Full opinion text
MEMORANDUM OF DECISION AND ORDER KELLEHER, District Judge. Plaintiffs American Petroleum Institute, Western Oil and Gas Association, and certain oil company members of the aforesaid Institute and Association brought this action against three federal officials (“the federal defendants”) in their official capacities as Secretary of Commerce, Administrator of the National Oceanic and Atmospheric Administration (“NOAA”), and Acting Associate Administrator of the Office of Coastal Zone Management (“OCZM”), seeking declaratory and injunctive relief against defendants’ imminent grant of “final approval” of the California Coastal Zone Management Program (“CZMP”) pursuant to § 306 of the Coastal Zone Management Act of 1972, as amended (“CZMA”) (16 U.S.C. §§ 1451 et seq.) and seeking further relief in the nature of mandamus directing the federal defendants to grant “preliminary approval” to the CZMP pursuant to § 305(d) of the Act. In brief, plaintiffs contend that the California Program cannot lawfully be approved by the federal defendants under § 306 of the CZMA, principally for two reasons. First, the CZMP is not a “management program” within the meaning of § 304(11) of the Act in that (a) it fails to satisfy the requirements of §§ 305(b) and 306(c), (d), and (e), and regulations promulgated thereunder, as regards content specificity; and (b) it has not been “adopted by the state” within the meaning of § 306(c)(1). Second, the procedures by which the CZMP has reached the present state of development violate the CZMA, the National Environmental Policy Act (“NEPA”) (42 U.S.C. §§ 4321 et seq.), and California statutes in that the final environmental impact statement, which differs substantially from both the draft and revised draft environmental impact statements, was not subject to formal notice and hearings, yet purports to contain one of five “elements” of the CZMP. The action was commenced on September 9, 1977, by the filing of a complaint and application for temporary relief, pursuant to which a temporary restraining order (“TRO”) and order to show cause were issued on September 12, the effect of which was to restrain the federal defendants from giving final approval to the CZMP pending further hearing on plaintiffs’ motion for a preliminary injunction. Thereafter, on October 7, following a hearing on October 3 and 6, an order, agreed to by all parties issued, whose effect was to (1) consolidate the hearing on the motion for a preliminary injunction with the trial on the merits (pursuant to Rule 65(a)(2), F.R.Civ.P.), (2) establish a briefing schedule, (3) provide for the lodging of evidentiary matter, and objections thereto, and (4) lift the TRO in order to permit the federal defendants (a) to disburse funds to California under the CZMA and (b) to take whatever action they deemed “necessary and appropriate,” including formal approval of the CZMP under § 306, accompanied by the findings required under § 306. The order further provided, however, that pending entry of final judgment in this Court, any such approval under § 306 by the federal defendants would be deemed ineffective to trigger the “consistency” provisions of § 307(c) and (d). The CZMP was given final approval by Acting Associate Administrator Knecht, to whom the duty of approving or disapproving management programs submitted under § 306 had been and continues to be delegated, on November 7, 1977. His findings were issued at that time. Thereafter, on February 13,14,15 and 16, 1978, the Court held the aforesaid consolidated hearing and heard argument on cross-motions for summary judgment, and the matter was further briefed and submitted to the Court for decision. All of the parties have agreed that there is no genuine issue as to any material fact in this case and that by examining the pleadings and the evidence in the record before it, and after consideration of the arguments made in writing and orally, the Court may proceed to a disposition on the merits, which we now do. For reasons set forth below, the Court affirms the federal defendants’ § 306 approval of the CZMP and grants judgment for defendants and against plaintiffs. FACTS The following facts appear to be before the Court without dispute: 1. Plaintiff American Petroleum Institute (“API”), a corporation organized under the District of Columbia nonprofit corporation laws, is a national trade association of approximately 350 companies and 7,000 individuals engaged in the petroleum industry. Its members include companies and individuals actively engaged in exploration, production, refining and marketing of petroleum products in the United States, including the State of California and the Outer Continental Shelf off the coast of California. 2. Plaintiff Western Oil and Gas Association (“WOGA”), a corporation organized under the California nonprofit corporation laws, is a regional trade association of over 75 member companies and individuals engaged in the petroleum industry. Its members include companies and individuals responsible for in excess of 65 percent of the production of petroleum, in excess of 90 percent of the refining of petroleum, and in excess of 90 percent of the marketing of petroleum in the southern western states of the United States, including California and the Outer Continental Shelf off the coast of California. 3. Plaintiffs Champlin Petroleum Company; Chevron U.S.A., Inc.; Continental Oil Company; Exxon Corporation; Getty Oil Company; Gulf Oil Corporation; Mobil Oil Corporation; Reserve Oil & Gas Company; Shell Oil Company; Texaco, Inc.; and Union Oil Company of California (“the oil company plaintiffs”) are each corporations organized under the laws of the various states and are members of API or WOGA. The oil company plaintiffs, among other activities, are engaged in the business of exploration for and production of oil and natural gas both within the state of California and on the Outer Continental Shelf (“OCS”) off the California coast. Some of the oil company plaintiffs own interests in OCS leases purchased in federal lease sales under the provisions of the Outer Continental Shelf Lands Act (43 U.S.C. §§ 1331 et seq.). The remaining plaintiffs have interests in the coastal zone of California and/or are oil and gas consumers engaged in business in California. 4. Defendant Juanita Kreps, sued herein in her official capacity, is Secretary of the United States Department of Commerce (“Secretary”) and is charged with administering the CZMA, which includes approval or disapproval of coastal zone management programs submitted by the coastal states, of which California is one. NOAA exists within the Department of Commerce. By administrative directive dated October 13, 1976, the Secretary delegated, inter alia, the CZMA approval function to the Administrator of NOAA and expressly reserved other powers under the Act. Defendant Richard Frank is the Administrator of NOAA and is sued herein in his official capacity. Within NOAA there exists the Office of Coastal Zone Management (“OCZM”). Defendant Robert W. Knecht is the Acting Associate Administrator (“Acting Administrator”) for coastal zone management and is sued herein in his official capacity. By administrative directive dated October 20, 1976, the Administrator of NOAA delegated to the Associate Administrator for Coastal Zone Management the authority to exercise all functions under the CZMA not expressly reserved to either the Secretary or the Administrator of NOAA. 5. The defendant-in-intervention, California Coastal Commission, is an agency of the State of California created pursuant to the California Coastal Act of 1976 (Cal.Pub.Res. Code §§ 30000, et seq.). The Coastal Commission is the successor in interest to the California Coastal Zone Conservation Commission created pursuant to Proposition 20 (Cal.Pub.Res.Code §§ 27000, et seq.), which expired on December 31,1976. The California Coastal Act became effective on January 1, 1977. 6. Defendants-in-intervention, Natural Resources Defense Council, Inc., and the Sierra Club (“NRDC”) are associations whose members claim an interest in coastal zone management. 7. On March 31, 1976, the California Coastal Zone Conservation Commission submitted to the federal defendants a coastal zone management program for approval under the provisions of CZMA § 306. 8. In September of 1976 the federal defendants issued a Draft Environmental Impact Statement (“DEIS”) wherein they announced their tentative decision to approve the California Coastal Zone Management Program submitted in March. Thereafter, the State of California enacted the Coastal Act of 1976, which declared itself to be “California’s coastal zone management program within the coastal zone for purposes of the Federal Coastal Zone Management Act of 1972 . . . .” (Cal.Pub.Res.Code § 30008.) 9. On October 20, 1976, the DEIS was withdrawn and the public hearings to be held thereon were cancelled. On April 12, 1977, the federal defendants issued a Revised Draft Environmental Impact Statement (“RDEIS”) and announced their tentative decision to approve the revised coastal zone management program submitted by the Coastal Commission. At this time the CZMP was described as consisting of the California Coastal Act of 1976, the Coastal Conservancy Act (Cal.Pub.Res.Code §§ 31000 et seq.), and the Urban and Coastal Park Bond Act (Cal.Pub.Res.Code §§ 5096.111 et seq.). Public hearings were held on the RDEIS and the CZMP as therein described on May 19, 1977, in Los Angeles, California. Plaintiffs appeared and (by oral testimony and written comments submitted before the hearing and additional comments submitted thereafter) recommended that the CZMP not be approved and that a new environmental impact statement be prepared. 10. On August 16, 1977, the federal defendants issued their Final Environmental Impact Statement (“FEIS”), together with Attachment K, containing written statements from parties commenting on the CZMP. In the FEIS, the CZMP was described as consisting of five elements: the Coastal Act of 1976, the Coastal Conservancy Act, the Urban and Coastal Park Bond Act, the Coastal Commission’s final regulations (Cal.Admin.Code, Title 14, §§ 13000 to 14000), and Part II (Introduction and Chapters 1-14) (“the Program Description”) of the FEIS. On September 1, 1977, plaintiffs submitted to the federal defendants written comments objecting to approval of the CZMP as defendants proposed in the FEIS. Defendants replied by letter dated September 8, 1977, from Acting Administrator Knecht to plaintiffs’ counsel, by which letter defendants indicated that they intended to proceed with approval of the CZMP. As noted previously, final approval, accompanied by a recital of findings, occurred on November 7. The Court has before it for determination both preliminarily and for ultimate disposition questions of the highest importance, greatest complexity, and highest urgency. They arise as the result of high legislative purpose, low bureaucratic bungling, and present inherent difficulty in judicial determination. In other words, for the high purpose of improving and maintaining felicitous conditions in the coastal areas of the United States, the Congress has undertaken a legislative solution, the application of which is so complex as to make it almost wholly unmanageable. In the course of the legislative process, there obviously came into conflict many competing interests which, in typical fashion, the Congress sought to accommodate, only to create thereby a morass of problems between the private sector, the public sector, the federal bureaucracy, the state legislature, the state bureaucracy, and all of the administrative agencies appurtenant thereto. Because the action taken gives rise to claims public and private which must be adjudicated, this matter is now involved in the judicial process. In whatever technical form the questions and issues are here presented, they resolve themselves into the familiar situation in which a court must sit in some form of judicial review of administrative action— and it isn’t easy. We deal here with a hybrid kind of record and consequent hybrid form of review. As will appear from the extensive discussion below, the several approaches to and differing views of the proper scope and kind of judicial review are here brought under consideration. We have questions of whether review is proper or timely and, if so, of what proper scope and result. We treat each seriatim. STANDING This issue need not detain us long. While defendants originally urged that plaintiffs in this case lack standing to litigate speculative harms, during oral argument counsel for the NRDC, to whom the task of pressing defendants’ standing and ripeness contentions was apparently assigned, conceded that what had previously been designated an issue of standing was more properly characterized as a ripeness problem. The Court nevertheless briefly examines the standing of plaintiffs to maintain the present action before addressing the ripeness issue. The Supreme Court has liberalized the law of standing so that, while injury in fact is always required, Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), “an identifiable trifle is enough.” U. S. v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) [quoting Davis, Administrative Law Treatise, § 22.09-5 at 748 (1970 Supp.)]; National Automatic Laundry & Cleaning Council v. Schultz, 143 U.S.App. D.C. 274, 278, 443 F.2d 689, 693 (1971). The distinction that the Court has drawn is one between actual and abstract injury. Abstract injury is not enough. It must be alleged that the plaintiff “has sustained or is immediately in danger of sustaining some direct injury” as a result of the challenged statute or official conduct. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). See Cady v. Morton, 527 F.2d 786, 791 (9th Cir. 1975). In the present case plaintiffs, whose activities will be regulated by the CZMP to the extent that their activities in exploring for and developing oil and gas resources on the OCS must be consistent therewith, have alleged and shown injury in fact. For upon approval by the federal defendants of the CZMP under § 306 of the CZMA, the consistency provisions of § 307 are triggered. Thereafter, before federal agencies may approve certain activities of plaintiffs relating to exploration and development of OCS resources, plaintiffs must certify that the proposed activity is consistent with the CZMP. Although the state is afforded six months to. certify to the federal agency whether or not a proposed activity is consistent, the initial burden of determining consistency falls to the applicant. The gravamen of the complaint is that the submitted CZMP as approved by the federal defendants lacks the requisite specificity under CZMA and consequently may not be approved under § 806. If approved, plaintiffs claim immediate and substantial harm by compulsion to expend large sums of money to determine if their proposed activities are consistent. Moreover, plaintiffs allege that this lack of specificity increases their burden and makes it impossible to discharge, since they cannot with any reasonable assuredness certify that any activity subject to § 307 is in fact consistent with the CZMP. The undeniable interest of plaintiffs in the areas subject to the CZMP, the fact that once § 306 approval is given, their activities are subject to regulation under it, and the fact that an immediate consequence is to compel plaintiffs to expend financial resources in an effort to satisfy the requirements of § 307, combined with their claim that this burden is substantially increased by virtue of the very defects which they assert make approval improper, provide the necessary injury in fact to give plaintiffs standing to challenge the federal defendants’ action in approving the CZMP under § 306. Accordingly, the Court finds that the plaintiffs have standing to litigate the issues presented. RIPENESS On this issue the Court must delineate what issues are and are not before it for review. The Court concludes that the approval given by the federal defendants results in action which is ripe for review, but that issues relating to the state’s application of § 307 of the CZMA to particular activities of plaintiffs is not ripe for review. This conclusion has impact with respect to two other issues in this lawsuit: first, plaintiffs’ request that the Court undertake a full-scale declaration of the parties’ rights and obligations under the CZMA and the CZMP; and, second, plaintiffs’ claim that the environmental impact statement and review process were deficient in failing to address potential impact nationwide if energy resource development in areas subject to the CZMP was retarded or halted by virtue of the state’s application of its § 307 powers. The Court declines to undertake the first because such declarations are best left to a time when a court has before it a case or controversy sufficiently identifiable to allow to a specific issue application of a specific provision or provisions of the Act or Program. The Court declines the second so far as it requires the Court to assume that the state may abuse its § 307 powers and that federal officials will fail to correct such abuses under their power so to do, pursuant to the provisions of §§ 307(c)(3) and 312. A trilogy of Supreme Court decisions forms the bedrock for the modern law of ripeness. In oft-quoted language from Abbott Laboratories, the Court stated: [The] basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. 387 U.S. at 148-49, 87 S.Ct. at 1515 (emphasis supplied). A. Fitness of the Issues for Judicial Decision. Courts typically focus on two factors: whether they are presented with issues that are “purely legal” (Abbott Laboratories, supra, 387 U.S. at 149, 87 S.Ct. 1507; National Automatic Laundry & Cleaning Council, supra, 143 U.S.App.D.C. at 280, 443 F.2d at 695; Bethlehem Steel Corp. v. U. S. Environmental Protection Agency, 536 F.2d 156, 161 (7th Cir. 1976)) and whether they are presented with “final agency action” (Abbott Laboratories, supra, 387 U.S. at 149, 87 S.Ct. 1507; Natural Resources Defense Council, Inc. v. U. S. Nuclear Regulatory Commission, 539 F.2d 824, 836-37 (2d Cir. 1976); Bethlehem Steel Corp., supra, 536 F.2d at 161). Considering finality, or reviewability, first, the Court notes that approval under § 306 is the culmination of the agency review process here involved. Following approval, there is nothing further to be done as part of the administrative process, other than the obligation of “continuing review” under § 312(a), an obligation which relates to a management program that has already been approved under § 306'. The present case is thus unlike Bethlehem Steel Corp., wherein the challenged regulations were found “only [to] provide for a study by the State ... of future air pollution problems in the designated areas. Any standards for petitioners to follow will not be promulgated until the study is completed. Our review of the challenged actions consequently will interfere with an ongoing administrative process. Because of this we cannot say the agency action is ‘final’.” 536 F.2d at 161. The fact that agency approval is here involved rather than rule-making is of no consequence. Courts have heeded the Supreme Court’s approval in Abbott Laboratories of a “pragmatic” interpretation of the finality requirement. 387 U.S. at 150, 87 S.Ct. 1507, citing Columbia Broadcasting System v. U.S., 316 U.S. 407, 418-19, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942) (FCC statement of intention not to license stations which maintained certain contracts with networks; no license yet denied or revoked); National Automatic Laundry & Cleaning Council, supra (interpretative letter of agency); Natural Resources Defense Council, Inc., supra, 539 F.2d at 837 (order of agency). The Court concludes that the federal defendants’ approval under § 306 constituted final agency action for purposes of reviewability. On the question of whether purely legal issues are presented, the Court notes that this is not a case in which plaintiffs are challenging agency action on the grounds that it exceeds the agency’s statutory authority (as was the case in Abbott Laboratories and National Automatic Laundry). Here the agency’s action involved findings in part premised on its interpretation of the CZMA (as amended in 1976); hence the Court is presented with predominantly legal issues. The facts, while not unmuddied by the nature of the administrative action here involved, nevertheless are not in dispute. The dispute centers on the legal characterization of such facts under the language of the statute. Thus, the federal defendants’ finding under § 306(c)(8) that the California Program “provides for adequate consideration of the national interest involved in planning for, and in the siting of, [energy] facilities . . which are necessary to meet requirements which are other than local in nature” presupposes a legal determination on the part of the agency as to just what is meant and required by “adequate consideration.” This in turn requires an examination of Congress’ intent in enacting and amending the CZMA. To be sure, this case does not fit neatly into the category of case typified by National Automatic Laundry. There the court could state: “There is no ‘record’ to be studied or made, for the only record involved on this issue is that established by such materials as the law and its legislative history.” 143 U.S.App.D.C. at 280, 443 F.2d at 695. Here, on the other hand, the very statute whose provisions must be construed requires that before approving a management program under § 306, the agency find that it includes certain substantive provisions and that it has been adopted in accordance with certain procedures. Consequently, at the same time that the Court must construe the statute, it must review administrative findings subject to the limited review under § 706(2)(A) of Title 5, the Administrative Procedure Act (“APA”). The complexity arises from the fact that many of those findings present classic examples of mixed questions of law and fact, further complicated by their essentially technical nature. The Court’s conclusion is supported further by the fact that the findings required under § 306 involve the agency’s comparison of the provisions of the CZMP with the CZMA and regulations promulgated thereunder, at least with respect to the requirements of the Act relating to substantive program content. As noted previously, nothing remains to be done by the agency vis-á-vis § 306 approval. If the propriety of that approval is not ripe for judicial review at this time, it will never be ripe. Finally, the Court notes that, irrespective of the above characterization, whether the issues presented are legal is merely a factor to be balanced against hardship to the parties; it is not a requirement in the absence of which the Court must find the action unripe for review. In pre-enforcement judicial review of agency action, typically the agency argues that the legal issues are too abstract or speculative to be determined in advance of their being shaped and sharpened by efforts to enforce them, or that the very fact of enforcement is uncertain. Where “consideration of the underlying legal issues would necessarily be facilitated if they were raised in the context of a specific attempt to enforce the regulations” (Gardner, supra, 387 U.S. at 171, 87 S.Ct. at 1528), a court might and probably should conclude that the matter is not ripe; but where the issues would not be sharpened thereby, ripeness is more readily found. Here, the Court in applying the above principle concludes that issues specifically related to application of the § 307 consistency power are wholly speculative and thus not ripe for review. On the other hand, review of the agency’s approval predicated on its impact on plaintiffs’ interests is non-speculative. As defendants have stated, the propriety of the approval stands or falls on the record made before the agency and the support it lends to the administrator’s findings that the CZMP, both in content and in manner of adoption and approval, meets the requirements of the CZMA. B. Hardship to the Parties of Withholding Court Consideration. In Abbott Laboratories, in finding petitioners’ preenforcement challenge to certain labelling regulations promulgated by the Commissioner of Food and Drugs ripe for review, the Court emphasized the hardship to petitioners if judicial review were deferred. In so doing the Court focused on the impact on petitioners of deferring review: This is also a case in which the impact of the regulations upon petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage. These regulations purport to give an authoritative interpretation of a statutory provision that has a direct effect on the day-to-day business of all prescription drug companies; its promulgation puts petitioners in a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate. . The regulations are clear-cut, and were made effective immediately upon publication ... . . If petitioners wish to comply they must change all their labels, advertisements, and promotional materials; they must destroy stocks of printed matter; and they must invest heavily in new printing type and new supplies. The alternative to compliance . . may be even more costly. That course would risk serious criminal and civil penalties 387 U.S. at 152-53, 87 S.Ct. at 1517. Similarly, in finding the issue of what sort of items are “color additives” within the meaning of the Color Additive Amendments of 1960 to the Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(t)(l), to be ripe for review in light of regulations relating thereto which respondents challenged as beyond the Commissioner’s statutory authority to promulgate, the Court stressed the fact that “these regulations are self-executing, and have an immediate and substantial impact upon the respondents.” Gardner, supra, 387 U.S. at 171, 87 S.Ct. at 1528. The significance of this requirement of immediate and substantial impact is underscored by the Court’s finding of a lack of ripeness in the remaining case in the above trilogy. In Toilet Goods Association, after having agreed with the Court of Appeals that the agency action was final and that the question presented was purely legal (387 U.S. at 162-63, 87 S.Ct. 1520), the Court nevertheless found these factors outweighed by other considerations — chiefly the facts that (1) the regulation was not self-executing but merely gave notice of what the agency might do in the future, (2) justification for the regulation would depend “not merely on an inquiry into statutory purpose, but concurrently on an understanding of what types of enforcement problems are encountered by the FDA, the need for various sorts of supervision in order to effectuate the goals of the Act, and the safeguards devised to protect legitimate trade secrets” (id. at 163-64, 87 S.Ct. at 1524), and (3) immediate and substantial impact was lacking. While the second factor relates to the fitness of the issues, the first and third relate to hardship. In analyzing the lack of such in the case before it and contrasting it with the sort of impact “felt immediately by those subject to it in conducting their day-to-day affairs” (id. at 164, 87 S.Ct. at 1524), the Court remarked: This is not a situation in which primary conduct is affected — when contracts must be negotiated, ingredients tested or substituted, or special records compiled. This regulation merely states that the Commissioner may authorize inspectors to examine certain processes or formulae; no advance action is required of cosmetics manufacturers . . . . Unlike the other regulations challenged in this action, ... a refusal to admit an inspector here would at most lead only to a suspension of certification services to a particular party, a determination that can then be promptly challenged through an administrative procedure, which in turn is reviewable by a court. Such review will provide an adequate forum for testing the regulation in a concrete situation. Id. at 164-65, 87 S.Ct. at 1524-1525. From the above, it is evident that the Court is here faced with a problem of classification: Are the consequences of which plaintiffs complain — not those flowing from the manner in which California might exercise its § 307 powers but rather those involving the need of plaintiffs to take steps to certify their proposed activities as consistent with the CZMP — consequences of “immediate and substantial impact”? More specifically, is the uncertainty in the conduct of the affairs which plaintiffs claim follows from § 306 approval of the CZMP the sort of impact on day-to-day activities that courts have typically found to be a sufficient hardship to support a finding of ripeness? First, it should be noted that the Abbott Laboratories standard refers to hardship to the “parties,” not merely the plaintiff. The agency may benefit as much as the private complainant from prompt judicial review of the challenged action. Perhaps more than any other single factor, placing an entire program of the breadth, dimension, and significance of the CZMP in a position where subsequent challenges could be made to the contents and manner of adoption of the entire CZMP would be intolerable from the point of view of the state and federal defendants. The state, in reliance on the approval and attendant receipt of millions of dollars in administration funds (80 percent of the costs thereof being borne by the federal government), will have proceeded to implement the CZMP in a variety of ways (e. g., staffing, acquiring fee title to certain lands). The federal defendants, faced with applications for § 306 approval from other coastal states, and in reliance on the legality of the procedures utilized in adopting and approving the CZMP and in reliance upon their interpretation of the requirements of the CZMA, may proceed to approve other programs, the validity of which approval would then be cast in doubt. Given that all facts pertinent to a determination of whether the federal defendants’ approval was proper have occurred and nothing that may occur hereafter can in any way alter the record upon which approvál was premised, substantial hardship may result from deferring a decision on the merits. Second, from plaintiffs’ perspective, the hardship attendant upon having to determine whether present and planned activities are consistent with a program which has received § 306 approval is severe, particularly in light of the contention that the very lack of specificity which makes compliance difficult if not impossible makes the approval unlawful under the CZMA. The cases which refer to uncertainty in business activities and increased costs do not resolve the questions posed earlier, though they tend to favor plaintiffs in this action. For example, in Bethlehem Steel Corp., supra, plaintiffs sought review of regulations of the Environmental Protection Agency, designating certain areas in Indiana as air quality maintenance areas. The court found the matter unripe for review, noting that “petitioners are not required to do anything nor to refrain from doing anything.” 536 F.2d at 162. Petitioner steel and power companies had argued that they suffered immediate injury as a result of the designations because uncertainties in their business operations were thereby created— for example, the need to maintain capital to cover the possible expenditure of funds for pollution control equipment in the event more restrictive air pollution regulations were applied. The court rejected these arguments, finding the claims of uncertainty “not sufficient to warrant our review of an ongoing administrative process. [T]he claims ... do not involve injuries on the order of concrete immediate business costs . . . .” Id. It further noted that petitioners “need not expend any funds at this time since there is no administrative directive to which they must comply, nor, of course, do they face any sanctions for noncompliance.” Id. at 163. Plaintiffs here have argued that they do incur immediate business costs by virtue of § 306 approval and that they must comply with § 307 or face refusal of permits, licenses, and other manifestations of federal agency approval of particular activities they may desire to undertake on the OCS. In Phillips Petroleum Co. v. Federal Energy Administration, 435 F.Supp. 1239 (D.Del. 1977), plaintiffs challenged the agency’s interpretation and contemplated application of a 1973 regulatory scheme dealing with the method by which plaintiffs priced petroleum products as a result of increased costs incurred over a given thirteen-month period. The court found that the agency action had a direct and immediate impact on the plaintiffs’ conduct of their business. Each month that passes without resolution of the present controversy threatens plaintiffs with a dilemma. If they actually charge the prices that they believe they are lawfully entitled to charge, they risk FEA action requiring price rollbacks, cash refunds, and substantial civil and criminal penalties, as well as private treble-damage actions. On the other hand, if plaintiffs forebear from such pricing, they may be forced unnecessarily to delay further in recovering costs they have actually incurred, and they may be permanently barred from recovery by missing market opportunities that will never be repeated. Id. at 1246-47. See Commonwealth of Puerto Rico v. Alexander, 438 F.Supp. 90 (D.D.C.1977) (expenses required to comply with the challenged regulations found to be injury in fact). One problem the Court here faces in determining the existence of substantial immediate impact is the emphasis the cases appear to place on plaintiffs being placed in a “dilemma” should the Court defer review. See, e. g., Abbott Laboratories, supra, 387 U.S. at 152, 87 S.Ct. 1507, Gardner, supra, 387 U.S. at 171, 87 S.Ct. 1526 (“quandry”); National Automatic Laundry, supra, 143 U.S.App.D.C. at 281, 443 F.2d at 696. Arguably any costs of determining consistency which plaintiffs must bear after § 306 approval result from the congressional scheme; and any increased costs due to the alleged unlawful lack of specificity in the CZMP are speculative. Similarly, any det-, riment to plaintiffs which results from the six-month period which Congress has afforded a state to exercise its § 307 power before consistency is conclusively presumed is not a matter with respect to which plaintiffs may be heard to complain. The difficulty is that to the extent plaintiffs have a substantial interest in having the CZMP comply with the CZMA, if review, particularly of the manner of adoption and approval, is here denied, it is unclear whether such review will ever occur, and it is clear that if it does the hardship to the state and the federal defendants which would result from a successful challenge must also be considered. The court in Bethlehem Steel Corp. recognized the validity of this factor. The other consideration to be taken into account in determining whether there is sufficient hardship to the parties to warrant our review is that of whether the challenged action will be reviewable in the future. If it will not be reviewable later, our review now may be warranted to protect the right of the parties to have the issues heard in court. 536 F.2d at 163. C. Conclusion. Having examined the facts of this case in light of the above precedents, the Court finds that the issue of ripeness is a close question and takes to heart the adponition of the Seventh and District of Columbia Circuits: The determination to be made is the imprecise one of considering and balancing the relevant factors. It is “very much a matter of practical common sense,” Continental Air Lines, Inc. v. C. A. B., [173 U.S.App.D.C. 1, 18,] 522 F.2d 107, 124 (D.C.Cir.1975). Bethlehem 'Steel Corp., supra, 536 F.2d at 160. The Court concludes that the • approval of the federal defendants of the CZMP under § 306 of the CZMA is ripe for review. First, the agency action challenged herein is final. Second, while there are mixed questions of law and fact involved in the agency’s findings under § 306, the facts are either documentary or not in dispute and the law is a proper subject for judicial review. Third, consideration of the issues involved in the § 306 approval would not be sharpened by further actions taken with respect to the Program. Review of that which has occurred would not be further particularized by awaiting a challenge to a refusal of the state to certify one of plaintiffs’ proposed activities as consistent with the CZMP. Fourth, while plaintiffs are not faced with, the classic dilemma found in Abbott Laboratories, nevertheless they do face the onerous task of complying with a program whose provisions they claim are too uncertain to permit approval under § 306 properly to have occurred. Fifth, the magnitude, impact, and significance of the CZMP, and the interests of the state and federal government in connection therewith, bespeak the need to resolve at the earliest practicable date the challenges to its approval, particularly those directed toward the manner by which it was adopted by the state and approved by the federal defendants. Severe hardship could accrue to defendants (particularly the state defendant) should a successful challenge be mounted subsequent to its implementation. Sixth, the public interest demands that claims that federal statutes have been violated (the CZMA and NEPA) should receive a judicial forum. The propriety of the § 306 approval will never be more ripe for disposition. If not challenged at this time, important public interests may never receive the judicial forum to which they are entitled. The Court concludes further that no issues regarding § 307 are presently ripe for disposition. Whether the state will utilize its consistency powers improperly to retard or halt energy development are wholly speculative. No specific activities contemplated by plaintiffs have been presented or form any part of the record in this case; no anticipated refusals to certify have been alleged or presented. The construction of particular provisions of the CZMP will have to await the presentation of a concrete controversy over their meaning or application to specific activities. Similarly, the Court concludes that there is no need to engage in a treatise-like recital of each provision of the CZMA. Such construction of provisions and regulations as is necessary to review the federal defendants’ findings under the limited standard of review applicable to this case will be undertaken. As with the CZMP, a detailed treatment of various provisions of the CZMA must await a more concrete dispute than is here presented for resolution. STANDARD OF REVIEW The standard of review has been the subject of serious dispute between the parties. Plaintiffs argue that while purely factual determinations made by an administrative agency without formal hearings are governed by the “arbitrary or capricious” standard of 5 U.S.C. § ‘706(2)(A), nevertheless purely legal determinations, determinations of both questions of fact and law (such as mixed questions), and determinations of fact questions predicated on documentary evidence which the reviewing court is in as good a position as the agency to appraise all permit a reviewing court to undertake de novo review and to substitute its judgment for that of the agency, particularly where .the agency possesses no special technical qualifications or long-standing expertise with respect to the subject matter of the challenged action. Plaintiffs argue that the federal defendants’ § 306 approval of the CZMP falls within the above categories warranting de novo consideration. The starting point for any inquiry into the appropriate standard of review of agency action is § 10 of APA, 5 U.S.C. § 706: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (2) hold unlawful and set aside agency actions, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; . As with so many statutory standards, the case law has placed a significant gloss on the meaning of the literal language, affecting its applicability in various contexts, its meaning, and the factors to be considered in determining whether the administrative action under review falls within the standard thus established. One problem initially to be resolved is the ambiguous overlap among the “arbitrary and capricious,” “excess of statutory authority,” and “without observance of procedure” standards set forth in paragraphs (A), (C), and (D) of § 706(2), inasmuch as all apply to “agency action, findings, and conclusions.” New cases deal with this difficulty; and the parties to this litigation have argued throughout for application of paragraph (A) alone or de novo review of what have been characterized as mixed questions of fact and law. The Court distinguishes between (a) review of the federal defendants’ decision to approve the CZMP based on the Acting Administrator’s finding that its contents and manner of adoption by the state satisfied the substantive and procedural requirements of the CZMA, and (b) review’ of the agency’s determination that the manner of § 306 approval satisfied the procedural requirements of CZMA and NEPA. As to the former, the arbitrary and capricious standard governs; but as to the latter, the Court focuses its review on the observance of procedure standard. Cady v. Morton, supra, 527 F.2d at 793 (referring to the standard as “ad hoc in character”), citing Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974) and Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974) (the procedural standard “is less helpful in reviewing the sufficiency of an EIS than one might wish”). A distinction must also be made with regard to the applicability of the observance of procedure standard to this ease. To the extent that the Acting Administrator is required under the CZMA to find that certain procedures were followed in placing the CZMP before him for § 306 approval— these procedures relating to the fact and manner of adoption of the CZMP by the state — as noted above, the arbitrary and capricious standard applies. The observance of procedure standard applies to the procedures required of the federal agency in undertaking § 306 approval. These are the procedures required by § 306 of the federal agency itself and also those required by NEPA with respect to the environmental impact review process. The arbitrary and capricious standard of review has been the subject of judicial opinions too numerous to cite here. It has been construed by the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. [Citations omitted.] Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The ■court is not empowered to substitute its judgment for that of the agency. Quoted in Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974) (“The agency must articulate a ‘rational connection between the facts found and the choice made’ ”). This standard of review was treated at length in a thoughtful opinion by the District of Columbia Circuit in Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 541 F.2d 1 (1976). In reviewing a challenge to informal rule-making by the EPA requiring annual reductions in the lead content of gasoline pursuant to its authority under § 211(c)(1)(A). of the Clean Air Act, the court stated: This standard of review is a highly deferential one. It presumes agency action to be valid. [Citation omitted.] Moreover, it forbids the court’s substituting its judgment for that of the agency [citations omitted] and requires affirmance if a rational basis exists for the agency’s decision. [Citations omitted.] This is not to say, however, that we must rubber-stamp the agency decision as correct. To do so would render the appellate process a superfluous (although time-consuming) ritual. . . . This is particularly true in highly technical cases. There is no inconsistency between the deferential standard of review and the requirement that the reviewing court involve itself in even the most complex evidentiary matters; rather, the two indicia of arbitrary and capricious review stand in careful balance. The close scrutiny of the evidence is intended to educate the court. It must understand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; the choices open to the agency and those made. The more technical the case, the more intensive must be the court’s effort to understand the evidence, for without an appropriate understanding of the ease before it the court cannot properly perform its appellate function. But that function must be performed with conscientious awareness of its limited nature. The enforced education into the intricacies of the problem before the agency is not designed to enable the court to become a superagency that can supplant the agency’s expert decision-maker. To the contrary, the court must give due deference to the agency’s ability to rely on its own developed expertise. [Citation omitted.] The immersion in the evidence is designed solely to enable the court to determine whether the agency decision was rational and based on consideration of the relevant factors. [Citation omitted.] Thus, after our careful study of the record, we must take a step back from the agency decision. We must look at the decision not as the chemist, biologist or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality. Id. 176 U.S.App.D.C. at 406, 541 F.2d at 34-36 (emphasis original). The court noted that despite the use of “clear error of judgment” in Overton Park, the Supreme Court did not intend thereby to supplant the arbitrary and capricious standard with the broader-ranging review of district court fact findings permitted an appellate court under the “clearly erroneous” standard of Rule 52(a), F.R.Civ.P. The court concluded: “Accordingly, in the context of ‘arbitrary and capricious’ review, we shall reverse for a ‘clear error of judgment’ only if the error is so clear as to deprive the agency’s decision of a rational basis.” 176 U.S.App.D.C. at 407 n.74, 541 F.2d at 35 n.74. While the agency’s decision need not be based on substantial evidence, nevertheless “a decision must be considered ‘arbitrary and capricious’ if the facts on which it is purportedly based are not supported by the record.” National Citizens Committee for Broadcasting v. FCC, 181 U.S.App.D.C. 1, 19, 555 F.2d 938, 956 (1977). As noted previously, one of the features of this litigation which adds complexity to the standard of review issue is the fact that in undertaking to approve the CZMP under § 306, the Acting Administrator is required to make certain findings, both as to content and manner of adoption by the state; yet these findings necessarily embrace a judgment on his part as to what the statute requires and what the agency’s regulations themselves require, particularly with regard to (1) the specificity of a program’s content under §§ 305(b) and 306(c), (d), and (e) and with regard to (2) what constitutes “adequate consideration of the national interest” under §.306(c)(8). Thus, the Court in reviewing § 306 approval must also review the Acting Administrator’s construction and interpretation of the CZMA and the regulations promulgated thereunder. That deference is due an agency’s interpretation of its own regulations and the statute it is charged with administering is indisputable. Seattle Trust & Savings Bank v. Bank of California, N.A., 492 F.2d 48, 50 (9th Cir. 1974), citing Udall v. Tail-man, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); U. S. v. Consolidated Mines & Smelting Co., Ltd., 455 F.2d 432, 446 (9th Cir. 1971) (“[T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation . . .”); Ethyl Corp., supra, 176 U.S.App.D.C. at 403 n.64, 541 F.2d at 31 n.64, citing Train v. NRDC, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). The agency’s construction should not be overruled unless clearly wrong. American Trucking Association, Inc. v. U. S., 425 F.Supp. 903, 907 (D.D.C.), aff’d, 425 U.S. 955, 96 S.Ct. 1735, 48 L.Ed.2d 201 (1975). The critical inquiry is the degree of deference due the agency’s interpretation. This turns on a number of factors. The principle of deference itself is premised on the twin notions of agency expertise and congressional acquiescence in that interpretation. Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 145, 479 F.2d 842, 866 (en banc), cert. denied, 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309 (1973); Morton v. Ruiz, 415 U.S. 199, 230, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). In an oft-quoted passage from Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944), the Court stated that the weight given an administrative decision “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Quoted in Morton v. Ruiz, supra, 415 U.S. at 237, 94 S.Ct. 1055; Hodgson v. Consolidated Freightways, Inc., 503 F.2d 797, 800 (9th Cir. 1974). The clearest cases for the reviewing court’s taking a hard look at the agency’s interpretation of a controlling statute or regulation arise where the agency action is challenged on the ground that (1) it exceeds the agency’s statutory authority, Seattle Trust & Savings Bank, supra, 492 F.2d at 50, (2) its interpretation is contrary to the evident congressional intent manifested in the language of the statute (and supported by the legislative history), Morton v. Ruiz, supra, 415 U.S. at 237, 94 S.Ct. at 1075 (“In order for an agency interpretation to be granted deference, it must be, consistent with the congressional purpose”); N.L.R.B. v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); Hart v. McLucas, 535 F.2d 516, 520 (9th Cir. 1976) (“[W]hen . . the administrative construction is clearly contrary to the plain and sensible meaning of the regulation, the courts need not defer to it”), or (3) its action does not call for the application of any special or long-standing expertise, Texas Gas Transmission Corp. v. Shell Oil Co., 363 U.S. 263, 268-69, 80 S.Ct. 1122, 4 L.Ed.2d 1208 (1960) (agency construction of private contract expressly based on application of “ordinary rules of contract construction”). The Supreme Court has also noted the difference between the deference to be accorded “legislative” regulations, which have “the force and effect of law,” and “interpretive” regulations, to which a lesser deference is owed. Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 2405 n.9, 53 L.Ed.2d 448 (1977). With respect to the former, where Congress has expressly delegated to the agency the power'to promulgate regulations which interpret statutory terms, the arbitrary and capricious standard applies to the agency’s regulations; but in the latter case, “[vjarying degrees of deference are accorded to administrative interpretations, based on such factors as the timing and consistency of the agency’s position, and the general nature of its expertise. [Citations omitted.]” Id. In affirming an appellate court’s denial of enforcement of an N.L.R.B. order, the Court has stated, by way of limitation on the principle of deference to agency interpretations of applicable statutes: Reviewing courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute. [W]here, as here, the review is not of a question of fact, but of a judgment as to the proper balance to be struck between conflicting interests, “[t]he deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” American Ship Building Co. v. National Labor Relations Board, 380 U.S. [300] at 318, 85 S.Ct. 955,13 L.Ed.2d 855 . . . [(1965)]. N.L.R.B. v. Brown, supra, 380 U.S. at 291, 85 S.Ct. at 988 (1965). See Hodgson, supra, 503 F.2d at 800. A somewhat special situation is presented where an agency charged with implementing a new statute construes it. Courts tend to be more deferential to practical administrative interpretations of disputed provisions of the governing statute in such a case. Particularly is this respect due when the administrative practice at stake “involves a contemporaneous construction of the statute by the men charged with the responsibility of setting its machinery in motion, of making the pa'rts work efficiently and smoothly while they are yet untried and new.” [Citation omitted.] Power Reactor Development Co. v. International Union, etc., 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961), quoted in NRDC, Inc. v. Train, 166 U.S.App.D.C. 312, 326, 510 F.2d 692, 706 (1975). In Power Reactor the Court upheld an order of the Atomic Energy Commission continuing in effect a provisional construction permit issued for a nuclear power reactor. In so holding the Court, in addition to the factor of contemporaneous construction noted above, emphasized the fact that the agency’s interpretation had repeatedly been brought to the attention of Congress, thereby suggesting congressional acquiescence in the administrative construction. Id. In Washington Public Power Supply System v. FPC, 123 U.S.App.D.C. 209, 358 F.2d 840, rev’d on other grounds, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1966), the court, after holding that where an agency must and does initially determine the specific application of a statutory provision the reviewing court is limited to deciding whether the agency interpretation “has ‘warrant in the record’ and a reasonable basis in law,” id. 123 U.S.App.D.C. at 215, 358 F.2d at 846, quoted Mr. Justice Frankfurter’s dissent in I.C.C. v. J-T Transport, 368 U.S. 81,127, 82 S.Ct. 204, 234, 7 L.Ed.2d 147 (1961): The factors to be considered on judicial review of such an administrative determination include the precision of the statutory language, the technical complexity of the relevant issues, the need for certainty as against experimentation, arid the likelihood that Congress foresaw the precisé question at issue and desired to express a foreclosing judgment on it. See also Ethyl Corp., supra, 176 U.S.App. D.C. at 403 n.64, 541 F.2d at 31 n.64; NORML v. DEA, 182 U.S.App.D.C. 114,128 n.64, 559 F.2d 735, 749 n.64 (1977) (“[Deference is owed to any agency decision construing a statute continually applied by the interpreting agency — particularly where the statutory meaning ‘is enhanced by technical knowledge . . . ’ ”). The application of these principles to the facts of this case satisfies the Court that considerable deference is due the federal defendants’ interpretation of their approval regulations. First, the Acting Administrator’s approval haá proceeded on the assumption that the regulations are clear; and consequently, he has not articulated in precise terms what he understands the regulations to mean or require or how the provisions of the CZMP satisfy the particular provisions of each applicable regulation. He has expressly stated which of the 1975 regulations he has considered with reference to each of the specific findings required under the CZMA in order for § 306 approval to be granted. However, to the extent his approval of the California Program can be said to be premised on interpretation of the NOAA regulations at all, his construction thereof proceeds sub voce; the fact that the CZMP has been found to meet their requirements is tantamount to little more than a statement that the provisions of the Program contain that which the regulations demand. No clearer interpretation has been forthcoming; and presumably, in the Acting Administrator’s view, no clearer expression is here required. This makes judicial review difficult, to say the least, especially where the regulations on the whole have reference to fairly technical requirements, compliance with which the agency is in a far better position than the Court to assess. Second, although NOAA has no longstanding experience and expertise in administering the CZMA, nevertheless, it appears (as will be discussed infra) that Congress placed responsibility for administering the CZMA in the Department of Commerce with the clear expectation that such responsibility ultimately would be delegated to NOAA, an agency favored by Congress expressly because of its technical expertise in matters relating to the Nation’s coasts. Moreover, during enactment of the 1976 Amendments, Congress applauded NOAA’s administration of the Act and directed it to promulgate regulations further clarifying the requirements of the Act (specifically § 306(c)(8)). In short, Congress, fully cognizant of the federal defendants’ efforts and activities in administering the CZMA since 1972, apparently determined to reaffirm its original vesting of considerable discretion in NOAA, thereby calling into play the greater deference due “legislative” regulations noted above. Third, as will be shown subsequently, the Court concludes that the interpretation evidenced by the Acting Administrator’s approval of the CZMP is not contrary to, but rather consistent with, the evident congressional intent in this instance. Fourth, the “special situation” alluded to where the agency is charged with implementing a new statute is here presented; and consequently greater deference is due. Finally, the Court adheres to Mr. Justice Frankfurter’s enumeration of factors to be considered and concludes that all four here favor according considerable deference to the federal defendants’ implicit interpretation of the NOAA program approval regulations. SCOPE OF REVIEW From the inception of this lawsuit, the parties have been at odds over the issue of the perm