The law governing development of the five-year plan is set forth at 43 U.S.C. § 1344. The plan itself is to “consist of a schedule of proposed lease sales indicating, as precisely as possible, the size, timing, and location of leasing activity….” 43 U.S.C. § 1344(a). The goal is “to obtain a proper balance between the potential for environmental damage, the potential for the discovery of oil and gas, and the potential for adverse impact on the coastal zone.” 43 U.S.C. § 1344(a)(3). Getting there requires the Secretary of the Interior to consider a number of factors, several of which provide formidable hooks upon which the coastal states and conservation organizations could hang Court challenges. These are the factors which either expressly or implicitly called for equity in scheduling leasing among the various coastal regions of the United States. Thus, the Secretary is required to consider “an equitable sharing of developmental benefits and environmental risks among the various regions” (43 U.S.C. § 1344(a)(2)(B)), and “the relative environmental sensitivity and marine productivity of different areas of the outer Continental Shelf” (43 U.S.C. § 1344(a)(2)(G).
Through a succession of cases addressing issues of first impression running the gamut from how to measure the environmental sensitivity of the various coastal and offshore regions, to how to assess the impacts of climate change, teams of Natural Resources Section and other Environment and Natural Resources Division attorneys developed the case law in this critical area. A discussion of the various cases which established these precedents includes: