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This Article discusses the current gap in climate adaptation law and policy, emphasizing the potential role that the National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and California Environmental Quality Act (CEQA) could play in filling this gap. It focuses on the provisions in these laws that establish that agency planning and decision-making should be based on the best available science, and notes that the best available science now confirms that GHG emission-induced climate change is happening now and will continue to happen during this century. This Article posits that the most appropriate and effective way to factor expected climate change into NEPA, the ESA and CEQA analysis and determinations may be through the use of “future baseline conditions,” against which project impacts are evaluated. The use of such future baseline conditions can provide a legal mechanism to ensure that climate adaptation strategies to protect coldwater fisheries are properly incorporated into agency plans and projects.

Although the starting point for this Article’s assessment is coldwater fisheries in California, this assessment identifies regulatory questions and offers recommendations that may apply to coldwater fisheries in other states as well.


Posted with permission.