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Summary of Discussion

  1. What existing laws will climate change affect?
  2. What pressure points operate in these existing laws?
  3. Can we change via administrative discretion (using principles)?
  4. Can we change via statutory reform (using principles)?
  5. What impacts will these legal changes have?

Our group noted that all resources and resource extraction in the public lands area will be impacted by climate change itself and climate change mitigation policies. Climate Change is exacerbating shortages in the wildlife resource, the drinking water resource, the ecosystem resources, and the forest resource. Because of these impacts, access to other resources on federal land, such as fossil fuel and minerals, will be made more difficult. Moreover, climate change mitigation policies are increasing demand on the public lands for alternative energy production, which in turn may also have negative impacts on wildlife, water, and other resources. The bottom line is that climate change and the responses to climate change will result in increasing scarcity of all public land resources which will increase competition between various land uses on public lands.

We decided that this issue might be addressed in one of two ways: through specific laws (NEPA, FLPMA, ESA, CWA, water appropriation bills) or through addressing all impacts in one medium (i.e. water resources). The groups focused on a legal regime common to many statutes that is a notable pressure point in many of these regimes - the multiple use mandate.

Increasing demands on all resources mean that using resources for multiple use becomes more difficult. Yet the multiple use management laws do not seem to recognize this, and instead assume that all uses can be easily accommodated. Applying the principles we discussed with respect to altering legal regimes, the groups noted that the uses associated with sustainability and public health and assisting the most vulnerable population would favor non-extractive uses over extractive ones. Thus, drinking water use and conservation would take precedence over hard rock mining; and preserving species would take precedence over forestry which in turn might take precedence over uranium mining. The group recognized that at least with respect to endangered species that the ESA already mandates this, but that it is less effective in dealing with whole ecosystem preservation or species losses related to climate change. Thus, some alteration of the multiple use principle might be appropriate.
The group recognized that the multiple use principle's application can be changed administratively in decisions by the agencies charged with administering the legal regimes. This in turn can be influenced by rulemaking or even executive orders. However, since the issue is so important and so related to policy choices, many in the group think that it should be examined and perhaps altered in the legislative sphere, leading our group to end with a recommendation that a law be passed which states that any application of multiple use principles to resources should favor exploitation of fully renewable resources over extractive ones; and that resources should be managed for conservation and renewability. Beyond this legal change, a section could also be added that after giving precedence to conservation and use of fully renewable resources that public lands should be managed to assist in mitigating and adapting to climate change, subject to existing laws, such as the Endangered Species Act (ESA).

Additional Notes:

What laws with GCC affect?
Mineral Leasing act
Offshore drilling
Hard Rock mining Act
FLIPMA
(all resource extraction laws)
All regimes that deal with managing resources: appropriation bills, public land statutes (Forest management act, wilderness Act, clean up rivers act, national wildlife refuge)
ESA
Conservation
CZMA
CWA
Animal Protection Act
Harbors Act
Migratory Bird Treaty Act
Mandisens Stevens Act (Fisheries Act)
Executive Directives
Marine Protective Areas Executive Order
Many Exec Orders
CAA -
RICRA - facility storage and transport. Need new part that deals with coastal areas?
Delisting Hazardous Waste - if delisted, then not s.t. certain things (not sure what).
Timber Management

GCC will make access to these things different.
How to look at these laws?

Resource allocation regimes ACF regime
CO river compact, US and Mexico, State Water rights, Native American treaties, Countries and states
Resource Extraction FLIPMA
Resource Protection
Locational Issues/ Assessment NEPA

Oceans (legal regimes controlling it) - Flatt listed a bunch of them.

Pressure Points
FLIPMA -
Push of use of federal lands for renewable energy. Already seeing GAO considering the expansion of categorical exclusions (CE).
Problem: when no previous studies on affect on a resource, then agency assumes there will be no impact.
Push for use of federal lands for old Carbon sequestration-in Carbon sites.
Interaction with other laws like ESA.
Increased demand for materials to facilitate retreat - need building materials to build more inland and upgrading infrastructure.
Increased demand across the multiple use structure
Public sinks
Commodities - reconstruction, uranium, fossil fuels, methane
Use for renewable energy
Demand pressure will change than what it is now
Recreation

Requires revisiting prioritization of multiple use.

Can we change via admin discretion?
Yes, A has discretion on saying how to balance prioritization. But might be better to codify strategy to avoid constant changes due to changing administrations.
We may need to consider restricting multiple use for certain areas. Dedicate areas to just one use.

NEPA and other statues do limit drastic fluctuation in agency rulings.

Doing it through administrative angle is that is leads to lawsuits; but through statute, the result won't be that desirable. Statutory solution avoids conflict with other agency regulations.
Which (leg or admin) is more likely to get more people involved? Admin looks transparent but not clear how much influence people's comments actually do. Leg is more direct. Call congressman (bailout bill). List EJ in legislation as a factor that agency can consider. Otherwise, business says "there isn't any permission in statute to consider EJ."

If we suggest prioritization, impact on most vulnerable could be a priority codified. Also, ask what people are using the resource for (i.e. drinking water v. recreation).

Legislation might be best b/c it can require agencies to consider EJ factors.

FLIPMA requires weighing long-term and short-term benefits, needs for future generations for the resources, not just greatest economic return. Give priority to areas of critical environment concern. In short, consider the habitat values first (before economic values). Example, ecosystem values might trump renew energy values. Also, renewable energy production could be considered long-term consideration.

Even though agency discretion may be sufficient, outside requirements can come in (executive orders, other statutes, etc).

In putting together long-term plans, prioritize preserving habitat for threatened species from GCC, then use federal lands more for renewable sources than non-renewable sources. But only pull down non-renewable as you con increase renewables. This avoids shocks to consumers economically.

But something should happen first: weatherization. If reduction in consumption, than phase out of non-renewables could happen faster w/o shocking prices.

Contracts for fuel are only 5-10 years.

Price shocks with subsidies for vulnerable consumers might be best. Another piece of legislation could minimize shock to low income people, and that would permit faster ramping down of nonrenewables.

If move to quickly politically, then there can be a backlash 4 years later. Not always best to do to much to quickly. On other hand, the demand on resources may require big change. [i.e. Bush overstepping executive authority in face of real threat of terrorism. But wouldn't be as bad if P and C works w/n their recognized authority.]

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