Federal Agency Adaptation Plans – A New Route for Climate Regulation?

With cap and trade legislation dead in Congress, and the EPA’s greenhouse gas regulations under siege in both the legislature and the courts, the Obama Administration is doing just about the only thing left to address climate change: adapt.

Actually, the science indicates that adaptation will be necessary regardless of how aggressively we are able to reduce greenhouse gas emissions. It’s only a matter of how much adaptation. A recent report by the U.S. Global Change Research Program found that the average air temperature in the continental U.S. has already risen by more than 2ºF over the last 50 years, a trend that is expected to continue. Impacts will include more frequent heat waves and high-intensity precipitation events, more prolonged droughts, and sea level rise, among other changes. Many sectors of the U.S. economy – and many aspects of the federal government – will be affected. To take just a couple of the most obvious examples, the U.S. Department of Interior owns one-fifth of the land in the country and 35,000 miles of coastline, making adaptation a critical aspect of its long-term management strategies. The Department of Health and Human Services must prepare for new health threats related to heat waves, changes in disease vectors etc.

In order to guide federal agencies in addressing these adaptation needs, the White House Council on Environmental Quality released Implementing Instructions for Federal Agency Climate Change Adaptation Planning on Friday. In short, these instructions require agencies to analyze their vulnerabilities to climate change and to develop an adaptation plan by mid-2012 which address impacts on “Federal services, operations, programs and assets.”

A key question for many readers of this blog is whether these agency adaptation plans will translate into new federal regulation. While it is too early to tell exactly what form the plans will take, federal adaptation activities already underway mostly involve research, efforts to protect government property (e.g. National Parks), infrastructure (e.g. federal highways, levees), and services (e.g. hydropower generation, disaster relief) or outreach to support local adaptation efforts. A good summary of these ongoing activities is provided in a recent Pew Center report.

On the other hand, it’s hard to imagine that this planning won’t ultimately result in some regulatory changes. For example, research on changing species distributions (see, for example, the Forest Service “Climate Change Bird Atlas”) is likely to have implications for regulation under the Endangered Species Act. Air and water standards intended to protect human health and ecological criteria can also be expected to shift to take climate change into account. For example, EPA’s water program has already developed a climate change response strategy which includes a mandate to evaluate effluent guidelines “to determine NPDES permitting needs and assess the need for new or revised technology-based performance standards.” Thus, the more adaptation that is required, the more the burden of compliance with this new type of “climate regulation” will fall to property owners, operators of industrial facilities, and others. Especially if the Obama Administration’s efforts to mandate reductions of greenhouse gas emissions at their source continue to be thwarted, it should get interesting when the voices of this new regulated community begin to be heard in Washington.

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