May 27, 2010

Why Federal Climate Change Legislation Shouldn't Stop States From Innovating in Adaptation Efforts

Even if a climate change bill like Kerry-Lieberman were to become law, the effects of climate change will still be dramatic, making adaptation a crucial complement to mitigation activities for addressing climate change. As specialists on local conditions with the capacity to innovate at a smaller scale, state and local authorities need to retain the authority to adopt adaptation strategies that prevent, reduce, and manage the effects that climate change will have on vulnerable natural resources under their jurisdiction. Though a federal role in adaptation planning is indispensable, it would be unwise to excessively tie the states’ hands in promoting natural resource adaptation. Unfortunately, Kerry-Lieberman and Waxman-Markey (ACES) risk doing just that by centralizing adaptation in a new federal authority.  The bills should be written to encourage robust state and local action to formulate and implement natural resource adaptation measures.

Kerry-Lieberman and ACES, adopted in the House last year, seek to consolidate authority over adaptation planning in the President and Secretary of the Interior. Both bills seek to significantly increase executive oversight and control over federal and state natural resource adaptation. Though only ACES creates a National Climate Change Adaptation Program in the existing U.S. Global Change Research Program and a National Climate Service in NOAA to develop and disseminate climate information, both bills establish a Natural Resources Climate Change Adaptation Panel (see my previous post comparing the bills’ adaptation provisions). The Panel, headed by the chair of the CEQ and including the heads of federal public land and natural resource agencies, is given authority to develop and implement a National Resources Climate Change Adaptation Strategy. The bills also require adaptation plans for each federal natural resource agency that implement and are consistent with the Strategy. Similarly, state natural resources adaptation plans, required for any state to be eligible for federal funding, must be reviewed and approved by the Secretary of the Interior. 

This new framework would mark a substantial shift in natural resource management in the United States toward increased consolidation of planning over natural resources by a central federal administrative authority.  Unfortunately, neither bill provides any concrete substantive goals, priorities or standards that either the Strategy or federal or state natural resource adaptation plans must achieve. As a result, these bills would punt to the Panel the exceptionally difficult and important questions about what should be the objectives and priorities of natural resource management in a world of climate change.

The bills would not only shift responsibility for setting federal natural resource goals from Congress or individual federal agencies to the Panel, but also from the states to the Panel. Any state that needed federal funding to assist it to adapt its natural resources to the effects of climate change would have to submit its plan to the Secretary of the Interior, who could disapprove the state plan if it is inconsistent with any goal, priority, or standard established by the Panel under its broad authority to adopt a federal Strategy.  In other words, though states would do much of the natural resource adaptation work, the big-picture decision making would be primarily federal—a significantly more centralized resource management framework than we currently use.

It might sound reasonable at first. To prepare for and manage the effects of climate change, local and state natural resource regulators and managers certainly can benefit a great deal from increased federal involvement and coordination. To date there has been only modest adaptation planning by a small minority of government authorities, and few have begun actually to implement adaptation strategies (though the numbers are now growing). State and local agencies are struggling with obtaining data, assessing effects, and developing plans for preparing and managing the effects. Federal natural resource agencies can serve vital capacity-building, monitoring, and arbitrative roles.

Ultimately, though, taking primacy over adaptation planning and implementation away from local and state agencies would be a mistake. In the U.S. federal system, these authorities are typically the first responders and have special knowledge of local conditions and the resources under their jurisdiction. Perhaps more importantly, a decentralized governance system can create opportunities for collective learning, as various governments experiment with diverse adaptation approaches. Decentralized authority can even serve to increase accountability, if each jurisdiction is monitored and given access to such information about other jurisdictions. By giving a single Panel the primary authority to determine not only the goals and priorities but also the strategies for domestic natural resource adaptation, Kerry-Lieberman and ACES might undermine the experimentation and innovation benefits of decentralized governance that will help government authorities learn how to best adapt to the effects of climate changes on natural resources.

Congress should fix climate legislation to expressly set forth the substantive goals and priorities for adapting to the effects of climate change on federal resources but not empower a central federal authority to dictate how local governments and states can best protect non-federal natural resources. Rather, a central federal adaptation authority should be tasked with (1) providing access to data and tools for assessing future conditions and information about the efficacy of the range of potential adaptation strategies; (2) monitoring state and federal agency compliance with adopted plans; and (3) helping mediate interagency and inter-jurisdictional conflict. Such an approach would allow states and local governments to retain the ability to come up with their own plans to best prepare for the local effects of climate change while encouraging innovation and learning among resource management authorities.

Alejandro Camacho, CPR Member Scholar; Assoc. Prof., Notre Dame Law, Visiting Prof., UC Irvine School of Law. Bio.

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