Cynics pointed out that the baseline includes cuts recently approved by Bush, which were themselves a departure from the historical baseline. However, legal scholarship has not developed a sophisticated theory of the practice of historical foundations in the administrative state.
WHAT ARE HISTORIC BASELINES?
Ancient Versus Recent Baselines
Underlying these, however, are unspoken assumptions that (1) the period from 800-1800 AD best defines natural conditions;. 2) the agency can use a set of metrics that reliably measure conditions in a particular refuge area during that period and compare them to conditions in the refuge today; and (3) the difference between then and now could be reduced to an acceptable margin of. Policy on Maintaining the Biological Integrity, Diversity, and Environmental Health of the National Wildlife Refuge System, 66 Fed.
Specific Date Versus Percentage Target
Furthermore, the percentage approach allows policymakers to select a date that fits the recent past, with the goal of providing a temporal reference point that resonates with public opinion and memory, but then use the percentage target to define the actual standard. For example, as noted, many of the greenhouse gas emissions reduction targets use the year 1990 as a reference point and a percentage target to set a final emissions level.
Static Versus Fluid
Conversely, if the target for the level of national total emissions were keyed to the year in which the country last reached that level, the time reference point would be 1910, and if the metric were emissions per capita, the time reference point would be 1875.3 4 Mention it is also true that starting points also mean deadlines. Temporal Use the period pre- Use the reference point Stick to the original reference European settlement or as a level compared to the reference point compared to the point before human settlement from which you can adjust.
WHY HISTORIC BASELINES?
Why Use Historic Baselines?
- If the Shoe Fits
- Understandability
- Return to Eden
- Managing Uncertainty
- Halting Degradation
Nature as Eden encourages us to celebrate a particular landscape as the ultimate garden of the world.4 2. There is a furious debate among ecological historians about the impact that early human inhabitants of the continent had on the surrounding flora and fauna. has. Either we or our ancestors lived at the time of the reference point and experienced those conditions.
An excellent history of the social, physical, and ecological conditions associated with grazing America's rangelands is found in DEBRA L. Again, Candidate Bush struck a nerve in the public consciousness with these three simple words.
The Disadvantages of Historic Baselines
- If the Shoe Doesn't Fit
- Inadequate Knowledge
- Arbitrary Nature and Lack of
- GAMING HISTORIC BASELINES
On average, there is not enough water in the river to fulfill all legal rights."). It begins with an in-depth case study of the “no net loss” wetlands policy goal. It then examines how each of the other three attributes defined in Part I-(1) conditions at the time reference point; (2) baseline metric for describing the standard; and (3) margin of error - was used in the "no net loss" policy.
As detailed below, what distinguishes historical baselines from other types of standards is the use of the past to guide the future. The history of the "no net loss" wetlands loss policy, as described in the introduction, in his 1988 campaign, locked.
The History of the "No Net Loss" Wetlands Loss
The Bush campaign was immediately attracted to the flexibility of the "no net loss" component of the task force recommendation. Third, the agencies highlighted the macro scale of the policy by stating that "it is recognized that no net loss of wetland functions and values should be achieved in any permit grant."80 This addressed the margin of deviation. In the final and most important strategic move of joint implementation, the agencies established compensatory mitigation and opened the door to the new concept of wetlands mitigation banking ("WMB"), which addresses all basic attributes.
INST., STATUSRAPPORT 2005 OM KOMPENSERENDE AFBÆRKNING I USA (2006); Palmer Hough & Morgan Robertson, Mitigation Under Section 404 of the Clean Water Act: Where It Comes from, What It Means, 17 WETLANDS ECOLOGY & MGMT. Ruhl, James Salzman & Iris Goodman, Implementering af det nye økosystemtjenestemandat for Section 404 Compensatory Mitigation Program-A Catalyst for Advancing Science and Policy, 38 STETSON L.
The Strategy of Gaming Historic Baselines
Gaming the Temporal Reference Point
The Kyoto Protocol and climate change provide another example of the play made possible by temporal reference points. There must be sufficient incentives for parties to join, while not undermining the goals of the treaty in the first place. Parties to the Protocol expressly chose this date because it predated the fall of the Iron Curtain.
For example, Section 4 of the ESA requires the FWS and the National Marine Fisheries Service ("NMFS") to identify endangered species10 1 , which the statute defines as any species "at risk of extinction throughout all or a significant portion of its range .'1 2 0 Although this mandate is forward-looking, it is difficult to know where a species is headed without also looking at its past and recent trends.Also subject to reference point play is the basic approach taken under Section 7(a) .(2) of the ESA, which prohibits Federal agencies from engaging in or approving actions that endanger the continued existence of a species listed under section 4.107 An agency.
Gaming the Baseline Metrics
The court that reviewed the case described the agency as having "selected this critical variable in its hazard equation by reference to 'consistent management practices,'" a factor that necessarily focuses more on system capacity than on the needs of the species. Put more bluntly, Professor Michael Blumm has described the agency's actions as a manipulation that “refined its risk analysis and blinded itself from scientific reality. Nor was it an isolated instance where FWS and NMFS committed the same "finishing" of the reference period several years later. for consultations on irrigation reservoir operations in the Klamath River basin.1 13. Similarly, the environmental baseline approach used in the ESA hearing process discussed above is susceptible to manipulation of baseline metrics. The purpose of the baseline is to serve as a reference point for impact assessment, asking whether the new impacts caused by the project under consultation, when added to the baseline impacts, will endanger the species.
Therefore, even if the temporal reference point for the baseline is properly established, “the information included in the environmental baseline often determines whether the agency will conclude that the action will endanger a listed species.” 117 For example, in lawsuits involving several of NMFS's Columbia River salmon "no hazard" biological opinions, courts have rejected the agency's. The concern was that the exclusions would leave the ecological baseline in a 'vacuum', which would only ensure that the additional impacts of the dam operations assessed in the consultation would not endanger the species.18.
Gaming the Margin of Deviation
As our and other studies have shown, this has led to significant net losses of wetlands at many local and regional scales. In short, no national net loss does not mean there is a net loss everywhere in the country – a margin of deviation that is deliberately included in the situation. Existing well owners and operators had much more influence in Congress than parties that would operate plants in the future.
As long as the emission thresholds for new sources and major changes do not come into effect, the plants operate in the pre-1977 CAA world and are exempt from NSR. Ruckelshaus.123 Our interest is not so much in the high-stakes game of chicken between the EPA and the Big Three automakers, but rather in the manner in which the goal was conducted.
Is Gaming Good or Bad?
HISTORIC BASELINES AND CLIMATE CHANGE POLICY
This article has now identified the basic features of historical baselines and assessed their benefits and costs in setting regulatory goals, focusing on gaming options. How a better understanding of historical background informs our understanding of regulatory policymaking and implementation. In answering this "so what?" challenge, this section addresses the most pressing regulatory challenge of our time and climate change.
Mitigation focuses on reducing the threat of climate change by reducing the concentration of greenhouse gases in the atmosphere. In the sections below, we apply our analysis of historical baselines in the context of climate change mitigation and adaptation policy.
Climate Change Mitigation-Turning Back the
In terms of emissions reductions, they have called for a fifty percent reduction by 2050 with a 1990 baseline.135 As negotiations continue, these numbers will certainly change, but the approach to historical baselines is unlikely to.136 All of these goals could have been expressed as tons of emissions at a specific date in the future, yet every nation feels compelled to introduce historical baselines as a way of providing a reference point. The United Nations Framework Convention on Climate Change called on countries to stabilize greenhouse gases below levels that would cause. 6.b.v.; see also EU Communication to the UN, Limiting Global Climate Change to 2 Degrees Celsius (Jan available at http://www.europa-eu-un.org/articles/en/article-6666_en.htm (suggesting the same).
Indeed, historical baselines have become the universal language of climate change mitigation policy, as virtually every nation has expressed its preferred greenhouse gas reduction targets through some form of historical baseline using all different reference points and percentages. The main policy approach to sequestration, the flip side of reducing emissions, also relies on historical baselines.
Adaptation Policy-Hitting the Reset Button
Unfortunately, lawmakers and regulators in the United States and elsewhere have only begun to consider the role of adaptation in combating climate change."); Daniel A. To be sure, historical baselines are very attractive for policies aimed at resisting climate change to the status quo. The answer is simple - it is not possible to keep Miami and the Preserve just as they are through the era of climate change.
In other words, resistance strategies and their historical premises will be swamped by climate change with a focus on how far removed status quo conditions have become. An even more compelling case can be made against using historical premises to support movement strategies for climate change adaptation.
Going Forward
Even using historical baselines to guide carrying capacity decisions—for example, to determine how many people or species can move from or to an area—is not useful if carrying capacity is also changing due to climate change. Our concern is that, regardless of these limitations of the historical baselines in support of strategies of resistance, transformation, and displacement for climate change adaptation, the historical baselines will prove irresistible to policymakers who shape adaptation standards. The success of historical baselines in gambling could lead policymakers to believe that they can also design adaptation policies from historical baselines.
As with "no net loss," historical fundamentals can be attractive to policymakers as a means of obfuscating and postponing difficult policy decisions about risk, technology, and cost. Although it has so far been difficult to assess whether "no net loss" has been a successful wetland conservation standard, imagine how difficult it will be after fifty years of accelerated climate change to assess whether "natural" wetland conditions across the country have been significantly affected 164 Policymakers would therefore, we should resist the temptation to assume that the possibility of historical baselines in mitigation policy can be imported into adaptation policy, and should instead build adaptation policy on explicit standards of risk, technology and cost.
