Whether it's raging wildfires in the West, catastrophic flooding in the East and Upper Midwest, or rising sea levels on the coasts, there is no question that climate change is affecting and will continue to significantly impact our public lands and the resources they both provide and protect. As a nation, we need to be prepared for these changes and find effective ways to adapt.
To develop a snapshot of the scope and efficacy of such efforts thus far, we assessed the extent to which each of the four principal federal land management agencies – the National Park Service, the U.S. Fish and Wildlife Service, the U.S. Forest Service, and the Bureau of Land Management – have (or have not) started preparing, whether through regulatory standards or otherwise, for the anticipated adverse impacts of climate change on the lands and resources under their jurisdictions.
After surveying the four agencies' activities, we concluded that the Forest Service, a multiple-use agency whose policies have at times raised fears that it had been captured by the timber industry, is actually well ahead of the Park Service and the Fish and Wildlife Service – whose missions are primarily to protect and preserve their natural resource bases – in its preparation efforts. The BLM, whose legal mandate is similar to that of the Forest Service, lags behind the other agencies, raising concerns about the agency's commitment to or capacity for finding workable solutions and strategies to manage the lands it oversees in the face of climate change. Particularly in the western United States, climate change is likely to subject BLM-managed land to intensifying drought conditions and an increased risk of devastating wildfires in coming years. Moreover, the 109 million acres of federal wilderness lands (each of these agencies manages a portion) have been subject to virtually no climate change adaptation planning.
To explain these results, we hypothesize in a new Colorado Law Review article that a regulatory or management program's "legal adaptive capacity" has much to do with the pace at which the program is capable of addressing climate change, and that this legal adaptive capacity is a necessary but not sufficient condition for an effective response. Though some have considered how adaptive capacity is influenced by the extent of a legal regime's procedural flexibility, we argue that it is also shaped by the regime's substantive goals.
For example, the Park Service and Fish and Wildlife Service are tied by their statutory mandates (and their own internal interpretations) to goals – preserving historical conditions and minimizing human intervention in nature – that present significant difficulties for dealing with climate change. Federal wilderness lands in particular emphasize minimal management and thus have the least legal adaptive capacity of all federal conservation lands.
The Forest Service, on the other hand, operates under a flexible statutory mandate that pushes it to adjust to novel and changing conditions such as those presented by climate change. The BLM is permitted but not required by its governing legal regime to adjust management strategies in response to change. Though it could also take advantage of the flexibility inherent in its authorizing law, it has yet to do so. Undoubtedly, other factors such as resources and culture contribute to the extent of adaptation activities, but legal adaptive capacity nonetheless seems to play a significant role.
To address these ongoing challenges, some changes to federal law will be necessary, some of which will require legislation. In the meantime, however, agencies can implement other regulatory and policy changes now to better situate federal land management officials to deal with climate change. These should include shifting the focus of the dominant use agencies away from preservation of historical conditions and non-intervention and toward protecting the integrity of ecosystems in the face of climate-induced changes. The multiple use agencies should strive to balance the available multiple uses in ways that ensure that ecological functions are not impaired, rather than emphasizing commodity production, even when the changes taking place on public lands make long-standing levels of such production unsustainable.
If this kind of reframing of agency goals is done conscientiously, and it is paired with the development of innovative regulatory standards that take account of developing scientific learning on climate change, boosting federal land management agencies' flexibility and adaptive capacity will help them address the significant impacts climate change will have on our nation's public lands. There is too much at stake not to do so.
The full article is available online at http://lawreview.colorado.edu/wp-content/uploads/2016/01/8.-87.3-Camacho-Glicksman_Final-Revised.pdf.
UPDATE (8/12/2016): You can read even more about these issues in Professor Camacho and Professor Glicksman's August 8 blog post on RegBlog.