Tuesday, August 18, 2015

Plater on the National Land Use Planning Act vs. Coastal Zone Management Act

Plater1Zygmunt Plater (Boston College) has posted A Glimpse into the Realpolitik of Federal Land Planning, in Comparative Context with the Mysterious NLUPA and the CZMA (The George Washington Journal of Energy & Environmental Law) on SSRN.  Here's the abstract:

There is an old adage that “those who fail to plan, plan to fail.” Planning is a fundamentally rational, basal process shared at some level and to some degree by all, establishing and implementing frameworks to guide our human actions toward the accomplishment of various desired and defined objectives. Thoughtfully designed and implemented planning is no less rational and essential for governmental entities than it is for corporations and individuals.

This essay surveys an interesting comparison between two quite different federal approaches to directive land and resource management planning. On one hand, the analysis reviews the federal mandate for layered, cooperative, intra-governmental land planning incorporated within the National Land Use Planning Act (“NLUPA”) — a statute repeatedly proposed in the 1970s but which never became law — and within the Coastal Zone Management Act (“CZMA”), its sibling statute, that did. On the other hand, this essay observes the circumstances and effectiveness of federal statutory directives to federal management agencies to create and implement mandatory operative plans as a basis for resource regulatory actions on federal lands generally. Both of these models address the need to guide market forces to maximize particular defined societal objectives and to avoid specific public disbenefits.

Shortcomings are frequently encountered, however, in the implementation of many federal resource plans, visible in a variety of disappointing occurrences including oil spill contingency responses in Alaska and the Gulf of Mexico, forestry management, mining, rangeland grazing, and a variety of other federal planning settings. Deficiencies in federal land and resource planning are pondered in this analysis as they are embodied in Norton v. Southern Utah Wilderness Alliance (“SUWA”). Underlying the dysfunctions discernible in many federal resource management plans is a fundamental systemic tension lying within the structure of modern governance. The analysis here finishes with a proposal for understanding how government currently malfunctions in the resource management planning setting and how that can be rectified.


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