Adapting Governance to Climate Change: Managing Uncertainty Through a Learning Infrastructure

• Publication year: 2009

Adapting Governance to Climate Change: Managing Uncertainty Through a Learning Infrastructure

Alejandro E. Camacho

ADAPTING GOVERNANCE TO CLIMATE CHANGE: MANAGING UNCERTAINTY THROUGH A LEARNING INFRASTRUCTURE

Alejandro E. Camacho^*

ABSTRACT

Though legislatures and agencies are considering how to prevent further climate change, some adverse effects from a warming climate are already inevitable. Adapting to these effects is essential, but regulators and scholars have largely neglected this need. This Article evaluates the capacity of natural resource governance to cope with the effects of climate change and provides a framework for Congress to help it do so.

This Article identifies unprecedented uncertainty as the paramount impediment raised by climate change and demonstrates how existing fragmented governance is poorly equipped to deal with this challenge. Drawing on lessons from prior regulatory experiments, it proposes a comprehensive strategy for managing uncertainty that promotes interagency information sharing. It also recommends that legislators adopt an "adaptive governance" framework that requires agencies to systematically monitor and adapt their decisions and programs. This learning infrastructure would promote agency learning and accountability, help manage uncertainty, and reduce the likelihood and magnitude of mistakes expected to come with facing such an exceptional problem with initially imprecise tools.

This Article operates on four levels. First, it uses case studies to illustrate valuable lessons about the challenges of creating effective natural resource management. Second, the Article is anchored in the specific implications of

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climate change, considering the value of interagency information sharing and adaptive governance in addressing climate effects. Third, it engages the growing theoretical literature on adaptive management and federalism. Finally, it provides insight on how agencies can manage uncertainty that has far-reaching implications for other areas of administrative regulation.

INTRODUCTION..................................................................................................4

I. THE UNCERTAIN EFFECTS OF CLIMATE CHANGE.................................10

A. Existing and Projected Effects on U.S. Ecosystems .....................10
B. A Different Order of Uncertainty.................................................12

II. ADAPTING TO CLIMATE CHANGE.........................................................16

A. The Need for Adaptation..............................................................16
B. A Typology of Government Adaptation Strategies.......................17

1. Proactive and Reactive Strategies..........................................18
2. Exclusive, Co-benefit, or No-Regret Strategies......................20
3. Substantive and Procedural Strategies ..................................20

a. Substantive Governmental Strategies .............................. 21
b. Procedural Governmental Strategies..............................23

C. The Value of Procedural Strategies .............................................24

III. THE POOR ADAPTIVE CAPACITY OF EXISTING GOVERNANCE..............25

A. Natural Resource Governance Is Fragmented ............................. 26

1. Existing Fragmentation Impedes Adaptation.........................26
2. Existing Fragmentation Impedes Agency Learning...............29
3. Lessons from the Great Lakes ................................................30

a. A Fragmented Regulatory Patchwork ............................. 32
b. Flawed Collaborative Innovations .................................. 34

B. Natural Resource Governance Is Not Adaptive ........................... 36

1. Existing Governance Impedes Adaptive Adaptation .............. 37
2. Recent Adaptive Experiments Are also Deficient ................... 40
3. The Colorado River's Flawed Adaptive Management Experiment ............................................................................. 42

a. From Conflicting Mandates to an Attempt at Adaptive Management .................................................................... 45
b. The Flaws of an Acclaimed Experiment .......................... 47

C. Lessons for Managing Uncertainty: A Learning Infrastructure ................................................................................ 49

IV. THE INADEQUACY OF EXISTING CLIMATE ADAPTATIONS....................50

A. Few Adopt or Propose Adaptive or Collaborative Adaptations ................................................................................... 50

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B. The Limitations of the Few Promising Adaptation Strategies......54

1. The Climate Ready Estuaries Program and Charlotte Harbor Estuary ...................................................................... 55

a. The National Estuaries Program and Charlotte Harbor Estuary ................................................................ 55
b. The Climate Ready Estuaries Program ........................... 59

2. The Climate Change Science Program ..................................61

V. TOWARD ADAPTIVE NATURAL RESOURCE GOVERNANCE...................64

A. Fostering Intergovernmental Information Sharing ...................... 65
B. Cultivating Adaptive Management and Governance....................70

CONCLUSION....................................................................................................76

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INTRODUCTION

When a notoriously reticent but highly adaptive¹ organism like the polar bear (Ursus maritimus) is faced with a rapidly changing habitat due to global warming, it tries to do anything and everything to advance its survival. Well before modern industrial society released copious amounts of greenhouse gases into the atmosphere affecting the Arctic marine ecosystem, polar bears have been subject to a host of evolutionary pressures. However, like so many ecosystems throughout the globe,² the polar bear's ecosystem is facing a new flood of stressors that threaten its historic way-of-life—indeed, its existence. Other problems certainly exist,³ but the most alarming obstacles to polar bear survival are strongly linked to the rapid decrease in sea ice caused by greenhouse gas-induced global warming. Polar bears depend on sea ice for feeding, travel, and shelter,⁴ but ice is thinning rapidly, making food and denning less accessible and shortening the bears' hunting season.⁵

Unfortunately, even the polar bear's ability to adapt to these recent and rapid changes is limited. Reduced and thinning sea ice has led to increased drowning, starvation, weight loss, and cub mortality,⁶ and some male polar

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bears are turning to cannibalism of females and cubs for sustenance.⁷ As a result of these pressures, the U.S. Department of the Interior (DOI) designated polar bears as threatened⁸ under the Endangered Species Act (ESA).⁹ Similar detrimental effects are expected for a number of species throughout the Arctic marine food web.¹⁰ Only through substantial and enduring human intervention—aggressive curbing of greenhouse gas emissions and measures that help species adapt—can the polar bear, and the ecosystem that it inhabits, continue to survive.

The perhaps well-intentioned but highly un-adaptive regulators that characteristically manage natural resources¹¹ in the United States are in a similarly precarious position. Like so many natural ecosystems, the network in which natural resource managers and regulators are a central constituent—environmental and natural resources law—is facing a wide array of stressors that threaten its continued (albeit far from flawless) operation. As it has since its inception, modern natural resource law is strained by myriad economic forces, situated in a polarized¹² political setting and unsettled by varying degrees of information uncertainty. This problem is exacerbated by a confounding array of regulatory fragmentation, with authority over each resource divided among many local, state, national, and international authorities.¹³

As a result of these many competing pressures, over the past several decades scholars have suggested¹⁴ —and the U.S. Congress, the President, and

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administrative agencies have sporadically instituted¹⁵ —a succession of regulatory reforms that have sought to adapt natural resource regulation. Because of the cacophony of pressures brought to bear on regulators, these changes have pulled natural resource governance in different directions. Some modifications may have been primarily motivated by an interest in reducing regulatory limitations on resource exploitation,¹⁶ though many have been lauded as fostering a more effective approach to conservation.¹⁷

Yet because of a consistently weak commitment to regulator accountability and to improving resource management, these innovations have never been accompanied by any systematic attempt to determine whether agencies are working toward achieving conservation and other statutory goals.¹⁸ Rather, numerous studies confirm that the most intense pressures on agencies have been political rather than scientific.¹⁹ Existing evidence also reveals a concerted resistance to public accountability by both regulators and industry.²⁰

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Nonetheless, with varying degrees of success, natural resources and resource managers in the United States have subsisted in this disjointed environment. As for the polar bear, another wave of climatic stressors is pushing natural resource governance into unchartered territory. The best available evidence reveals that changes to almost all natural systems will be greater in orders of magnitude than those caused by any prior stressor that modern natural resource law has encountered.²¹ Yet for natural resource governance, the exceptional uncertainty that arrives with global climate change is the largest challenge ever faced. In such an uncertain environment, and given the considerable expense likely to accompany any government effort to...