Mach, M.E., S.G. Reiter & L.H. Good. 2015. Managing a mess of cumulative effects: linking science and policy to
create solutions. Current: The Journal of Marine Education 29(1):26-31
Slide Narrative for B. Law 101: Cumulative impacts
Developed by Sarah M Reiter, February 2015
Center for Ocean Solutions
Slide
No.
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Title
Narrative
Title
Why look beneath
the surface?
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Searching for the
disconnect
Title slide, goals.
The health of ecosystems is declining – in terrestrial and aquatic
systems – and is largely attributed to the increasing number of
human activities that are occurring. As discussed in the science
presentation, where and when those activities overlap is also of
concern because the cumulative effects of multiple stressors can
have significant effects on the structure and functioning of
ecosystems. Cumulative effects assessment (CEA) is a pervasive
challenge across jurisdictions on both land and sea and despite
legal requirements to analyze cumulative effects, they continue
unabated.
Research (by Prahler et al. 2014) identified disconnects between
legal mandates and effective actions in an effort to bridge the
gap between the legal requirements and the constraints
associated with the real-world. For the next couple of minutes,
I’ll be reviewing the three aspects of CEA that were identified as
essential to bridging the gap between legal mandates and
effective action.
When Prahler et al. 2014 reviewed the U.S. federal law, the
National Environmental Policy Act (NEPA) and California state
law, the California Environmental Quality Act (CEQA), and
associated agency guidance, regulations, and case law, their
legal team discovered that assessment (CEA) challenges arise
due to ambiguous legal interpretations as well as a project based
approach. This project-level approach is vastly different than the
science approach, where the focus is at the impact level. Three
aspects of the cumulative effects legal framework beg
rethinking, by looking beyond the project to (1) account for
impacts, (2) advocate for smart baselines, and (3) choose the
right spatial scale.
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Searching for the
disconnect: Impacts
Following a review of U.S. law, we will look beyond the US
territorial waters to see whether these three aspects are common
in other jurisdictions, such as New Zealand. We will explore
New Zealand’s legal framework because this jurisdiction is
particularly progressive in approaching coastal management.
For each challenge we will be spending the next couple of
minutes discussing the three aspects of CEA that beg rethinking
by discussing (1) the law, (2) the reality, (3) the action needed to
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Mach, M.E., S.G. Reiter & L.H. Good. 2015. Managing a mess of cumulative effects: linking science and policy to
create solutions. Current: The Journal of Marine Education 29(1):26-31
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Impacts: The Law
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Impacts: The
Interpretation
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Impacts: The Action
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Searching for the
disconnect: Baseline
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Baseline: The Law
improve CEAs. We can start by examining Challenge 1:
Accounting for impacts.
Impacts from other projects are often insufficiently analyzed in
review documents. Both federal and state (NEPA and CEQA)
guidance generally allow agencies to capture the cumulative
effects of past actions by describing the current aggregate effects
of past actions, without discussing the details of individual past
actions. Many agencies do go beyond this requirement by
individually listing similar past, present, or future projects in
their cumulative impact analyses; however, these lists are
usually cursory and only focus on similar types of projects rather
than all projects which may impact the habitat or species at
issue. In addition, agencies using the list approach frequently fail
to analyze the impacts of the listed projects, leading to a
disconnect between the list and the analysis.
However, these lists are usually cursory and only focus on
similar types of projects rather than (1) all projects which may
impact the habitat or species at issue over time, and (2) the
impacts associated with those projects over time. To overcome
this legally defensible barrier to achieving the legal intent of
CEA, agencies can include lists of relevant effects from other
past, current and future projects within review documents rather
than only listing similar individual projects. One way to help
agencies have easier access to this information is to invest in
software for tracking and mapping permits and review
documents to enable agencies and stakeholders to identify
projects that may be relevant in cumulative impacts analyses.
To overcome this legally defensible barrier to achieving the
legal intent of CEA, agencies can include lists of relevant effects
from other past, current and future projects within review
documents rather than only listing similar individual projects.
One way to help agencies have easier access to this information
is to invest in software for tracking and mapping permits and
review documents to enable agencies and stakeholders to
identify projects that may be relevant in cumulative impacts
analyses.
The second challenge, advocating for a smart baseline requires
an understanding of the role that a particular reference point can
play in altering the outcome of CEAs.
Agencies often fail to adequately characterize the environmental
baseline, which establishes reference points against which
potential impacts are evaluated for significance. US and
California law allow for agency discretion when it comes to
determining baseline, so long as the agencies can justify their
selection. Setting a proper baseline that includes consideration of
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Mach, M.E., S.G. Reiter & L.H. Good. 2015. Managing a mess of cumulative effects: linking science and policy to
create solutions. Current: The Journal of Marine Education 29(1):26-31
10
Baseline: The
Interpretation
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Baseline: The Action
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Searching for the
disconnect: Scale
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Scale: The Law
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Scale: The
Interpretation
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Scale: The Action
past and future impacts is critical. By using a baseline of current
environmental conditions, agencies can overlook prior impacts
that were either unforeseen or greater in reality (either
collectively or in isolation) than initial predicted. This can skew
the significance determination for the proposed project and its
alternatives and leads to an ever-shifting baseline, in which the
effects of each new project become folded into the next project’s
“existing conditions” baseline.
Because the law allows for agency discretion, there is no
incentive to select a smart baseline when an existing baseline
will do. Selecting a baseline becomes a matter of choice, where
despite discretion to do so, due to the extra legal and technical
hurdles involved in using a baseline of past, pristine conditions,
agencies are unlikely to choose a historic baseline without any
policy changes. The norm is the existing conditions baseline.
The momentum for this bright line rule is hard to overcome
despite agency discretion to select a baseline of its’ choice so
long as it can justify the choice.
To overcome the matter of choice that results in use of the
existing conditions baseline, the regulations should be amended
to require agencies and project proponents consider historic data
and trends even if using a baseline of existing conditions so that
CIA better aligns with scientific principles.
The third challenge, choosing the right spatial scale, requires an
understanding of the role that spatial scale can play in altering
the outcome of CEAs.
Agencies have difficulty determining the appropriate geographic
scale for analysis and regulatory requirements are often vague.
Legal requirements do not clearly define the appropriate
geographic scale of analysis though US and California law
(NEPA and CEQA) embrace two general principles (1)
geographic scale should be based on resource or system, and (2)
courts will defer to agencies so long as the agencies support or
justify their selection of geographic scale.
Because the law approaches CEA from the perspective of a
particular project and provides little clarity, agencies often
choose a scale too small to account for CE such that global and
regional features are not taken into account.
A multi-scale approach to geographic scale allows for the entire
system to be considered so that no interaction is too large or too
small for the analysis. Choosing the right spatial scale requires a
step by step process across spatial scales. Agencies should
consider impacts on local, regional, and global geographic scales
to ensure they do not overlook local impacts or ignore global
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Mach, M.E., S.G. Reiter & L.H. Good. 2015. Managing a mess of cumulative effects: linking science and policy to
create solutions. Current: The Journal of Marine Education 29(1):26-31
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scale changes. Research (by Prahler et al. 2014) recommends the
following steps for considering cumulative impacts across
spatial scales:
• Identify the biogeographic region: Emphasize regional
level through development of watershed or regional scale
plans and programmatic EIRs to address multiple
sources of stressors at once, identify valuable
environmental components and indicator species,
establish ecological thresholds for agencies and project
proponents to use in their site specific determinations
• Define the impact zone: Because identifying all
possible species, habitats, or communities impacted by
the project would be cost and time intensive, agencies
could limit their scope to identifying priority species of
interest that would be impacted by the project. Focus on
species and indicators: Because it is impossible to map
every species independently, agencies should first focus
on legally protected species and system health indicators
(i.e., species or habitats known to vary with ecosystem
health), where identified.
• Understand the reason of impacts: Apply the key
principles of ocean health: (1) species diversity, (2)
habitat diversity, (3) Heterogeneity, (4) Key species, (5)
Connectivity of species.
Looking beyond U.S. We can look beyond U.S. territorial waters to see whether these
waters
three aspects are common in other jurisdictions, such as New
Zealand. New Zealand is particularly progressive in approaching
coastal management. While New Zealand experiences similar
overarching challenges, progress is being made on a couple of
fronts (1) acknowledging climate change drivers, and (2)
implementing the language of the law on thresholds.
Acknowledging
The New Zealand Coastal Policy Statement (NZCPS) is a
climate change
national policy statement under the Resource Management Act
drivers
1991 (‘the Act’). The purpose of the NZCPS is to state policies
in order to achieve the purpose of the Act in relation to the
coastal environment of New Zealand. New Zealand’s Coastal
Policy Statement #3 calls for the adoption of the precautionary
approach towards activities with unknown effects on the coastal
environment, and towards coastal resources that are vulnerable
to climate change. It acknowledges a relative lack of
understanding about coastal processes in the face of climate
change and the actual and potential effects of activities and
developments on coastal processes.
Implementing
New Zealand’s Coastal Policy Statement #7 mandates regional
thresholds
CE management and implementation of thresholds “where
practicable” to avoid CEs. For now, it is worth mentioning that
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Mach, M.E., S.G. Reiter & L.H. Good. 2015. Managing a mess of cumulative effects: linking science and policy to
create solutions. Current: The Journal of Marine Education 29(1):26-31
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Moving from
knowledge to action
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Waypoints for
Cumulative Effects
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For further resources
this idea of thresholds challenges us to think differently about
CE and the vulnerability of ecosystems. Whenever you have a
system response where a small change in one factor can lead to a
disproportionately large change in the other, then you have the
chance to detect a threshold and potentially take that threshold
into account in your management.
So now that we’ve looked beyond projects to explore how the
law and interpretation of the law can move CEA forward in U.S.
waters, and we’ve looked beyond U.S. waters to explore
progress being made in other jurisdictions, I’d like to quickly
review some waypoints forward.
Barriers associated with these three challenges of CEA can be
overcome by (1) considering all projects and their associated
impacts, (2) accounting for historic data and trends, and (3)
using a multi-scale approach.
The following information provides a (1) link to teaching
resources at the Center for Ocean Solutions, (2) citation for
which most of this talk is based, (3) author contact information,
(4) citation for which most of the images are based and (5)
funding information.
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