Restoring climatized ecosystem services for the market: Part 2

In my earlier post I asked whether and how regulators might respond to the effects of climate change by changing how they ask industry to do environmental restoration as compensation. This week's events provide a good opportunity to follow-up briefly:

1. Obama's climate speech. Not only was this the biggest occasion upon which he's said anything about his plans for mitigating climate change, he also laid out a strategy for responding to the effects. The point? Adaptation is finally on the table in a big way at the federal level.

2. The SCOTUS ruling on Koontz. You can find good analyses here, there, and over yonder. In short, the case was about a landowner who wanted to turn some wetlands into a shopping mall (sound familiar?), but the local authorities wanted him to dump some cash into area conservation efforts as a condition of him paving those wetlands over. The court was unclear on the merits of this specific case, but ruled that asking for money can constitute an unconstitutional taking of property. At any rate, the points to keep in mind here are: 1. the impact on existing wetland and stream compensation practice is uncertain; time will tell; 2. As Kagan argued in her dissent - and which others have duly noted - part of this uncertainty means that that local regulators will be hesitant to condition developers' permits for fear of litigation. Given that most interest in adapting to "climatized" ecosystem services in the US so far has come from local level action, what we might see then is local regulators less willing/able to ask developers to do forms of restoration or compensation that are more than they would otherwise get away with asking for. Concretely: if Local Water Management District X were to say to Developer Y that climate change could mean Y's postage-stamp wetland restoration will fail and so it should pay into an area-wide restoration fund, does it have a takings claim on the basis that such predictions about the effects of future climate change on one particular parcel are uncertain and therefore excessive? Here again we raise the question of how science can and will interface with law.

So, to put this week's two big environmental law new stories side by side, let's ask: if the feds are getting serious about climate planning, to what extent can they see and account for what so many claim is at the core of a changing climate (and ecosystem services) - localized hydrological impacts?