The Practical Effects of Delegation: Agencies and the Zoning of Public Lands and Seas

Legislative efforts to delegate zoning power to public land and ocean management agencies have generally proven unsuccessful. When given the power to create uniform-use areas such as parks and wilderness areas within their broader jurisdictions, agencies either have opted not to exercise it or have been extremely hesitant to do so. The tepid administrative response to zoning is not surprising. Zoning decisions are politically charged, are likely to offend powerful, concentrated interest groups, and erode the discretion that is the core of agency power.

These aspects of zoning decisions explain why, by contrast, all states require that municipal zoning ordinances be approved by elected officials. Understanding the weaknesses of delegated zoning is important in the context of the many recent proposals to zone federal and state ocean waters. This Article argues that, based on past experiences and on political scientists' predictions, Congress and state legislatures should resist the temptation to delegate zoning responsibility to multiple-use agencies. There are more promising direct zoning options available, including a commission model similar to the one used in municipal zoning.

In addition to informing ocean policy, the exploration of delegated zoning provides the opportunity to consider the practical problems with delegation, using a focused approach that seeks to identify the kinds of tasks with which agencies are particularly likely to struggle.