Note: a version of this piece was published in the Delaware State News on June 3, 2017.
The Delaware State News has a history of solid coverage of the Delaware Coastal Zone Act. Not the least was a detailed five-part series by Russ Peterson in which he laid out the history of the Act as he experienced it. (This might be reprinted if available.)
I was aware of, but not involved in, the controversies in the late 1960s and early 70s that lead to the Act. Since the early 1990’s Green Delaware has advocated about the Act, and regarding individual permits sought under it. We have likely disagreed with Delaware’s “environmental community” nearly as often as we’ve disagreed with the Chamber of Commerce, et al.
Much of the near-fifty-years of Coastal Zone controversy has been rather stereotyped — business and union interests claiming damage to the economy, loss of jobs, etc., and environmental interests asserting the need to protect our natural resources and quality of life. For the most part, the Act has been chipped away at, and enforcement has often been weak. The last few years have been especially disastrous, with the Markell administration shutting down meaningful enforcement, handing out Coastal Zone permits like so many peanuts, and Delaware courts willfully misinterpreting the plain language of the Act to deny citizens “standing” to demand enforcement. The present Governor, John Carney, ran on a platform that included weakening of the Act.
The current proposed legislation, House Bill 190, would not leave much left of the Act. The prime sponsor, Rep. Ed. Osienski, is a retired construction union business agent.
In spite of these problems, the Act has done a lot of good. Here’s one example: In about 2004 the Crown Landing liquefied natural gas import terminal was proposed in Logan Township, New Jersey. If built, if would have disrupted normal traffic on the Delaware River and created serious hazards. Because part of the facility would have been in Delaware waters, and because it would have been a new “bulk transfer facility,” prohibited in the Delaware Coastal Zone, Delaware was able to say no to Crown Landing. (Thank John Hughes and Ruth Ann Minner.) A case about it went to the US Supreme Court. Now, not so many years later, facilities are being proposed for the export of LNG, including one right on the Northern border of Delaware. Market conditions change but oil/gas company profits tend to determine public policy….
It’s been a long fifty years, and the activists who originally fought for the Act, many still active in the 1990s, have now mostly retired or passed on. To many living Delawareans, the Act is history, its benefits perhaps taken for granted, and the need to fight for it less than obvious. Yet the widespread opposition to SB 190 makes clear that Delawareans as a whole continue to recognize the significance and concrete value of the Act, and don’t want it weakened.
The immediate impetus for the Act was an attempt by Shell Oil to build another refinery in Delaware. Given the environmental horror show of the existing Delaware City Refinery, the threat posed by another one was easy to see. The Act served that immediate purpose effectively.
But the Act did a lot more and how this came about is worth considering. Politics tends to be a pragmatic business, focused on short term goals and problems. Russ Peterson was a different sort of politician. Highly educated, a product of the then-progressive political atmosphere of the US Upper Midwest and a former research director for DuPont, he was comfortable with conceptual, big picture, thinking. He, and many of his supporters, were Republicans. (Later in life, when the GOP went to pot, he became a Democrat.) Peterson set up a study group, staffed by a professional scientist. Their report provided the conceptual basis for the Act.
Science tell us that the places where land meets water are among the most biologically productive, as well as being the most vulnerable to pollution and destructive forms of development. This biological productivity relies on the preservation of beaches, marshes and wetlands.
Sites along the water have also historically been sought by industrial interests seeking access to cooling water, places to dump wastes, and water-born transport. They are also sought for recreational uses such as swimming beaches, marinas, surfing, and fishing. Growing coastal populations have increased all these pressures.
Coastal locations are a limited resource subject to many competing demands. Fifty years ago Delaware’s political system was able to recognize these realities and act somewhat effectively with a pioneering “coastal management” law. Has our collective wisdom so deteriorated that, in the face in increasing demands, we will choose to roll back,rather than strengthen, coastal protections?
The words of the Act are clear and simple. Read the entire law below:
- It is hereby determined that the coastal areas of Delaware are the most critical areas for the future of the State in terms of the quality of life in the State. It is, therefore, the declared public policy of the State to control the location, extent and type of industrial development in Delaware’s coastal areas. In so doing, the State can better protect the natural environment of its bay and coastal areas and safeguard their use primarily for recreation and tourism. Specifically, this chapter seeks to prohibit entirely the construction of new heavy industry in its coastal areas, which industry is determined to be incompatible with the protection of that natural environment in those areas. While it is the declared public policy of the State to encourage the introduction of new industry into Delaware, the protection of the environment, natural beauty and recreation potential of the State is also of great concern. In order to strike the correct balance between these 2 policies, careful planning based on a thorough understanding of Delaware’s potential and the State’s needs is required. Therefore, control of industrial development other than that of heavy industry in the coastal zone of Delaware through a permit system at the state level is called for. It is further determined that offshore bulk product transfer facilities represent a significant danger of pollution to the coastal zone and generate pressure for the construction of industrial plants in the coastal zone, which construction is declared to be against public policy. For these reasons, prohibition against bulk product transfer facilities in the coastal zone is deemed imperative.
This Delaware Act has served as a model for coastal management laws worldwide.
We don’t have to look very hard to see that Delaware is vulnerable. On the East Coast, we receive a cumulative dose the air pollutants emitted by states to the West. Most of Delaware’s ground and surface waters are polluted. As the lowest-lying state, we are uniquely vulnerable to the sea level rise caused by climate change. Key segments of the economy,such as agriculture, recreation, and tourism are sensitive to changes in weather and climate. Delaware’s location on the Northeast Corridor, with I-95 passing through,seems to make Delaware vulnerable to imported social problems, contributing greatly, for example, to the high levels of violence in Wilmington. A few years ago Green Delaware noted that life expectancy in the US had slipped from 24th to 49th, and Delaware is slightly below the middle of the pack. Many Delawareans are struggling with a our state’s lack of prosperity and economic opportunity. A state run as a safe harbor for corporate misconduct, a “Company State,” as Ralph Nader put it, faces many conflicts of interest in seeking to improve life for human residents.
Of course, any fifty-year-old law, no matter how wisely conceived, can benefit from review and updating. Heavy industry has faded in Delaware–and is unlikely to return–while sprawl development has greatly increased, causing increased traffic congestion and a decline in quality of life. The entire state of Delaware is under the federal Coastal Zone Management program–a program entirely separate, administratively, from the Delaware Coastal Zone Act program and somewhat lacking in teeth. Consideration might be given to expanding the jurisdiction of the Delaware Coastal Zone act to more of the state, perhaps all of it. Many other possible upgrades are easy to think on.
An impressive collection of Delaware’s non-governmental organizations are calling on legislators to withdraw SB 190 and set up a “stakeholder” review process to look at the Coastal Zone Act. Green Delaware supports this, but we note that such a process should (1) not be dominated by industrial/organized labor interests tied to the negative agenda revealed in SB 190,and (2) the focus should not be on weakening the act, but on strengthening it to meet the needs of present times.
Lots of work is needed to make Delaware a place to be proud of. A beefed-up Coastal Zone Act can play a valuable role. Green Delaware declines to accept that Delaware residents and legislators are less capable in 2017 than they were in 1970. Those legislators need to hear from you NOW.
Alan Muller is Executive Director of Green Delaware.
For more on Russ Peterson and the Coastal Zone Act see: “Commentary: Time to think about Delaware’s Peterson, Coastal Zone Act,” and “Russ Peterson, the Delaware Coastal Zone Act, and leadership in Delaware,” also published in the State News.