Transcript Three Twists on the Theme of Federal Land Planning Zyg. Plater, Boston College Shapiro Environmental Law Symposium, George Washington University Law School.

Three Twists on the Theme of Federal Land Planning
Zyg. Plater, Boston College
Shapiro Environmental Law Symposium, George Washington University Law School
(1970 version)
TITLE I—LAND AND WATER RESOURCES COUNCIL
§101. (a) There is hereby established a Land and Water
Resources Council (hereinafter referred to as the 'Council').
(b) The Council shall be composed of the Vice President; the
Secretaries of Agriculture; Commerce; Health, Education, and
Welfare; Housing and Urban Development; the Interior;
Transportation; and, the Army; the Chairmen of the Council on
Environmental Quality and the Federal Power Commission;
and the Administrator of the Environmental Protection
Agency….
STATEWIDE AND INTERSTATE
LAND USE PLANNING GRANTS
§304. (a) In order to carry out purposes of this title the Council
is authorized to make land use planning grants to—
an appropriate single State agency, designated by the Governor
of the State or established by law, which has statewide land use
planning responsibilities and which meets the guidelines and
requirements set out in section 305 of this title….
STATE-WIDE LAND USE PLANS
§305 (b) During the five complete fiscal year period following the initial publication
of regulations by the Council implementing the provisions of this title, the State
agency must, as a condition of continued grant eligibility, develop
a statewide land use plan….
REVIEW OF STATEWIDE LAND USE PLANS
§306. (a)(1) The responsible State agency shall submit the plan to the Council.
(2) The Council shall submit the plan for review and comments to those Federal
agencies the Council considers to have significant interest in or impact upon land
use within the State concerned. A period of 90 days shall be provided for the
review.
(3) Upon completion of the review period established by paragraph (2) of this
subsection, the Council shall review the plan along with the agency comments and
approve the plan if it conforms with the policy, guidelines, and requirements
Federal AND State
(a) All
§307 Coordination of Federal Programs.
Federal agencies conducting or supporting activities involving land
use in an area subject to an approved statewide land use plan shall
operate in
accordance with the plan…
(b) State and local governments submitting applications for Federal assistance for
activities having significant land use implications in an area subject to an approved
statewide land use plan shall indicate the views of the State land use planning
agency as to the consistency of such activities with the plan….
Federal agencies shall not approve proposed projects that are
inconsistent with the [state] plan….
§310, 16 USC §1456
(c) Consistency of Federal activities with state management programs
(1) Each Federal agency activity within or outside the coastal zone that affects
any land or water use or natural resource of the coastal zone shall be carried out
in a manner which is consistent to the maximum extent practicable with the
enforceable policies of approved State management programs….
(2) Any Federal agency which shall undertake any development project in the
coastal zone of a state shall insure that the project is, to the maximum extent
practicable, consistent with the enforceable policies of approved state
management programs.
(B) …The President may, upon written request from the Secretary, exempt from
compliance those elements of the Federal agency activity that are found by a
federal court to be inconsistent with an approved State program, if the President
determines that the activity is in the paramount interest of the United States.
§309, 16 USC §1455
—
(A) … identification of…boundaries …
(B) … permissible land uses and water uses …
(C) … areas of particular concern …
(D) … the means to control ....
(E) … priorities of uses …
(F) … organizational structure…local, areawide, State, regional,
and interstate agencies …
(G) … planning process for the protection of…environmental,
recreational, historical, esthetic, ecological,…cultural values.
(H) … management of the impacts…from [energy] facilities….
Norton v. Southern Utah Wilderness Alliance et al.
542 U.S. 55 (U.S. Sup. Ct. 2004)
… SUWA’s second claim is that BLM failed to comply with certain provisions
in its land use plans, thus contravening the [statutory] requirement that “[the]
Secretary shall manage the public lands...in accordance with the land use plans.”
… FLPMA provides that “the Secretary shall continue to manage such lands...
in a manner so as not to impair the suitability of such areas for preservation as
wilderness.”… The claim presently under discussion…would have us go further and
conclude that a statement in a plan that BLM “will” take this, that, or the other action,
is a binding commitment that can be compelled under §706(1)….
But allowing general enforcement of plan terms would lead to pervasive interference
with BLM’s own ordering of priorities....
We therefore hold that the [plan’s] statements to the effect that BLM will conduct
“use supervision and monitoring” in designated areas…are not a legally binding
commitment enforceable under APA §706(1).
“Should some or all of these lands be conveyed to private owners?... Public lands management
is fundamentally about politics…. The lords of the public lands are, and always have been,
private interests,…a dominant factor in national politics…. Government planners are unable to
regulate…. The history of public lands management failures gives us reason to explore…private
ownership. Huffman: Public Lands: The Case for Privatization & The Inevitability of Private Rights in Public Lands
“When narrow “extractive élites” come to dominate a system’s economy, its sources of
information, its utilization of power, and its cultural expressions, the eventual result is
stagnation and entropy.” Acemoglu & Robinson: Why Nations Fail: The Origins of Power, Prosperity, and Poverty
“Di-Polar”
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