Official Opinion 97-2
District 1 and Representative District 150
This letter responds to your request for my official opinion regarding the impact of the Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. § 1451 et seq., on Georgia's right to regulate activities within its borders under current law and the effect, if any, that Georgia's qualification as a coastal zone management approved state may have on its immunity under the Eleventh Amendment of the United States Constitution. Your request arises out of the fact that the National Oceanic and Atmospheric Administration (NOAA), a subpart of the United States Department of Commerce, has interpreted the CZMA as allowing a state that has obtained CZMA approval to object to activities occurring wholly within the boundaries of another state. I have, therefore, interpreted your request as asking whether, in my opinion, the CZMA would authorize another state to object to activities located wholly within the geographic boundaries of Georgia and whether Georgia's participation in
the CZMA Program would constitute a waiver of Eleventh Amendment immunity and consent to another state's exercise of authority to object to activities within Georgia.
The CZMA was enacted to encourage the several coastal states to develop programs for the protection of coastal resources in the interest of the nation and the several states. 16 U.S.C. § 1451. The Act encourages the states to undertake such programs through federal assistance and a system of grants. 16 U.S.C. §§ 1451(i), 1453, 1455. Under NOAA's interpretation of the CZMA, a CZMA state would be authorized to object to projects wholly within the geographic boundaries of Georgia, irrespective of whether Georgia is an approved or unapproved CZMA state. However, as an unapproved CZMA state, Georgia could not employ the CZMA to object to coastal projects within other states.
With respect to the question of whether the CZMA authorizes another state to object to activities wholly within Georgia, we have not found any provision of the CZMA expressly referencing one state's authority to object to projects within another state. It also appears that, in the past, the United States Department of Justice has disagreed with NOAA's interpretation. The relatively recent withdrawal of the Department of Justice position in deference to NOAA's right to interpret the CZMA "in the first instance" does not alter the fact that the evidence supporting NOAA's position is thin, at best. In the absence of clear evidence of Congress' intent and in light of the sovereignty of the states under the Constitution of the United States, it is my opinion that the CZMA does not authorize another state to object to activities within Georgia, notwithstanding NOAA's opinion to the contrary.
With respect to the question of whether participation in the CZMA Program would constitute consent to waiver of Eleventh Amendment immunity and consent for other states to object to activities within Georgia, I do not believe that would be the
case. However, federal agencies are generally entitled to deference to their interpretations of laws assigned to them. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, I cannot say with complete certainty that participation could never be construed as consent. To reduce the possibility that Georgia's participation could be construed as such consent, I strongly recommend that, prior to participation, NOAA's acknowledgement to that effect be obtained. In addition, I strongly recommend that any proposed CZM legislation contain a provision stating that nothing contained therein shall be construed as a consent to waiver of immunity under the Eleventh Amendment of the United States Constitution or consent for any other state to exercise regulatory jurisdiction within the boundaries of this state.
Therefore, it is my official opinion that, notwithstanding NOAA's interpretation to the contrary, the CZMA does not authorize another state to object to activities wholly within the geographical boundaries of Georgia. It is my further opinion that Georgia's participation in the CZMA Program would not constitute consent to waiver of its Eleventh Amendment immunity or consent for other states to assert regulatory jurisdiction within Georgia.
Senior Assistant Attorney General
Seminole Tribe of Fla. va. Florida, U.S. , 116 S. Ct. 1114, 1122-23 (1996); Nevada v. Hall, 440 U.S. 410, 423-24 (1979); Baldwin v. Fish and Game Comm'n, 436 U.S. 371, 381 n.19 (1978); also see Parker v. Brown, 317 U.S. 341, 351 (1943).
Seminole Tribe of Fla. v. Florida, supra at 1125 (conferral of authority upon states by Congress does not authorize abrogation of Eleventh Amendment immunity); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246-47 (1985) (California's participation in the federal Rehabilitation Act and acceptance of grant funds does not constitute waiver of Eleventh Amendment immunity); Nevada v. Hall, supra at 423-24, 426-27 (law of one state with respect to sovereign immunity does not apply in any other state unless such other state consents, the Full Faith and Credit Clause of the United States Constitution, notwithstanding); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276 (1959) (waiver of Eleventh Amendment immunity is not to be lightly inferred).