald eagle nesting and foraging ha6itat, including u$land areas, 6ecause
that ha6itat is $art of the overall 4aLuatic ecos2stem,4 3hich must 6e considered under
the @&@(6/(?/ uidelines.
1+9 1pproval = its
1pproval doesn4t ma.e it federal private industry retains control
United States District Court for the Northern istrict of !alifornia 7
(C$inion 62 Jilliam Alsu$, District Judge, Save Stra36err2 Can2on v. DC),- >?B !.
Su$$. %d ??''/
There are no clear standards for defining the $oint at 3hich federal $artici$ation
transforms a state or local $roFect into a maFor federal action for $ur$oses of @% U.S.C.S.
U @BB%(%/(C/ of the =ational )nvironmental 9olic2 Act (=)9A/, @% U.S.C.S. U @B%? et
seL. The matter is sim$l2 one of degree. "arginal federal action 3ill not render
other3ise local action federal. To ma7e this determination, courts loo7 to the nature of
the federal funds used and the e.tent of federal involvement. Jhile significant federal
funding can turn 3hat 3ould other3ise 6e a state or local $roFect into a maFor federal
action, consideration must 6e given to a great dis$arit2 in the e.$enditures forecast for
the state and count2 and federal $ortions of the entire $rogram. "oreover, a local $lan
does not 6ecome a maFor federal action su6Fect to the =)9A regulations merel2 u$on its
a$$roval 62 a federal agenc2. The United States must maintain decision5ma7ing
authorit2 over the local $lan in order for it to 6ecome a maFor federal action. This is
6ecause the $ur$ose of the =)9A is to 6ring environmental considerations to the
attention of federal decision5ma7ers. This $re5su$$oses that the federal agenc2 has
Fudgment to e.ercise. In sum, courts loo7 to the degree of federal funding and to indicia
of federal involvement and control.
1+9 Insurance = its
Federal insurance is private development
>ender 6/ ; o$erating division of the (e.is=e.is rou$, $u6lishes anal2tic legal
research information authored 62 e.$erts in the legal communit2
("atthe3 # co., >5>& Jarren8s Jeed =e3 Mor7 Deal 9ro$ert2 U >&.&B,- (e.is/
To3ard these ends, the ?+B@ Act authoriEed the government to $rovide mortgage
insurance for housing. 12 insuring short5term loans for renovation and ne3
construction, the federal government acted as guarantor of private development.?&
Jith federal guarantees, $rivate lending institutions could e.$end funds for
develo$ment in a relativel2 ris75free 3a2.
Created in ?+B:, the !ederal <ousing Administration (!<A-/ esta6lished an
institutionaliEed frame3or7 through 3hich the government could $rovide insurance for
$rivate develo$ment. In ?+B:, the level of 6usiness transactions 62 the !<A reached
X:@& million.?? 12 ?+B,, an active $rivate secondar2 mar7et in !<A5insured mortgages
had 6een esta6lished 3here62 more than XB'+ million in mortgages 3ere sold.?%
"ortgage com$anies emerged as the most active sellers, and insurance com$anies the
largest $urchasers, of government56ac7ed mortgages.?B In ?+'B, a stud2 of the !<A from
the $eriod ?+B@ to ?+>+ concluded that it 3as an integrated, autonomous, 6usiness5t2$e
federal government agenc2 functioning as a credit insurance com$an2 in the private
mar.et.?@
1+9 +a, incentives = its
+a, incentives encourage private development
5yler 6% ;Judge O Court of S$ecial A$$eals of "ar2land
(De6orah, )dge3ood "gmt. Cor$. v. Jac7son,- %?% "d. A$$. ?'', (e.is/
In %&&', Triton 6egan the $rocess of transitioning lenvie3 from a Section %B> $ro$ert2
to a (o3 Income <ousing Ta. Credit (4(I<TC4/ $ro$ert2. (I<TC is a federal ta.5
incentive $rogram designed to encourage private development of lo3 income
$ro$erties. See Carter v. "ar2land "gmt. Co., B'' "d. :+>, >&B, ,B: A.%d ?:, (%&&B/.
Under this $rogram, a $ro$ert2 o3ner 3ill receive a ta. credit if a certain minimum
num6er of residential units in the $ro$ert2 are rent5restricted and occu$ied 62 $eo$le
3hose incomes do not e.ceed 4si.t2 $ercent of the area median income,4 as determined
62 <UD. The $ro$ert2 o3ner then can sell the ta. credit to investors to raise ca$ital for
im$rovements to the $ro$ert2.
1+9 Federal lands = its
Use of federal lands is private development
!raig 6% ; Jilliam <. (ear2 9rofessor of (a3, Universit2 of Utah S.J. Vuinne2 College
of (a3
(Do6ert, !rom the B:th 9u6lic (and (a3 ConferenceK 1alancing Act and 9aradigm ShiftK
The Dole of 9u6lic (ands in America8s )nerg2 !utureK CceansK Treating Cffshore
Su6merged (ands as 9u6lic (andsK A <istorical 9ers$ective,- B@ 9u6. (and # Desources
(. Dev. :?, (e.is/
=evertheless, in the conte.t of natural resource 5 and es$eciall2 energ2 5 develo$ment,
Congress vie3s the CCS as federal $u6lic lands on 3hich private mineral
development is to 6e encouraged. Jhile oil s$ills and environmental concerns have
tem$ered the offshore oil rush since ?+:B, Congress has never fundamentall2 changed
the idea em6edded in the CCS(A that the federal government holds the CCS $rimaril2
for dis$osal to $rivate develo$ment of $etroleum, natural gas, and other minerals. As
such, the CCS com$rises federal lands for 3hich, at least until reservation or 3ithdra3al,
the United States can dis$ose of $rivate $ro$ert2 interests, rendering the CCS
meaningfull2 indistinguisha6le from an2 other federal $u6lic lands.
1FF Its
+a, credit = its
1 ta, credit ma.es it federal
*alsh 6% ; (a3 Cler7 for the Su$erior Court of Connecticut, %&?%5%&?B termA ((" in
Ta.ation Candidate, =e3 Mor7 Universit2 School of (a3, %&?B5%&?@A J.D., Suffol7
Universit2 (a3 School
(Nevin, Dene3a6le )nerg2 !inancial IncentivesK !ocusing on !ederal Ta. Credits and
the Section ?>&B Cash rantK 1arriers to Develo$ment,- Universit2 of California, Davis,
B>.%/0011
Something that is federal encom$asses not onl2 actions 62 the federal S government, 6ut
also actions 62 nonfederal actors Z3ith effects that ma2 6e S maFor and 3hich are
$otentiall2 su6Fect to !ederal control and S res$onsi6ilit2.[-?&+ !urther, the
distinguishing feature of Zfederal[ involvement S is the a6ilit2 to influence or control the
outcome in material res$ects.-??& S Dene3a6le energ2 develo$ments that ta.e federal
ta, credits0grants a$$ear to S @ualify as (federal) $roFects. Jithout the federal ta.
credit0grant, rene3a6le S energ2 $roFects 3ould not 6e financiall2 attractive for investors.
This 3ould lead S to a lac7 of sufficient funding for rene3a6le energ2 construction.
Therefore, the S federal government affects the outcome of rene3a6le energ2
develo$ment S through the availa6ilit2 of ta. credits0grants. <ence, 3hen the federal S
government $rovides a ta. credit0grant for a rene3a6le energ2 $roFect, the S $roFect
Lualifies as a federal- $roFect.
Federal land = its
'ermitting means it4s federal
*alsh 6% ; (a3 Cler7 for the Su$erior Court of Connecticut, %&?%5%&?B termA ((" in
Ta.ation Candidate, =e3 Mor7 Universit2 School of (a3, %&?B5%&?@A J.D., Suffol7
Universit2 (a3 School
(Nevin, Dene3a6le )nerg2 !inancial IncentivesK !ocusing on !ederal Ta. Credits and
the Section ?>&B Cash rantK 1arriers to Develo$ment,- Universit2 of California, Davis,
B>.%/0011
Usuall2, federal $ermits are needed to construct a rene3a6le energ2 S $roFect.??% These
federal $ermits are almost al3a2s reLuired for large5scale S rene3a6le energ2 $roFects.??B
9ursuant to the !ederal (and 9olic2 and S "anagement Act of ?+'>, Title I, $u6lic lands
are su6Fect to federal control.??@ S Under Title II of the same Act, the Secretar2 can issue
regulations necessar2 to S im$lement the $rovisions of this Act 3ith res$ect to the
management, use, and S $rotection of the $u6lic lands.-??: +hus# rene&able projects
on federal land are A (federal0)
'ermitting = its
'ermitting ma.es projects federal legal definitions concur
!allo&ay 7" 5 adFunct $rofessor of )nvironmental (a3 at the Thomas ". Coole2 (a3
School
(Cher2l, The 4<uman )nvironment4 DeLuirements of the =ational )nvironmental
9olic2 ActK Im$lications for )nvironmental Justice,- ?++' Det. C.(. Dev. ??@'/0011
Cther activities 3hich courts have deemed 4maFor federal action4 include the grant of a
license to construct a high voltage line, B@ the issuance of an interim o$erating license
for a nuclear $o3er $lant, B: and the authoriEation for the a6andonment of a railroad
line. B> )ven 3hen the $roFect is constructed 3ith non5federal funds, federal
government action ma2 rise to the level of a 4maFor action4 if it ma7es $ossi6le
significant effects on the human environment. B' In Cit2 of Atlanta v. United States, B,
the court held that the G??:'I !ederal Aviation Administration8s (!AA/ installation of
navigational eLui$ment and ado$tion of flight $rocedures constituted 4maFor federal
action,4 even though the air$ort run3a2 e.$ansion 3as not funded 62 the federal
government. B+ These ste$s ta7en 62 the !AA made $ossi6le increased air and noise
$ollution. @& 4GAI non5federal $roFect is considered a 8federal action8 if it cannot 6egin or
continue 3ithout $rior a$$roval 62 a federal agenc2 and the agenc2 $ossesses authorit2
to e.ercise discretion over the outcome.4
HHHStart footnote @?HHH
=e3 Jerse2 De$8t of )nvtl. 9rotection and )nerg2 v. (ong Island 9o3er Auth., B& !.Bd
@&B, @?, (Bd Cir. ?++@/.
HHH)nd footnote @?HHH
1+9 (federal action)
1ssistance and permitting meets (federal action)
>ullen 2 ; JD
((inda, S9)CIA( !)ATUD)K =)9A ?&?K I=TDCDUCTIC= TC T<) DI" JI(A(
)=VIDC=")=TA( 9C(ICM ACT,- ?> =evada (a32er >, (e.is/
The =)9A statute is divided into t3o $arts. Title I esta6lishes the $olic2 6ehind =)9A.
DecogniEing the $rofound im$act of man8s activit2 on the natural environment, Congress
declared 4that it is the continuing $olic2 of the !ederal overnment, in coo$eration 3ith
state and local governments and other concerned $u6lic and $rivate organiEations, to use
all $ractica6le means and measures, including financial and technical assistance, in a
manner calculated to foster and $romote the general 3elfare, to create and maintain
conditions under 3hich man and nature can e.ist in $roductive harmon2, and fulfill the
social, economic, and other reLuirements of $resent and future generations of
Americans.84
Consistent 3ith its overarching $olic2, =)9A ma7es three s$ecific demands. !irst, it
reLuires that the federal government conform to the follo3ing si. goalsK
?/ to fulfill the res$onsi6ilities of each generation as trustee of the environment for
succeeding generationsA
%/ to assure for all Americans safe, healthful, $roductive and aestheticall2 and culturall2
$leasing surroundingsA
B/ to attain the 3idest range of 6eneficial uses of the environment 3ithout degradation,
ris7 to health or safet2, or other undesira6le and unintended conseLuencesA
G'I @/ to $reserve im$ortant historic, cultural and natural as$ects of our national
heritage, and maintain, 3herever $ossi6le, an environment 3hich su$$orts diversit2 and
variet2 of individual choiceA
:/ to achieve a 6alance 6et3een $o$ulation and resource use that 3ill $ermit high
standards of living and a 3ide sharing of life8s amenitiesA and
>/ to enhance the Lualit2 of rene3a6le resources and a$$roach the ma.imum attaina6le
rec2cling of de$leta6le resources.8
Second, =)9A recogniEes that each $erson deserves to enFo2 a healthful environment
and reLuires that each $erson contri6ute to the $reservation and 6etterment of the
environment. @ Third, =)9A mandates that 4the $olicies, regulations, and $u6lic la3s of
the United States...6e inter$reted and administered in accordance 3ith the $olicies set
forth in this Act.48
The )nvironmental Im$act Statement ()IS/ is the as$ect of =)9A that is most 3ell5
7no3n to the $u6lic, and =)9A reLuires an )IS on all 4maFor !ederal actions
significantl2 affecting the Lualit2 of the human environment.8 )ach )IS must contain a
detailed statement on the environmental im$act of the $ro$osed action, an2 unavoida6le
adverse environmental effects, the relationshi$ 6et3een short5term uses and long5term
$roductivit2, and an2 irreversi6le and irretrieva6le commitment of resources associated
3ith im$lementation of the $ro$osed action.8 The term 4action4 includes not onl2 actions
carried out 62 federal agencies and federal agenc2 rulema7ing, 6ut also actions carried
out 62 state and local $rograms that receive federal assistance and $rivate develo$ment
authoriEed 62 federal $ermits.
1+9 'ermits aren4t Bfederal actions4
'ermits are only nontopical if they4re voluntary re@uirements are federal
actions
Scirica# 7/ US Circuit Judge (STAT) C! =)J J)DS)M, D)9ADT")=T C!
)=VIDC=")=TA( 9DCT)CTIC= A=D )=)DMA J)A==) ". !C*, in her official
ca$acit2 as Acting Commissioner of the De$artment of )nvironmental 9rotection and
)nerg2 v. (C= IS(A=D 9CJ)D AUT<CDITMA T<C"AS D) J)SU, in his official
ca$acit2 as ).ecutive Director of the (ong Island 9o3er Authorit2A U=IT)D STAT)S
=UC()AD D)U(ATCDM CC""ISSIC=A U.S. CCAST UADD, 3ithin the United
States De$artment of Trans$ortationA 9<I(AD)(9<IA )()CTDIC CC"9A=M, =e3
Jerse2 De$artment of )nvironmental 9rotection and )nerg2 and Jeanne ". !o.,
Commissioner of the =e3 Jerse2 De$artment of )nvironmental 9rotection and )nerg2,
in her official ca$acit2, A$$ellants =o. +B5:>?B U=IT)D STAT)S CCUDT C! A99)A(S
!CD T<) T<IDD CIDCUIT B& !.Bd @&BA ?++@ U.S. A$$. ()*IS ?':&%A %+ !ed. D. Serv.
Bd (Callaghan/ +>B Decem6er ?, ?++B, Argued Jul2 ?+, ?++@, !iled, le.is/00dh
!ederal a$$roval of a $rivate $art28s $roFect, 3here that a$$roval is not reLuired for the
$roFect to go for3ard, does not constitute a maFor federal action. %: In =AAC9, 3e
descri6ed three classes of agenc2 actions reLuiring environmental anal2sis under =)9AK
first, 3here the agenc2 GHH@BI itself undertoo7 a $roFectA second, 3here the agenc2
su$$orted a $roFect 62 contract, grant, loan, or other financial assistanceA and third,
3here the agenc2 ena6led the $roFect 62 lease, license, $ermit, or other entitlement for
use. %> =AAC9, :,@ !.%d at >B&. In =AAC9, the Secretar2 of the De$artment of <ealth,
)ducation, and Jelfare had a$$roved a hos$ital8s ca$ital e.$enditure $lan after
certification 62 local and state officials that the renovation and e.$ansion 3ere
necessar2. Jithout this a$$roval, the Secretar2 might have 3ithheld a $ortion of federal
$a2ments for $atient charges under "edicare, "edicaid, and other health $rograms. The
$laintiffs claimed the Secretar2 should have filed an environmental im$act statement
6efore issuing his a$$roval. Id. at >%@.
5 5 5 5 5 5 5 5 5 5 5 5 5 5 !ootnotes 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5
%: <=%?o to this <eadnote in the case.
The C)V lists categories into 3hich federal actions 4tend to fall,4 and among these is
4a$$roval of s$ecific $roFects . . . . 9roFects include actions a$$roved 62 $ermit or other
regulator2 decision as 3ell as federal and federall2 assisted activities.4 @& C.!.D. U
?:&,.?,(6/(@/. It does not, ho3ever, define a$$roval. Degardless of 3hether U ?:&,.?,(6/
(@/ 3ould designate a non5reLuired, voluntaril2 sought a$$roval as a federal action, such
an a$$roval is not a maFor federal action.
'refer -!S<1 to the !C$1 it4s the only thing that defines development of
submerged federal mineral resources
Dann# 6% ; (egislative Attorne2 for the Congressional Desearch Service (Adam,
Cffshore Cil and as Develo$mentK (egal !rame3or7-, >0%:,
htt$K00333.fas.org0sg$0crs0misc0D(BB@&@.$df/
The $rimar2 federal la3 governing develo$ment of oil and gas in federal 3aters is the
Cuter Continental Shelf (ands Act (CCS(A/.?> As stated a6ove, the CCS(A codifies
federal control of the CCS, declaring that the su6merged lands sea3ard of the state[s
offshore 6oundaries a$$ertain to the U.S. federal government. "ore than sim$l2
declaring federal control, the CCS(A has as its $rimar2 $ur$ose e.$editious and orderl2
develo$ment Gof CCS resourcesI, su6Fect to environmental safeguards, in a manner
3hich is consistent 3ith the maintenance of com$etition and other national needs.... -?'
To effectuate this $ur$ose, the CCS(A e.tends a$$lication of federal la3s to certain
structures and devices located on the CCSA?, $rovides that the la3 of adFacent states 3ill
a$$l2 to the CCS 3hen it does not conflict 3ith federal la3A?+ and, significantl2, $rovides
a com$rehensive leasing $rocess for certain CCS mineral resources and a s2stem for
collecting and distri6uting ro2alties from the sale of these federal mineral resources.%&
The CCS(A thus $rovides com$rehensive regulation of the develo$ment of CCS oil and
gas resources.
1+9 emonstration projects solve overlimits
+hose affs lose to the private !' solvency advocates are only
regulatory
Sterne# 7 5 the $rinci$al of Dising Tide Strategies ((C, 3hich $rovides strategic advice
to environmental organiEations and rene3a6le energ2 com$anies. <e has 6een activel2
involved in sha$ing and im$lementing ocean legislation and $olic2 at the national level
for the last ten 2ears, (Jac7, Ccean Dene3a6le )nerg2-,
htt$K00geni.org0glo6alenerg20li6rar20technical5articles0generation0tidal53ave5ocean5
energ20environmental5defense5fund0ocean5energ25agenda5su$$orted5625coastal5
ma2ors5industrial5leaders5academics5and5
environmentalist0CceanDene3a6le)nerg2.$df/00D<
%. State and federal regulator2 $olic2 should e.$licitl2 encourage $ilot and
demonstration scale $roFects under $ermitting conditions that assure $rotection of ocean
resources (e.g., an o6ligation to achieve $erformance standards for such $rotection, not
Fust im$lementation of mitigation measures/.
!or the most $art, 3ave, tidal and current energ2 technologies are at least several 2ears
from 6eing read2 for full5scale commercial de$lo2ment. etting small5scale $roFects in
the 3ater 3ill s$eed the develo$ment of technologies, allo3 their refinement, $roduce
relevant environmental data, and advance the com$etitive mar7et. The technologies 3ill
continue to mature for 2ears to come, and there 3ill 6e a long5term need for ocean
resource managers to 6e a6le to accommodate $ilot or demonstration $roFects.
State and federal governments should create licensing0$ermitting $rocesses that
encourage develo$ment of these $ilot and demonstration $roFects 3hile ensuring
$rotection of the marine environment. State and federal governments should 3or7
together to streamline and standardiEe the licensing0$ermitting $rocesses to ma7e it
more efficient to o6tain regulator2 a$$rovals. Agencies should also a3ard licenses 6ased
on clear and trac7a6le $erformance standards for $rotection of the marine environment,
3ildlife, and e.isting uses.