Three Twists on the Theme of Federal Land Planning Zyg. Plater, Boston College Shapiro Environmental Law Symposium, Geo

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

4. NLUPA: (1970 version)

5. 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…. $

6. STATE-WIDE LAND USE PLANS §305 (b) During the five complete fiscal year period following the initial publication of regulations by the Councilimplementing 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 declared in this title.…

7. §307 Coordination of Federal Programs. (a) All 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…. • FederalANDState

8. CZMA §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 consistentto 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.

9. CZMA §309, 16 USC §1455 Required Plan Elements— (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….

10. 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).

11. “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

12. “Di-Polar” $$$

13. • ‘ iron triangle’

14. “Di-Polar”

15. “Di-Polar” can become “Establishment” iron triangles

16. “Multi-Centric”

17. Earth Day 1970

18. Yale University Press “The inside story, laid out with wonderful lucidity, of a long and fascinating battle that became an icon of its era and remains instructivetoday.It’sablueprintforcommunityaction and, sadly,a still-currentroadmapofthewayinwhich Washington works.” •Jonathan Harr,author: A Civil Action “Tennessee Valley Authority v. Hill is one of my favorite cases. This eminently readable account of the full history of the case is even more interesting than the story told in Warren Burger’s opinion for the Court (or in my memory of the oral argument and the shifting positions of the Justices in my book Five Chiefs), especially the account of how President Carter rejected the ‘God Committee’s’ darter verdict.” • Hon. Justice John Paul Stevens, Supreme Court of the United States (ret’d.) “The Snail Darter & the Dam is an inspiring and informative American story of regular people fighting powerful special interests, about how the public interest lost out to big money and its political allies—and of failures by the local and national presstoreportthestoryfairly,accurately,andinproper context.” • Dan Rather, Anchor &Managing Editor, AXS.TV, former reporter and 24-year Anchor, CBS News “The story of the snail darter and the TVA is the Thermopylae in the history of America's conservation movement, and this book by Zygmunt Plater deserves to be the classic telling of it.” •E. O. Wilson. Wilson, University Research Professor Emeritus, Museum of Comparative Zoology, Organismic & E Evolutionary Biology Dept., Harvard University — www.bc.edu/snaildarter