Given past and current emission levels, the planet is already on the path of significant climate change. Strong efforts to restrict emissions can limit the harm but cannot prevent some serious impacts, particularly in vulnerable areas such as the arid western United States. Other concerns nationally include heat wave deaths, flood damage from intensified storm systems, and ecosystem harm. Adaptation planning requires an assessment of how the climate will affect human activities and how to respond to those changes. These assessments flip current practices in environmental law around: instead of asking how human activities impact the environment, we instead begin by asking how environmental change will impact humans.A climate impact assessment would contain three key components: (1) identification of possible climate alternations, (2) analysis of how these climate changes would impact human society or natural ecosystems, and (3) an analysis of alternative methods of addressing the impacts.
In designing institutional mechanisms to undertake these assessments and implement their results, we can learn a great deal from the shortcomings of current methods of environmental assessment. If the government proposes an action that has significant environmental impacts, major economic costs, or a potential effect on an endangered species, climate impacts might be considered through existing legal mechanisms. But these mechanisms may not directly apply – perhaps because the government is ignoring the need for adaptation rather than proposing a new project that would trigger these forms of review. In any event, these existing assessment methods are all flawed. The flaws in environmental impact statements illustrate the problems.
First, the EIS process has been isolated from agency’s primary decision processes. Supreme Court decisions have allowed agencies to use the EIS as an end-of-process disclosure document rather than an integral part of the agency’s decision making.
Second, there are few learning mechanisms. Once an EIS is issued, the agency has no duty to follow up and confirm whether the statement’s predictions were valid. The relatively sparse studies that are availability are not reassuring on this score.
Third, the government has not taken advantage of modern information technology to make all of the EIS documents easily available and connected with geographic information systems. A huge amount of money is invested in generating data and analysis that then disappear from view.
Fourth – and perhaps most importantly – the treatment of uncertainty in impact statements is inadequate. This is a key issue for adaptation because of the relative crudeness of regional downscaling of climate models. New methodologies developed at RAND and elsewhere may be helpful for dealing with these uncertainties, but these methodologies are not in general use.
A more basic problem is that the existing environmental assessment mechanisms are triggered by agency actions – they do not require assessments of the status quo but only of proposed changes in the status quo. This may be appropriate when the status quo is presumptively desirable or at least appropriate. But it is definitely not acceptable when dealing with climate adaptation, where the whole point is that the status quo will become unsustainable due to climate change.
Some promising ways of addressing this problem include:
1) A petition process akin to that used under the Endangered Species Act for listing species, where citizens could petition the agency to list a “critical adaptation need.”
2) A system of prizes for citizens who successfully identify high priority needs for climate impact assessment. The prize would be awarded by an independent entity but would be funded out of the agency’s operating budget, providing a small “stick” in addition to publicity impacts.
3) Adoption of legal rules making agencies liable for negligent failure to engage in climate adaptation. California law in effect provides a mechanism for this in the context of flood control.
4) New markets for trading long-term risk contracts for key climate impacts such as water supply impairments or flood frequency, with the parameters being set at levels that would indicate a failure of current systems.
Climate impact analysis faces special challenges if it is to become an effective action-forcing technique, because of the long-term nature of climate change, the difficulty of separating current climate effects from statistical noise, and the limitations of climate modeling. Yet, if our society is to thrive in the next century, we need to implement climate impact analysis on a large scale and take seriously the results of the analysis.
Daniel Farber is the Sho Sato Professor of Law and Director of the Environmental Law Program
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