Frameworks for Climate Change Adaptation Ira R

Sustainable Development Law & Policy Volume 8 Article 24 Issue 1 Fall 2007: Federal Environmental Policy

Preparing for the Day After Tomorrow: Frameworks for Climate Change Adaptation Ira R. Feldman

Joshua H. Kahan

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Recommended Citation Feldman, Ira R. and Joshua H. Kahan. “Preparing for the Day After Tomorrow: Frameworks for Climate Change Adaptation.” Sustainable Development Law & Policy, Fall 2007, 61-69, 87-89.

This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Pr e p a r i n g f o r t h e Da y Af t e r To m o r r o w : Fr a m e w o r k s f o r Cl i m a t e Ch a n g e Ad a p t a t i o n by Ira R. Feldman & Joshua H. Kahan*

In t r o d u c ti o n addresses the next step of how to implement adaptation strategies in an effective and sustainable manner. This Article outlines o date, the international community has dealt with cli- the international commitment to address climate change adapta- mate change, the quintessential sustainability issue of tion, introduces the concepts central to an adaptation framework, our time, principally by promoting the mitigation of T and details recent domestic developments in adaptation policy greenhouse gases (“GHGs”). The rationale for such mitigation and planning. efforts, simply stated, is that if GHG concentrations are stabilized or reduced, ultimately the severity of climate change can be Cl i m a t e Ch a n g e Ad a p t a ti o n i n IPCC alleviated. While there is no doubt that mitigation activities are a n d Ky o t o Pr o c e s s e s necessary to the long-term well-being and stability of the global UNFCCC/ Ky o t o Pr o c e ss e s environment, the level of attention paid to mitigation-oriented science, technology, methodology, and policy serves to obscure Although the Kyoto Protocol is largely directed towards the pressing need to seriously address the inevitable question of mitigation, adaptation is recognized as part of the Kyoto frame- adaptation to climate change. work. The United Nations Framework Convention on Climate 7 The overwhelming focus on GHG mitigation overshadows Change (“UNFCCC”) makes direct reference to adaptation 8 the adaptation half of the climate change equation. The reality measures in a number of key Articles. In all, ten provisions dis- is that, even if the most optimistic mitigation plans are adopted cuss climate change adaptation, “with particular attention having 9 10 and all GHGs are stabilized immediately, residual GHG concen- been given to issues relating to Article 4.8 and Article 4.9 , and trations within the atmosphere will continue to create adverse to scientific and technical aspects under the relevant Subsidiary consequences well into the future. The challenge is not success- Body for Scientific and Technological Advice agenda item on 11 fully “managing a transition from one equilibrium to another,” adaptation.” as mitigation does, “but rather, adapting to a far more uncertain The Kyoto process recognizes that adaptation is integral climatic future.”1 At best, mitigation of anthropogenic sources through the Adaptation Fund. While this fund is not currently of GHGs can attempt to minimize long-term climate change operational, it “will fund concrete adaptation measures, to be impacts, but cannot halt or avoid all impacts. Therefore, adapt- financed from a share of proceeds from the clean development 12 ing to the adverse impacts of climate change is a reality, and in mechanism and other voluntary sources.” The Adaptation some instances the need is immediate. Fund will support and promote measures such as vulnerability The Intergovernmental Panel on Climate Change (“IPCC”) and adaptation assessment, capacity building, technical training defines climate change adaptation as “an adjustment in eco- and technology transfer, pilot programs, and strengthening and 13 logical, social, or economic systems in response to actual or developing early warning systems for extreme weather events. expected climatic stimuli and their effects or impacts.”2 Adap- At the UNFCCC Third Conference of the Parties held in tive measures are needed because adverse consequences are Kyoto, Japan, it was requested that the Convention Secretariat expected to occur globally on unprecedented levels. The IPCC “continue its work on the synthesis and dissemination of infor- states with high confidence3 that many natural systems are being mation on environmentally sound technologies and know-how 14 affected by regional climate changes, particularly temperature conducive to mitigating, and adapting to, climate change.” In increases. Global data assessments show that it is likely4 that response, the UNFCCC Secretariat in 1999 released a report anthropogenic warming impacts many physical and biological organizing the technical and theoretical knowledge on adapta- systems, and other effects of regional climate change on natural tion based on the sector model approach to vulnerability and and human environments are emerging.5 The current knowledge discussing the options and tools available to evaluate and imple- of climate change associated impacts has led the global community to the conclusion that “adaptation will be necessary to * Ira R. Feldman is president and senior counsel of Greentrack Strategies, an address impacts from the warming which is already unavoidable independent think tank and consultancy focusing on strategic environmental management and sustainability policy issues. Mr. Feldman is past chair of the 6 due to past emissions.” ABA/SEER Sustainable Development, Ecosystems and Climate Change Committee Because climate change is an immediate threat it is impera- and is adjunct professor at Washington College of Law where he teaches envi- tive to develop and implement strategies for climate change ronmental regulatory innovation. Joshua Kahan is an environmental consultant and researcher with an expertise in ecosystem services. Mr. Kahan is a recent adaptation. This Article explores the concepts behind climate graduate of the Masters in Environmental Studies program at the University of change adaptation, discusses accomplishments to date and Pennsylvania.

61 Su s t a i n a b l e De v e l o p m e n t La w & Po l i c y ment adaptation schemes.15 In 2005, the UNFCCC released the acteristics that can generally influence vulnerability, regardless revised final draft report retaining the primary goal of convey- of geographical and socio-political contexts. Such characteris- ing available adaptation tools and methods without the use of tics are called “generic determinants of vulnerability” and are a sector-based approach for data organization.16 The data was primarily developmental focused, including: poverty, health sta- reorganized in a more efficient manner without recommending tus, economic inequality and elements of governance, technol- any specific tools or methods. ogy, education, infrastructure, and dependence on agriculture.24 IPCC a n d Ad a p t a t i o n Generic determinants of vulnerability are associated with adaptive capacity, which refers to “the ability or capacity of a system The IPCC also is active in basic adaptation research and dis- to modify or change its characteristics or behavior so as to cope cussions. The IPCC published a series of reports that includes better with existing or anticipated external stresses.”25 Adaptive discussions on adaptation.17 The most recent IPCC report, Cli- capacity is a determining factor of vulnerability because, given mate Change 2007: Impacts, Adaptation, and Vulnerability re- the generic determinants of vulnerability in addition to site-spe- emphasizes that climate change and adverse impacts are likely, cific vulnerabilities, adaptive capacity is represented in terms of and discusses the urgency and need to enhance the consideration a system’s ability and/or capacity to potentially adapt. of adaptive measures. The report notes that adaptation will be Generic determinants of vulnerability can be found glob- necessary to address impacts resulting from warming unavoid- ally in both developed and developing nations, however, due able from banked GHG concentrations and that a portfolio of to developing nations’ circumstances of transition, all develop- adaptation and mitigation measures can diminish the risks asso- ing nations possess some form of generic vulnerabilities.26 The ciated with climate change.18 The IPCC details a wide array of acknowledgment that developing nations are substantially more adaptation options (see Table 1), however, the IPCC noted that vulnerable raises issues of equity and fairness on a number of more adaptation is necessary to reduce vulnerability of future levels.27 While issues and questions continue to accumulate and climate change. answers are slow to surface due to a recent sense of urgency, Ta b l e 1 interest, and concern, the relationship of vulnerability, adapta- Po t e n ti a l a d a p t a ti o n r e s p o n s e s a n d e x a m p l e s 19 tion, and developing nations generates considerable attention. Utilizing known technologies i.e. Sea defenses The global community has begun to recognize how vulnerability Behavioral modifications i.e. Altered food and and adaptation are closely linked, and vulnerability is becoming recreational choices the focus of research, analysis, and discussion for future adapta- Managerial modifications i.e. Altered farm practices tion considerations. Policy development i.e. Planning regulations Al i g n i n g Ad a p t a t i o n a n d Su s tainability Ba s i c Ad a p t a ti o n Co n c e p t s : Due to the varying scope and scale at which adaptive mea- Vu l n e r a b i l it y a n d Su s t a i n a b i l it y sures will be required, effective policy implementation presents the challenge of “linking climate change policy to policy Vulnerability An a l y s i s normally seen as outside the scope of climate change, includ- Vulnerability is a central concept for climate change adap- ing livelihood enhancement, poverty alleviation, education, and tation policy and planning, and can be seen as the connecting improved institutional arrangements.”28 Fortunately, integrating thread that links all the adaptation modalities. Climate change the goals of sustainability and climate change adaptation pres- vulnerability can be defined as “the degree to which a system is ents an effective avenue of integrating diverse policy goals. susceptible to, or unable to cope with, adverse effects of climate Adaptation and sustainability are complementary and “can yield change, including climate variability and extremes. Vulnerabil- synergistic efficiencies and benefits that advance the goals of ity is a function of the character, magnitude, and rate of climate both agendas . . . for a society that is made more climate resilient variation to which a system is exposed, its sensitivity, and adap- through proactive adaptation to climate variations, extremes and 20 tive capacity.” Vulnerability is multi-disciplinary in nature, changes is one in which development achievements and pros- because social, economic, and environmental systems can all be pects are less threatened by climate hazards and therefore more vulnerable to climate change. sustainable.”29 For the integration to occur, adaptation must be Vulnerability is associated both with the state of a system included and considered in the process of “policy formulation, prior to a hazardous event, and the system’s ability to effectively planning, program management, project design, and project 21 handle the hazardous event. Vulnerability analysis is defined implementation.”30 Aligning adaptation with sustainability is a in terms of impact, with a focus on physical hazard, exposure, policy option that could be used in both developed and develop- 22 and a system’s sensitivity to hazard. Climate change vulner- ing nations to create win-win scenarios that foster sustainable ability is distinguished through hazard exposure, represented in development and strengthen climate resilience. biophysical vulnerability, and coping with a hazard, represented Policy decision-makers at varying scales face the challenge 23 in social vulnerability. Climate change vulnerability occurs at of pursuing and achieving multiple goals with limited resources the intersection of social and biophysical vulnerability, where requiring tradeoffs to achieve priority goals. However, by inte- one is a function of the other. grating sustainable development and adaptation, a tradeoff does Although vulnerability is site-specific, there are certain char- not have to occur, for development will achieve its policy goals

Fa l l 2007 62 while reinforcing the adaptation infrastructure. More so, several cally not involved and a top-down approach was used. Since goals of sustainable development are complementary to adap- adaptation needs are site specific, local knowledge and customs tation, including: development that targets highly vulnerable are invaluable tools in developing effective and sustainable populations, diversifies economic activities, provides for liveli- adaptation projects.38 The shortfalls of first generation adapta- hoods that are less climate sensitive, improves natural resource tion assessments prompted the global community to re-evaluate management, directs development away from highly hazardous the adaptation approach. locations towards less hazardous ones, and invests in expanding While the second generation adaptation assessments are knowledge and creating technology that is relevant to reducing works in progress, certain parameters can already be discerned. climate risks.31 New assessment methods present a restructured approach that The integrated process can foster a top-down and a bottom- is solely focused on adaptation, places vulnerability and adap- up strategy. A top-down strategy implies action taken at larger tation in the center of the assessment, engages stakeholders in scales, such as national and regional levels, to foster sustainable the process, and attempts to strengthen country-level informa- development and adaptation at the smaller scales, such as the tion and data to promote informed policy decisions. Such assess- community and local levels. For instance, national, regional, and ments attempt to determine the relationship of vulnerability state governments can “create incentives, enforce regulations, and climate change by posing certain research questions: “how assist with capital financing and implement large projects that and why vulnerabilities differ for different populations within a go beyond the means of the local authorities to create a climate region, and how vulnerabilities may change over time as a result proof society.”32 National, regional, and state level support would of climate changes and other factors.”39 create a number of beneficial outcomes, such as fostering devel- Cl i m a t e Ch a n g e Ad a p t a ti o n In iti a ti v e s a t t h e opment away from at-risk locations, constructing homes that can In t e r n a ti o n a l Le v e l withstand climate variabilities, provide insurance, encourage and Ad a p t a t i o n i n t h e implement better land use, and USCSP Pr o g r a m construct infrastructure to help adapt to climate variability.33 Prior to the Earth Summit in Rio de Janeiro in 1992, the De v e l o p m e n t s i n Vulnerability is United States announced the Ad a p t a t i o n becoming the focus of formation of the U.S. Country Because GHG mitigation Studies Program (“USCSP”). has been the focal point of most research, analysis, and This program, no longer in exis- climate change research and tence, was coordinated with the discussions, early adaptation discussion for future Global Environment Facility research was geared towards (“GEF”), IPCC, the Subsidiary 34 informing mitigation policy. adaptation considerations. Bodies to the FCCC, and other Such considerations are viewed international organizations, as first generation adaptation to expand upon initial IPCC assessments and attempted “to reports published in the early 1990’s.40 The goal of the program understand how climate might change and what would be the was to assist developing countries and economies in transition in 35 likely impacts based on models and climate scenario methods.” assessing their climate change sensitive sector vulnerability and In contrast, second generation assessments examine the rela- explore opportunities for adaptation.41 Participating nations were tionship of vulnerability, adaptive capacity, and climate change required to develop and list adaptation needs and vulnerabilities, to identify where and what adaptive measures are needed, and take inventories of greenhouse gas emissions, formulate climate ultimately integrate such considerations into associated decision change action plans, and assess technological capabilities. The making processes and policy goals. USCSP was intended to support the goals of the UNFCCC by The first generation assessments typically followed a seven compiling general baseline data to initiate discussion and poten- step approach: (1) define the problem; (2) select the method of tial action within the international community. assessments most appropriate to the problems; (3) test methods/ The USCSP’s primary contribution was capacity build- conduct sensitivity analysis; (4) select and apply climate change ing in developing countries to assess potential climate impacts.42 scenarios; (5) assess biophysical and socioeconomic impacts; However, there is a need for caution in drawing sweeping con- (6) assess autonomous adjustments; and (7) evaluate adaptation clusions about the vulnerability of developing and transition 36 strategies. This approach proved largely ineffective because it countries to climate change.43 Consistent with first generation analyzed climate change from a big picture perspective. How- projects, the USCSP studies tended to focus on identifying sys- ever adaptation is site specific and each location has different tem sensitivities and adaptability was assessed mainly for coastal needs and situations. First generation assessments assume adap- resources.44 However, it is difficult to draw firm conclusions tation can be implemented with a broad stroke and paid little without also thoroughly considering underlying socioeconomic attention to implementation challenges, including social, behav- changes, integrated impacts, and adaptability in all sensitive 37 ioral, or cultural obstacles. Moreover, stakeholders were typi- sectors.45

63 Su s t a i n a b l e De v e l o p m e n t La w & Po l i c y Na t i o n a l Ad a p t a t i o n Pr o g r a m s o f Ac t i o n Ass e ss m e n t s o f Im p a c t s a n d The guidelines for National Adaptation Programs of Action Ad a p t a t i o n s t o Cl i m a t e Ch a n g e (“NAPA”) strategies were set forth by the UNFCCC at the sev- The Assessments of Impacts and Adaptations to Climate enth Conference of the Parties held in Marrakech, Morocco in Change (“AIACC”) program was developed in collabora- 2001. The principal goal of the program is to assist the least tion with the IPCC as an assessment tool designed to build an developed countries (“LDCs”) in identifying activities to information base for developing countries adapting to climate respond to urgent climate change adaptation needs and fund change. The program had three specific mandates: (1)advancing them through the LDC Fund, in the order of priority while con- scientific understanding of climate change impacts, adaptations sidering urgency and cost-effectiveness. The program is not a and vulnerabilities in developing country regions; (2) building structured framework of assessment or implementation. Instead, and enhancing scientific and technical capacity in developing the NAPA process creates a document that identifies priority countries; and (3) generating and communicating information adaptation actions.46 useful for adaptation planning and action.55 For instance, Tuvalu, a small island nation confronting The AIACC approach was largely research driven and pro- rising sea levels, submitted a NAPA in May 2007 identifying duced numerous country and regional reports. AIACC took the key adaptation areas. These areas include inter alia, coastal stakeholder engagement process a step further by encouraging zones, which are vulnerable to sea level rise and sea tempera- scientists, academics, and students within the host countries to ture change; soils, which are vulnerable to saltwater intrusion participate in, and continue, the research and conclusions gen- and salinization; water resources, which are impacted by sea erated by the country reports. In total, 235 developing country level rise and salinization; agriculture, which is impacted by sea scientists and more than 60 graduate and undergraduate students level rise and intrusion; and public health.47 The report identi- participated in the studies.56 fies seven priority projects, with desired outcomes and activi- UNDPs Ad a p t a t i o n Po l i c y Fr a m e w o r k ties within each key adaptation area. One project will seek to The Adaptation Policy Framework (“APF”) is intended increase the resilience of coastal areas and settlement to climate to integrate climate change adaptation into developing coun- change through activities such as training local Kaupule people tries policies. The United Nations Development Programme and government personnel on constructing coastal defenses such (“UNDP”) and the Global Environment Facility (“GEF”) devel- as channel breakers, planting a green belt, and increasing pub- oped the APF with support from the Swiss, Canadian, and Dutch lic awareness.48 Another project in Tuvalu would introduce a governments. salt-tolerant pulaka species, thus increasing the production of a APF is a structured approach to creating strategies, policies, native locally-grown nutritious root that has been damaged by and measures for climate change adaptation.57 The APF frame- salinity intrusion into local soil.49 work is considered a roadmap to assess, plan, and implement cli- Generally, the NAPA strategies prepared to date utilize a mate change adaptation supporting sustainable development.58 bottom-up approach relying on grassroots, local knowledge to This framework is consistent with other second generation proj- lay the groundwork for site-specific adaptation priorities and ects and assessments, in that APF places adaptation in the center solutions.50 Such a process is fostered through community-level of the framework, strengthens local knowledge, and promotes support, recognizing that grassroots communities are the main a local, bottom-up information gathering and use. Importantly, stakeholders. A majority of the data used and analyzed is extrap- APF focuses on practice rather than theory to more effectively olated from established local social and environmental systems inform the policy making process. This framework makes use to ultimately identify gaps in adaptive capacity. This approach of the vulnerability information that countries have to initiate represents a change in methodology utilizing local knowledge, a shift in the way risk, vulnerability and climate change are moving away from a reliance on scenario based modeling51 to viewed. By utilizing synergies and intersecting themes, the APF assess future vulnerability and long term policy at the state level. approach can ultimately lead to a more informed policy-making For instance, the Sudanese NAPA utilized stakeholder consulta- process.59 tions to reveal a number of actions and decisions that should be undertaken by relevant authorities, along with some policy Li n k i n g Cl i m a t e Ad a p t a t i o n Pr o j e c t reform suggestions.52 The Linking Climate Adaptation (“LCA”) project was The overall effectiveness of NAPAs has yet to be deter- intended to “ensure that poor people benefit from adaptation mined, however a new report discusses the lessons learned in processes, rather than bearing burdens by, for example, having preparing NAPAs in Eastern and Southern Africa and concludes the risks caused by climate change shift in their direction.”60 that there is a need for increased funding sources.53 The same The research focused on policy and institutional frameworks study suggested that the momentum generated from the NAPA that could help support community-led adaptation, in addition process must be used to make the transition to implementing to laying out the long-term research agenda and questions for substantive adaptation projects.54 community-led adaptation. The research drew upon a variety of sources including the Fourth Assessment of the IPCC and the UNFCCC Conference of Parties meetings and ‘side events,’ in addition to the views of the stakeholders from various sec-

Fa l l 2007 64 tors. Thus far, the project has resulted in “the establishment of Washington. Only a handful of states have developed plans, the LCA Network which aims to link geographically dispersed commissions, and/or reports to specifically address adaptation communities undertaking adaptation at the local level with each considerations, including Alaska, Arizona, California, Mary- other as well as with those engaged in formal scientific and pol- land, Oregon, and Washington.67 61 icy responses to climate change.” U.S. Lo c a l In i t i a t i v e s The project has generated useful research questions, includ- At the U.S. local level, climate change adaptation activities ing: (1) Who is vulnerable and how do sources of vulnerability have received a boost from recent initiatives by International change over time in response to multiple stressors? (2) What Council on Local Environmental Initiatives -Local Governments are the costs and benefits of adaptation to climate change? (3) for Sustainability (“ICLEI”). In 2005, ICLEI initiated the adap- How can climate change adaptation be integrated into develop- tation-focused Climate Resilient Communities Program, with ment/disaster risk reduction at multiple levels of governance?62 funding from the National Oceanic and Atmospheric Adminis- Nonetheless, the LCA laments the lack of a “coherent body tration (“NOAA”), to assist local governments throughout the of policy-relevant knowledge about the changing dimensions United States in identifying and assessing vulnerabilities, while and sources of vulnerability and the effectiveness of systemic improving their resiliency to associated climate change impacts. approaches to vulnerability reduction.63 Early partners in this program included localities as diverse as Un i t e d Ki n gd o m Cl i m a t e Im p a c t s Pr o g r a m m e Keene, New Hampshire; Fort Collins, Colorado; Anchorage, The United Kingdom Climate Impacts Program (“UKCIP”) Alaska; and Miami-Dade County, Florida. was established in 1997 and published the report titled Climate In 2007, ICLEI in conjunction with King County, Washing- adaptation: Risk, uncertainty and decision-making64 in con- ton, published Preparing for Climate Change: A Guidebook for junction with the UK Climate Impacts Program, Department Local, Regional, and State Governments, a guidebook offering for Environment Food and Rural Affairs, and the Environment a detailed description of the methods and concepts needed to Agency. The report focuses on assist localities in implement- guiding, managing, and improving, updating, and evaluating ing the decision-makers ability to climate change preparedness judge associated climate change Historically, policy choices measures.68 The guidebook risks, when compared to other offers a useful five-part check- risks, to make informed adaptive tended to lean towards list for governments to better choices. However, the UKCIP prepare for climate change. The differs from previously discussed reactive adaptation to checklist is divided into mile- assessment tools in that it is not stones involving: (1) conduct- solely intended for developing climatic events. ing a climate resiliency study countries. It is a framework that and securing political and insti- can be utilized by any governing tutional support to prepare for body facing a myriad of choices and uncertainty, regardless of climate change and building a climate preparedness team; (2) scale or focus. identifying and prioritizing planning areas for action through conducting and interpreting a climate resiliency study, climate Cl i m a t e Ch a n g e Ad a p t a ti o n Ac ti o n change vulnerability assessment, and climate change risk assess- i n t h e Un it e d St a t e s ment; (3) setting preparedness goals and plan, establishing a Ad a p t a t i o n a t t h e St a t e Le v e l vision and guiding principles for a climate resilient community, Until recently GHG mitigation has dominated climate and developing, selecting and prioritizing preparedness actions; change discussions and planning considerations at the state level (4) implementing the preparedness plan, and ensuring the right in the United States mirroring national and international devel- implementation tools; and (5) measuring progress and updating opments. However, several U.S. state governments are express- the plan.69 ing an awareness of adaptation and are in the early phases of Regional adaptation activities—with concomitant trans- identifying vulnerabilities. Specifically, states are creating adap- boundary legal, regulatory, and economic implications—will tation commissions or committees with the intent to complement likely grow in importance since ecosystems rather than politi- mitigation efforts and integrating adaptation into state climate cal boundaries will define the scope of such initiatives. Early action plans, which largely address the reducing and eliminating evidence of this regional orientation is emerging. For instance, a GHG emissions.65 Presently, thirty five states have or are in the conference entitled Climate Change in the Great Lakes Region: process of creating climate action plans and fourteen additional Decision Making Under Uncertainty was convened by Michi- plans are anticipated in late-2007 or 2008.66 Of those thirty five gan State University in March 2007 to explore the relationship states, a number incorporate adaptation considerations into the of climate change, the Great Lakes region, decision making scope of their climate action plan including Alaska, Arkansas, under uncertainty, and adaptation. The conference recognized Arizona, California, Colorado, Hawaii, Illinois, Maryland, Min- that dealing with climate change presents complex challenges nesota, North Carolina, New Hampshire, Oregon, Vermont, and and instills a sense of uncertainty when dealing with the vari-

65 Su s t a i n a b l e De v e l o p m e n t La w & Po l i c y ous effects of climate change on vital elements of ecosystems, infrastructure and economy in the Great Lakes region. In The report elaborates on the evidence that climate change response, Michigan State’s Environmental Science and Policy impacts “600 million acres of public lands and 150,000 square Program and the National Science Foundation (“NSF”) will ini- miles of waters managed by federal agencies—ranging from tiate “a process that will help identify the kinds of research that melting glaciers in Glacier National Park to rising sea levels in needs to be done and the best ways to provide the results so they the Florida Keys.”76 are as useful as possible to decision makers.”70 The GAO report as issued includes responses from several federal departments as appendices; the Agriculture, Interior, and U.S. Fe d e r a l Go v e r n m e n t Ad a p t a ti o n Ac ti o n Commerce departments submitted comments on the GAO con- While the states have led the way in climate change adapta- clusions and recommendations. The federal agencies “generally tion considerations, adaptation has begun to appear on the U.S. agreed with the [GAO] recommendations,” noted the importance federal government’s radar in a substantive manner. Federal- of climate change consideration and additionally highlighted level discussions and considerations are preliminary, however, climate change programs, initiatives, plans, and/or policies that collectively they do represent a much needed first step in imple- the GAO report omitted.77 The comments from all three agen- menting adaptation on the national scale. For instance, in May cies indirectly reaffirm the GAO conclusions: although climate 2007, the House Appropriations Subcommittee on Interior, change considerations may be an identified priority, there is an Environment, and Related Agencies approved increasing EPA’s overall lack of consistent site-specific implementation guid- fiscal year budget to $8.1 billion for a temporary commission ance. on adaptation and mitigation to review scientific questions on For instance, the Department of Agriculture agrees that how to best adapt to a “warming planet” and identify the sci- the adaptation plan for Chugach National Forest, discussed in entific investment needed to address this reality.71 The commis- the GAO report, does not specifically address the effects of sion would include officials from EPA, NOAA, the NSF, the climate change on programs and resources, but noted that the Department of Energy, and the GAO report did not accurately Forest Service, and would be represent the activities that are responsible for the allocation of being pursued. The department funds to governmental agencies notes that the “examination of to conduct adaptation research. Early adaptation one national forest. . . is inad- Depending on the temporary research was geared equate as a proxy for an agency commission’s findings, the EPA that manages diverse ecosystem would allocate $45 million to towards informing across 193 million acres for itself and other agencies over multiple objectives. . . where the next two years.72 mitigation policy. a broader evaluation would The commission has yet to have revealed [twelve] National be officially created however Forest Plans specifically consider the bill’s framework has two potential far reaching implications: the effects of climate change on existing programs and local (1) “the call for significant funding on adaptation could rep- resource values.”78 However, the comments do not address if, resent a new direction for EPA and other agencies to address or the extent to which, the National Forest Plans discuss site- the impacts of climate change, by going beyond the science of specific adaptation concerns. global warming or studies on policies to control [GHGs];”73 The Department of Interior recently initiated a task force to and (2) The commission’s ability to “direct specific amounts of take “affirmative steps to assess the effects on our public lands money toward a problem, rather than only making general rec- arising from climate change and develop a process for antici- ommendations” enables research “to begin immediately without pating and addressing these effects.”79 However, as noted in having to wait for another appropriations cycle.”74 the comments, the department is currently exploring how new While the formation of the commission and its potential science can be focused to provide targeted information that its implications on adaptation research is promising, more con- resource managers need. sistent and widespread action is required. A 2007 Government The Department of Commerce noted their involvement Accountability Office (“GAO”) report confirms this: the report in the effort to “expand both observation systems and model- concludes that ing capabilities” within ocean and coastal monitoring systems, federal agencies that manage the nation’s parks, forests, integrated drought systems, and regional ecosystem planning. In oceans, and monuments are unprepared to deal with addition, the department is expecting to release a Preliminary climate change. . . resource managers within the Agri- Review of Adaptation Options for Climate Sensitive Ecosystems culture, Interior, and Commerce departments have lim- and Resources by the end of 2007.80 ited guidance about whether or how to address climate change-without such guidance, their ability to address U.S. Environmental Pr o t e c t i o n Ag e n c y climate change and effectively manage resources is In 2004 the EPA, in collaboration with other federal agen- constrained.75 cies,81 initiated a process for the Preliminary Review of Adapta-

Fa l l 2007 66 tion Options for Climate-Sensitive Ecosystems and Resources to mate Change Workgroup and plan, expected to be released by “review management options for adapting to climate variability the end of 2007.87 The plan will emphasize that “despite uncer- and change in the United States, and to identify characteristics tainty on the scope and timing of climate change effects, EPA’s of ecosystems and adaptation responses that promote success- water program and its partners should take prudent steps now ful implementation and meet resource managers’ needs.”82 to assess emerging information, evaluate potential impacts of The report is being completed in response to SAP 4.483 of The climate change on water programs, and to identify appropriate Strategic Plan of the U.S. Climate Change Science Program response actions.”88 (“CCSP”), which calls for the completion of “21 synthesis and Ne x t St e p s : Im p l e m e n ti n g Ad a p t a ti o n assessment products to support policy making and adaptation Thus far, climate change adaptation efforts have been pri- decisions across the range of issues addressed by the CCSP,” to marily focused on gathering and synthesizing data to lay the ultimately provide NGOs, individuals, federal, state, and local groundwork for further studies and future implementation. Most governments and agencies with adaptation options and informa- initiatives are serving in a catalyst capacity—they are attempting tion.84 The assessment will focus primarily on climate sensitive to stimulate research, collaboration, discussion, and awareness. ecosystem and resources located within federally protected and While excellent work has been done to identify vulnerabilities managed areas, including: national parks, national wildlife ref- along with research and adaptive capacity gaps, little action has uges, wild and scenic rivers, marine protected areas, national been taken based on the results of the reports. It is now imperative forest systems, and the national estuary program. to move to the next step of the transition, an operational phase to Consistent with the second generation assessments being implement adaptation considerations as a policy response. conducted globally, the EPA project is implementing a process that is open to the public and engages stakeholders to provide A Ba l a n c e o f Re a c t i v e a n d Pr o a c t i v e Ad a p t a t i o n valuable information about local systems. With diverse, multi- The various vulnerability assessments conducted are disciplinary participation, the intended to locate vulnerabili- assessment is posing the follow- ties to implement action. Such ing questions: (1) What are the actions represent sound politi- management goals in the selected We must begin to cal will and good intentions. systems, upon what ecosystem However, transitioning from the characteristics do these goals implement adaptation research and information gather- depend, what are the stressors of ing phase to the implementation concern, what are the manage- strategies as a complement phase presents complex political ment methods currently being and economic dilemmas that are used to address those stresses, to mitigation efforts. familiar to climate change dis- and how could climate variabil- cussions. Particularly, the idea ity and change affect attainment of allocating present resources of management goals? (2) For selected case studies, what is the to long term contextual conditions to anticipate and prevent current state of knowledge about management options that could potential future impacts versus waiting for impacts to occur and be used to adapt to the potential impacts of climate variability reacting to the situation. and change? (3) Looking across the case studies, what are the Conceptually, the difference between the two policy factors that affect the successful implementation of management responses is represented in reactive and proactive adaptation. actions to address impacts from climate variability and change? Reactive adaptation is the “ability to react to and deal with cli- (4) For each case study, how should we define and measure mate change” after an event and impacts have occurred, and is the environmental outcomes of management actions and their represented in the act of coping.89 Proactive adaptation is rep- effect on the resilience of ecosystems to climate variability and resented in the act of anticipation, taking action to prevent and/ change?85 The report is expected in December 2007, and has or reduce future impacts. Choosing between the two in terms the potential to lay the groundwork for future action by federal of policy responses presents complex challenges; however, we agencies, and will perhaps address concerns raised by the 2007 believe that elements of both proactive and reactive adaptation GAO report. responses are necessary to effectively address adaptation to cli- In March 2007, the EPA launched “an effort to assess and mate change. respond to the effects of global warming on water resources Historically, policy choices tended to lean towards reactive and regulators’ ability to meet requirements of numerous water adaptation to climatic events, for in practice, “policy decisions related laws,” while specifically focusing on “development are often easier to implement once a crisis has occurred than strategies to adapt to climate change, rather than on plans for in anticipation of a crisis.”90 Reactive adaptation uses present limiting resources.”86 This new effort will be primarily adap- resources to cope with events at the time they occur, however, tation—focused within the context of water resources and the such “coping may not be sufficient to fully restore the status ability to meet Clean Water Act Requirements “in a changing quo because of irreversibilities.”91 For instance, “losses that are environment.” Implementation will be fostered through a Cli- technically impossible to restore (such as sceneries, irrevers-

67 Su s t a i n a b l e De v e l o p m e n t La w & Po l i c y ible biodiversity losses or disappearance of unique cultural arti- able populations is unprecedented, and traditional methods of facts) or economically too costly to restore…can be referred to adaptation lack the necessary scale and capacity. In many devel- as ‘remaining ultimate damages.’”92 In addition, it is noted that oped countries, stakeholder participation is a common practice reactive responses, when used without proactive measures, tend where the lines of communication are open for local communi- to have higher long term costs because the low costs of preven- ties to voice their opinions across governmental scales, and be tive action, or anticipative adaptation, are likely to dominate the somewhat included in the decision process. On the other hand, higher costs of deferred action, or reactive adaptation, appropri- many developing countries lack the political infrastructure to ately discounted.93 implement such a process; in the absence of developed politi- Although it is known that climate change impacts will hap- cal regimes, many second generation projects and programs are pen and studies have estimated and located vulnerabilities, the providing the means for local communities to be included in the details of future scenarios, in terms of timing, scale, and sever- adaptation and development process by sharing their knowledge ity, cannot be known with certainty. The “degree of uncer- and revealing their developmental and adaptation gaps. tainty” argument has typically been used as a barrier to proactive Adaptation to climate change is not only a concern for adaptation, emphasizing the need to delay action until more developing countries. Developed economies and societies are certain data can be developed. However, even without precise hardly immune to the anticipated impacts of climate change. knowledge of future events, proactive policy planning for cli- While adaptation to climate change in developed countries will mate change adaptation improves the overall preparedness by be facilitated because some of the infrastructure and basic tools integrating adaptation considerations into the decision making are in place to deal with climate variabilities and associated process. More so, “experience suggests that, typically, proactive hazards, there will clearly be a need to expand and build upon adaptation requires a greater initial investment but is more effec- the preexisting management tools to deal with new hazards on tive at reducing future risk and cost.”94 varying scales. Such expanded considerations include: (1) with Proactive and reactive adaptation should be viewed as com- the threat of new disease and health risks, greater investment in plements and not conflicting health care systems; (2) enhance- options. For example, “rapid ment of hazard forecasting sys- response teams need to be con- tems; (3) creation of networks to stituted, trained, and set up in facilitate participation of local advance (proactive adaptation) Another project in Tuvalu organizations in the development so that they can be deployed would introduce a salt- of plans to identify and manage when an extreme weather event the impacts of climate change occurs (reactive adaptation).”95 tolerant pulaka species. on communities; (4) worse case In other contexts, proactive contingency planning by busi- adaptation can occur through nesses and municipalities; and the construction of dikes and (5) improving communications levees, irrigation systems, the building of more resilient homes between communities and government regarding the impacts of in ‘at risk’ locations, and the construction of buffer zones, with climate change on livelihoods.96 Pervasive adjustments in policy reactive adaptation dealing with the remaining variabilities that and regulation, as well as the emergence of new processes and proactive action did not effectively manage. institutions for governance, should be anticipated as we adapt to The key here is that proactive and reactive actions will not climate change. eliminate all associated impacts, but rather an optimal mix will Co n c l u s i o n attempt to minimize impacts wherever possible. It is necessary It is clearly necessary to continue to pursue GHG mitiga- to implement the most educated proactive action, and to react tion strategies as aggressively as possible, but we must begin to and adapt to the variabilities. Decision makers must realize implement adaptation strategies as a complement to mitigation that adaptation to climate change is a manifestation of systems efforts. Fortunately a dialogue on an adaptation and mitigation thinking and a process of active learning; we need to appreciate mix or “portfolio” has begun. For example, the IPCC Fourth both proactive and reactive responses as we learn the new rules Assessment Report-Climate Change 2007: Impacts, Adaptation, of game. and Vulnerability suggests “a portfolio of adaptation and migra- Ut i l i z e a n d Ex p a n d Ex i s t i n g Me t h o ds tion can diminish the risks associated with climate change.”97 Adaptation considerations do not need to be developed from The report recommends that a portfolio of strategies should scratch. A large body of management procedures, processes, and include mitigation, adaptation, technological development, and applications exist in many different capacities and scales, both research. This portfolio could combine policies with incen- in developed and developing nations. It is necessary to evalu- tive-based approaches, and actions at multiple scales, from the ate how populations currently manage climate risks and hazards, individual to national governments and international organiza- and build and expand upon existing measures where possible. tions.98 The need for action is especially acute in developing nations, Researchers and scholars are beginning to explore, given since the scale at which climate change will impact the vulner- the limited resources in terms of funding, time, and manpower,

Fa l l 2007 68 the contents of an adaptation portfolio “that is justifiable from 2007, “mitigation of climate change is not going to happen fast a social, environmental, and economic perspective.”99 But this enough. That is the reality. We need to think in a broad sense is no longer an academic question. More enlightened business about both adaptation [to climate change] and mitigation [of leaders already understand that the climate change equation it].”100 Adaptation and mitigation are complementary and ought includes both mitigation and adaptation components. As James to be inextricably linked as we plan for a carbon-constrained E. Rogers, Duke Energy’s CEO and Chairman, stated in August future.

Ta b l e 2 St a t e s p u r s u i n g s e p a r a t e a d a p t a ti o n p l a n s

Alaska The Climate Impact Assessment Commission is responsible for developing adaptation considerations. The commission is a legislative body that is “tackling adaptation issues, specifically associated with the protection or relocation of villages in the state at risk from coastal erosion and wave surges or flooding.”101 The commission is currently analyzing the relationship of climate change and adaptation to a variety of multi-disciplinary issues, including communities, infrastructure, fish, wildlife, forests, agriculture, disease, pests, and financing. A rural relocation report is expected to be completed by the end of 2007.

Arizona Arizona developed a Climate Change Adaptation Strategy, which recommends that the Governor “appoint a task force or advisory group to develop recommendations for the state climate change adaptation strategy. Moreover, the Governor should direct state agencies and other appropriate institutions to identify and characterize potential current and future risks in Arizona to human, natural, and economic systems, including potential risks to water resources, temperature sensitive populations and systems, energy systems, transportation systems, vital infrastructure and public facilities, and natural lands (e.g., forests, rangelands, and farmland).”102

California The California Energy Commission published a statewide assessment of climate change impacts and adaptation measures in the 2005 report Climate Change Impacts and Adaptation in Cali- fornia. In addition, the California Climate Change Center has been conducting ongoing impact and adaptation studies within three main areas: (1) agriculture and forestry- including iden- tification and analysis of vulnerable species; (2) Water resources- with particular attention placed upon stressors such as growing population and development; and (3) Public health- with the acknowledgment that increased frequency of extreme weather events will impact human health.103

Maryland The Maryland Commission on Climate Change formed the Adaptation and Response Working Group, which will recommend strategies for reducing Maryland’s climate change vulnerability, with attention paid to public health and the most vulnerable population segments.104 An updated plan of action, preliminary recommendations, implementation time tables, and draft legislation is expected in November 2007.

Washington The Washington State Department of Ecology formed the Preparation/Adaptation Working Groups with a primary task to make recommendations to the Governor on how Washington can prepare and adapt to climate change impacts with respect to five sectors: Agriculture, Forestry Resources, Human Health, Water Resources & Quality, and Coastal Infrastructure. Addition- ally, the working groups will identify vulnerabilities, recommend adaptive strategies, and note areas requiring additional research.105

Oregon The Climate Change Integration Group will prepare a preliminary report on adaptation to the impacts of climate change with initial recommendations to the Governor by the end of the year 2007.106

Endnotes: Preparing for the Day After Tomorrow continued on page 87

69 Su s t a i n a b l e De v e l o p m e n t La w & Po l i c y 45 Some of the leases were part of Lease Sale 53, the sale that was challenged in 60 Norton, id. at 1167. Sec’y of the Interior v. California. 61 Norton, id. 46 MMS, Fi n a l Ca l i f o r n i a Of f s h o r e Oi l a n d Ga s En e r g y Re s o u r c e s 62 Norton, id. at 1172-73. (“COOGER”) St u d y , OCS Report MMS 99-0043, Jan. 26, 2000, available at 63 Norton, 311 F. 3d at 1173. http://www.mms.gov/itd/abstracts/95-0059a.html (last visited Nov. 10, 2007). 64 Norton, id. 47 See generally Ca l . Co a s t a l Co m m ’n, Ca l . Of f s h o r e Oi l & Ga s Le a s i n g a n d 65 Norton, id. at 1174. De v . St a t u s Re p o r t (1999), available at http://www.coastal.ca.gov/pubs.html (last visited Nov. 10, 2007). 66 Norton, id. at 1174. The Court also noted that the leases in question were sold 48 The EDC is a non-profit public interest environmental law firm headquartered prior to the 1990 amendments to the CZMA, and reserved the issue of whether in Santa Barbara, California; see www.EDCnet.org for more information. a state has the right to review a suspension that had been subject to review at the initial lease sale phase. Such a determination would be made “on the par- 49 See Letter from Sara J. Wan, Chair of the Coastal Commission, to Bruce Bab- ticular facts” of the case. Norton, id. at 1175. bitt, Secretary of the Interior and Walt Rosenbusch, Director of MMS (July 27, 67 1999), available at http://www.coastal.ca.gov/energy/ocs/8-2005-Th5j-exhibits. MMS, Ro c k y Po i n t Un i t Fi n d i n g o f No Si g n i f i c a n t Im p a c t , Leases OCS-P pdf (last visited Nov. 10, 2007). 0452 & 0453 (Feb. 11, 2005), available at http://www.mms.gov/omm/pacific/ lease/final-eas/Rocky-Point-Final-EA-2-01-05.pdf (last visited Nov. 13, 2007). 50 See Letter from Bruce Babbitt, Secretary of the Interior, to Sara J. Wan, 68 Chair of the California Coastal Commission (Aug. 13, 1999) (explaining that League for Coastal Prot. v. Norton, 2005 U.S. Dist. LEXIS 32379 (N.D. Cal. in August 1999, the federal government allowed four of the leases to expire, Aug. 31, 2005). leaving 36 leases that were suspended in November, 1999). Subsequently, it 69 E.g., Norton, id. at *10 (citing 40 C.F.R. §1508.8). was discovered that an additional partial lease was included in the suspensions, 70 Ca l . Co a s t a l Co m m ’n, St a f f Re p o r t & Re c o m m e n d a t i o n o n Co n s i s t e n c y bringing the total number of suspended leases to 37. Determination , CD-050-05: MMS OCS Le a s e Su s p e n s i o n s 11-14 (Aug. 11, 51 California v. Norton, supra note 38. 2005), available at www.coastal.ca.gov/energy/ocs/8-2005-Th5i.pdf (last vis- 52 EDC represented the Sierra Club, Friends of the Sea Otter, CALPIRG, Cali- ited Nov. 10, 2007). fornia Coastkeeper, Santa Barbara Channelkeeper, Santa Monica Baykeeper, 71 Norton, 2005 U.S. Dist. LEXIS 32379 at *14 (“NEPA is not designed Get Oil Out!, and Citizens Planning Association of Santa Barbara County, and to postpone analysis of an environmental consequence to the last possible the Natural Resources Defense Council represented itself and the League for moment. Rather, it is designed to require such analysis as soon as it can reason- Coastal Protection. ably be done.”) (citing Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 53 Norton, 150 F. Supp. 2d at 1053, aff’d, 311 F.3d 1162 (9th Cir. 2002). 1072 (9th Cir. 2002)). 72 54 Norton, id. at 1052. Coastal Zone Management Act Federal Consistency Regulations, Final Rule, 65 Fed. Reg. 77,124 (Dec. 8, 2000). 55 Norton, id. (citing H.R. Rep. No. 101-964 at 2675). 73 Coastal Zone Management Act Federal Consistency Regulations, Final Rule, 56 Norton, id. 71 Fed. Reg. 788 (Jan. 5, 2006). 57 Norton, 150 F. Supp. 2d at 1053, aff’d, 311 F.3d 1162 (9th Cir. 2002). 74 Fed. Reg., id. at 792. 58 Norton, id. at 1054. 59 Norton, 311 F.3d at 1162.

En d n o t e s : Pr e p a r i n g f o r t h e Da y Af t e r To m o r r o w continued from page 69

1 Ian Burton, Elliot Dringer & Joel Smith, Adaptation to Climate Change: Inter- mitigate or adapt to climate change”); art. 4.4 (Requiring the developed country national Policy Options, Pew Center on Global Climate Change (2006), at 5, parties and other developed parties included in Annex II to also assist the devel- available at http://www.pewclimate.org/docUploads/PEW_Adaptation.pdf (last oping country parties that are particularly vulnerable to the adverse effects of visited Nov. 1, 2007) [hereinafter Pew Adaptation]. climate change in meeting costs of adaptation to those adverse effects). 2 In t e r g overnmental Pa n e l o n Cl i m a t e Ch a n g e , Th i r d Ass e ss m e n t Re p o r t , 9 UNFCCC website, Adaptation, available at http://unfccc.int/adaptation/ Cl i m a t e Ch a n g e 2001: Im p a c t s , Ad a p t a t i o n & Vulnerability 881 (2001), adverse_effects_and_response_measures_art_48/items/2535.php (last visited available at http://www.grida.no/climate/ipcc_tar/wg2/index.htm (last visited Oct. 29, 2007) [hereinafter UNFCCC website] (stating art. 4.8 of the Conven- Nov. 1, 2007) [hereinafter IPCC 2001]. tion calls on Parties to “consider actions, including those related to funding, 3 See In t e r g overnmental Pa n e l o n Cl i m a t e Ch a n g e , Cl i m a t e Ch a n g e 2007: insurance and the transfer of technology, to meet the specific needs and con- Im p a c t s , Ad a p t a t i o n & Vulnerability (2007), available at http://www.ipcc cerns of developing countries in this regard, listing categories of countries (e.g., wg2.org/ (last visited Nov. 1, 2007) [hereinafter IPCC 2007] (“High Confi- small island countries and countries whose economies are highly dependent on dence” is a term used by the IPCC to describe the accuracy of the conclusions. fossil fuels) that may be particularly affected”). High confidence equals an eight out of ten chance of accuracy confidence, 10 UNFCCC website, id. (stating “Article 4.9 of the Convention refers specifi- where the highest possible is “very high confidence” which equals a nine out cally to the specific needs and special situations of the least developed countries of ten chance of being accurate). (LDCs) concerning funding and transfer of technology”). 4 IPCC 2007, id. at 5 (citing a sixty six to ninety percent probability). 11 UNFCCC website, id. 5 IPCC 2007, id. at 5. 12 UNFCCC website, id. 6 IPCC 2007, id. at 19. 13 UNFCCC, Conference of the Parties: Report of the Conference of the Parties 7 See United Nations Framework Convention on Climate Change, May 9, 1992, on its Seventh Session, Held at Marrakech from 29 October to 10 November 31 I.L.M. 849, available at http://unfccc.int/essential_background/convention/ 2001, United Nations (Jan. 2002), available at http://unfccc.int/resource/docs/ background/items/2853.php (last visited Nov. 1, 2007) [hereinafter UNFCCC]. cop7/13.pdf (last visited Oct. 19, 2007). 14 8 UNFCCC commitments include, inter alia, art. 2 (“Such a level should be UNFCCC, Co m p e n d i u m o n m e t h o ds a n d t o o l s t o e v a l u a t e i m p a c t s o f , a n d achieved within a time-frame sufficient to allow ecosystems to adapt naturally vulnerability a n d a d a p t a t i o n t o , c l i m a t e c h a n g e , Fi n a l Dr a f t Re p o r t , 1 to climate change”); art. 4.1(b) (“Formulate, implement, publish and regularly (2005), available at http://unfccc.int/adaptation/methodologies_for/ update national and, where appropriate, regional programs concerning…mea- vulnerability_and_adaptation/items/2674.php (last visited Nov. 1, 2007). sures to facilitate adequate adaptation to climate change”); art. 4.1(3) (“Cooper- 15 St r a t u s Co n s u l t i n g In c ., Co m p e n d i u m o f De c i s i o n To o l s t o Ev a l u a t e ate in preparing for adaptation to the impacts of climate change”); art. 4.1(f) St r a t e g i e s f o r Ad a p t a t i o n t o Cl i m a t e Ch a n g e , St r a t u s Co n s u l t i n g In c ., (“Take climate change considerations into account, to the extent feasible, in prepared for UNFCCC, (May 1999), available at http://www.aiaccproject.org/ their relevant social, economic and environmental policies and actions, and resources/ele_lib_docs/adaptation_ decision_tools.pdf (last visited employ appropriate methods, for example. . . measures undertaken by them to Nov. 1, 2007).

87 Su s t a i n a b l e De v e l o p m e n t La w & Po l i c y 16 UNFCCC, Co m p e n d i u m o n Me t h o ds a n d To o l s t o Ev a l u a t e i m p a c t s o f , Co m p e n d i u m ]. a n d Vulnerability a n d Ad a p t a t i o n t o Cl i m a t e Ch a n g e (2005), available at 42 Joel B. Smith & Jeffrey K. Lazo, A Summary of Climate Change Impact http://unfccc.int/adaptation/methodologies_for/vulnerability_and_adaptation/ Assessments from the U.S. Country Studies Program, 50 Cl i m a t e Ch a n g e 1 items/2674.php (last visited Nov. 1, 2007). (2001). 17 See generally IPCC, IPCC Sp e c i a l Re p o r t : IPCC Te c h n i c a l Gu i d e l i n e s f o r 43 Smith & Lazo, id. Ass e ss i n g Cl i m a t e Ch a n g e Im p a c t s a n d Ad a p t a t i o n s w i t h a Su m m a r y f o r 44 Smith & Lazo, id. Po l i c y Ma k e r s a n d a Te c h n i c a l Su m m a r y (1994); IPCC, IPCC Se c o n d Ass e ss - 45 Smith & Lazo, id. m e n t Re p o r t : Cl i m a t e Ch a n g e 1995: Im p a c t s , Ad a p t a t i o n s a n d Mi t i g a t i o n o f 46 Cl i m a t e Ch a n g e : Sc i e n t i f i c -Te c h n i c a l An a l y s e s (1995), available at http:// U.N. National Adaptation Programmes of Action (NAPAs), UNFCCC web- www.ipcc.ch/pub/reports.htm (last visited Nov. 1, 2007); see also IPCC 2001, site, http://unfccc.int/adaptation/napas/items/2679.php (last visited Nov. 19, supra note 2 (concluding: (1) many human systems are sensitive to climate 2007). change, and some are vulnerable; (2) adaptation is a necessary strategy at all 47 Tu v a l u De p a r t m e n t o f En v ’t, Tu v a l u ’s Na t i o n a l Ad a p t a t i o n Pr o g r a m m e scales to complement climate change mitigation efforts; and (3) adaptation has o f Ac t i o n 19 (May 2007), available at http://unfccc.int/resource/docs/napa/ the potential to reduce adverse impacts of climate change and to enhance ben- tuv01.pdf (last visited Nov. 19, 2007) [hereinafter Tu v a l u Pr o g .]. eficial impacts). 48 Tu v a l u Pr o g ., id. at 41. 18 See IPCC 2007, supra note 3. 49 Tu v a l u Pr o g ., id. at 43. 19 IPCC 2007, supra note 3. 50 Ba l g i s Os m a n -El a s h a & Th o m a s E. Do w n i n g , Eu r o p e a n Ca p a c i t y Bu i l d i n g 20 IPCC 2001, supra note 2, at 2.4. In i t i a t i v e Le ss o n s Le a r n e d i n Pr e p a r i n g Na t i o n a l Ad a p t a t i o n Pr o g r a m m e s o f 21 Nick Brooks, Vulnerability, risk and adaptation: A conceptual framework, Ac t i o n i n Ea s t e r n a n d So u t h e r n Af r i c a (2007), available at www.napa-pana. Tyndall Centre for Climate Research, Working Paper 38, at 4 (Nov. 2003), org/private/modules/knowledgebox/io/file.php?entry=707&field=26 (last vis- available at http://www.tyndall.ac.uk/publications/working_papers/wp38.pdf ited Nov. 19, 2007) [hereinafter Le ss o n s Le a r n e d ]. (last visited Nov. 1, 2007). 51 See UNFCCC Co m p e n d i u m , supra note 41. 22 Brooks, id. at 4. 52 Su d a n Mi n i s t r y o f En v i r o n m e n t a n d Ph y s i c a l De v e l o p m e n t , Na t i o n a l 23 Brooks, id. at 4-5. Ad a p t a t i o n Pr o g r a m m e o f Ac t i o n 28 (July 2007), available at http://unfccc. 24 Nick Brooks, W. Neil Adger & P. Mick Kelly, The determinants of vulner- int/resource/docs/napa/sdn01.pdf (last visited Nov. 19, 2007). ability and adaptive capacity at the national level and implications for adapta- 53 Le ss o n s Le a r n e d , supra note 50. tion, 15 Gl o b a l En v t l . Ch a n g e 151, 153 (2004). 54 Le ss o n s Le a r n e d , supra note 50. 25 Brooks, supra note 21, at 5. 55 AIACC, Assessments of Impacts and Adaptations to Climate Change in Mul- 26 For example, developing countries face more climate vulnerability because tiple Regions and Sectors, available at http://www.aiaccproject.org/meetings/ they are at lower latitudes where impacts are more pronounced and their econo- Trieste_02/trieste_cd/CD_INTRO/AIACCSummary.doc (last visited Nov. 20, mies are dependent on climate sensitive sectors. Additionally, developing coun- 2007). tries generally face lower per capita incomes, weaker institutions, and have less 56 For instance, an AIACC final report concludes “[a]s a result of our AIACC access to technology, credit, and international markets. See Pew Adaptation, project, young researchers from the participating institutions with strong and supra note 1, at 5. almost exclusive background in agricultural science, started to work with cli- 27 See Jouni Paavola & W. Neil Adger, Fair adaptation to climate change, 56 mate change scenarios and assessing climate related risks resulting in strength- Ec o l o g i c a l Ec o n . 594, 599-600 (2006). ened research capabilities for further investigations of climate change. See 28 James Ford et al., Reducing Vulnerability to Climate Change in the Artic: The Ag u s t i n Gi m e n e z , AIACC Fi n a l Re p o r t s , Cl i m a t e Ch a n g e a n d Va r i a b i l i t y i n Case of Nunavut, Canada, Arctic Institute of North America of the University t h e Mi x e d Cr o p /Li v e s t o c k Pr o d u c t i o n Sy s t e m s o f t h e Ar g e n t i n e a n , Br a z i l i a n of Calgary (2007). a n d Ur u g u a y a n Pa m p a s (2006), available at http://www.aiaccproject.org/Final % 20Reports/Final%20Reports/FinalRept_AIACC_LA27.pdf (last visited Oct. 29 Neil Leary et al., A Stitch in Time: Lessons for Climate Change Adaptation 19, 2007). from the AIACC Project, AIACC Working Paper No. 48, at 12 (2007), avail- 57 able at http://www.aiaccproject.org/working_papers/Working%20Papers/ See UNEP-GEF, Ad a p t a t i o n Po l i c y Fr a m e w o r k s f o r Cl i m a t e Ch a n g e : AIACC_WP48_Leary_etal.pdf (last visited Nov. 1, 2007). De v e l o p i n g St r a t e g i e s , Po l i c i e s a n d Me a s u r e s (Cambridge Univ. Press, 2004), available at http://www.undp.org/gef/undp-gef_publications/undp-gef_ 30 Leary, id. publications.html#adaptation (last visited Nov. 19, 2007) (informing and 31 Leary, id. at 14. guiding practitioners on implementation). 32 Leary, id. at 15. 58 UN De v . Pr o g r a m m e , Ad a p t a t i o n Po l i c y Fr a m e w o r k f o r Cl i m a t e Ch a n g e : 33 See Leary, supra note 29. De v e l o p i n g Po l i c i e s , St r a t e g i e s , Po l i c i e s , a n d Me a s u r e s , (Bo Lim and Erika 34 Ian Burton et al., From Impacts Assessment to Adaptation Priorities: the Spanger Sigfried eds., Cambridge Univ. Press, 2004), available at http://www. Shaping of Adaptation Policy, 2 Cl i m a t e Po l ’y 145 (2002). undp.org/gef/undp-gef_publications/undp-gef_publications.html#adaptation (last visited Nov. 19, 2007) [hereinafter APF]. 35 About AIACC, Assessments of Impacts and Adaptations to Climate Change in Multiple Regions and Sectors website, http://www.aiaccproject.org/about/ 59 APF, id. about.html (last visited Nov. 1, 2007). 60 Farhana Yamin et al., Linking Climate Adaptation: A Research Agenda, IDS 36 Burton, supra note 34. Bulletin 36.4: Vulnerability, Adaptation and Climate Disasters. 61 37 Burton, supra note 34. Yamin et al., id. 62 38 Burton, supra note 34. Yamin et al., id. 63 39 AIACC, Ass e ss m e n t s o f Im p a c t s a n d Ad a p t a t i o n s t o Cl i m a t e Ch a n g e i n Yamin et al., id. Mu l t i p l e Re g i o n s a n d Se c t o r s 2, available at http://www.aiaccproject.org/ 64 UKCIP, Cl i m a t e a d a p t a t i o n : Ri s k , uncertainty a n d d e c i s i o n -m a k i n g (May, meetings/Trieste_02/trieste_cd/CD_INTRO/AIACCSummary.doc (last visited 2003), available at http://www.ukcip.org.uk/resources/publications/pub_dets. Nov. 1, 2007). asp?ID=4 (last visited Nov. 19, 2007). 40 Robert K. Dixon, U.S. Activities with Developing Countries to Cope with 65 Pe w Ce n t e r o n Gl o b a l Cl i m a t e Ch a n g e , Ad a p t a t i o n Pl a n n i n g —Wh a t Global Climate Change, Li n k a g e s J., Oct. 26, 1998, available at http://www. St a t e s a n d Lo c a l i t i e s a r e Do i n g , available at http://www.pewclimate.org/ iisd.ca/journal/dixon.html (last visited Oct. 19, 2007). docUploads/State_Adapation_Planning_final8%2008%2007tcedits%20(2).pdf 41 See generally UNFCCC Co m p e n d i u m o n m e t h o ds a n d t o o l s t o e v a l u a t e (last visited Nov. 1, 2007) [hereinafter Ad a p t a t i o n Pl a n n i n g ]. i m p a c t s o f , a n d vulnerability a n d a d a p t a t i o n t o , c l i m a t e c h a n g e (Jan. 2005), 66 Ad a p t a t i o n Pl a n n i n g , id. available at http://unfccc.int/adaptation/methodologies_for/vulnerability_and_ adaptation/items/2674.php (last visited Nov. 19, 2007) [hereinafter UNFCCC

Fa l l 2007 88 67 Ad a p t a t i o n Pl a n n i n g , id. 86 Carbon Control News, E.P.A. Water Office to Draft GHG Strategy Emphasiz- 68 Ce n t e r f o r Sc i e n c e i n t h e Ea r t h Sy s t e m e t a l ., Pr e p a r i n g f o r Cl i m a t e ing ‘Adaptation,’ Inside Washington Publishers, Mar. 12, 2007 [hereinafter Ch a n g e : A Gu i d e b o o k f o r Lo c a l , Re g i o n a l , a n d St a t e Go v e r n m e n t s (Sept. Strategy]. 2007), available at http://www.iclei.org/index.php?id=7066 (last visited Nov. 87 Strategy, id. 1, 2007) [hereinafter Gu i d e b o o k ]. 88 Strategy, id. 69 Gu i d e b o o k , id. 89 Chris Ward, July 2007 Monthly Update: Vulnerability and Adaptation to 70 Climate Change in the Great Lakes Region, Michigan State University’s Climate Change in Developing Countries, World Resource Institute (July 30, Environmental Science & Policy’s website, http://www.environment.msu.edu/ 2007), available at http://earthtrends.wri.org/updates/node/225 (last visited climatechange/ (last visited Nov. 1, 2007). Nov. 1, 2007). 71 Environmental Policy Alert, House Spending Bill for E.P.A. Creates Panel on 90 Frank Lecocq & Zmarak Shalizi, Balancing Expenditures on Mitigation Climate Adaptation, Inside Washington Publishers, June 6, 2007 [hereinafter of and Adaptation to Climate Change: an Exploration of Issues Relevant to Po l i c y Al e r t ]. Developing Countries 7 (World Bank Group, Policy Research Working Paper 72 Po l i c y Al e r t , id. No. 4299 2007), available at http://www-wds.worldbank.org/external/default/ WDSContentServer/IW3P/IB/2007/08/02/000158349_20070802095523/ 73 Po l i c y Al e r t , id. Rendered/PDF/wps4299.pdf (last visited Nov. 1, 2007) [hereinafter Balancing 74 Po l i c y Al e r t , id. Expenditures]. 75 Lauren Morello & Dan Berman, U.S. Resource Managers Lack Direction on 91 Balancing Expenditures, id. at 7. Warming-GAO, Gr e e n w i r e , Sept. 6, 2007. 92 Balancing Expenditures, id. at 7. 76 Morello & Berman, id. 93 Balancing Expenditures, id. at 8. 77 GAO, Cl i m a t e Ch a n g e : Ag e n c i e s Sh o u l d De v e l o p Gu i d a n c e f o r Add r e ss i n g 94 Pew Adaptation, supra note 1, at 5. t h e Ef f e c t s o n Fe d e r a l La n d a n d Wa t e r Re s o u r c e s , Re p o r t t o Co n g r e ss i o - 95 n a l Re q u e s t e r s , at 59, GAO-07-863 (Aug. 2007) [hereinafter GAO Cl i m a t e Balancing Expenditures, supra note 90. Ch a n g e ]. 96 Ford, supra note 28. 78 GAO Cl i m a t e Ch a n g e , id. at 46. 97 IPCC 2007, supra note 3. 79 GAO Cl i m a t e Ch a n g e , id. at 59. 98 IPCC 2007, supra note 3. 80 GAO Cl i m a t e Ch a n g e , id. 99 Richard J.T. Klein, E. Lisa F. Schipper & Suraje Dessai, Integrating mitiga- 81 These agencies include Department of Agriculture, Department of Energy, tion and adaptation into climate and development policy: three research ques- U.S. Geological Survey, National Aeronautics and Space Administration, and tions, 8 Envtl. Sci. & Pol’y 579 (2005). National Oceanic and Atmospheric Administration. 100 Fareed Zakaria, Editorial: Energy official performs balancing act, Ne w s w e e k , 82 Adaptation Homepage, U.S. Environmental Protection Agency website, Aug. 14, 2007, at 4A. http://www.epa.gov/climatechange/effects/adaptation.html (Nov. 1, 2007) 101 Ad a p t a t i o n Pl a n n i n g , supra note 65. [hereinafter Adaptation Homepage]. 102 Ad a p t a t i o n Pl a n n i n g , supra note 65. 83 See EPA, SAP-4.4 Pr o s p e c t u s f o r Pr e l i m i n a r y Re v i e w o f Ad a p t a t i o n 103 Ad a p t a t i o n Pl a n n i n g , supra note 65. Op t i o n s f o r Cl i m a t e -Se n s i t i v e Ec o s y s t e m s a n d Re s o u r c e s , (July 2006), 104 Maryland Commission on Climate Change website, www.mde.state.md.us/ available at http://www.climatescience.gov/Library/sap/sap4-4/sap4-4 air/mccc/ (last visited Oct. 19, 2007). prospectus-final.htm (last visited Nov. 1, 2007) [hereinafter SAP Pr o s p e c t u s ]. 105 Ad a p t a t i o n Pl a n n i n g , supra note 65. 84 SAP Pr o s p e c t u s , id. 106 Ad a p t a t i o n Pl a n n i n g , supra note 65. 85 Adaptation Homepage, supra note 82.

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1 Western Governors’ Association, White Paper on Combined Heat and Power, 12 Ar i z . Re v . St a t . § 43-1083 (LexisNexis 2007). Clean and Diversified Energy Initiative, (Jan. 2006), available at http://www. 13 Performance-Based Incentives and New Incentive Levels Starting in 2007, westgov.org/wga/initiatives/cdeac/CHP-full.pdf (last visited Oct. 14, 2007) California Energy Commission Go Solar California website, http://www. [hereinafter Western Governors’ Association]. gosolarcalifornia.ca.gov/csi/performance_based.html (last visited Oct. 13, 2 Western Governors’ Association, id. 2007). 3 Western Governors’ Association, id. 14 Ca l . Ci v . Co d e § 714 (Deering 2007). 4 Co u n c i l o n Fo r e i g n Re l a t i o n s , Na t i o n a l Se c u r i t y Co n s e q u e n c e s o f U.S. Oi l 15 2007 N.M. Laws 232. De p e n d e n c y (Oct. 2006), available at http://www.cfr.org/content/publications/ 16 Bill Richardson, Governor of New Mexico, Keynote Speech at Colorado attachments/EnergyTFR.pdf (last visited Oct. 14, 2007). College: A New West, A New Energy Policy (Apr. 6, 2005). 5 See generally Al Go r e , An Inconvenient Tr u t h (Rodale Books, 2006). 17 New Solar Homes Partnership, California Energy Commission Go Solar 6 Western Governors’ Association, supra note 1. California website, http://www.gosolarcalifornia.ca.gov/nshp (last visited Oct. 7 26 U.S.C. § 25D (2007). 13, 2007). 18 8 26 U.S.C. § 25 D; DSIREUSA, Federal Incentives for Renewables and Effi- Ca l i f o r n i a En e r g y Co m m i ss i o n , Ne w So l a r Ho m e s Pa r t n e r s h i p Se c o n d Ed i - ciency, http://www.dsireusa.org/library/includes/incentive2.cfm?Incentive_Co t i o n (July 2007), available at http://www.gosolarcalifornia.ca.gov/documents/ de=US37F&State=federal¤tpageid=1&ee=1&re=1 (last visited Nov. 17, CEC-300-2007-008-CMF.PDF (last visited Oct. 13, 2007). 2007) [hereinafter DSIREUSA]. 19 Ar i z o n a De p a r t m e n t o f Co m m e r c e , Ar i z o n a So l a r El e c t r i c Ro a d m a p St u d y 9 See 26 U.S.C. § 25D; DSIREUSA, supra note 8. (Jan. 2007), available at http://www.azcommerce.com/doclib/energy/az_solar_ electric_roadmap_study_full_report.pdf (last visited Oct. 14, 2007). 10 New Mexico Energy, New Mexico Minerals and Natural Resources Depart- ment Energy Conservation and Management Division website, http://www. 20 Western Governors’ Association, supra note 1. emnrd.state.nm.us/ecmd/index.htm (last visited Oct. 13, 2007). 21 Press Release, Sandia National Laboratories, Sandia, Stirling to Build Solar 11 Solar Tax Credit, New Mexico Minerals and Natural Resources Department Dish Engine Power Plant (Nov. 9, 2004), available at http://www.sandia.gov/ Energy Conservation and Management Division website, http://www.emnrd. news/resources/releases/2004/renew-energy-batt/Stirling.html (last visited state.nm.us/ecmd/SolarTaxCredits/SolarTaxCredits.htm (last visited Oct. 14, Oct. 13, 2007). 2007).

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