Delaware government: Russel W. Peterson’s landmark Coastal Zone Act a work in progress
Written by
JEFF MONTGOMERY
Just over 40 years have passed since Gov. Russell W. Peterson issued a public call to arms over what would become Delaware’s Coastal Zone Act, setting the stage for legal and political debates still fresh today, and likely to carry his name far into the future.
The law stands as a tribute to one of Delaware’s greatest environmentalists, and Peterson’s death Monday was an occasion for many to assess its status today. For critics and supporters alike, the Coastal Zone Act conservation law that Peterson championed in 1971 remains a work in progress, despite repeated challenges, court rulings and the passage of time.
Under the act, new heavy industries and bulk-product transfer facilities are barred from a 275,000-acre zone bordering the Delaware River, Delaware Bay and Atlantic Coast. Light manufacturing plants are allowed, and heavy industrial sites in operation at the time of the the law’s passage can continue to operate and expand within their boundaries, provided that they reduce previous overall pollution emissions after any expansion or addition.
The scope and limits of its ban on new heavy industries have been tested and redefined by development proposals along the edges of the Delaware River, Delaware Bay and Atlantic Coast – including some even now under review by Delaware’s Department of Natural Resources and Environmental Control.
“I think that anytime you have a law like the Coastal Zone Act or Clean Water Act that is so monumental and covers such a wide spectrum of things, you’re going to have challenges,” said Brenna Goggin, environmental advocate for the Delaware Nature Society. “I also think that the Coastal Zone Act doesn’t necessarily cover everything that Gov. Peterson wanted it to cover.”
Peterson made a public stand on the issue on Feb. 16, 1971, when he warned, “We are heading full steam ahead toward the industrial complex,” in a letter responding to Delaware State Chamber of Commerce concerns about a temporary development moratorium on new industry in the coastal area.
It was in the years leading up to the first Arab oil embargo, and the nation was trying to expand the domestic supply of fuel. Delaware was in the eye of the nation as Peterson led the fight to keep Shell Oil from building a refinery in the Delaware River wetlands in southern New Castle County. Zapata Norness – the company of future president George H.W. Bush – had proposed to build an oil terminal on an artificial island off Delaware’s shore.
Republican and business alarm over Peterson’s proposal quickly spread. Before Delaware lawmakers voted, President Richard Nixon’s commerce secretary, Maurice Stans, accused Peterson of being disloyal to America after convening a meeting with 25 federal officials Stans said had been working for a decade to industrialize Delaware’s coast.
“Hell no,” Peterson recalled saying. “I’m being loyal to future generations.”
Although lawmakers approved the Coastal Zone Act in June of 1971, Peterson lost his bid for re-election. Another 28 years would pass before regulations were adopted to flesh out the law.
Gov. Jack Markell, who counted Peterson as a crucial ally in his 2008 gubernatorial primary, said the Coastal Zone law had a “profound and positive impact” on Delaware, protecting the state’s shoreline for future generations.
F. Michael Parkowski, an expert on environmental law and one of the state’s top attorneys in that area, said the law was a “godsend” for Delaware at the time, “a huge stopgap,” but it has failed to keep up.
“It truly did save Delaware’s coastline at a time when the environmental movement was just really starting to catch on,” Parkowski said. “It was adopted at about the time that the Clean Air Act came along but hadn’t been fully implemented. The notion of wetlands law was an alien concept.”
Parkowski described the law as “awkwardly crafted,” appearing to be a land-use law with prohibitions against industrial activities that were “confusingly defined” and misinterpreted as a ban on whole classes of industry. Interpretations, he said, have tended to “drift” in the years since.
“It wasn’t a measure to shut down all heavy industry and all manufacturing in the Coastal Zone and allow it to disappear,” Parkowski said. "It was a measure to control what was going on in the Coastal Zone.
In recent years, Delaware has approved Coastal Zone ventures ranging from a metal galvanizing plant near New Castle to a recycling plant for poultry slaughter and dead chickens in Millsboro. State officials used the law as part of its opposition to a liquefied natural gas unloading pier in the Delaware River opposite Claymont, but concluded that a food and yard waste recycling facility was suitable near the Port of Wilmington.
The DuPont Co. was allowed to build an expanded sulfuric acid recycling plant inside the Delaware City Refinery to replace a smaller refinery operation partially damaged in a catastrophic explosion in 2001, and Oceanport LLC was permitted to add commodity businesses at its riverside dock near the Pennsylvania border. But the law barred bulk coal unloading operations in the river and bay.
Most recently, environmentalists and development interests squared off last year over a proposal for a new, private wastewater treatment plant in Sussex County’s Inland Bays watershed. In a losing argument, critics said the project should be considered a heavy industry, and warned that it would draw wastewater into the protected zone from adjacent areas, encouraging suburban and resort-area sprawl.
“It took years for environmentalists to thoroughly understand, appreciate, believe and accept the fact that the ability to grow and prosper and rapidly change production lines to meet customer needs was absolutely essential to industry,” said Richard Fleming, a Delaware Nature Society board member who closely followed development of Coastal Zone Act regulations between 1997 and 1999.
“On the other hand, industry all along recognized the importance of the Coastal Zone to the present and future health of Delaware, but it took quite a while before they were willing to accept the other part of the bargain.”
That other part requires businesses that add or expand units to provide environmental improvement “offsets” that more than cancel out any pollution created by increased production.
“I think that it’s worked pretty well,” said A. Richard Heffron, a Delaware State Chamber of Commerce vice president for government relations. “There have been some sticking points here and there, but I don’t know that any company, at least in my memory, left or decided not to come because of the Coastal Zone law.”
Parkowski saw things differently, saying that he has worked with businesses that opted to go to other states because of the law. Regulators, Parkowski said, sometimes adopt “extreme interpretations” of the law “because of this notion that there has to be this overwhelming extent of control of the activities. It’s difficult to deal with.”