SECRETARY OF THE INTERIOR ET AL. v. CALIFORNIA ET AL.
No. 82-1326
Supreme Court of the United States
Argued November 1, 1983—Decided January 11, 1984
464 U.S. 312
*Together with No. 82-1327, Western Oil & Gas Association et al. v. California et al., and No. 82-1511, California et al. v. Secretary of the Interior et al., also on certiorari to the same court.
Theodora Berger, Assistant Attorney General, argued the cause for the State of California et al. in all cases. With her on the brief for the State of California et al., respondents in Nos. 82-1326 and 82-1327, were John K. Van de Kamp, Attorney General, N. Gregory Taylor, Assistant Attorney General, and John A. Saurenman, Deputy Attorney General. Roger Beers, Kathryn Burkett Dickson, and William M. Boyd filed a brief for the County of Humboldt et al., respondents in Nos. 82-1326 and 82-1327. Mr. Van de Kamp, Mr. Taylor, Ms. Berger, Mr. Saurenman, Trent W. Orr, Mr. Beers, Ms. Dickson, and Mr. Boyd filed briefs for petitioners in No. 82-1511. Mr. Orr filed a brief for the Natural Resources Defense Council, Inc., et al., respondents in Nos. 82-1326 and 82-1327.†
These cases arise out of the Department of the Interior‘s sale of oil and gas leases on the Outer Continental Shelf (OCS) off the coast of California. We must determine whether the sale is an activity “directly affecting” the coastal zone under § 307(c)(1) of the Coastal Zone Management Act (CZMA). That section provides in its entirety:
“Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs.” 86 Stat. 1285,
16 U. S. C. § 1456(c)(1) (1982 ed.).
We conclude that the Secretary of the Interior‘s sale of Outer Continental Shelf oil and gas leases is not an activity “directly affecting” the coastal zone within the meaning of the statute.
I
CZMA defines the “coastal zone” to include state but not federal land near the shorelines of the several coastal States, as well as coastal waters extending “seaward to the outer limit of the United States territorial sea.”
CZMA was enacted in 1972 to encourage the prudent management and conservation of natural resources in the coastal zone. Congress found that the “increasing and competing demands upon the lands and waters of our coastal zone” had “resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion.”
Through a system of grants and other incentives, CZMA encourages each coastal State to develop a coastal management plan. Further grants and other benefits are made available to a coastal State after its management plan receives federal approval from the Secretary of Commerce. To obtain such approval a state plan must adequately consider the “national interest” and “the views of Federal agencies principally affected by such program.”
Once a state plan has been approved, CZMA § 307(c)(1) requires federal agencies “conducting or supporting activities directly affecting the coastal zone” to do so “consistent” with the state plan “to the maximum extent practicable.”
II
OCS lease sales are conducted by the Department of the Interior (Interior). Oil and gas companies submit bids, and the high bidders receive priority in the eventual exploration for and development of oil and gas resources situated in the submerged lands on the OCS. A lessee does not, however, acquire an immediate or absolute right to explore for, develop, or produce oil or gas on the OCS; those activities require separate, subsequent federal authorization.
In 1977, the Department of Commerce approved the California Coastal Management Plan. The same year, Interior began preparing Lease Sale No. 53—a sale of OCS leases off the California coast near Santa Barbara. Interior first asked several state and federal agencies to report on potential oil and gas resources in this area. The agency then requested bidders, federal and state agencies, environmental organizations, and the public to identify which of 2,036 tracts in the area should be offered for lease. In October 1978, Interior announced the tentative selection of 243 tracts, including 115 tracts situated in the Santa Maria Basin located off western Santa Barbara. Various meetings were then held with state agencies. Consultations with other federal agencies were also initiated. Interior issued a Draft Environmental Impact Statement in April 1980.
On July 8, 1980, the California Coastal Commission informed Interior that it had determined Lease Sale No. 53 to be an activity “directly affecting” the California coastal zone. The State Commission therefore demanded a consistency determination—a showing by Interior that the lease sale
On December 16, 1980, the State Commission reiterated its view that the sale of the remaining tracts in the Santa Maria Basin “directly affected” the California coastal zone. The Commission expressed its concern that oil spills on the OCS could threaten the southern sea otter, whose range was within 12 miles of the 31 challenged tracts. The Commission explained that it “has been consistent in objecting to proposed offshore oil development within specific buffer zones around special sensitive marine mammal and seabird breeding areas. . . .” App. 77. The Commission concluded that 31 more tracts should be removed from the sale because “leasing within 12 miles of the Sea Otter Range in the Santa Maria Basin would not be consistent” with the California Coastal Management Program. Id., at 79.1 California Governor Brown later took a similar position, urging that 34 more tracts be removed. Id., at 81.2
Interior rejected the State‘s demands. In the Secretary‘s view, no consistency review was required because the lease sale did not engage CZMA § 307(c)(1), and the Governor‘s request was not binding because it failed to strike a reasonable
California and other interested parties (hereafter respondents) filed two substantially similar suits in Federal District Court to enjoin the sale of 29 tracts situated within 12 miles of the Sea Otter Range.3 Both complaints alleged, inter alia, Interior‘s violation of § 307(c)(1) of CZMA.4 They argued that leasing sets in motion a chain of events that culminates in oil and gas development, and that leasing therefore “directly affects” the coastal zone within the meaning of § 307(c)(1).
The District Court entered a summary judgment for respondents on the CZMA claim. California v. Watt, 520 F.
III
Whether the sale of leases on the OCS is an activity “directly affecting” the coastal zone is not self-evident.6 As
A
We are urged to focus first on the plain language of § 307(c)(1). Interior contends that “directly affecting” means “[h]av[ing] a [d]irect, [i]ndentifiable [i]mpact on [t]he [c]oastal [z]one.” Brief for Federal Petitioners 20. Respondents insist that the phrase means “[i]nitiat[ing] a [s]eries of [e]vents of [c]oastal [m]anagement [c]onsequence.” Brief for Respondent State of California et al. 10.7 But CZMA nowhere defines or explains which federal activities should be viewed as “directly affecting” the coastal zone, and the alternative verbal formulations proposed by the parties, both of which are superficially plausible, find no support in the Act itself.
We turn therefore to the legislative history.8 A fairly detailed review is necessary, but that review persuades us that
In the CZMA bills first passed by the House and Senate, § 307(c)(1)‘s consistency requirements extended only to federal activities “in” the coastal zone. The “directly affecting” standard appeared nowhere in § 307(c)(1)‘s immediate antecedents. It was the House-Senate Conference Committee that replaced “in the coastal zone” with “directly affecting the coastal zone.” Both Chambers then passed the Conference bill without discussing or even mentioning the change.
At first sight, the Conference‘s adoption of “directly affecting” appears to be a surprising, unexplained, and subsequently unnoticed expansion in the scope of § 307(c)(1), going beyond what was required by either of the versions of § 307(c)(1) sent to the Conference. But a much more plausible explanation for the change is available.
The explanation lies in the two different definitions of the “coastal zone.” The bill the Senate sent to the Conference defined the coastal zone to exclude “lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents.”9
Against this background, the Conference Committee‘s change in § 307(c)(1) has all the markings of a simple compromise. The Conference accepted the Senate‘s narrower definition of the “coastal zone,” but then expanded § 307(c)(1) to cover activities on federal lands not “in” but nevertheless “directly affecting” the zone. By all appearances, the intent was to reach at least some activities conducted in those federal enclaves excluded from the Senate‘s definition of the “coastal zone.”
Though cryptic, the Conference Report‘s reference to the change in § 307(c)(1) fully supports this explanation. “The Conferees . . . adopted the Senate language . . . which made it clear that Federal lands are not included within a state‘s coastal zone. As to the use of such lands which would affect a state‘s coastal zone, the provisions of section 307(c) would apply.” H. R. Conf. Rep. No. 92-1544, p. 12 (1972) (emphasis added). In the entire Conference Report, this is the only mention of the definition of the coastal zone chosen by the Conference, and the only hint of an explanation for the change in § 307(c)(1). The “directly affecting” language was not deemed worthy of note by any Member of Congress in the subsequent floor debates.10 The implication seems clear:
“directly affecting” was used to strike a balance between two definitions of the “coastal zone.” The legislative history thus strongly suggests that OCS leasing, covered by neither the House nor the Senate version of § 307(c)(1), was also intended to be outside the coverage of the Conference‘s compromise.
Nonetheless, the literal language of § 307(c)(1), read without reference to its history, is sufficiently imprecise to leave open the possibility that some types of federal activities conducted on the OCS could fall within § 307(c)(1)‘s ambit. We need not, however, decide whether any OCS activities other than oil and gas leasing might be covered by § 307(c)(1), because further investigation reveals that in any event Congress expressly intended to remove the control of OCS resources from CZMA‘s scope.
B
If § 307(c)(1) and its history standing alone are less than crystalline, the history of other sections of the original CZMA bills impels a narrow reading of that clause. Every time it faced the issue in the CZMA debates, Congress deliberately and systematically insisted that no part of CZMA was to reach beyond the 3-mile territorial limit.
There are, first, repeated statements in the House and Senate floor debates that CZMA is concerned only with activities on land or in the territorial sea, not on the OCS, and that the allocation of state and federal jurisdiction over the coastal zone and the OCS was not to be changed in any way.11 But
Congress took more substantial and significant action as well. Congress debated and firmly rejected at least four proposals to extend parts of CZMA to reach OCS activities.
Section 313 of the House CZMA bill, as reported by Committee and passed by the House, embodied the most specific of these proposals. That section would have achieved explicitly what respondents now contend § 307(c)(1) achieves implicitly. It provided:
“(a) The Secretary shall develop . . . a program for the management of the area outside the coastal zone and within twelve miles of the [coast]. . . .
“(b) To the extent that any part of the management program . . . shall apply to any high seas area, the subjacent seabed and subsoil of which lies within the seaward boundary of a coastal state, . . . the program shall be coordinated with the coastal state involved. . . .
“(c) The Secretary shall, to the maximum extent practicable, apply the program . . . to waters which are adjacent to specific areas in the coastal zone which have been designated by the states for the purpose of preserving or restoring such areas for their conservation, recreational,
ecological, or esthetic values.” H. R. 14146, 92d Cong., 2d Sess., § 313 (1972), reprinted in H. R. Rep. No. 92-1049, p. 7 (1972).
Congressman Anderson of California, the drafter of this section and coauthor of the House CZMA bill, explained the section‘s purpose on the floor of the House. In light of the instant litigation, his comments were remarkably prescient. By 1972, Congressman Anderson pointed out, California had established seven marine sanctuaries, including one located near Santa Barbara, Cal., in the area allegedly threatened by the leases here in dispute.
“These State-established sanctuaries, which extend from the coastline seaward to 3 miles, account for nearly a fourth of the entire California coast.
“However, the Federal Government has jurisdiction outside the State area, from 3 miles to 12 miles at sea. All too often, the Federal Government has allowed development and drilling to the detriment of the State program.
“A case in point is Santa Barbara where California established a marine sanctuary banning the drilling of oil in the area under State authority.
“Yet, outside the sanctuary—in the federally controlled area—the Federal Government authorized drilling which resulted in the January 1969 blowout. This dramatically illustrated the point that oil spills do not respect legal jurisdictional lines.” 118 Cong. Rec. 26484 (1972).12
House § 313, Congressman Anderson went on to explain, would play the crucial role of encouraging federal OCS oil
Since House § 313 would have provided respondents with precisely the protection they now seek here, it is significant that the Conference Committee, and ultimately the Congress as a whole, flatly rejected the provision. And the reason for the rejection, as explained in the Conference Report, was to forestall conflicts of the type before us now. “The Conferees . . . excluded [House § 313] authorizing a Federal management program for the contiguous zone of the United States, because the provisions relating thereto did not prescribe sufficient standards or criteria and would create potential conflicts with legislation already in existence concerning Continental Shelf resources.” H. R. Conf. Rep. No. 92-1544, p. 15 (1972) (emphasis added).
The House bill included another similar provision that would have been almost equally favorable to respondents here—had it not been rejected by the Conference and subsequently by Congress as a whole. Sections 312(b), (c), of the House bill invited the Secretary of Commerce to extend coastal zone marine sanctuaries established by the States into the OCS region.13 But the Conference Committee rejected House § 312 as well. The Conference Report explained: “The Conferees agreed to delete the provisions of the House
When the Conference bill returned to the House, with House §§ 312 and 313 deleted, Congressman Anderson expressed his dismay:
“I am deeply disappointed that the Senate conferees would not accept the position of the House of Representatives regarding the extension of State-established marine sanctuaries to areas under Federal jurisdiction.
“. . . [W]e were successful, in committee, in adding a provision which I authored designed to protect State-established sanctuaries, such as exis[t] off Santa Barbara, Calif., from federally authorized development.
“This provision would have required the Secretary to apply the coastal zone program to waters immediately adjacent to the coastal waters of a State, which that State has designated for specific preservation purposes.
“It was accepted overwhelmingly by the House of Representatives despite the efforts of the oil and petroleum industry to defeat it.
“But what they failed to accomplish in the House, they accomplished in the conference committee. . . .” 118 Cong. Rec. 35549-35550 (1972).
In light of these comments by Congressman Anderson, and the express statement in the Conference Report that House § 313 was removed to avoid “conflicts with legislation already in existence concerning Continental Shelf resources,” see supra, at 327, it is fanciful to suggest that the Conferees intended the “directly affecting” language of § 307(c)(1) to substitute for the House § 313‘s specific and considerably more detailed language. Certainly the author of House § 313 recognized that the amended § 307(c)(1) could not serve that purpose.
To recapitulate, the “directly affecting” language in § 307(c)(1) was, by all appearances, only a modest compromise, designed to offset in part the narrower definition of the coastal zone favored by the Senate and adopted by the Conference Committee. Section 307(c)(1)‘s “directly affecting” language was aimed at activities conducted or supported by federal agencies on federal lands physically situated in the coastal zone but excluded from the zone as formally defined by the Act. Consistent with this view, the same Conference Committee that wrote the “directly affecting” language rejected two provisions in the House bill that would have required precisely what respondents seek here—coordination of federally sponsored OCS activities with state coastal management and conservation programs. In light of the Conference Committee‘s further, systematic rejection of every other attempt to extend the reach of CZMA to the OCS, we are impelled to conclude that the 1972 Congress did not intend § 307(c)(1) to reach OCS lease sales.15
A
A broader reading of § 307(c)(1) is not compelled by the thrust of other CZMA provisions. First, it is clear beyond
Moreover, a careful examination of the structure of
In 1976, Congress expressly addressed—and preserved—that omission. Specific House and Senate Committee proposals to add the word “lease” to
Instead of inserting the word “lease” in
B
If the distinction between a sale of a “lease” and the issuance of a permit to “explore for,” “produce,” or “develop” oil
OCSLA was enacted in 1953 to authorize federal leasing of the OCS for oil and gas development. The Act was amended in 1978 to provide for the “expeditious and orderly development, subject to environmental safeguards,” of resources on the OCS.
Before 1978, OCSLA did not define the terms “exploration,” “development,” or “production.” But it did define a “mineral lease” to be “any form of authorization for the exploration for, or development or removal of deposits of, oil, gas, or other minerals.”
Since 1978 there have been four distinct statutory stages to developing an offshore oil well: (1) formulation of a 5-year leasing plan by the Department of the Interior; (2) lease sales; (3) exploration by the lessees; (4) development and production. Each stage involves separate regulatory review that may, but need not, conclude in the transfer to lease purchasers of rights to conduct additional activities on the OCS. And each stage includes specific requirements for consultation with Congress, between federal agencies, or with the States. Formal review of consistency with state coastal management plans is expressly reserved for the last two stages.
(1) Preparation of a leasing program. The first stage of OCS planning is the creation of a leasing program. Interior is required to prepare a 5-year schedule of proposed OCS lease sales.
Plainly, prospective lease purchasers acquire no rights to explore, produce, or develop at this first stage of OCSLA planning, and consistency review provisions of
(2) Lease sales. The second stage of OCS planning—the stage in dispute here—involves the solicitation of bids and the issuance of offshore leases.
Again, there is no suggestion that these activities in themselves “directly affect” the coastal zone. But by purchasing a lease, lessees acquire no right to do anything more. Under the plain language of OCSLA, the purchase of a lease entails no right to proceed with full exploration, development, or production that might trigger
(3) Exploration. The third stage of OCS planning involves review of more extensive exploration plans submitted to Interior by lessees.
There is, of course, no question that CZMA consistency review requirements operate here.
(4) Development and production. The fourth and final stage is development and production.
Once again, the applicability of CZMA to this fourth stage of OCS planning is not in doubt.
Congress has thus taken pains to separate the various federal decisions involved in formulating a leasing program, conducting lease sales, authorizing exploration, and allowing development and production. Since 1978, the purchase of an OCS lease, standing alone, entails no right to explore for, develop, or produce oil and gas resources on the OCS. The first two stages are not subject to consistency review; in-
Having examined the coordinated provisions of
As we have noted, the logical paragraph to examine in connection with a lease sale is not
It is argued, nonetheless, that a lease sale is a crucial step. Large sums of money change hands, and the sale may therefore generate momentum that makes eventual exploration, development, and production inevitable. On the other side, it is argued that consistency review at the lease sale stage is at best inefficient, and at worst impossible: Leases are sold before it is certain if, where, or how exploration will actually occur.
The choice between these two policy arguments is not ours to make; it has already been made by Congress. In the 1978 OCSLA amendments Congress decided that the better course is to postpone consistency review until the two later
V
Collaboration among state and federal agencies is certainly preferable to confrontation in or out of the courts. In view of the substantial consistency requirements imposed at the exploration, development, and production stages of OCS planning, Interior, as well as private bidders on OCS leases, might be well advised to ensure in advance that anticipated OCS operations can be conducted harmoniously with state coastal management programs.23 But our review of the history of
Accordingly, the decision of the Court of Appeals for the Ninth Circuit is reversed insofar as it requires petitioners to conduct consistency review pursuant to
It is so ordered.
In these cases, the State of California is attempting to enforce a federal statutory right. Its coastal zone management program was approved by the Federal Government pursuant to a statute enacted in 1972. In
“Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs.” 86 Stat. 1285,
16 U. S. C. § 1456(c)(1) (1982 ed.).
The question in these cases is whether the Secretary of the Interior was conducting an activity directly affecting the California Coastal Zone when he sold oil and gas leases in the Pacific Ocean area immediately adjacent to that zone. One would think that this question could be easily answered simply by reference to a question of fact—does this sale of leases directly affect the coastal zone? The District Court made a finding that it did, which the Court of Appeals affirmed, and which is not disturbed by the Court. Based on a straightforward reading of the statute, one would think that that would be the end of the cases.
The Court reaches a contrary conclusion, however, based on either or both of these two theories: (1)
The Court‘s first theory is refuted by the plain language of the 1972 Act, its legislative history, the basic purpose of the Act, and the findings of the District Court. The Court‘s second theory, which looks at post-1972 legislative developments, is simply overwhelmed by a series of unambiguous legislative pronouncements that consistently belie the Court‘s interpretation of the intent of Congress.
I
Because there is so much material refuting the Court‘s reading of the 1972 Act, an index of what is to follow may be useful. I shall first note that the plain language of
Plain Language
In statutory construction cases, the Court generally begins its analysis by noting that “[t]he starting point in every case involving construction of a statute is the language itself.” E. g., Watt v. Alaska, 451 U.S. 259, 265 (1981). Not much
The plain meaning of the Act is confirmed by its legislative history. Both the House and the Senate versions of the CZMA originally applied only to federal agencies conducting “activities in the coastal zone.”3 At the same time, Congress clearly recognized that the most fundamental purpose of the CZMA was “to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation‘s coastal zone for this and succeeding generations.” 86 Stat. 1281,
The Court‘s position seems to be that since neither the Senate nor House versions covered federal activities outside of the coastal zone, the bill that emerged from the Conference Committee could not have either. See ante, at 322-324. To construe the Conference substitute otherwise would be to find a “surprising, unexplained, and subsequently unnoticed expansion in the scope of
The Senate shared the House‘s concern that state management plans must apply to federal activities in areas adjacent to the coastal zone. The Senate Report on its version of the CZMA stated that its version was derived from a bill it had reported favorably during the previous year, S. 582.10 In particular, the 1971 Senate version of the CZMA used exactly the same language in framing the consistency obligation as did the 1972 version.11 The Report on the 1971 bill con-
“[A]ny lands or waters under Federal jurisdiction and control, where the administering Federal agency determines them to have a functional interrelationship from an economic, social, or geographic standpoint with lands and waters within the territorial sea, should be administered consistent with approved State management programs except in cases of overriding national interest as determined by the President.”
S. Rep. No. 92-526, p. 20 (1971) .12
Since the 1972 Senate CZMA used identical language to describe the consistency requirement, and nothing in the 1972 Senate Report indicates that this language should be construed differently than the 1971 language, it follows that the 1972 Senate version placed a consistency obligation upon federal activities in the OCS which affect the coastal zone.
Thus, the Court is simply wrong to say that both versions of the CZMA sent to conference displayed no interest in regulating federal activities occurring outside of the exterior boundaries of the coastal zone. The Conferees’ adoption of the “directly affecting” language merely clarified the scope overriding national interest as determined by the President.”
“[A]s to Federal agencies involved in any activities directly affecting the state coastal zone and any Federal participation in development projects in the coastal zone, the Federal agencies must make certain that their activities are to the maximum extent practicable consistent with approved state management programs. In addition, similar consideration of state management programs must be given in the process of issuing Federal licenses or permits for activities affecting State coastal zones. The Conferees also adopted language which would make certain that there is no intent in this legislation to change Federal or state jurisdiction or rights in specified fields, including submerged lands.”
H. R. Conf. Rep. No. 92-1544, p. 14 (1972) (emphasis supplied).
Senator Hollings, the floor manager of the CZMA, said when he presented the Conference Report to the Senate: “The bill provides States with national policy goals to control those land uses which have a direct and significant impact upon coastal waters.” 118 Cong. Rec. 35459 (1972). That is the entire history of the Conference compromise. There is not the slightest indication that Congress intended to adopt the strange rule which the Court announces today—that OCS leasing cannot be subject to consistency requirements. To the contrary, these statements indicate that any federal ac-
In sum, the substitution of the words “directly affecting the coastal zone” for the words “in the coastal zone” plainly effectuated the congressional intent to cover activities outside the zone that are the functional equivalent of activities within the zone, thereby addressing the concern of both Houses that the consistency requirement extend to federal OCS activities. There is simply no evidence that
Purposes of the CZMA
An examination of the underlying purposes of the CZMA confirms that the most obvious reading of
The congressional findings in
“With respect to implementation of such management programs, it is the national policy to encourage cooperation among the various state and regional agencies including establishment of interstate and regional agreements, cooperative procedures, and joint action particularly regarding environmental problems.” Ibid.
These provisions surely indicate a congressional preference for long-range planning and for close cooperation between federal and state agencies in conducting or supporting activi-
The majority‘s construction of
The only federal activity that ever occurs with respect to OCS oil and gas development is the decision to lease; all other activities in the process are conducted by lessees and not the Federal Government. If the leasing decision is not subject to consistency requirements, then the intent of Congress to apply consistency review to federal OCS activities would be defeated and this part of the statute rendered nugatory. Such a construction must be rejected. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 513 (1981); Mercantile Nat. Bank v. Langdeau, 371 U. S. 555, 560 (1963); United States v. Shirey, 359 U. S. 255, 259-260 (1959); United States v. Harriss, 347 U. S. 612, 622-623 (1954); Sunshine Coal Co. v. Adkins, 310 U. S. 381, 392 (1940).18
The lease sales at issue in these cases are in fact the functional equivalent of an activity conducted in the zone. There is no dispute about the fact that the Secretary‘s selection of lease tracts and lease terms constituted decisions of major importance to the coastal zone. The District Court described some of the effects of those decisions:
“For example, a reading of the notice itself reveals some of the many consequences of leasing upon the coastal zone. The ‘Notice of Oil and Gas Lease Sale No. 53 (Partial Offering)‘, as published in the Federal Register, announced ten stipulations to be applied to federal lessees. The activities permitted and/or required by the stipulations result in direct effects upon the coastal zone. Stipulation No. 4 sets forth the conditions for operation of boats and aircraft by lessees. Stipulation No. 6 states the conditions under which pipelines will be required; the Department of Interior, as lessor, specifically reserves the right to regulate the placement of ‘any pipeline used for transporting production to shore‘. Lessees must agree, pursuant to stipulation No. 1, to preserve and protect biological resources discovered during the conduct of operations in the area.
“The Secretarial Issue Document (‘SID‘), prepared in October 1980 by the Department of Interior to aid the Secretary in his decision, contains voluminous information indicative of the direct effects of this project on the coastal zone. For instance, the SID contains a table showing the overall probability of an oilspill impacting a point within the sea otter range during the life of the project in the northern portion of the Santa Maria Basin to be 52%. Both the SID and the EIS [Environmental Impact Statement] contain statistics showing the likelihood of oilspills during the life of the leases; based on the unrevised USGS estimates, 1.65 spills are expected during the project conducted in the Santa Maria subarea.
According to the SID, the probability of an oilspill is even higher when the revised USGS figures are utilized. “. . . Both documents refer to impacts upon air and water quality, marine and coastal ecosystems, commercial fisheries, recreation and sportfishing, navigation, cultural resources, and socio-economic factors. For instance, the EIS states that ‘[n]ormal offshore operations would have unavoidable effects . . . on the quality of the surrounding water‘. Pipelaying, drilling, and construction, chronic spills from platforms, and the discharge of treated sewage contribute to the degradation of water quality in the area. As to commercial fisheries, drilling muds and cuttings ‘could significantly affect fish and invertebrate populations‘; the spot prawn fishery in the Santa Maria Basin is particularly vulnerable to this physical disruption. In reference to recreation and sportfishing, the EIS indicates the possibility of adverse impacts as a result of the competition for land between recreation and OCS-related onshore facilities as a result of the temporary disruption of recreation areas caused by pipeline burial. There are the additional risks of ‘the degradation of the aesthetic environment conducive to recreation and the damage to recreational sites as a result of an oil spill‘. Another impact on the coastal zone will occur as a result of the migration of labor into the area during the early years of oil and gas operations. Impacts on the level of employment and the size of the population in the coastal region are also predicted.
“The SID notes that there are artifacts of historic interest as well as aboriginal archaeological sites reported in the area of the Santa Maria tracts. The FWS and NMFS biological opinions, appended to the SID, indicate the likelihood that development and production activities may jeopardize the existence of the southern sea otter and the gray whale.
“These effects constitute only a partial list. Further enumeration is unnecessary. The threshold test under
§ 307(c)(1) would in fact be satisfied by a finding of a single direct effect upon the coastal zone. Although the evidence of direct effects is substantial, such a showing is not required by the CZMA.” 520 F. Supp. 1359, 1380-1382 (CD Cal. 1981) (footnotes and citations omitted).
The Court of Appeals predicated its conclusion that the lease sale in these cases directly affects the coastal zone on these findings. It wrote:
“We agree that the lease sale in this case directly affects the coastal zone. These direct effects of Lease Sale 53 on California‘s coastal zone are detailed by the district court. We need not repeat them here. It is enough to point out that decisions made at the lease sale stage in this case establish the basic scope and charter for subsequent development and production. Prior to the sale of leases, critical decisions are made as to the size and location of the tracts, the timing of the sale, and the stipulations to which the leases would be subject. These choices determine, or at least influence, whether oil will be transported by pipeline or ship, which areas of the coastal zone will be exposed to danger, the flow of vessel traffic, and the siting of on-shore construction.
“Under these circumstances Lease Sale 53 established the first link in a chain of events which could lead to production and development of oil and gas on the individual tracts leased. This is a particularly significant link because at this stage all the tracts can be considered together, taking into account the cumulative effects of the entire lease sale, whereas at the later stages consistency determinations would be made on a tract-by-tract basis under
section 307(c)(3) .” 683 F. 2d 1253, 1260 (CA9 1982) (citations omitted).
Neither petitioners nor the Court challenges these findings, which clearly state that the oil and gas lease sale at issue here
In my judgment these rather sensible appraisals of the probable consequences of the lease sale are entirely consistent with the congressional intent reflected in
II
The Court‘s holding rests, in part, on selections from legislative developments subsequent to the enactment of the CZMA in 1972. In my view the 1978 amendment to the OCSLA on which the Court relies lends no support to its reading of
The 1976 Amendment to CZMA
The CZMA was amended in 1976. One of the primary purposes for this legislation was the recognition that OCS leasing has a dramatic impact on the coastal zone. The 1976 legislation created a program of federal financial aid to coastal areas in order to help them deal with the impact of OCS leasing. The amount of money each State received was keyed to the amount of adjacent OCS acreage that had been leased by the Federal Government. 90 Stat. 1019-1028,
Both the Senate and House versions of the 1976 amendments reported out of committee explicitly applied the consistency requirement of § 307 to OCS oil and gas leasing. See
“Section 307 is the portion of the Act which has come to be known as the ‘Federal consistency’ section. It assures that once State coastal zone management programs are approved and a rational management system for protecting, preserving, and developing the State‘s coastal zone is in place (approved), the Federal departments, agencies, and instrumentalities will not violate such system but will, instead, conduct themselves in a manner consistent with the States’ approved management program. This includes conducting or supporting activities in or out of the coastal zone which affect that area. . . . As energy facilities have been focused upon more closely recently, the provisions of section 307 for the consistency of Federal actions with the State coastal zone management programs has [sic] provided assurance to those concerned with the coastal zone that the law already provides an effective mechanism for guaranteeing that Federal activities, including those supported by, and those carried on pursuant to, Federal authority (license, lease, or permit) will accord with a rational management plan for protection, preservation and development of the coastal zone. One of the specific federally related energy problem areas for the coastal zone is, of course, the potential effects of Federal activities on the Outer Continental Shelf beyond the State‘s coastal zones, including Federal authorizations for non-Federal activity, but under the act as it presently exists, as well as the S. 586 amendments, if the activity may affect the State coastal zone and it has an approved management program, the consistency requirements do apply.”
S. Rep. No. 94-277, supra, at 36-37 (emphasis supplied).23
“Specifically what the section does is add the word ‘lease’ to ‘licenses and permits’ in section 307(c)(3). This clarifies the scope of the coverage of those federal actions which must be certified as complying with a state‘s approved coastal management program. The Committee felt, because of the intense interest in the matter on the part of a number of states, it would make explicit its view that federal leasing is an activity already covered by section 307 of the Act.
“To argue otherwise would be to maintain that a federal permit for a wastewater discharge, for example, must be certified by the applicant to be in compliance with a state program, the state being given an opportunity to approve or disapprove of the proposal, while a federal lease for an Outer Continental Shelf tract does not have to so certify. Given the obvious impacts on coastal lands and waters which will result from the federal action to permit exploration and development of offshore petroleum resources, it is difficult to imagine that the original intent of the Act was not to include such a major federal coastal action within the coverage of ‘federal consistency.‘”
H. R. Rep. No. 94-878, supra, at 52 (emphasis supplied).24
Along the same lines, the Report also stated that “the Committee wants to assure coastal states in frontier areas that the OCS leasing process is indeed a federal action that un-
Though the explicit reference to OCS leasing was deleted by the Conferees, their Report indicates that the reason for the deletion was not disagreement with the concept of applying § 307 to OCS leasing, but rather to supplement that requirement by applying consistency to other stages in the process as well.26 The subsequent debates on the Conference Report evince no retreat from the position that OCS leasing should be consistent with state management programs. In light of the widespread agreement by Congress in 1976 that OCS leasing was already subject to consistency review under the 1972 CZMA, the logical explanation for the Conferees’ action is simply that they saw no need to amend the CZMA since everyone agreed that it already applied to OCS oil and gas leasing. The only need was to further ex-
“I am disappointed, however, that the amendment offered by Mr. DU PONT to delete the provision requiring that Federal offshore leasing be consistent with State coastal zone management plans has been agreed to. I nevertheless rely upon the record established during today‘s debate to show that it is the intent of this legislation that offshore leasing not be in conflict with State management plans.” 122 Cong. Rec. 6120 (1976) (emphasis supplied).27
The failure of the Conferees to include the proposed language in the CZMA is all the more illuminating in light of the fact that the proposal before the Conferees was to amend
planation for the Conferees’ failure to amend
The 1978 Amendments to OCSLA
In 1978, Congress passed the Outer Continental Shelf Lands Act Amendments, 92 Stat. 629. The majority relies on these Amendments, concluding that since they require federal approval prior to exploration or development by OCS lessees, they make it clear that mere OCS leasing cannot invoke the consistency requirement of
This is made clear by the text of the OCSLA Amendments, which explicitly preserves the pre-existing provisions of the
“The committee is aware that under the Coastal Zone Management Act of 1972, as amended in 1976 (16 U. S. C. 1451 et seq.), certain OCS activities including lease sales and approval of development and production plans must comply with ‘consistency’ requirements as to coastal zone management plans approved by the Secretary of Commerce. Except for specific changes made by Titles IV and V of the 1977 Amendments, nothing in this act is intended to amend, modify, or repeal any provision of the Coastal Zone Management Act. Specifically, nothing is intended to alter procedures under that Act for consistency once a State has an approved Coastal Zone Management Plan.”
H. R. Rep. No. 95-590, p. 153, n. 52 (1977) (emphasis supplied).30
One could not ask for a more explicit indication of legislative intent. The Court can find no indication of any intent to the
Even more important is
In any event, the fact that additional licensing is required under the OCSLA scheme for exploration and development hardly makes those steps “indirect” consequences of leasing in the sense that any effect on the coastal zone is the result of intervening causes, which is the definition of “indirect” urged by petitioners.33 Approval for exploration and development
The 1980 Amendment to CZMA
In 1980, the CZMA was reauthorized and again amended. 94 Stat. 2060. In the course of considering the statute, Congress once again addressed the precise problem we are faced with today. Once again its answer was the same—OCS oil and gas leasing is subject to the consistency obligation of
“Finally, the committee has not recommended any changes in the Federal consistency provision, section 307 of the existing act. During its oversight phase, the
“. . . Generally all consistency provisions have been properly construed. The only uncertainty that has arisen concerns the interpretation of section 307(c)(1), the threshold test of ‘directly affecting’ the coastal zone. The committee points out that in the preamble to NOAA‘s Federal consistency regulations, this threshold test was considered during earlier congressional deliberations and was determined to apply whenever a Federal activity had a functional interrelationship from an economic, geographic or social standpoint with a State coastal program‘s land or water use policies. Under such circumstances, a State has a legitimate interest in reviewing a proposed Federal activity since the management program‘s policies are likely to apply to the activity. Thus, when a Federal Agency initiates a series of events of coastal management consequence, the intergovernmental coordination provisions of the Federal consistency requirements should apply.” Id., at 34.
Similarly, the Senate Report described the 1976 amendments as having maintained the consistency obligation for OCS leasing:
“The Department of Interior‘s activities which preceded OCS lease sales were to remain subject to the requirements of section 307(c)(1) [under the 1976 CZMA]. As a result, intergovernmental coordination for purposes of OCS development commences at the earliest practicable time in the opinion of the Committee, as the Department of the Interior sets in motion a series of events which have consequences in the coastal zone. Coordination must continue during the critical exploration, development, and production stages.
“The Committee see[s] no justification to depart from this point of view. The Committee hopes that through
Thus, the 1980 legislative history indicates that when Congress reauthorized the CZMA it intended
Postscript in 1981
After the new administration took office in 1981, the Secretary of Commerce proposed a CZMA regulation which would have removed OCS leasing decisions from the scope of consistency review.37 The House Committee on Merchant Marine and Fisheries promptly considered whether to exercise a legislative veto over the regulations38 and overwhelmingly voted to veto the regulations.
In sum, the intent of Congress expressed in the plain language of the statute and in its long legislative history unambiguously requires consistency review if an OCS lease sale directly affects the coastal zone. The affirmative findings of fact made by the lower courts on that score are amply supported and are not disturbed by the Court today.
I therefore respectfully dissent.
Notes
Petitioner-defendants (hereafter petitioners) state their disagreement with the Court of Appeals for the Ninth Circuit‘s holding that environmental groups and local governments have standing to sue under CZMA § 307(c)(1), but do not challenge that standing decision here. Since the State of California clearly does have standing, we need not address the standing of the other respondents, whose position here is identical to the State‘s.
See H. R. 14146, 92d Cong., 2d Sess., § 307(c)(1) (1972), reprinted in 118 Cong. Rec. 26502 (1972) (“Each Federal agency conducting or supporting activities in the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs“); S. 3507, 92d Cong., 2d Sess., § 314(b)(1) (1972), reprinted in 118 Cong. Rec. 14190 (1972) (“All Federal agencies conducting or supporting activities in the coastal zone shall administer their programs consistent with approved State management programs except in cases of overriding national interest as determined by the President“).In 1977, NOAA expressly declined to take a position on the applicability of § 307(c)(1) to the leasing process. See 42 Fed. Reg. 43591–43592 (1977). In 1978, NOAA issued regulations purporting to clarify § 307(c)(1), but the agency expressly acknowledged that the applicability of the section to lease sales was “still under consideration.” 43 Fed. Reg. 10512 (1978). Interior nevertheless objected to the new verbal formulation of “directly affecting” that NOAA had proposed, and the interdepartmental dispute was submitted to the Department of Justice‘s Office of Legal Counsel (OLC). OLC rejected crucial portions of NOAA‘s regulations as inconsistent with the statutory language, and those portions were withdrawn by NOAA. App. 45-46; 44 Fed. Reg. 37142 (1979). In 1980 NOAA noted its view that OCS sales trigger consistency review requirements in a letter from NOAA to State Coastal Management Program Directors (Apr. 9, 1980). NOAA later renewed its attempt to arrive at a general definition of “directly affecting.” Two weeks after the instant litigation commenced, NOAA took the position that lease sales do not directly affect the coastal zone. 46 Fed. Reg. 26660 (1981). But shortly after the
regulation was published in final form, id., at 35253, the House Committee on Merchant Marine and Fisheries exercised a “legislative veto,” seeThere was language in an earlier Senate Report (not the final CZMA Senate Report) urging that federal activities determined to have a “functional interrelationship” with the coastal zone “should” be administered consistently with approved state management programs. S. Rep. No. 92-526, pp. 20, 30 (1971). Nine years later a House Report reiterated the “functional interrelationship” standard. H. R. Rep. No. 96-1012, p. 34 (1980). But the Senate Report‘s language was purely precatory. It used “should,” rather than the “shall” that actually appears in § 307(c)(1), and more importantly, was written in connection with a Senate bill that would have entirely exempted activities on all federal lands from § 307(c)(1)‘s mandate. It is fanciful to suggest that an early Senate Report should be read as endorsing an expansive interpretation of § 307(c)(1)‘s “directly affecting” language when the Senate bill that the Report accompanied did not include the relevant phrase and indisputably did not reach OCS lease sales.
seaward to 3 miles, account for nearly a fourth of the entire California coast. “However, the Federal Government has jurisdiction outside the State area, from 3 miles to 12 miles at sea. All too often, the Federal Government has allowed development and drilling to the detriment of the State program. “A case in point is Santa Barbara where California established a marine sanctuary banning the drilling of oil in the area under State authority. “Yet outside the sanctuary—in the federally controlled area—the Federal Government authorized drilling which resulted in the January 1969 blowout. This dramatically illustrated the point that oil spills do not respect legal jurisdictional lines. “In order to protect the desires of the citizens of the coastal States who wish to establish marine sanctuaries, I offered a provision which ‘requires that the Secretary of Commerce shall, to the maximum extent practicable, apply the coastal zone program to waters immediately adjacent to the coastal waters of a State, which the State has designated for specific preservation purposes.’ The Merchant Marine and Fisheries Committee approved this provision.” Id., at 26484 (remarks of Rep. Anderson). . . . “When an estuarine sanctuary is established by a coastal state . . . whether or not Federal funds have been made available for a part of the costs of acquisition, development, and operation, the Secretary, at the request of the state concerned, and after consultation with interested Federal departments and agencies and other interested parties, may extend the established estuarine sanctuary seaward beyond the coastal zone, to the extent necessary to effectuate the purposes for which the estuarine sanctuary was established.” H. R. 14146, 92d Cong., 2d Sess., § 312(b) (1972), reprinted in 118 Cong. Rec. 26503 (1972).“(b) When an estuarine sanctuary is established by a coastal state . . . the Secretary, at the request of the state concerned, . . . may extend the established estuarine sanctuary seaward beyond the coastal zone, to the extent necessary to effectuate the purposes for which the estuarine sanctuary was established.
“(c) The Secretary shall . . . assure that the development and operation [of the sanctuary extension] is coordinated with the development and operation of the estuarine sanctuary of which it forms an extension.” H. R. 14146, 92d Cong., 2d Sess., §§ 312(b), (c) (1972), reprinted in H. R. Rep. No. 92-1049, p. 7 (1972).
There is not a word in the Conference Report on the CZMA indicating that the Conferees rejected the concept that the coastal zone be protected from federal OCS activities through consistency review. The Court relies on Representative Anderson‘s statement concerning the Conference Report, ante, at 328, but in fact he spoke only with reference to the “provision [that] would have required the Secretary to apply the coastal zone program to waters immediately adjacent to the coastal waters of a State, which that State has designated for specific preservation purposes.” 118 Cong. Rec. 35549-35550 (1972). His remarks did not concern the scope of
The Court also relies on the Senate‘s rejection of an amendment which would have required the Federal Government to submit leasing proposals to affected States for approval, and the Conferees’ rejection of a provision of the Senate version of the CZMA providing for a study of the environmental hazards attendant to drilling in the Atlantic OCS. Ante, at 329-330,
“Notwithstanding any other provision of this Act, no Federal department or agency shall construct, or license, or lease, or approve in any way the construction of any facility of any kind beyond the territorial sea off the coast of the United States until (1) such department or agency has filed with the Administrator of the Environmental Protection Agency, a complete report with respect to the proposed facility; (2) the Administrator has forwarded such report to the Governor of each adjacent coastal State which might be adversely affected by pollution from such facility; and (3) each such Governor has filed an approval of such proposal with the Administrator. . . .” 118 Cong. Rec. 14183 (1972).
In proposing the amendment Senator Boggs explained his concern with offshore oil transfer terminals located at sites outside the 3-mile territorial limit.
“Such sites, of course, would place these facilities in the contiguous zone, or in international waters on the Continental Shelf. If that were so, of course, the facility would be outside the jurisdiction of the neighboring States.
“Yet, the coastal zones of these neighboring States could be severely and adversely affected by pollution that might come from such an offshore facility.
“. . . I believe it is important that the affected States play a meaningful role in the plan to construct such a facility.” Id., at 14184.
But other Senators immediately attacked Senator Boggs’ amendment. Senator Hollings stated:
“The amendment . . . goes beyond the territorial sea and goes into what we agreed on and compromised on awhile ago. It goes beyond any territorial sea to construction of any facility on the ocean floor, into what we call a contiguous zone from the 3-mile limit to the 12-mile limit.
“This amendment provides the Governor would have a veto over such matters. I do not think the Senate wants to go that far.” Ibid.
Senator Moss agreed: “[T]his bill attempts to deal with the Territorial Sea, not the Outer Continental Shelf.” Ibid. In response, Senator Boggs conceded that the problem should be addressed in other legislation, and he withdrew the proposed amendment. Ibid.
In addition, § 316(c)(1) of the Senate bill as amended on the floor of the Senate called on the National Academy of Sciences “to undertake a full
investigation of the environmental hazards attendant on offshore drilling on the Atlantic Outer Continental Shelf.” S. 3507, 92d Cong., 2d Sess., § 316(c)(1) (1972), reprinted in 118 Cong. Rec. 14191 (1972). In the Senate debate several Senators voiced their opposition even to this modest venture outside the coastal zone. Senator Stevens, for example, argued that the provision was inappropriate because the OCS “is not even covered by this bill. This bill covers the territorial seas; it does not cover the Outer Continental Shelf.” Id., at 14180. Senator Moss added: “[S]ince the State coastal zone management programs relate only to the territorial sea, we should, therefore, be very careful of a study which extends beyond the territorial sea to encompass the Continental Shelf.” Id., at 14181. Again, the Conference Committee agreed; it deleted Senate § 316(c) without comment in the Conference Report. On the floor of the House Congressman Downing explained that the provision had been deleted “as nongermane.” Id., at 35547.Construing the CZMA to begin federal-state cooperation at the OCS leasing stage enhances such long-range planning and maximizes cooperation. Indeed, the 1980 House Report on the CZMA stated that Congress intended consistency review to apply at the OCS leasing stage for precisely this reason:
“The benefits of this [construction] are significant. First, it fosters consultation between Federal and State agencies at the earliest practicable time. This, in turn, enhances the ability of the States to plan for and manage the coastal zone effects which are directly linked to Federal commitment of resources for Federal activities likely to lead to results inconsistent with the requirements of approved State programs.
“Secondly, broad opportunities for States to influence Federal activities enhances the incentive of the consistency provisions, thereby reinforcing voluntary State participation in the national program. Finally, an expansive interpretation of the threshold test is compatible with the amendment to section 303 calling for Federal agencies and others to participate and cooperate in carrying out the purposes of the act.”
(1) A 1975 Senate Report stated: “The Committee‘s intent when the 1972 Act was passed was for the consistency clause to apply to Federal
leases for offshore oil and gas development, since such leases were viewed by the Committee to be within the phrase ‘licenses or permits’ [in § 307(c)(3)]. [The Report then discusses the proposed amendment that would insert ‘lease’ into § 307(c)(3).] In practical terms, this [amendment] means that the Secretary of the Interior would need to seek the certification of consistency from adjacent State governors before entering into a binding lease agreement with private oil companies.” S. Rep. No. 94-277, pp. 19-20 (1975).(2) One footnote in a 323-page House Report that accompanied the 1978 amendments to the Outer Continental Shelf Lands Act of 1953 stated: “The committee is aware that under the [CZMA] certain OCS activities including lease sales and approval of development and production plans must comply with ‘consistency’ requirements as to coastal zone management plans approved by the Secretary of Commerce. Except for specific changes made by Titles IV and V of the 1977 Amendments, nothing in this Act is intended to amend, modify or repeal any provision of [CZMA]. Specifically, nothing is intended to alter procedures under that Act for consistency once a State has an approved Coastal Zone Management Plan.” H. R. Rep. No. 95-590, p. 153, n. 52 (1977).
(3) A 1980 House Report stated that the 1976 CZMA § 307 amendments “did not alter Federal agency responsibility to provide States with a consistency determination related to OCS decisions which preceded issuance of leases.” H. R. Rep. No. 96-1012, p. 28.
(4) A 1980 Senate Report stated that under CZMA, “[t]he Department of the Interior‘s activities which preced[e] lease sales . . . remain subject to the requirements of section 307(c)(1). As a result, intergovernmental coordination for purposes of OCS development commences at the earliest practicable time in the opinion of the Committee, as the Department of the Interior sets in motion a series of events which have consequences in the coastal zone.” S. Rep. No. 96-783, p. 11.
In our view, these subsequent Committee interpretations of CZMA, written three or more years after CZMA was passed, are of little help in ascertaining the intent of Congress when CZMA § 307(c)(1) was passed in 1972. We note that the most relevant and unambiguous statement of the House Committee‘s views appeared in House §§ 312 and 313 as originally reported out of Committee and passed by the House. But those sections
In the lease sale at issue in this case, $220 million was bid on the disputed tracts.This observation was later made in a statement signed by one of the principal sponsors of the 1976 legislation, Representative Studds. “Nowhere, in this entire set of deliberations [in 1976], was there any explilct [sic] or implicit reference to consistency decisions by the Department of the Interior in its pre-lease activity pursuant to Section 307(c)(1). The focus was on the proper time for a state to certify a private company‘s activity—not on the federal agency‘s obligations under Section 307(c)(1).
“The deletion of ‘lease’ from Section 3[0]7(c)(3) was an agreement by the Congress that a State would have better information on which to base a
To make sure of the correct construction of the Act, two sponsors of the 1980 amendments conducted a colloquy on the floor of the House in which they indicated that the intent of Congress was to apply
“[Mr. MCCLOSKEY.] Do any portions of the Coastal Zone Management Improvement Act or the report language change the provisions of section 307 of the Coastal Zone Management Act on coordination and cooperation, the so-called Federal consistency provision?
“Mr. STUDDS. I would like to assure my colleague that nothing in H. R. 6979 nor its accompanying report changes the intent of the Federal consistency provision. In testimony before the Subcommittee on Oceanography, we heard from many witnesses that this section is critical for the effective implementation of State management programs. Since the consistency provisions are important to the act and appear to be working, no changes were made to section 307 of the act.
“Mr. MCCLOSKEY. I assume that this means also that there are no changes in the bill or the report language which further modify the term ‘directly affecting’ which occurs in section 307(c)(1) of the original statute.
“Mr. STUDDS. The gentleman from Washington is correct. The term ‘directly affecting is essentially one of fact’ as the Department of Justice has previously concluded.” 126 Cong. Rec. 28458 (1980).
Representative Studds’ reference was to the Department of Justice‘s previously stated position that