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Coordination of Roles of Different Sovereigns in Permitting Resources Projects — Easier Than Herding Cats?

Christopher G. Hayes, Natural Resources and Environmental Administrative Law and Procedure (1999)

I.Most resource development projects in the United States require permits, approvals or acquiescence from more than one level of government. The federal government, states and tribes coexist in a matrix of sovereign authority, in which all of their regulatory requirements must be satisfied as a condition of a project's permitting or approval. Federal land management and environmental regulatory agencies operate under federal statutes and regulations that generally give them extensive mandates and concomitant powers to execute them. States and tribes, understandably, seek to retain and exercise their own sovereign authority to the greatest extent possible. The challenge to the governments is to resolve questions of sovereignty in a way that permits them to work effectively together; the challenge to proponents is to avoid having their projects and permit applications trampled in the fight.

A.Federal, tribal and state governments may have statutory and regulatory requirements that are not fully consistent with one another1. As a general rule, if federal requirements do not preempt those of the states or tribes, then all requirements must be satisfied, and it is usually up to the person seeking permits or regulatory approvals to find a way to reconcile conflicts.

B.Where there are overlapping or conflicting authorities, approval criteria and decision timelines ma