Allocating the Burden of Proof To Effectuate the Preservation and Federalism Goals of the Coastal Zone Management Act

Primarily due to policy considerations, this Note argues that courts should allocate to the federal agency proposing an activity that may affect the coastal zone the burden of proving consistency with a state CMP. This allocation effectuates Congress’s intent to vest states with primary control to preserve the coastal zone. Part I provides a general background of the Act’s consistency requirement for federally conducted activities. Part II examines the various factors that courts traditionally consider when allocating burdens of proof in litigation. Part III evaluates these factors as applied to the consistency issue under the CZMA. Part IV concludes that courts should assign the initial burden of production to the state contesting a federal agency’s consistency determination; the ultimate burden of proving that the activity is consistent with a state CMP, however, belongs with the federal agency.