Anticipating Siting Problems Lee Paddock Associate Dean for Environmental Legal Studies The George Washington University Law School

New Forms of Governance Environmental problems are very different than they were 20 or even 10 years ago Increasing understanding that some of these problems, especially species and water quality issues must be dealt with at the ecosystem scale

Governance The problems we face require what might be referred to as shared or diffuse governance Government retains a major role and still utilizes traditional command and control tools in a number of circumstances

Governance Growing understanding that we can’t simply rely on government by itself to solve problems Increasing pressure on companies to be good environmental citizens Anticipating and avoiding problems an increasingly important strategy

Governance Among the new approaches are those that rely more on knowledge and collaboration to drive change These tools inform and engage the private sector and NGOs to help leverage new ideas, new solutions and new resources to achieve better environmental outcomes

Don Kettl Five imperatives for a new and more effective governance strategies: A policy agenda that focuses more on problems than on structures Political accountability that works more through results than on processes

Five Imperatives Public administration that functions more organically, through heterarchy [a horizontal form of management in which power is shared], than rigidly through hierarchy Political leadership that works more by leveraging action than simply by making decisions

5 Imperatives Citizenship that works more through engagement than remoteness. D ONALD F. K ETTL, T HE N EXT G OVERNMENT OF THE U NITED S TATES : C HALLENGES FOR P ERFORMANCE IN THE 21 ST C ENTURY 8 (2005), available at eport.pdf. eport.pdf

Governance The approach described by Don Kettl and that are part of the governance challenge are important in thinking about energy siting I am going to focus on two developments that can advance this new governance concept: Natural Heritage Inventories and Landscape Conservation Copperatives

Natural Heritage Inventories The Natural Heritage Information System (NHIS) provides information on Minnesota's rare plants, animals, native plant communities, and other rare features.

NHI The NHIS is continually updated as new information becomes available, and is the most complete source of data on Minnesota's rare or otherwise significant species, native plant communities, and other natural features. Its purpose is to foster better understanding and conservation of these features

NHI Developed in 1974 by the Nature Conservancy to identify species that needed protection before acquiring land Nature Conservancy helped establish state programs NHI programs in all 50 states, Canadian and 11 other countries in the Americas The umbrella organization is Natureserve

NHI Homes Most common home is state natural resources or parks agencies but in Montana it is the state library and in Wyoming it is the University of Wyoming

NHI Funding Most states fund the program through a variety of mechanisms including general fund money, hunting and fishing license fees, tax form check offs, license plate revenue and consulting fees North Dakota provides no state funding

NHI Services Most states provide GIS files (referred to as Shapefiles) for the area of interest and many will provide biologists comments on species in the area. South Dakota provides a specific wind generation packet that includes bat identification a nd wind siting regulations North Dakota does not provide biologist comments

Minnesota State law requires a “description” of habitats and communities threatened or endangered “as determined by NHI database” for wind farms over 5 megawatts

Data Requests Library System Confidentiality

NHI Conclusions No data on how valuable users found the information Data is for public land but can be indicative of species on nearby private land A lot of use in some states like Idaho Rarely mandated

NHI Conclusions Could be a very helpful governance tool in avoiding species disputes if better supported in some states and more widely used in more states

Landscape Conservation Cooperatives (LCC) New Department of Interior partnership approach for applying scientific tools to increase understanding of climate change through partnerships with other agencies and with others outside of government Secretary’s Order 3289, Feb. 2010

LCCs Purpose: To coordinate an effective response to its impacts on tribes and on land, water, ocean, fish and wildlife, and cultural heritage resources that the Department manages resulting from climate change

LCC Premises: –Management responses to the broad impacts of climate change must be coordinated at the landscape level –Working partnerships among Interior bureaus and agencies, other federal, state, tribal and local governments, and private landowner partners are needed –Linking science to resource management decisions to result in targeted, science-based solutions that can adapt as the information changes will improve outcomes

Premises –Conservation agencies are inter-dependent on one another as well as on private landowners –It is outcomes rather than outputs that matter –Resources need to be leveraged and –The Agency must strategically target science to inform conservation decisions and actions

Map courtesy of the US FWS

LCCs Seek to dissolve state boundaries so conservation activities can occur at the scale that matters to species Operate as self-directed science partnerships Create a forum that will inform and improve conservation delivery on the ground

LCCs Integrate adaptive management concepts to ensure conservation delivery is based on the best scientific data and information available Expand upon the US FWS Strategic Habitat Conservation program

LCCs are NOT Regulatory agencies Owned or Led by the DOI Replacements for existing partnerships or coalitions Brand new ways of operating They are designed to be shared enterprises

Potential LCC Products GIS maps of sensitive species habitat range Interpretation of climate change models on geographic areas Anticipated species and habitat responses to climate change Recommendations to provide for species linkage across landscape in response to anticipated climate change changes

LCCs and Renewable Energy BLM’s Ecoregions Approach –Internal BLM program to integrate landscape level environmental impacts analysis to public lands management –Complementary to LCCs –Rapid Ecoregions Assessments

Conclusions Very new program Mostly government agencies now, some NGOs and a few private actors Could be a forum that would help anticipate issues with energy facility siting early on and facilitate resolution of species and habitat conflicts but it is too soon to tell what may happen