10/08/2019 - EELP News - Legal Analysis

The IPCC’s Climate Report on Oceans: What Seven Findings Mean for US Regulations

by Hana Vizcarra, Laura Bloomer

Climate science should inform our environmental and energy programs and regulations. The recent IPCC report, The Ocean and  Cryosphere in a Changing Climate, observes and predicts the impacts of climate change on Earth’s oceans and cryosphere (the frozen water part of the Earth). The science summarized in the IPCC report will impact the implementation of US statutes and regulations. Federal, state, and local governments can act on this information, allowing for smart mitigation and adaptation policies designed for our changing world. If they fail to incorporate scientific evaluations into regulatory decision-making, they will likely accelerate negative outcomes and exacerbate the worst potential scenarios.

In our recent white paper, Analysis of the Regulation and Deregulation of U.S. Ocean and Fisheries Policies, we assess the current administration’s approach to offshore energy development, Arctic policy, habitat and natural resource conservation, and fisheries management. We are also tracking the administration’s environmental and energy deregulatory efforts more broadly in our Regulatory Rollback Tracker.

The Trump administration’s focus on expanding fossil fuel energy development and diminishing of established climate science threaten reasoned, cautious decision-making based on the most current climate science. These actions could simultaneously increase greenhouse gas emissions and turn a blind eye to the harmful effects of emissions.

In this post we highlight the significance of seven key scientific findings in the IPCC’s Summary for Policymakers for US environmental regulation. For ease of reading, we removed the confidence intervals from the IPCC quotations.

1. SEA LEVEL RISE

Observed: Global mean sea level (GMSL) is rising, with acceleration in recent decades due to increasing rates of ice loss from the Greenland and Antarctic ice sheets, as well as continued glacier mass loss and ocean thermal expansion. (A3) The rate of GMSL rise for 2006-2015 of 3.6 mm yr is unprecedented over the last century and about 2.5 times the rate for 1901-1990…. (A3.1)
Predicted: Sea level continues to rise at an increasing rate. (B3)

Sea level rise will dramatically impact densely populated coastal areas, which are significant economic drivers for many states. While these impacts may unfold slowly in some places, many localities are already dealing with the higher tides, bigger waves, and more intense storms and rains (due to warming oceans and a changing climate) that impact coastal infrastructure. Sea level rise will also affect species and habitat protection, energy development siting and operational safety, hazardous waste disposal site maintenance, and disaster response, among other regulatory topics. The ocean’s rise is inextricably tied to the US and other countries’ ability to effectively regulate greenhouse gas emissions.

Many regulatory areas will have to grapple with sea level rise considerations. For example, as our August white paper notes, the Coastal Zone Management Act requires states to prepare coastal management plans in order to access certain federal funds and programs. In its 1990 reauthorization of the act, Congress explicitly acknowledged adverse effects of sea level rise. States’ coastal plans address issues such as protecting natural resources, managing development in high hazard areas, protecting public access to beach areas, prioritizing water- and coastal-dependent uses in coastal areas, and coordinating with local and federal entities to do so. Sea level rise increasingly impacts all of these issues. How well states incorporate new, more precise knowledge about sea level rise into these plans will be a factor in determining how well the US prepares for and responds to such changes.

As seas rise, federal and state conservation programs will need to adjust to protect important habitat. Analyses under the Endangered Species Act and other wildlife protection programs will have to account for the changes in habitat and migratory patterns of coastal species. These analyses are incorporated into the environmental reviews required by the National Environmental Policy Act (NEPA) when federal agencies propose or fund “major actions.” Agencies must consider both direct and indirect environmental effects of preferred and alternative actions, including the cumulative impacts (considering collectively the incremental impacts of individual actions taken over time).

In 2016, the CEQ finalized guidance on considering climate-change in NEPA environmental reviews. The guidance specifically called for agencies to consider sea level rise in their evaluations, among other climate impacts, as well as to quantify greenhouse gas emissions of the project. But the current administration withdrew that guidance in 2017 and proposed a weakened replacement in 2019. The new draft guidance limits the extent to which agencies are asked to quantify GHG emissions and consider other impacts. It replaces robust language about consideration of climate change effects such as sea level rise with a limited acknowledgement that “[w]hen relevant, agencies should consider whether the proposed action would be affected by foreseeable changes to the affected environment under a reasonable scenario.” The CEQ is also in the process of proposing new regulations to guide agency environmental reviews, and CEQ and other federal agencies have made many other revisions to their environmental review processes, which could lead to less comprehensive and more hurried assessments. EELP is tracking these developments on our Regulatory Rollback Tracker NEPA page.

Courts play a large role in ensuring the quality of NEPA environmental reviews. Court acknowledgement of the reasonably foreseeable nature of climate impacts may ultimately lead to better consideration in agency analyses with or without adequate guidance from CEQ. However, if the federal government does not fully acknowledge outcomes like those outlined in the IPCC report as reasonably foreseeable events, agency environmental reviews are likely to face increased challenges in court.

2. INCREASED PERMAFROST TEMPERATURES AND THAW

Observed: Permafrost temperatures have increased to record high levels….Permafrost thaw and glacier retreat have decreased the stability of high-mountain slopes. (A1.3)
Predicted: Widespread permafrost thaw is projected for this century and beyond. (B1.4) Permafrost thaw-induced subsidence of the land surface is projected to impact overlying urban and rural communication and transportation infrastructure in the Arctic and in high mountain areas. (B7.2)

Thawing permafrost will require changes to the rules around energy development in the Arctic. Currently, companies operate during the colder months when the tundra is covered by thick snow to helps protect it from damage. Increased permafrost thaw may shorten the available time for oil and gas operations and could compel different permitting or regulatory protections to require operating procedures that will adequately protect vulnerable areas.

Continued fossil fuel extraction could also exacerbate permafrost thaw and damage. During the exploration stage, companies conduct seismic testing to determine where oil and gas exists underground. The seismic testing and the subsequent drilling have negative impacts on permafrost. As we explain in our post on the Arctic National Wildlife Refuge, 25 years after previous seismic exploration in the refuge, 125 miles of trails in the tundra remain unrecovered ecologically from the damage. Yet the Trump administration is expanding oil and gas development in the Arctic National Wildlife Reserve (ANWR) and in the National Petroleum Reserve-Alaska, downplaying its environmental risks. As part of this expansion, seismic testing in ANWR is expected to begin in winter 2019.

3. DECREASED ARCTIC SEA ICE

Observed: Between 1979 and 2018, Arctic sea ice extent has very likely decreased for all months of the year. September sea ice reductions are very likely. (A1.4) ) In polar regions, ice associated marine mammals and seabirds have experienced habitat contraction linked to sea ice changes and impacts on foraging success due to climate impacts on prey distributions (A5.2) Summertime Arctic ship-based transportation (including tourism) increased over the past two decades concurrent with sea ice reductions. This has implications for global trade and economies linked to traditional shipping corridors, and poses risks to Arctic marine ecosystems and coastal communities such as from invasive species and local pollution. (A7.4)
Predicted: Arctic sea ice loss is projected to continue through mid-century, with differences thereafter depending on the magnitude of global warming….. (B1.7)

Declining sea ice will alter regulatory decision-making regarding arctic land and offshore management as well as endangered species protections for species that rely on sea ice. Opening the area to increased oil and gas development could further disrupt important habitat for threatened species and exacerbate the rate of sea ice loss. For example, as a result of the decline in sea ice, more polar bears are building dens in ANWR, making energy development in the area a greater threat to the survival of young bears. As with sea level rise, agencies will need to account for impacted species’ new patterns and changes in their habitat in the project permitting and environmental review process.

The loss of sea ice is also creating new opportunities for human activity in the Arctic, and the US is engaging with other countries to respond to these changes. As we note in our August white paper, the US signed a precautionary multinational agreement barring unregulated fishing in the high seas of the Central Arctic Ocean for sixteen years. The Trump administration, however, also advocated for removing references to climate change from an international statement on Arctic policy. The US position could hinder international efforts to advance climate-informed arctic policies.

4. INCREASED OCEAN ACIDIFICATION

Observed: By absorbing more CO2, the ocean has undergone increasing surface acidification. A loss of oxygen has occurred from the surface to 1000 m (A2). The ocean has taken up between 20-30% of anthropogenic CO2 emissions since the 1980s causing further ocean acidification. (A2.5)
Predicted: Continued carbon uptake by the ocean by 2100 is virtually certain to exacerbate ocean acidification. (B2.3)

Ocean acidification heightens the need for regulatory protections for marine habitats, not just to protect threatened habitats, but to support healthy ocean ecosystems which can capture carbon dioxide. Some coastal habitats remove CO2 from the ocean and slow the rate of ocean acidification. The US government has many tools for protecting coastal ecosystems, including expanding marine protected areas and protecting critical habitat for endangered species. Incorporating the climate science into the decision-making process for protecting vulnerable marine ecosystems will ensure appropriate protection of vital areas.

Yet, the Trump administration weakened regulations for designating critical habitat and ordered review of marine national monuments and marine sanctuaries. Following the review, the Departments of the Interior and Commerce considered weakening protections for multiple marine monuments, but the agencies have not finalized any changes. The administration also has proposed opening more areas to offshore oil and gas leasing, which could increase acidification through greater greenhouse gas emissions and spur infrastructure development in vulnerable coastal areas.

5. MARINE ECOSYSTEMS & SPECIES

Observed: Ocean warming, oxygen loss, acidification and a decrease in flux of organic carbon from the surface to the deep ocean are projected to harm habitat-forming cold-water corals, which support high biodiversity…. (B5.4) Since about 1950 many marine species across various groups have undergone shifts in geographical range and seasonal activities in response to ocean warming, sea ice change and biogeochemical changes, such as oxygen loss, to their habitats. (A5)
Predicted: A decrease in global biomass of marine animal communities, their production, and fisheries catch potential, and a shift in species composition are projected over the 21st century in ocean ecosystems from the surface to the deep seafloor under all emission scenarios. (B5) In tropical regions, marine animal biomass and production are projected to decrease more than the global average…Warming and sea ice changes are projected to increase marine net primary production in the Arctic…. (B5.2) The geographical range of Arctic marine species, including marine mammals, birds and fish is projected to contract, while the range of some sub-Arctic fish communities is projected to expand, further increasing pressure on high-Arctic species. (B5.3)

As marine and arctic animals’ activity patterns shift due to climate impacts, regulations and permitting for offshore projects, marine vessel guidance, and species protection must shift as well. Along with the Endangered Species Act, the Marine Mammal Protection Act (MMPA) prohibits the unauthorized “take” (including harassing, capturing, or killing) of marine mammals in US waters. Marine activities such as shipping and energy production must obtain incidental take permits if their actions may result in an accidental injury or death of a marine mammal. The Migratory Bird Treaty Act also prohibits the unlawful take of protected bird species, including many ocean-going and arctic species. Understanding animals’ altered patterns due to climate change will be essential to properly protecting them under these statutes. For example, as marine mammals adjust to their changing habitat, calving locations may shift, which will require new regulations to protect those areas. Migrating seabirds that return to specific coastal wetlands to feed face loss of habitat; arctic-going species could face increased takes due to new energy or shipping related activity in the area.

The Trump administration has made changes to regulatory protections under all three of these statutes that will make it harder to properly protect marine and coastal animals from climate impacts. The administration finalized a rule that could decrease the agency’s ability to consider longer-term climate impacts when listing species as threatened or endangered. This change could hinder agencies seeking to align protection plans for marine mammals with the most recent scientific findings. While the MMPA will still protect marine mammals from takes, populations that are threatened by climate change may not receive adequate protections if they cannot be listed under the Endangered Species Act. The administration also withdrew a prior finding that the Migratory Bird Treaty Act prohibited incidental takes of protected birds. Instead, it has taken the less protective position that the act only prohibits direct or intentional takes. This change makes it harder for the federal government to consider impacts on migratory birds in reviewing energy and other activity offshore or on the coasts.

6. FISHERIES

Observed: In some marine ecosystems species are impacted by both the effects of fishing and climate changes. (A5). Ocean warming in the 20th century and beyond has contributed to an overall decrease in maximum catch potential, compounding the impacts from overfishing for some fish stocks. In many regions, declines in the abundance of fish and shellfish stocks due to direct and indirect effects of global warming and biogeochemical changes have already contributed to reduced fisheries catches. In some areas, changing ocean conditions have contributed to the expansion of suitable habitat and/or increases in the abundance of some species. These changes have been accompanied by changes in species composition of fisheries catches since the 1970s in many ecosystems. (A5.4)
Predicted: Future shifts in fish distribution and decrease in their abundance and fisheries catch potential due to climate change are projected to affect income, livelihoods, and food security of marine resource-dependent communities. (B8)

Climate change’s disparate impacts on fisheries presents challenges to US fisheries management under the Magnuson-Stevens Act, which is due for reauthorization by Congress. The Act and its subsequent amendments spurred collaborative approaches to fisheries management, rebuilt many US stocks, and made significant strides towards sustainable fishing. To continue this progress, updated fishery plans will need to account for the evolving science, including changes in fisheries locations and maximum catch limits.

The findings also present challenges for international fisheries, many of which are already depleted due to illegal fishing. As we discuss in our August white paper, NOAA is implementing rules to combat illegal, unreported, and unregulated (IUU) fishing in domestic and international fisheries. Ending IUU fishing would remove an additional stress on overfished fisheries and could strengthen conservation efforts.

7. STRENGTHENING RESPONSE OPTIONS

Governance arrangements…are, in many contexts, too fragmented across administrative boundaries and sectors to provide integrated responses to the increasing and cascading risks from climate-related changes in the ocean and/or cryosphere. The capacity of governance systems in polar and ocean regions to respond to climate change impacts has strengthened recently, but this development is not sufficiently rapid or robust to adequately address the scale of increasing projected risks. (C1.2) The far-reaching services and options provided by ocean and cryosphere-related ecosystems can be supported by protection, restoration, precautionary ecosystem-based management of renewable resource use, and the reduction of pollution and other stressors. (C2)

Integrated, climate-informed programs across government systems are essential to responding to a changing marine environment whether at the international or national level. Through governance structures established by the Magnuson-Stevenson Act and international agreements, fisheries management already reflects some of these goals, but enforcement challenges and regulatory gaps remain. The Trump administration has also pulled back from more comprehensive ocean management efforts by disbanding many committees established under President Obama’s National Ocean Policy. As discussed in our August white paper, Trump’s intention to withdraw the US from the Paris Climate Agreement and his administration’s wrangling with other Arctic nation leaders over climate change likewise signal backsliding on improving the capacity of governance systems to address climate-related changes. Furthermore, as noted already, the administration is removing environmental safeguards from many programs directly related to oceans and the environment and is advocating an agenda that increases rather than reduces pollution.