Climate change adaptation: a collective action perspective on federalism considerations.

• Author: Glicksman, Robert L.
• Position: Symposium

1. INTRODUCTION II. THE DESIGN OF FEDERAL CLIMATE CHANGE ADAPTATION POLICY A. Models of Adaptation Federalism B. Mitigation and Adaptation Compared C. Resolving the Tension Between Historic Tradition and Current Need III. COLLECTIVE ACTION AND CLIMATE CHANGE ADAPTATION POLICY A. Collective Action Justifications for a Federal Role 1. Transboundary Negative Externalities 2. Resource Pooling 3. The Race-to-the-Bottom 4. Uniform Standards 5. The NIMBY Syndrome 6. The Threat of Under and Overregulation by the States B. Collective Action and Minimal State and Local Participation 1. Federal Provision of Information, Financial Aid, and Planning Assistance 2. Federally Required Adaptive Measures C. Collective Action and Preemption of State and Local Action 1. Non-Problematic State and Local Adaptation Measures 2. Preemption and Potentially Problematic State and Local Adaptation Measures IV. CONCLUSION I. INTRODUCTION

   The longer Congress dithers and stumbles in its efforts to pass climate change legislation aimed at reducing greenhouse gas emissions, the greater will be the need for the adoption and implementation of climate change adaptation measures. As the Congressional Budget Office has recognized, "[t]he world is committed to some degree of warming from emissions that have already occurred, and even very aggressive emissions restrictions are unlikely to halt the growth of concentrations for many years to come." (1) Most climate change scientists seem to agree. (2) Although the exact nature, extent, and distribution of the adverse effects of climate change is unknowable, the climate change to which the world is already committed threatens to transform natural ecosystems and disrupt human social and economic systems that rely on them, perhaps to an unprecedented degree and within a relatively short time period. (3) According to the Intergovernmental Panel on Climate Change (IPCC), the expected impacts of climate change include melting of glaciers, intensifying droughts and runoff, rising sea levels, and changes in the morphology, physiology, phenology, reproduction, species distribution, community structure, ecosystem processes, and species evolutionary processes among marine, freshwater, and terrestrial biological systems. (4)

   The buildup of greenhouse gases (GHGs) in the atmosphere that has already occurred, (5) and the likely growth in future emissions due to increased energy consumption in developing nations such as China and India, (6) have convinced many scientists and policymakers that society needs to begin developing policies that will allow adaptation to climate change in ways that minimize its adverse effects. (7) While efforts to mitigate climate change entail reducing emissions of GHGs and lowering their concentrations in the atmosphere, adaptation, according to the IPCC, involves "adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities." (8) In other words, "[w]hile mitigation in response to climate change primarily represents activities to protect nature from society, adaptation constitutes ways of protecting society from nature." (9)

   Climate change adaptation is designed to increase the resilience of natural and human ecosystems to the threats posed by a changing environment. Resilience, in turn, can be viewed as "the ability of a system to return to its initial state and function in spite of some major perturbation," (10) or "the amount of change or disturbance that a system can absorb before it undergoes a fundamental shift to a different set of processes and structures. (11) Professor Robin Craig has summarized the IPCC's call for the development of adaptation capacity as follows:

   [T]he IPCC noted that "[a]daptation is necessary in the short and longer term to address impacts resulting from the warming that would occur even for the lowest stabilisation scenarios assessed." In other words, adaptation must become a co-strategy with mitigation efforts for dealing with climate change, because "[r]isks associated with climate change could greatly increase vulnerability unless adaptation is stepped up." Moreover, adaptation efforts may have immediate benefits for socio-ecological systems by decreasing vulnerability to future changes, "reducing sensitivity to climatic risks," and increasing the adaptive capacity of both humans and the ecological systems upon which they depend. (12) Despite the critical need for the development of adaptive responses to climate change, the federal government has done little to stake out its turf on adaptation policy or to coordinate the responses of lower levels of government. (13) This Article takes the need for the development of an effective adaptation policy as a given (14) and focuses on the proper allocation of decision making authority within our federal system of government. While much has been written about the federalism implications of climate change mitigation policy, (15) relatively less has been written about the federalism issues arising from climate change adaptation policy. (16) This disproportionate emphasis on mitigation is not because the problems facing adaptation policymakers are any simpler than those relating to adaptation, or because the government is further along in devising solutions. President Obama's Interagency Climate Change Task Force has posited that that "[a]daptation and resilience will require action from all segments of society--the public sector.., the nonprofit sector and individuals. This challenge provides Federal, Tribal, State, and local governments with significant opportunities for innovation." (17) The Task Force also stated that significant gaps in the United States government's approach to climate change adaptation and building resilience exist, including the absence of a unified strategic vision and approach, an understanding of the challenges at all levels of government, and an organized and coordinated effort among federal, state, local, and tribal actors. (18)

   One argument for devolving considerable control over the formulation and implementation of adaptation policy to the state and local levels is that the effects of climate change will vary by location, requiring different strategies. (19) If a "one size fits all" approach was ill-suited to pollution control regimes, (20) it is likely to be that much more problematic when addressing climate change adaptation issues. Accordingly, some have advocated placing the power and responsibility of dealing with adaptation issues principally in the hands of local governments. (21) The German federal government has accepted this view, postulating that "[p]eople on the spot often know best what is good for their specific case.... The Federal Government is therefore relying on strengthening individual capacity and adaptive capacity at the local level." (22)

   On the other hand, federal participation and leadership is likely to be necessary for several reasons: state and local authorities may lack the resources to lead the adaptation effort, they are likely to have incentives to put their citizens at an advantage vis-a-vis those of other jurisdictions fighting for scarce resources such as water, the actions of one jurisdiction may have adverse spillover effects in other places, and coordination of the policies of multiple jurisdictions may be needed to ensure effectiveness. (23) These have long been the justifications offered for affording a prominent role to the federal government in many environmental regulatory programs. (24) As one observer noted, "federal systems always seem to face substantial pressure to devolve implementing policy choices to the local level. On the other hand, joint action is the raison d'etre for federalism, and hence, the lines of authority must facilitate unity." (25)

   My aim in this Article is to provide a framework for determining how to structure a policy to facilitate adaptation to climate change that assigns appropriate roles to all levels of government. The framework emerges from analysis of several questions: First, when is participation by the federal government appropriate? Second, should the federal government set a floor that requires participation, or at least conformance with federal requirements, by states and localities? Third, should the federal government ever displace state and local adaptation responses based on the threats those responses pose to federal interests? In other words, the Article inquires whether climate change adaptation policy should be a thoroughly state or local affair with no federal participation, a cooperative venture in which all three levels of government lend a hand, or an exclusively federal regime. The obvious answer is that some aspects of adaptation policy should be controlled exclusively by state and localities, some should be governed by cooperative federalism ventures, and still others should be exclusively within the control of the federal government. The real issue is which aspects of the need to adapt to climate change should be governed by each of these three possible relationships.

   I argue that collective action principles provide a useful tool for helping to determine the proper institutional arrangements for dealing with climate change adaptation. Part II of the Article examines three models for structuring the relationship between federal, state, and local actors in preparing for the onset of the adverse effects of climate change. Under the first model, the federal government provides information or funding to states and localities, who may use that information and those resources to craft their own adaptation policies free of federal intervention and control. A variation of that model, in which the federal government retains greater control, attaches conditions to the receipt of federal funds. The second model is the traditional cooperative federalism model that characterizes...