by Jessica Wentz
The Kerry-Lieberman (KL) bill addresses domestic adaptation strategies in Title VI, “Community Protection from Climate Change Impacts”, containing §§ 6001-6011. This title contains provisions for implementing programs to protect the country’s natural resources from the effects of climate change, including creation of a Natural Resources Climate Change Adaptation Panel (“Panel”) and a National Resources Climate Change Adaptation Strategy (“Strategy”), as well as guidelines for the development of Federal and State adaptation plans.
Chair of the Council on Environmental Quality – Obligations
The KL bill requires the Chair of the Council on Environmental Quality (“CEQ”) to advise the President on implementation and development of a Natural Resources Climate Change Adaptation Strategy, developed in section 6004(a), as well as the Federal natural resource agency plans required under section 6006. §6002(1). The CEQ Chair is also required to serve as the Chair of the Natural Resources Climate Change Adaptation Panel established in section 6003(a). §6002(2). Finally, the CEQ Chair is required to coordinate Federal agency strategies, plans, programs, and activities relating to protecting, restoring, and maintaining natural resources. §6002(3).
Natural Resources Climate Change Adaptation Panel
Within 90 days of the bill’s enactment, the President is required to establish a Natural Resources Climate Change Adaptation Panel, to be composed of the heads of Federal agencies or departments with jurisdiction over natural resources of the United States. §6003. The bill designates twelve of these administrators, including the EPA Administrator, and permits the President to determine additional officials. The Panel is intended to serve as a forum for interagency consultation on, and the coordination of, the development and implementation of the Natural Resources Climate Change Adaptation Strategy.
Natural Resources Climate Change Adaptation Strategy
Section 6004 requires the Panel to develop a Natural Resources Climate Change Adaptation Strategy to protect, restore, and conserve natural resources, and to identify opportunities to mitigate the ongoing and expected impacts of climate change. §6004(a). The section specifies that the Strategy must assess the vulnerability of natural resources to climate change; describe research, observation and monitoring activities; identify and prioritize needs; develop protocols; and include specific mechanisms for ensuring communication and coordination between Federal departments, State natural resource agencies, Indian tribes, local governments, conservation organizations and other interested stakeholders. §6004(d).
After the Panel adopts the initial Strategy, it is required to review and revise the Strategy every 5 years to incorporate new information about the impact of climate change on natural resources, as well as new advances in the development of strategies that make natural resources more resilient to the impacts of climate change. §6004(c).
Natural Resources Adaptation Science and Information
Section 6005 requires the Secretary of the Interior to establish the National Climate Change and Wildlife Science Center within the US Geological Survey, which will assess and synthesize current physical and biological knowledge, prioritize scientific gaps in such knowledge, develop and improve tools to identify, evaluate and link scientific models that forecast the impacts of climate change on natural resources, develop and evaluate tools to adaptively manage the monitor the effects of climate change, and develop capacities for sharing standardized data. §6005(e).
The Administrator of the National Oceanic and Atmospheric Administration (“NOAA”) and the Director of the United States Geological Survey are required to establish coordinated procedures for developing and providing science and information necessary to address the ongoing and expected impacts of climate change on natural resources. §6005(a). The National Climate Change and Wildlife Science Center, established above, and the National Climate Service of the National Oceanic and Atmospheric Administration are responsible for overseeing development of these procedures. §6005(b).
The Secretary of Commerce and the Secretary of the Interior are charged with conducting surveys of climate change impacts every five years, which identifies natural resources considered likely to be adversely affected by climate change. §6005(d). They are also required to establish a Science Advisory Board, consisting of 10 to 20 members who have relevant technical expertise, who represent a balanced membership of interests, and at least half of whom are recommended by the President of the National Academy of Sciences. §6005(f)(2). The Board will advise the Secretaries on expected impacts of climate change and strategies for protecting natural resources. §6005(f)(3).
Federal Natural Resource Adaptation Plans
Section 6006 requires each Federal agency with representation on the Natural Resources Climate Change Adaptation Panel to develop a Natural Resource Adaptation Plan, which implements the Strategy. These plans must provide opportunities for public review and comment, and must be submitted to the President for approval. §6006(a). In addition, the plans must contain specified elements, including: (1) programs for assessing climate change impacts on natural resources, (2) identification and prioritization of strategies for mitigating these effects, (3) integration of these strategies with the agency’s pre-existing programs and activities, (4) mechanisms for enhancing cooperation and coordination with other agencies and State and local governments, and (5) written guidance to resource managers that explains how these managers can address climate change impacts. §6006(c).
The President is required to approve an agency’s adaptation plan within 60 days of submission, so long as it meets the requirements of this section and is consistent with the overall Strategy. §6006(b)(1). Within 30 days of approval, the President is then required to submit the plan to specified committees of the House and Senate. §6006(b)(3).
Upon approval by the President, each department or agency is required to implement the adaptation plan. §6006(d). Each department or agency is also required to review and revise the adaptation plan every five years, to incorporate the best available science and other information regarding the ongoing impacts of climate change on natural resources. §6006(e).
State Natural Resource Adaptation Plans
Section 6007 contains provisions for the creation and implementation of State Natural Resource Adaptation Plans. It specifies that, in order to be eligible for funds under section 6009, each State must prepare a Natural Resource Adaptation Plan detailing current and projected efforts of the State to address the ongoing and expected impacts of climate change on natural resources and coastal areas within the jurisdiction of the State. Each State must submit this plan within 1 year of the development of the Strategy. §6007(a).
The requirements for State natural resources adaptation plans are very similar to the requirements for Federal agency adaptation plans. Each State plan is required to describe the impact of climate change on natural resources within its jurisdiction and establish programs for monitoring and protecting these resources. §6007(c). The plan must ensure coordination with other States, Federal agencies, and Indian tribes. §6006(c)(1)(I). There are additional requirements for coastal states to develop strategies for addressing impacts of climate change on coastal resources, and to address issues such as ocean acidification, drought, flooding and wildfire. §6006(c)(2).
The Secretary of the Interior and the Secretary of Commerce are responsible for reviewing each State adaptation plan and approving the plan, within 180 days of its submission, so long as it meets the requirements of the section and is consistent with the Strategy. §6006(b). Each State is required to update its plan at least every five years. §6006(f).
The bill specifies that funds will be allocated to States, pursuant to sections 6008 and 6009, for activities consistent with the State natural resources adaptation plan approved by the Secretary of the Interior and the Secretary of Commerce. §6006(g)(1). A State is permitted to receive funding up to three years prior to approval of its plan, for adaptation activities that are consistent with the comprehensive wildlife strategy of the state, and in accord with a work plan developed in coordination with the Secretary of the Interior and the Secretary of Commerce. §6006(g)(2).
Natural Resources Climate Change Adaptation Account
Section 6008 specifies how allowances made available pursuant to section 781(d)(1)(A) of the Clean Air Act shall be distributed. Section 781(d)(1)(A) contains a schedule which permits an increasing percentage of emission allowances (starting at 1.5% in 2019 and increasing to 6% in 2030 and thereafter) to be distributed for adaptation programs. The section also requires that one half of the allowances are used to carry out domestic adaptation programs, and one half are used to carry out international adaptation programs.
The KL bill does not specify how the allowances for the domestic adaptation programs will be distributed as between the States and Federal agencies. It “seems to allocate the same pool of allowances to [both groups]. In previous bills, the allowances were split up between these recipients, but this bill does not do so explicitly”. Kate Zyla, Vicki Arroyo & Terri Cruce, Overview of State-Related Provisions, American Power Act (APA) 14 (Georgetown Climate Center 2010), available at https://www.georgetownclimate.org/federal/files/APA_summary.pdf.
The bill does, however, specify how allowances will be distributed among States and among Federal Agencies:
Allowances allocated to States will be divided as follows:
- 84% is to be made available to State wildlife agencies
- 16% is to be made available to State coastal agencies. §6008(a)(1).
Allowances allocated to Federal agencies will be divided as follows:
- 28% are allocated to the Secretary of the Interior for funding the implementation of the National Fish and Wildlife Habitat and Corridors Information Program required by section 6009, and for carrying out natural resource adaptation under a number of existing federal programs. §6008(a)(2)(A).
- 8% are allocated to the Secretary of the Interior for natural resources adaptation activities carried out under cooperative grant programs. §6008(a)(2)(B).
- 5% are allocated to the Secretary of the Interior to provide financial assistance to Indian tribes to carry out natural resources adaptation activities. §6008(a)(2)(C).
- 20% are deposited in the Land and Water Conservation Fund established under section 2 of the Land and Water Conservation Fund Act of 1965. §6008(a)(3).
- 8% are allocated to the Secretary of Agriculture to fund natural resources adaptation activities carried out in national forests and national grasslands under the jurisdiction of the Forest Service, and to carry out natural resource adaptation activities on State and private forest land carried out under the Cooperative Forestry Assistance Act of 1978. §6008(a)(4).
- 11% are allocated to the Secretary of Commerce to fund natural resources adaptation activities that protect, maintain and restore coastal, estuarine, and marine resources, habitats, and ecosystems. §6008(a)(5).
- 12% are allocated to the EPA Administrator and 8 % are allocated to the Secretary of the Army for use by the Corps of Engineers for use in natural resources adaptation activities.
National Fish and Wildlife Habitat and Corridors Information Program
Section 6009 requires the Secretary of the Interior to establish a National Wildlife Habitat and Corridors Information Program in coordination with states and tribes. §6009(b). The purpose of this program is to support States and Indian tribes in developing a database of fish and wildlife habitats and corridors, so as to inform their planning and development decisions and enable climate impact modeling. §6009(c). The section includes mechanisms for ensuring collaborative development of the database. §6009(c)(2). The Secretary of the Interior is permitted to provide financial assistance to the States and Indian tribes, for activities that support the development and implementation of the program. §6009(e).
Additional Provisions Regarding Indian Tribes
Section 6010 specifies that nothing in the part amends, alters or gives priority over the Federal trust responsibility to any Indian tribe. §6010(a). It also specifies that, consistent with the natural resources climate change adaptation purposes of this title and the Strategy, Federal departments and agencies, States, and Indian tribes shall ensure communication and coordination to protect treaty-reserved rights of Indian tribes to gather first foods. §6010(d).
Additional Climate Change Adaptation Programs
Section 6011 permits the Administrator to establish additional climate change adaptation programs for the following priorities:
(1) Water system mitigation and adaptation partnerships
(2) Flood control, protection, prevention and response
(3) Education to raise awareness of homeowners and citizens about wild-land fire protection practices, training programs for local firefighters on wild-land firefighting techniques and approaches, and equipment acquisition to facilitate wild-land fire preparedness.
(4) Coastal State economic protection, including projects and activities addressing the impacts of climate change on coastal watersheds. §6011.
Comparison to Waxman-Markey
The Waxman-Markey (WM) bill contains roughly the same provisions on natural resource adaptation as the KL bill, however WM also contains additional provisions on domestic adaptation generally, and it provides more funding than KL for adaptation programs.
Natural Resource Adaptation: The WM provisions on this subject are effectively the same as the KL provisions, including similar requirements for creating a Natural Resources Climate Change Adaptation Panel (§475), developing a Natural Resources Climate Change Adaptation Strategy (§476), and implementing Federal and State adaptation plans. §§478-479. However, the WM bill provides more funding for these programs, as discussed below.
Domestic Adaptation Generally: Unlike the KL bill, the WM bill contains sections that address domestic adaptation unrelated to natural resources. These additional provisions create several programs that are not included in the KL bill, including a United States Global Change Research Program (§ 451(b)), a National Climate Service within NOAA (§ 452(b)), and a national public health adaptation program (§§ 461-467). The WM bill therefore takes a more expansive approach to domestic adaptation than the KL bill, by contemplating the effects of climate change on public health and other domestic issues, whereas the KL bill is limits its scope to natural resource adaptation.
Funding: The WM bill allocates more emissions allowances for the domestic and natural resource adaptation than the KL bill. The KL bill does not allocate allowances to adaptation program until 2019, at which point the domestic adaptation activities are allocated 0.75% of allowances (half of 1.5%, the other half going to international adaptation activities). Under the KL program, adaptation funding would slowly increase until 2030, at which point funding would peak at 3% of total allowances.
In contrast, the WM bill allocates 0.9% of emission allowances to domestic adaptation programs from 2012-2021, 1.9% from 2022-2026, and 3.9% from 2027 to 2050. §782(l). The WM bill also allocates emissions to Natural Resource Adaptation as follows: 0.385% from 2012 to 2021, 0.77% from 2022-2026, and 1.54% from 2027-2050. §782(m). Thus, although the WM bill’s allocation of emissions to natural resource adaptation is technically less than the WM bill, the combined funding for natural resource and domestic adaptation programs is significantly higher than in the KL bill.
In addition to these changes, Section 453 of the WM bill contains more detailed information for distributing allowances to States and Indian tribes, limiting use of allocations and allowances to particular purposes, and itemizing what must be included in state adaptation plans.