Exxon Corp. v. Fischer, 85-6572

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 807 F.2d 842
• Docket Number: No. 85-6572,85-6572
• Parties: , 17 Envtl. L. Rep. 20,416 EXXON CORPORATION, Plaintiff-Appellee, v. Michael L. FISCHER, et al., Defendants-Appellants.
• Decision Date: 07 January 1987

Page 842

807 F.2d 842 25 ERC 1489, 17 Envtl. L. Rep. 20,416 EXXON CORPORATION, Plaintiff-Appellee,
v.
Michael L. FISCHER, et al., Defendants-Appellants. No. 85-6572. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Sept. 5, 1986.
Decided Jan. 7, 1987.

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Donna R. Black, Los Angeles, Cal., Sarah Chasis, New York City, for plaintiff-appellee.

Peter H. Kaufman, San Diego, Cal., Nancy S. Marks, Boston, Mass., Robert Venning, San Francisco, Cal., for defendants-appellants.

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On Appeal from the United States District Court For the Central District of California.

Before WALLACE, BOOCHEVER and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge.

We review a declaratory judgment in favor of Exxon entered against the individual members and executive director of the California Coastal Commission (Coastal Commission). That judgment declared invalid the Coastal Commission's objection to Exxon's proposed exploratory drilling program.

Facts

The Coastal Zone Management Act (CZMA) defines "coastal zones" as those non-federal lands near the shorelines of the states and extending to the limits of the territorial sea. 16 U.S.C. Sec. 1453(1) (1982). The territorial sea extends three miles seaward from the California coast. Submerged land beyond the territorial sea over which the United States claims jurisdiction constitutes the outer continental shelf (OCS). The coastal zone is within the state; the OCS is under federal jurisdiction. 43 U.S.C. Secs. 1301(b), 1302, 1311 (1982).

Congress, through the CZMA, encouraged states to develop comprehensive management plans for their coastal zones. 16 U.S.C. Sec. 1454 (1982). But Congress recognized that activity in the OCS might affect the state's coastal zones; it included within the CZMA a mechanism for resolving conflicts between state coastal zone plans and federally-approved OCS activities. Section 1456(c)(3) requires any applicant for a federal license to certify that proposed OCS activities that affect "any land use or water use" in a state's coastal zone will conform to that state's management program.

A state may object to this certification if it finds the licensee's planned activity would be inconsistent with its program. A licensee may in turn appeal to the Secretary of Commerce, and ask him to override the objection on the grounds that its plan is "consistent with the objectives of [the CZMA] or is otherwise necessary in the interest of national security." Id. at (B)(iii).

On January 24, 1983, Exxon successfully bid for the right to explore for oil in the OCS opposite Santa Barbara, California. Following the procedure described above, it submitted to the Department of the Interior a plan proposing three exploratory wells (labeled A, B and C). Recognizing that a small part of its plan (e.g., transport to and from the wells) would affect the coastal zone, Exxon also submitted a "consistency certificate." This certificate asserted that these comparatively minor effects of the plan would not violate California's Coastal Zone Management Program (CZMP). The Interior Department reviewed the plan and then, pursuant to the CZMA, sent it to the Coastal Commission, together with Exxon's consistency certificate.

The Coastal Commission began to review Exxon's plan for consistency with the state's CZMP. After public hearings, the Commission voted on July 27, 1983, to object to the plan as inconsistent with the CZMP. Exxon appealed this decision to the Secretary, but voluntarily dismissed the appeal in November 1983 when the Commission agreed to let Exxon drill well A and to reconsider its objections to wells B and C.

After drilling well A, Exxon recertified that its plan was consistent with the CZMP. The Coastal Commission again objected, relying on the disruptive effect this drilling would have on the thresher shark fishery during the fishing season, which runs from May through early November. The Commission allowed Exxon to drill during the off-season (Thanksgiving through April) but Exxon, citing cost and scheduling problems, refused.

Exxon did announce at a public hearing before the Coastal Commission that it no longer intended to drill well C, but the Commission decided that even well B alone would violate the CZMP. Exxon again appealed to the Secretary on March 9, 1984. It also brought this action against the

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Coastal Commission in district court. In the district court action, Exxon sought a declaration that the Commission's objection to the drilling of well B violated the CZMA because the drilling would not affect any land or water use within California's coastal zone.

On November 14, 1984, the Secretary dismissed Exxon's appeal. The Secretary found, pursuant to the four-part test established in the applicable regulation, 15 C.F.R. Sec. 930.121 (1986), that well B was not consistent with the CZMA's purposes. Although it would further the national goal of energy self-sufficiency, although its contribution to the national interest would outweigh its effects on the coastal zone and although it would not violate the Clean Air or Clean Water Acts, the Secretary sustained the Coastal Commission's objections because he found that drilling during the off-season was a reasonably available alternative. Exxon did not seek review of the Secretary's decision.

About a year later, on October 10, 1985, the district court entered summary...