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Document Type

Article

Abstract

In terms of climate change law and policy, at present there are efforts underway at the state, federal and international levels to curb greenhouse gas (GHG) emissions. These efforts to reduce GHG emissions (and thereby mitigate global warming and other climate changes resulting from such GHG emissions) are generally referred to as “climate mitigation” laws and policies. In addition to climate mitigation, however, there is increasing recognition that the global warming and climate changes resulting from past and present GHG emissions are happening now and will continue to happen for many decades to come, regardless of whether we are successful in curbing GHG emissions going forward. This recognition has led to the development of legal and policy responses to anticipate and plan for the global warming and climate changes that are taking place. Efforts to anticipate and plan for the effects of past and present GHG emissions are generally referred to as “climate adaptation” laws and policies. As defined in the introduction to the American Bar Association’s 2012 book The Law of Adaptation to Climate Change, climate adaptation encompasses “efforts to moderate, cope with, and prepare for the current and anticipated impacts of climate change on human and natural systems.” In the water resources sector, to date, much of the climate adaptation focus has been on water supplies for out-of-stream uses (such as agriculture and municipal/urban uses) and on instream use of water for hydroelectric facilities — that is, on how climate change is affecting the supply of water we use for irrigation, drinking water and electric power generation. Less attention, however, has been given to how climate change is impacting and will continue to impact fisheries due to rising water temperatures. These impacts are particularly acute for coldwater fisheries such as salmon and steelhead trout, which have limited biological capacity to adapt when instream temperatures rise. This Article discusses the current gap in climate adaptation law and policy, emphasizing the potential role that the National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and California Environmental Quality Act (CEQA) could play in filling this gap. It focuses on the provisions in these laws that establish that agency planning and decision-making should be based on the best available science, and notes that the best available science now confirms that GHG emission-induced climate change is happening now and will continue to happen during this century. This Article posits that the most appropriate and effective way to factor expected climate change into NEPA, the ESA and CEQA analysis and determinations may be through the use of “future baseline conditions,” against which project impacts are evaluated. The use of such future baseline conditions can provide a legal mechanism to ensure that climate adaptation strategies to protect coldwater fisheries are properly incorporated into agency plans and projects. Although the starting point for this Article’s assessment is coldwater fisheries in California, this assessment identifies regulatory questions and offers recommendations that may apply to coldwater fisheries in other states as well.

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