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Climate



02/02/2016

The Paris Climate Agreement: silent about agriculture

By Jonathan Verschuuren (TLS)

In our previous blog on the Paris Climate Agreement, we already showed that there are important things missing from the Agreement, such as a collective emissions reduction target and a proper enforcement mechanism. This time, I would like to focus on another missing and completely underestimated issue: the impact of climate change on agriculture and vice versa.

Photo by Flickr user philHendley

Photo by Flickr user philHendley

The very few references that earlier versions of the negotiating texts made to agriculture all disappeared from the Agreement. As a consequence, the Agreement does not mention agriculture at all. This is a missed opportunity. There are pressing reasons for the international community to start regulating both emissions from agriculture and adaptation in this sector. The agricultural sector is responsible for almost 25% of anthropogenic GHG emissions, both through CO2 emissions caused by deforestation and peatland drainage, and through methane (NH4) emitted by livestock and rice cultivation, as well as through nitrous oxide (N2O) emissions caused by the use of synthetic fertilizers and the application of manure on soils and pasture. The latter two substances have a 25 times and 300 times stronger impact on the climate than CO2 respectively. With a sharp rise in food demand ahead of us, these emissions can be expected to go up drastically when no regulatory caps are in place.

Agriculture is also among the sectors that will suffer the largest negative impacts of climate change, for which, consequently, huge adaptation efforts are needed. Local temperature increases of 2°C or more without adaptation will negatively impact production of the major crops in tropical and temperate regions (wheat, rice and maize) and irrigation demand will increase by more than 40% across Europe, USA, and parts of Asia. The negotiators of the Paris Climate Agreement were worried about the food security issues and mentioned in the preamble that they recognize the fundamental priority of safeguarding food security and ending hunger, and the particular vulnerabilities of food production systems to the adverse impacts of climate change. This is a much weaker version, though, of an earlier proposal to include a binding adaptation goal in the Agreement on “maintaining food security”. The first part of the preambular provision on food security seems to imply that maintaining food security might be a reason to not impose mitigation measures on the agricultural sector. In the negotiating texts, food production regularly emerged as a limiting factor to mitigation actions. In the final version of the Paris Climate Agreement, only one such reference survived. One of the objectives of the Agreement, laid down in Article 2, is: “Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production”.

Given the contribution of agriculture to climate change and the impact of climate change on agriculture, it is disappointing that so little attention is paid to agriculture in the Paris Climate Agreement, as this document is expected to set the tone for the world’s climate policies of the coming years.

The European Union opted for a much firmer approach toward agriculture. In the run-up to the Paris Climate Agreement, the European Commission announced that it would encourage “climate friendly and resilient food production, while optimising the sector’s contribution to greenhouse gas mitigation and sequestration.” For example, it proposed to include cropland and grazing land management in its policy from 2020, developing instruments to do so before 2020. The EU even proposed to focus its future climate change instruments on all agricultural activities, such as enteric fermentation, manure management, rice cultivation, agricultural soils, prescribed burning of savannahs, field burning of agricultural residues, liming, urea application, other carbon-containing fertilisers, cropland management and grazing land management and “other.” As a consequence, the EU proposed to fully include agriculture in the Paris Climate Agreement in two ways: as a source of greenhouse gas emissions, and as a means of CO2 absorption and sequestration. This would mean that the agricultural sector has to undergo a drastic transition from conventional farming to farming using climate smart agricultural practices.

The above account of what survived the negotiations shows that the EU negotiators were not able to convince the others of the importance of including agriculture in the Paris Climate Agreement.

The fact that the Paris Climate Agreement does not pay attention to agriculture, however, does not mean that the document will not be important for the sector at all. Article 4 states that a balance needs to be achieved between anthropogenic emissions by sources and removals by sinks of greenhouse gasses in the second half of this century, in order to hold the increase in the global average temperature well below 2°C. It is obvious that this automatically implies that drastic mitigation actions are needed to reduce emissions from a sector that is responsible for almost 25% of the greenhouse gas emissions. Apparently, the world leaders were afraid to tell you…

Similarly in the area of adaptation, the silence about agriculture does not mean nothing will happen. Many of the provisions on adaptation and finance aim at giving increased support to developing countries to meet their adaptation needs, both through greater emphasis on providing financial resources and through the transfer of technology and capacity building. Given the impact of climate change on agriculture and the dependence of developing countries on this sector, it is beyond doubt that implementation of these new provisions will in fact largely focus on agriculture. The same might be true for the role National Adaptation Plans will play. Article 7(9) of the Paris Climate Agreement requires states to have such a plan aimed at building the resilience of “socioeconomic systems”. Agriculture definitely falls in this category.

Within only two decades a drastic transformation of the entire agricultural sector across the world, in developed and developing countries, is needed. This requires tremendous efforts of policymakers, farmers and the entire agribusiness. Let us hope that, despite the remarkable and regrettable silence of the Paris Climate Agreement about agriculture, states understand the urge to start to develop effective policies aimed at reducing emissions from agriculture while at the same time helping the sector to become more resilient to climate change.

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This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

EU

Category: Agriculture, Climate

20/12/2015

The Paris climate agreement: Some hesitations from a legal perspective

By Jonathan Verschuuren (TLS)

by Jonathan Verschuuren and Jesse Reynolds

Reason to celebrate?

Reason to celebrate? (Photo via UNFCCC)

Bringing the entire international community to agreement on a legally binding international environmental instrument is an extraordinary achievement. The primary achievement is not so much its substance, but the simple fact that there is a new agreement that offers a way forward that is endorsed by representatives of all countries. The Paris climate agreement establishes the contours of a future ongoing process for cutting greenhouse gas (GHG) emissions. The next ten to twenty years will show whether this actually significantly reduces climate change. The drawback of such an agreement that is acceptable to every state is that it must be modest in its commitments. Indeed, many original elements had to be deleted or watered down considerably.

Can the agreement [PDF] achieve its goal, that of holding the increase in global average temperature to below 2 degrees Celsius, and ideally even to 1.5 degrees Celsius? The unfortunate truth is that doing so seems to be unattainable unless we allow overshooting [PDF].  That means that we would initially go beyond atmospheric GHG concentrations that would lead to 2 degrees, but then later lower them. This would require the rollout of “negative emission technologies” that could remove carbon dioxide—the leading GHG—from the atmosphere. Article 4 implicitly endorses this, stating that in the second half of the century a balance should be achieved between anthropogenic (i.e.human-caused) GHG emissions and “removals by sinks.” Article 5 (as well as the original UN Framework Convention on Climate Change [PDF]) call for “sinks and reservoirs” of GHGs to be enhanced as well, something which many negative emission technologies would strive to do. However, these techniques remain untested and potentially risky at such scales.

Furthermore, the agreement’s commitments with regard to GHG emission cuts (called “mitigation” in climate-speak) lack clear focus. States are to make voluntary pledges, called Nationally Determined Contributions (NDCs). This bottom-up approach is not entirely new, as these were the outcome of the 2009 Copenhagen climate summit. The pledges that have since been submitted are estimated to lead to a 2.7 to 3.7 degree temperature rise by the end of this century. Countries are to submit new, more ambitious commitments every five years. Although this seems tepid, it is arguably the best that could be expected from an agreement with global participation. For the most part, countries are simply unwilling to undertake costly major GHG emissions cuts while their economic competitors do not. At the same time, this system of stepwise “ratcheting up” might be able to provide decision makers with assurance that all other countries are also taking action.

The effectiveness of this instrument thus still needs to be proven. Several mechanisms are in place to at least monitor the implementation of the NDCs. In 2023, the first “global stocktaking” will be performed “to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals” (Art. 14). The outcome of this will merely “inform” countries in updating and enhancing their policies, “in a nationally determined manner” (Art. 14.3). The enforcement provision was diluted considerably as well. Article 15 now just states that there will be a committee of experts that will facilitate compliance, “in a manner that is (…) non-adversarial and non-punitive.” It is unfortunate that the expertise that was built up within the Kyoto Protocol’s Enforcement Branch will not be better utilized under the Paris Agreement. Without a proper enforcement mechanism it remains to be seen how effective the NDCs will be.

Without a collective emissions reduction target, and instead a rather vague (and unattainable) target, one might wonder how national authorities are to decide which targets they should each adopt. Mitigation policies are typically long-term ones that require a clear path for several decades, with associated planned measures and available funds. Fortunately, several countries have recognized this and have laws that do that. The United Kingdom is a prime example, with its 2008 Climate Change Act, which plans ahead until 2050, when an 80% emission cut is to be achieved (relative to 1990). The EU as a whole has set GHG emissions targets for 2020, 2030, and 2050 (20%, 40%, and 80% GHG emissions reduction, respectively, relative to 1990 levels). The Paris summit showed that the international community as a whole is not willing to adopting such commitments in a binding fashion.

Ultimately, the Paris Agreement does not bring much that is truly new. It mostly codifies what has been developed over the past years under the UN process. This is true not only for GHG emissions cuts, but also for other topics such as adaptation, finances, technology transfer, and loss & damage. The work that is already being done under the existing mechanisms, such as the Financial Mechanism, the Technology Mechanism, and the Warsaw International Mechanism for Loss and Damage, is reaffirmed  in a binding legal document, albeit in rather soft language that often utilizes the verb “should” instead of “shall.” However, the proposal to codify the emerging scheme on “Reducing Emissions from Deforestation and Forest Degradation” (REDD+) did not survive the Paris negotiations, nor did the proposal to set up a Climate Change Displacement Coordination Facility. Both of these topics are important and bound to return to the negotiating table in future years.

Although Paris means a step forward, the reality is that the international community is unwilling to do what is needed and justified in order to prevent dangerous climate change. To a large degree, this can be explained by the fact that climate change presents an extremely difficult—if not “wicked”—problem. Genuinely effective action would require that leaders take steps whose costs are borne in the short term by their constituents but whose benefits are shared by the whole world and experienced in the future. Such bold decision-making would likely come at a steep political price. In the meantime, voluntary but hopefully escalating commitments may be best that we—and future generations—can expect.


25/06/2015

Spectacular judgment by Dutch Court in climate change case

By Jonathan Verschuuren (TLS)

Court orders State to achieve reduction target of 25% in 2020

Palace of Justice, The Hague (photo by Flickr user Elvin)

Palace of Justice, The Hague (photo by Flickr user Elvin)

In an unprecedented and unexpected decision, a Dutch court found that the Netherlands government has acted negligently and therefore unlawfully towards Urgenda by implementing a policy aimed at achieving a reduction for 2020 of less than 25% compared to the year 1990. The court had to overcome many obstacles to reach this decision, such as the obstacle of causation (from a global perspective, the Netherlands has a relatively small contribution to climate change, so how can the Dutch State by liable for climate change damage suffered by individual Dutch citizens?) and the obstacle of the principle of separation of powers, which does not allow courts to move into politics (setting mitigation targets is usually considered to be a policy matter, of which courts should remain clear). In other countries, particularly the United States, where many climate change suits have been decided or are ongoing, these two obstacles present the main reason why most climate change cases went nowhere, so far…

In its decision of June 24th, 2015, which was rightfully translated in English as international interest in the judgment will be massive, the Court orders the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990. How did the Court reach this decision, and, more importantly, how did it overcome the two obstacles mentioned above?

The case was initiated by Urgenda, a foundation that was established in 2008 with the aim to stimulate and accelerate the transition processes to a more sustainable society, beginning in the Netherlands, by, among other things, legal action. More than 800 individual citizens joined the suit, so the case was lodged by Urgenda acting on its own behalf as well as in its capacity as representative of these individuals. Under Dutch tort law, NGOs are allowed to initiate public interest cases (see extensively Berthy van den Broek, Liesbeth Enneking, Public Interest Litigation in the Netherlands. A Multidimensional Take on the Promotion of Environmental Interests by Private Parties through the Courts, 2014 Utrecht Law Review 10:3). On standing, the Court not only finds that Urgenda is allowed to represent current generations, but also future generations, because the foundation is aimed at achieving a sustainable development (see judgment under 4.6-4.8). This makes this case a landmark case for the debate on intergenerational equity as well.

The question that the court had to address is whether the State acts unlawfully by “only” pursuing the reduction targets that were imposed upon the Netherlands by EU-law for 2020: a 21% reduction for sectors covered by the EU Emissions Trading Scheme (basically large industry and power stations), and a 16% reduction for non-EU ETS sectors (such as transport and agriculture). Under Dutch tort law, there are two ways in which unlawful action or inaction can be established: actions contrary to legal norms, or actions that are not contrary to written legal norms, but that are considered to be violating the standard of due care. First, the Court finds that the state did not breach its legal obligations under a range of legal instruments, such as the UNFCCC, Kyoto Protocol, various EU climate change instruments, the European Convention of Human Rights, etc.

Then, however, the Court tests whether the State fulfilled its duty of care towards its citizens. This is where the case becomes really interesting, because in order to establish what exactly, in this case, this duty of care entails, the Court relies on a large number of binding and non-binding rules and principles (such as the precautionary principle and the principle of ‘fairness’), policy statements, and even ‘scientific consensus’, to determine what can be expected of the State. The Court then finds: ‘Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring – without mitigating measures – the court concludes that the State has a duty of care to take mitigation measures. The circumstance that the Dutch contribution to the present global greenhouse gas emissions is currently small does not affect this. (…) It is an established fact that with the current emission reduction policy (…) the State does not meet the standard which according to the latest scientific knowledge and in the international climate policy is required for Annex I countries to meet the 2°C target.’

How did the Court overcome the two obstacles mentioned above: causation and separation of powers?

On causation, the Court uses earlier case law on joint liability: the fact that one actor’s contribution to damage is minor, does not allow courts to reject liability. On the contrary, this actor can, under certain circumstances, be hold liable for the entire damage by those who suffer the damage. It is then up to the targeted tortfeasor to reclaim part of these costs from the other tortfeasors. After having referred to this jurisprudence, the Court states: ‘The fact that the amount of the Dutch emissions is small compared to other countries does not affect the obligation to take precautionary measures in view of the State’s obligation to exercise care. After all, it has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change.’ Interestingly, the Court follows the principle of common-but-differentiated responsibilities that is one of the main principles of the UNFCCC to argue that it is only fair that the Netherlands takes a proactive approach when it comes to mitigation: ‘Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionate contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world.’ The Court then concludes:

From the above considerations (…) it follows that a sufficient causal link can be assumed to exist between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate. The fact that the current Dutch greenhouse gas emissions are limited on a global scale does not alter the fact that these emission contribute to climate change. The court has taken into consideration in this respect as well that the Dutch greenhouse emissions have contributed to climate change and by their nature will also continue to contribute to climate change.

The Court spends a good deal of considerations on the separation of powers. It apparently is very conscious of the fact that it is encroaching upon the realm of policy-making.  The government defended its policy by stating that it is working towards remaining within the 2 degrees limit. To achieve this, bigger emission cuts would be required in 2030. It was a policy decision, backed up by a majority in Parliament, to stall emission cuts a bit (also with a view to the economic crisis), and to speed up emission reductions later. According to the government, this is a legitimate political decision that should not be reviewed by courts.

The Court, however, takes a firm position in the separation of powers debate: ‘It is worthwhile noting that a judge, although not elected and therefore has no democratic legitimacy, has democratic legitimacy in another – but vital – respect. His authority and ensuing “power” are based on democratically established legislation, whether national or international, which has assigned him the task of settling legal disputes. This task also extends to cases in which citizens, individually or collectively, have turned against government authorities. The task of providing legal protection from government authorities, such as the State, pre-eminently belong to the domain of a judge. This task is also enshrined in legislation.’ According to the Court, this is exactly what the claim asks of them: provide legal protection against negligence on the part of the State. The Court acknowledges that by granting judicial review in this case, it will moving into the policy arena: ‘This does not mean that allowing one or more components of the claim can also have political consequences and in that respect can affect political decision-making. However, this is inherent in the role of the court with respect to government authorities in a state under the rule of law. The possibility – and in this case even certainty – that the issue is also and mainly the subject of political decision-making is no reason for curbing the judge in his task and authority to settle disputes. Whether or not there is a “political support base” for the outcome is not relevant in the court’s decision-making process.’

This is a firm statement indeed! The Court does acknowledge that there has to remain room for political decision-making, hence they only set the minimum reduction target of 25% reduction, without imposing the measures that need to be taken to achieve this target, nor preventing (future) decision-makers to go beyond this target. Why 25%? The court bases this decision upon scientific data, but also upon previous policy statements by Dutch authorities and upon the statement in court that a 25% emission cut in itself would not be entirely impossible to achieve. The Court rejects the policy decision to stall the reduction speed until 2030, by arguing that this approach ‘will cause a cumulation effect, which will result in higher levels of CO2 in the atmosphere in comparison to a more even procentual or linear decrease of emissions starting today. A higher reduction target for 2020 (40%, 30% or 25%) will cause lower total, cumulated greenhouse gas emissions across a longer period of time in comparison with the target of less than 20% chosen by the State. The court agrees with Urgenda that by choosing this reduction path, even though it is also aimed at realising the 2°C target, will in fact make significant contributions to the risk of hazardous climate change and can therefore not be deemed as a sufficient and acceptable alternative to the scientifically proven and acknowledged higher reduction path of 25-40% in 2020.’

There are many very important elements in this judgement that warrant further discussion and research. It is clear that the Dutch Court provided a break-through in climate change litigation, at least in the Netherlands. We have to wait and see whether this approach is copied by courts in other countries, and, first, whether this spectacular decision survives appeal. The Dutch government did not yet indicate whether it will appeal the judgement. It currently ‘studies’ the decision.

 

Update: Subsequent to the writing of this blogpost, the government of the Netherlands indeed appealed the Urgenda case. On 9 October 2018, the Higher Court in The Hague rejected all objections by the State. An explanation of this second sensational judgment is available here.   


26/05/2015

Enforcement of the EU ETS in the Member States: Further improvements needed

By Jonathan Verschuuren (TLS)

Although the EU Emissions Trading Scheme (EU ETS) has been operating now in three trading phases for ten years and has been extensively covered by legal research, there has been remarkably little attention for the enforcement of the ETS. Although, generally, we have seen an increasing centralization of the EU ETS, monitoring and enforcement still are largely in the hands of the emissions authorities in the states in which the EU ETS operates: 28 EU Member States plus Norway, Liechtenstein and Iceland. As part of the EU funded FP7-project ENTRACTE (Economic iNsTRuments to Achieve Climate Targets in Europe), we did an ex-post evaluation of the legal implementation of the EU ETS at Member State level with a focus on compliance. We wanted to know whether the effectiveness of the compliance mechanism of the EU ETS has been improved over the years and what further improvements (if any) are necessary. We reviewed the relevant EU law in each of the three phases, reviewed previous evaluations and relevant research projects, and evaluated the implementation of the EU ETS in selected Member States, both through existing sources and through interviews with key players in the compliance mechanism at Member State level. The Member States that we studied were Germany, the Netherlands, Hungary, Greece, Poland and the UK.

The EU ETS is the largest trading program in the world designed to combat global climate change.  The theory behind emissions trading is that a market mechanism is established in order to mitigate greenhouse gasses. After a cap is set and potential polluting firms have obtained allowances to emit, they can either (1) reduce their emissions and sell their allowances by for example investing in technological innovation; (2) use their allowances in order to cover their emissions; or, (3) increase their emissions by buying additional allowances on the market. The crucial importance of a well-developed and operationalized compliance chain has been neglected in the original design. In fact, a striking paradox of the EU ETS is that while the idea is that the market should be the place to regulate greenhouse gas (hereafter: GHG) emissions, the system only functions if it operates in a highly regulated context. Market participants must have the confidence that the system is transparent and consistent, and that it guarantees a level playing field for all actors in the 31 participating States because every firm complies with the rules. Effective enforcement of the rules is, therefore, crucial.

The EU ETS legislation originally left a considerable amount of discretion to Member States. This particularly included operational elements of emission trading, such as registration, monitoring, verification, reporting and enforcement issues. Only after European law enforcement agencies signalled that in some European countries carbon trading fraudsters may have accounted for up to 90% of all market activity, with criminals pocketing billions, the compliance issue received increased attention. Moreover, different strategies for ensuring compliance among Member States give rise to distortions of the market for greenhouse gas allowances. The effectiveness and reliability of the ETS, therefore, to a significant extent depends on the effort of each of the Member States. Lack of compliance of only a few or even a single Member State can harm the functioning of the ETS in the entire EU.

We, as well as other researchers in the consortium (see the London School of Economic’ report on compliance), found that compliance with the EU ETS is high.  Most infringements are caused by genuine mistakes and lack of knowledge, not by deliberate actions to evade obligations. The majority of offences concerns the operation of an installation without holding the required permit, exceeding the deadline for submitting the emission report or not monitoring in accordance with the monitoring plan. It is also believed that the verification process pays off: many mistakes are discovered by private verifiers and subsequently rectified. Since prices of allowances have been very low, the majority of allowances are surrendered and not traded. Hence, the EU ETS has not been tested to the full yet, and it remains to be seen whether compliance will be as high in a market under stress (with high prices due to limited availability of allowances).

There are many indications that current enforcement activities will not suffice in a market under stress, although there a big variations among countries. The number of staff employed in the national emissions authorities, for example, differs enormously, ranging from 4 to 5 in Greece and Hungary to 150 in Germany, 40-50 of whom are devoted to inspecting compliance by installations, i.e., checking emission reports, monitoring reports etc. No need to explain what this means for effective enforcement. The biggest loophole that we found in our evaluation is the absence of site visits. Site visits are not yet part of the standard enforcement strategy of most Member States we studied. Only the UK and the Netherlands have a well-developed blueprint for conducting regular site visits on the basis of a risk assessment. There is a considerable risk that non-compliant behaviour will remain undetected when inspectors rely on data provided by the “paper work” that goes with the EU ETS in its  automated system. In the UK, the competent authority regularly conducts site visits as part of its enforcement strategy; 5% of the operators are audited each year. Operators receive notice of these audits since their purpose is more to check than to inspect, although formally the regulator could use its power of entry to perform an unannounced inspection. Regulators in England and Wales have developed a common format for reporting the results of site visits, which are entered into an electronic database. The details include a summary of the visit, any instances of non-compliance detected follow-up actions that have been agreed with the operator.  The findings of the site visit may also be shared with other government bodies. Non-compliance is explicitly recorded to create a database of historical performance for future reference. Follow-up varies from a phone call or a visit to slightly more invasive forms such as a warning. By comparison, in Germany inspection was until 2013 mainly an administrative process done behind the desk at the emissions authority.  This is true for most of the EU Member States. Germany has very recently changed its policy and now officers of the ETS authority do joint inspections together with officers responsible for the enforcement of regular environmental permits, thus benefiting from the experience and knowledge on past performance of the individual company that the latter usually has.

There is not enough space here to cover all the elements of the enforcement system in the Member States that can be improved. Overall, we concluded that Member States can learn a lot from each other’s attempts to close loopholes and fix weak spots in the compliance mechanism. Overall, more efforts should be undertaken to harmonize enforcement practices of the national competent authorities responsible for the enforcement of the EU ETS. This is not easily achieved. Our research clearly shows that compliance assistance is regarded as the most important element of the compliance cycle of the EU ETS: helping companies to apply with this complex regulatory instrument. Such compliance assistance is best offered at the national level in the national context. In addition, we think that the EU, with the extensive legislative framework for the EU ETS that was developed over the years, has exhausted its legislative powers in this area. Therefore, other forms of harmonization (e.g., network based peer review) need to be explored.


25/02/2014

Where is the legal framework for Climate Smart Agriculture?

By Jonathan Verschuuren (TLS)

Between now and 2050, there will be a sharp increase in the demand for agricultural products. This is caused by an increase of the world’s population from 7 billion today (2012) to 9 billion, the rise in global calorie intake by 60% due to greater affluence, particularly in countries like China and India, and the production of bio-fuels (Meridian Institute 2011). The increase in agricultural production is likely to be accompanied by an increase in the emission of greenhouse gasses. Agriculture is responsible for 30% of total global greenhouse emissions, mainly through land-use change (particularly deforestation driven by agricultural expansion, also affecting biodiversity), methane and nitrous oxide emissions (from livestock and the use of fertilizers). The Meridian Institute, in its 2011 report ‘Agriculture and Climate Change: a Scoping Report’ shows that agriculture is not only a major cause of climate change but in many regions of the world, it is also seriously impacted by climate change. It is expected that by 2050, 56% of crops in Sub-Saharan Africa and 21% of crops in Asia will be negatively affected by the consequences of climate change, for instance because of shifts in water availability, temperature shifts, and changes in the occurrence of pests. This often has direct effects on the availability of food. In other regions, such as Europe, it seems that at least in the short term, climate change can be beneficial to agricultural production, allowing, for example for an additional yield per year or the opportunity to grow a more profitable crop. Europe, though, ultimately will be affected by these developments as well: food shortages are expected due to demand in other markets, particularly the emerging economies, even when taking into account the decline of Europe’s population (European Commission 2012).

Limiting food security risks under climate change requires new climate-smart agriculture policies to be implemented. Around the world, a wide variety of adaptation and mitigation projects are being trialed in the agricultural sector under such headings as ‘carbon farming’ or ‘climate smart agriculture’ (hereafter: CSA). The FAO website on climate smart agriculture has a list of more than 150 projects around the globe. Examples of these are the application of low water use technologies, crop changes, tillage and residue management, land-use change, agroforestry, enhancement of agro-biodiversity, etc.  So far, these, mostly experimental, projects have not or only barely been brought under the existing legal framework on climate change adaptation and mitigation.

With the varieties in effects of agriculture on climate change and in the effects of climate change per region, it is a challenge to come up with an overarching legal framework that allows for both climate change mitigation and adaptation, while maintaining or even improving food security as well as providing benefits to as many people as possible. Although food security has been acknowledged as an important issue under the UN Framework Convention on Climate Change, bringing adaptation and mitigation in the agricultural sector under the UNFCCC and the Kyoto Protocol is only happening at a slow pace. Emissions from land use change and agriculture are included in the Protocol accounting mechanisms, but only when measurable as verifiable changes in carbon stocks. In addition, Parties could elect additional human-induced activities related to LULUCF (Land-Use, Land-Use Change and Forestry), specifically, forest management, cropland management, grazing land management and revegetation, to be included in its accounting for the first commitment period. Only four countries elected for this option in that commitment period, hence strongly limiting the possibilities under the Clean Development Mechanism (CDM) as well. Furthermore, methodological questions have led to restrictive limits. Soil sequestration, for example, has been excluded from the CDM, and land use change can only account for 1% of all CDM credits. Some support to developing countries in the field of agriculture is provided for by the Adaptation Fund and the Green Climate Fund.

In general, it must be concluded that the instruments aimed at reducing greenhouse gas emissions only apply to agriculture to a very limited extend. The relationship between agriculture and climate change is considered to be too complex to be included in current negotiations. There are seemingly insurmountable practical difficulties in integrating agricultural emissions in an emissions trading scheme.

At the international level, it is not just international climate law under the UNFCCC, but also international trade law under the WTO that is relevant when researching the legal framework for CSA. On the one hand, current income support for farmers may constrain CSA, for instance when support schemes do not ‘reward’ farmers for switching to agricultural practices that are aimed at climate change mitigation and adaptation. Under the WTO, reducing market distortions caused by income support to farmers have been discussed for years now, albeit without significant progress towards the liberalization of trade in agricultural products. On the other hand, the WTO’s intellectual property rights law (TRIPS agreement) seems to favour access to climate smart agricultural technologies and practices, as the TRIPS agreement protects IPRs while at the same time favouring technology transfer to developing countries, although the latter –in practice- still is problematic.

At the domestic level, only in very few countries attempts are made to introduce financial benefits to farmers for their mitigation efforts. Probably the best example is Australia that, in 2011, enacted legislation that allows farmers to (voluntarily) generate carbon credits that can be sold on the domestic and international carbon market: the Carbon Farming Initiative (CFI). Thanks to this initiative, Australia is the country with the most far-reaching example of active legislation aimed at facilitating and stimulating CSA. Farmers earn credits through agricultural emissions avoidance projects (projects that avoid emissions of methane from the digestive tract of livestock, methane or nitrous oxide from the decomposition of livestock urine or dung, methane from rice fields or rice plants, methane or nitrous oxide from the burning of savannahs or grasslands, methane or nitrous oxide from the burning of crop stubble in fields, crop residues in fields or sugar cane before harvest, and methane or nitrous oxide from soil), as well as through sequestration offsets projects.

In the EU, CSA is still very much in the research phase and the regulatory framework is largely absent. Farming is excluded from the EU ETS, but included in the Effort Sharing Decision.  The Effort Sharing Decision establishes binding annual greenhouse gas emission targets for Member States for the period 2013–2020. Member States have to develop their own policies in order to achieve their targets and therefore, may put more emphasis on some sectors than on others. For agriculture, emission reductions could for instance be achieved through more efficient farming practices and conversion of animal waste to biogas. Other than in Australia, LULUCF projects are explicitly excluded from the Effort Sharing Decision, so important measures like cropland and grazing land management and revegetation are not covered. The second route towards addressing emissions from agriculture is through the EU Common Agricultural Policy (CAP) reform in 2013. Here mitigation and adaptation policies meet, as the CAP is also the primary means for promoting climate resilient agriculture. In the initial proposals, the European Commission suggested to earmark 30% of the direct payments for farmers who apply agricultural practices beneficial to climate change and the environment (through crop diversification, maintenance of permanent pasture, the preservation of environmental reservoirs and landscapes, etc.). In addition, it was proposed to give increased financial support to agri-environment-climate projects and organic farming under the EU´s rural development policy. In the final stages of the negotiations, however, these proposals have been watered down to a considerable extent.

Category: Agriculture, Climate

10/01/2014

First binding international law on climate engineering

By Jonathan Verschuuren (TLS)

In October 2013, the Parties to the London Dumping Convention (to be more precise: the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter) adopted amendments aimed at regulating marine geo-engineering. This is the first time the international community adopted binding legal rules on climate engineering. Climate engineering, or geo-engineering, is the deliberate interference with the Earth’s climate to achieve a cooling effect, thus mitigating global warming. A range of very different techniques are being researched at the moment, usually divided into two groups: solar radiation management (SRM) and carbon dioxide removal (CDR). SRM techniques are for instance the injection of sulphur aerosols in the stratosphere to block the sun light, thus mimicking volcanic ashes in the stratosphere after a volcanic eruption (stratospheric aerosol injection, SAI), and the injection of fine sea water particles in clouds to increase the reflective capacity of clouds (marine cloud brightening, MCB, sometimes also referred to as cloud seeding). CDR techniques are for instance the emission of fertilizers such as iron into the ocean to stimulate a bloom of phytoplankton, which are responsible for a large share of the carbon take up (ocean iron fertilization, OIF), large scale afforestation, and direct air capture of greenhouse gasses (DAC).

Each of these techniques has its own pros and cons. Some are considered to be potentially dangerous because of the large scale at which they have to be used to be effective and the risk of unexpected negative side effects. It, for instance, has been estimated that for stratospheric aerosol injection to be effective, a more or less continuous emission of aerosols by a very large number of aircraft (perhaps as many as a thousand) is needed to keep a constant blanket of aerosols in the atmosphere. As this technique does not interfere at all with the amount of carbon in the atmosphere, generations to come have to continue applying this technique. Stopping the emission of aerosols will trigger a very sudden drastic warming effect. Other negative consequences of SAI are side effects, such as potentially drastic changes in precipitation in some regions, ongoing ocean acidification and potential harm to the ozone layer. Ocean fertilization leads to eco-system changes and may affect fish stocks. There are many reports that describe the pros and cons of the various geo-engineering techniques. In Germany, the Kiel Earth Institute published a good reportin English. In the Netherlands, the Rathenau Institute published an up-to-date and very well accessible reportin Dutch in December 2013.

As is often the case with the development of new techniques and technologies, the law regulating these is lagging behind. This, however, does not mean that climate engineering is completely unregulated at the moment. International law that applies to (some forms of) climate engineering, can be divided into four categories:

-        International customary law. The no harm principle limits the use of techniques that may have an irreversible negative side effect for certain states (in the 1997 Gabčíkovo-Nagymaros case, the International Court of Justice stated that in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage).An assessment of the potential negative impacts on the environment of other states is required as a consequence of this principle (as was concluded by the ICJ in the 2010 Pulp Mills case). Other international environmental law principles that are relevant here are the precautionary principle and the principle of intergenerational equity.

-        International human rights conventions may apply, although both advocates and critics of climate engineering use human rights as an argument in favour of and against the deployment of geo-engineering techniques (climate engineering is necessary to protect human rights which will be affected by climate change, or: climate engineering may negatively impact on human rights in case of unexpected failure or negative side-effects)

-        Existing treaties that more or less explicitly deal with climate engineering. The best example before the adoption of the 2013 amendments to the London Protocol is the 1976 Convention on Environmental Modifications (ENMOD convention). Although this convention is mainly aimed at environmental modifications with a hostile intend, it also sets some conditions to environmental modifications for peaceful purposes, such as climate engineering. Climate engineering is allowed under the ENMOD Convention, provided that a State does not develop and employ climate engineering on its own (international cooperation is needed), the deployment has to contribute to international economic and scientific collaboration aimed at improving the environment, and States have to take into account the needs of developing countries.

-        Existing treaties that happen to be applicable to a certain climate engineering technique, such as the 1979 Convention on long range transboundary air pollution which sets a cap on various emissions, such as sulphur emissions, thus limiting the use of sulphur for stratospheric aerosol injection.

The adoption of amendments to the London Protocol referred to in the first sentence of this blog fit within the third category, but is special because it is the first time that climate engineering has been explicitly targeted by international law. Through the amendments, a new article and two new annexes are inserted into 1996 Protocol. The new article states that “Contracting Parties shall not allow the placement of matter into the sea from vessels, aircraft, platforms or other man-made structures at sea for marine geo-engineering activities listed in Annex 4, unless the listing provides that the activity or the sub-category of an activity may be authorized under a permit”. Annex 4 then lists ocean fertilization as a prohibited activity, with the exception of legitimate scientific research. Such research has to be permitted and assessed under the criteria laid down in Annex 5. Annex 5 has extensive provisions for the permitting process at the domestic level by the parties to the protocol, on consultation, prior assessment, site selection, risk management, monitoring, scientific  peer review, etc., etc. States have to adopt legislation so as to implement these new provisions. Once ratified, these amendments will thus lead to legislative activity in all of the 44 parties to the protocol. They will serve as a benchmark for all future geo-engineering law, both at international and national level.


29/11/2013

Climate change and biodiversity: towards connectivity conservation law in the EU

By Jonathan Verschuuren (TLS)
cover

Many protected areas are badly suited to overcome climate change–induced shifts in species’ geographic ranges. Studies show that protected areas “have not been designed for efficient (or even complete) representation of species” (Hannah et al. 2007). Fixed protected areas alone will not be sufficient to safeguard biodiversity from the impacts of climate change. Hannah et al. show that between 6% and 22% of species in their analysis failed to meet representation targets for future ranges that take into account the impact of climate change, with a further increase expected under more severe climate change scenarios. Connectivity measures, such as the creation of corridors or stepping stones compensate for such losses. This is also reflected in the Millennium Ecosystem Assessment: “[c]orridors and other habitat design aspects to give flexibility to protected areas are effective precautionary strategies. Improved management of habitat corridors and production ecosystems between protected areas will help biodiversity adapt to changing conditions” (MEA 2005). A combination of several measures (enlarging areas, securing robust large areas, securing ecological connections between areas, and establishing real ecological networks) therefore seems to be the best approach to maximize the ability of nature to cope with the pressure of climate change on biodiversity.

The IUCN recently published a two volume publication titled ‘The Legal Aspects of Connectivity Conservation’ (IUCN 2013). Volume 1 gives a broad overview of current insights and understanding of connectivity conservation and explains through which legal mechanisms connectivity conservation can be achieved, taking examples from around the world, and focusing on land use planning law, development control law, voluntary conservation agreements and economic and market-based instruments. Volume 2 has a wealth of case studies of connectivity projects around the world. These projects range from local or regional projects, to nationwide or even continent wide connectivity projects. Examples of these are the nationwide ecological network in the Netherlands, the 3600km long corridor of the Great Eastern Ranges in Australia, the EU’s Natura 2000 network (including domestic projects in France, Germany, Spain, the UK, Finland and Slovakia) and corridors in Brazil, such as the Central Amazon Corridor.

Connectivity conservation and the management of connectivity conservation areas are emerging fields of scientific study and conservation management practice within the broader subject of nature conservation. In the most basic terms, connectivity conservation is a conservation measure in natural areas that are interconnected and in environments that are degraded or fragmented by human impacts and development where the aim is to maintain or restore the integrity of the affected natural ecosystems, linkages between critical habitats for wildlife, and ecological processes important for the goods and services they provide to nature and people. In fragmented ecosystems, wildlife corridors and other natural linkages such as green belts and large wildlife corridors have been common representations of connectivity conservation. The scientific emphasis takes into account connectivity needs across landscapes and seascapes, and in some cases even across continents, where necessary to maintain or restore specific linkages for habitat or species populations, or to maintain or restore important ecosystem processes. Scientific study and conservation practice have made important strides in understanding and applying connectivity conservation across a range of scales and functions.

The overarching conclusion from the research and analyses undertaken for this project as presented in Volume 1 of the report is the need for countries to become increasingly alert to their connectivity conservation needs, undertake connectivity planning, and initiate actions using existing mechanisms and opportunities as much as possible to negotiate and protect critical connectivity areas before they are lost to development. To support this process, a related conclusion is that a wide array of different legal instruments and tools already exist in many legal systems to begin to promote and implement science-based connectivity actions in priority landscapes/seascapes and local sites. Countries should start with these tools, using the best scientific information available, before development pressures make conservation or restoration no longer economically or political feasible. As experience is gained working with communities and landholders, and managing for connectivity conservation, a foundation of knowledge and support can be built for amending or enacting new legislation, as needed, to strengthen and integrate connectivity conservation authority into legal frameworks. Opportunities to use existing law and policy instruments should not be delayed by those efforts. It also is important to recognize that the law, by its nature and function, aims for clarity, certainty, and clearly defined processes and criteria for achieving specific goals and objectives. These features are essential for societies to have orderly interactions and effective future planning. In contrast, connectivity conservation is a tool for adapting to change due to dynamic factors related to current and new threats to protected areas, biodiversity and ecosystems, and to global change including climate change. Bringing the law and connectivity together requires that the law incorporate some flexibility in order for management to be able to respond to changing connectivity conservation needs and that connectivity conservation actions be based on the best available scientific information (in both the natural and social sciences) so that management actions and commitments are well founded for the foreseeable future. Law has several mechanisms that can provide flexibility. These include requirements for periodic review and revision of management plans, regular monitoring based on ecological criteria, the development of performance measures to help assess and evaluate whether management plans are achieving their intended purposes, and decision-making mechanisms to monitor and incorporate new scientific information relevant for connectivity conservation management as it becomes available.

For Europe, it is clear that Natura 2000 alone does not constitute a coherent network in the sense of truly interconnected protected areas throughout an entire country or throughout the whole of the EU. Additional, domestic instruments, mainly in the field of nature conservation law and spatial planning law are needed to create connectivity between the Natura 2000 sites. Even in case domestic instruments are applied, in addition to the EU’s Natura 2000 legal framework, to achieve connectivity, we still cannot be certain that the network remains just an ecological network on paper. Much depends on the actual application of all the laws and policies on activities within the areas that constitute the network. Farmers and other local landowners have to refrain from harmful activities, and/or have to actively manage the area to support the area’s connectivity function. Financial incentives are needed to make this happen. Fortunately, we can observe that EU Member States increasingly do apply such domestic instruments in order to achieve connectivity. Domestic policies in various Member States, such as the Netherlands and the UK, provide for additional connectivity instruments that add to the Natura 2000 network. Domestic subsidy schemes across the EU exist as well, and the EU’s LIFE+ scheme provide important financial incentives for connectivity. This, however, is largely due to national policy initiatives, and based upon national law instruments. At the EU level, there seems to be a slow movement towards accepting that connectivity measures are legally required by the current texts of the Birds and Habitats Directive. The Alto Sil judgment of the EU Court of Justice (Case C-404/09 European Commission v Spain), as well as a range of policy documents go into that direction. In my view, however, there is much to say for more explicit regulating connectivity (and restoration) requirements in binding legal instruments, such as the EU Habitats Directive. There is a fear that altering the current text of the Habitats Directive will open Pandora’s Box, leading to a decline of the impact of this Directive on nature conservation in Europe. Fear, however, generally is a bad advisor. The Habitats Directive is getting outdated, caught up by climate change and by large scale landscape fragmentation in Europe.


19/11/2013

Climate change and land grabbing in Africa

By Jonathan Verschuuren (TLS)

Since 2008, civil society groups and transnational networks have drawn attention to one discrete source of conflict that is on the rise in the wake of resource scarcity: transnational agro-investment (Oxfam 2011; GRAIN 2012; FOE 2012). In practice this form of investment revolves around the acquisition of large areas of land, usually located in the global South and on a doubtful legal basis, often labeled as ‘land grab’. Governments of poor states are eager to welcome investments, even though there is no clear sight on beneficial long-term effects of associated changes in land use (FAO, 2012; ILC, 2012). Most contracts for these long-term transactions are effectuated between foreign investments (often government driven) and national governments that control and own the land. Some (not all) foreign investors are driven primarily by reasons that are related to climate change (we can call this ‘climate induced transnational agro-investments’). First, countries that foresee reduced domestic availability of suitable land for food production due to climate change and rapid population growth try to avoid future food shortage and high prices by producing food overseas (China being an example here). Second, most developed countries have set targets in their energy policies in attempts to cap greenhouse emissions. To meet these targets they are searching outside their own jurisdiction for suitable and affordable land to grow crops for biofuels and forestation. There is, however, another link between land grabbing and climate change: intensified land use for the African host countries not only impairs immediate food and water availability at the local level, but also reduces local communities’ resilience to engage with future climate change (hence, reducing their adaptive capacities). This, in turn, leads to serious and often irreversible socio-economic impacts, such as the displacement of local communities. Climate-induced transnational agro-investment has been on the rise in several countries in Africa, such as Ethiopia and Uganda, where large areas of fertile farmland have already been earmarked for long-term transfer to foreign investors. Companies from China, Germany, India, Israel, Pakistan, Saudi Arabia, UAE, UK, The Netherlands, Norway and the USA have concluded land lease agreements for biofuel projects with government. Tensions and conflicts are looming as a result of discontent created by the marginalization and loss of property rights of the local communities as well as lack of their participation and a benefit-sharing scheme for use of resources. There already are numerous instances of displacements of the local population as well as clearing of forests and related resources on which the livelihood of the local population depend. These activities of the investors have caused widespread fear and threats to the livelihood of the local communities and have already led to conflict in some localities. An early example of such a conflict in Uganda is the so called FACE-case. The Forests Absorbing Carbon-dioxide Emissions Foundation (FACE) is a Dutch organization that entered a partnership with Uganda Wildlife Authority (UWA) to carry out a reforestation project in Mount Elgon National Park, commencing in 1994. The project involves planting of trees inside the boundaries of Mount Elgon National Park. The idea was that FACE assists with the planting of 25,000 ha of trees to absorb carbon dioxide so as to offset emissions from a new 600 MW coal-fired power station in the Netherlands. A year before the project started, the government declared Mount Elgon a National Park and the people living within its boundaries lost all their rights. People residing in the designated area were evicted without any compensation, and court cases aimed at protecting the community interests, did not yielded much. This resulted in conflicts, where communities deliberately destroyed the trees in the park. Evictions have continued throughout the 2000s, without compensation. Although there exists an assumption that the investment is legally secured by contract law, pertinent legal questions arise about the compatibility of property rights, environmental norms, human rights and participation rights. In general, five sources of law apply to foreign agro-investment: (a) National law of the host state; (b) Customary law of local and indigenous people; (c) International law (treaty and customary law, e.g. investment law); (d) Social responsibility norms and codes of conducts; (e) National law of the investor’s home state. It is unclear, however, how the legal norms of this complex multilevel system interact in practice. Such legal questions regarding changes in land change within the bigger climate change context have largely escaped the attention of environmental, human rights and investment lawyers to date. Legal analyses of the phenomenon of foreign direct investment and its impact on local communities’ rights are scarce. Moreover, evidence shows that legal entitlements and rights are not evenly distributed. In general it can be stated that while investors’ interests are legally enforceable and thereby protected, the interests of local and indigenous people are mostly regulated by ‘soft norms’- e.g. the principle of free prior and informed consent that in practice is extremely difficult to enforce. As climate change threatens to become an ever more acute and serious problem, and population pressure increases, foreign agro – investment is an increasing source of conflict. This being so, we can no longer postpone thinking about the legal nature and the legal implications of climate-induced foreign agro-investment. One promising legal pathway is to focus on the legal agreements through which long-term land deals are being completed. These contracts or bilateral investment treaties contain critical information that determines the scope and terms of the investment deal, including the distribution of risks among stakeholders. The nature of the parties signing the contract (private or public) and through what process, significantly impacts on the extent to which local communities are involved and can make their voices heard. Practice suggests that local communities and rural landowners are rarely consulted in negotiations. Likewise, the terms of the contracts could have profound and possibly irreversible consequences for food security and stability in the host countries. It is hence crucial that contractual arrangements also address both environmental and social issues (e.g. job creation, infrastructure development). This is an area where linking contract law to customary, national, and international law and codes of conduct is particularly important for a full understanding of the implications of the contracts. Recently, several codes of conduct and principles for responsible investment (e.g. World Bank, FAO, IFAD, the UNCTAD, OECD, IFC standards, Ruggie Principles in Responsible Contracts, etc.) have been added at the international level to the existing body of law regulating foreign agro-investments. Similarly, at the regional level there has been increasing activity concerning promoting responsible investment; the African Land Policy Framework and Guidelines Initiative that is being led by the African Union for example addresses the issue. However, how these soft norms relate to individual contracts is far from clear and needs to be explored. It appears that domestic practices throughout Africa are quite diverse, ranging from no relationship whatsoever, to, for example, an explicit coverage of responsible and sustainable investment clauses in all contracts and the duty to have each contract ratified by parliament, as is the case in Liberia. Zambia has largely regulated foreign agro-investments, with the aim to guaranteeing continued supply at fair prices to local markets and the use of local farmers who have to earn a decent salary. A search for best practices in Africa is a good way to start researching effective regulatory frameworks for responsible and sustainable transnational agro-investments!

Category: Africa, Climate

07/08/2013

Research Handbook on Climate Change Adaptation Law

By Jonathan Verschuuren (TLS)
book-cover

This is the cover of the Research Handbook on Climate Change Adaptation Law, that was just published by Edward Elgar Publishers. So far, legal research has mostly focused on mitigation. Some adaptation topics are well covered through individual papers and law journal articles. This is especially true for adaptation in the fields of water management and biodiversity conservation, coastal adaptation, and climate induced displacement. Other topics are not, or hardly, covered, if so only in scattered papers. With this book I want to provide a full overview of current adaptation law scholarship on all topics, in all relevant sectors. To date there is one other book that also addresses the whole emerging field of adaptation law: ‘The Law of Adaptation to Climate Change: United States and International Aspects’, edited by Michael Gerrard and Katrina Fischer Kuh, published by the American Bar Association. As the title indicates, this book as a primary focus on the US. My book takes a transnational perspective, i.e., an approach which is detached from a specific domestic legal system, but instead focuses on generic issues, using examples from across the world. In the introduction, adaptation and its various forms are explained, as well as the relationship between adaptation and mitigation, and the main questions that are addressed in the book: What are the legal challenges and barriers to climate change adaptation and how can they be overcome? What can be done within existing legal frameworks, and where are new or adapted frameworks needed? The second chapter gives an overview of the role of adaptation in current international and regional climate law and policy. The third chapter, by Rosemary Lyster (University of Sydney), can also be seen as an introductory chapter as it deals with justice issues. Then, we the book dives into a series of more specific topics: climate change induced displacement (Mariya Gromilova & Nicola Jägers, Tilburg Law School), adaptation and compensation (Michael Faure, Maastricht University), adaptation and disaster law (Dewald van Niekerk, North West University), adaptation and public health law (Lindsay F. Wiley, Washington College of Law), adaptation and agricultural and forestry law (Robert W. Adler, University of Utah), adaptation and water law (by me), adaptation and marine and coastal law (Tim Stephens, University of Sydney), adaptation and biodiversity law (Arie Trouwborst, Tilburg Law School), adaptation and land use planning law (Keith H. Hirokawa, Albany Law School, and Jonathan Rosenbloom, Drake Law School), adaptation and green building (Keith H. Hirokawa and Aurelia Marina Pohrib, Albany Law School), adaptation and environmental and pollution control law (me again), adaptation and electricity infrastructure (Rosemary Lyster and Rebekah Byrne, University of Sydney). The contributions to this book show that, although adaptation receives a growing amount of attention, both in practice and in academia, adaptation law is only just starting to emerge. In most instances, there are some plans or policies aimed at adaptation in various fields, usually those fields that already have to deal with increasing problems, such as storm water management and flood management. An adaptation of the laws still has to start. It is obvious that existing laws have to be assessed on their ability to facilitate adaptation. This is a huge undertaking because there is hardly any field that is not affected by climate change. All laws and regulations that in any possible way organize society have to be ‘climate proofed’, laws regarding agriculture, forestry, fisheries, energy and telecommunications infrastructure, water management, air quality, industrial installations, nature conservation, buildings, transport infrastructure, public health, migration, disaster management, coastal defenses, etc. Although research on adaptation law, so far, has mainly concentrated on specific sectors, some overarching conclusions can be drawn: every field faces specific climate change impacts and needs specific adaptations, adaptations that also need to vary according to local circumstances. In various chapters, examples are presented of how existing laws are effectively applied to create resilience or to otherwise prepare for extreme weather events or other climate change impacts. Often, though, existing legislation needs to be adapted so that the competent authorities are obliged to plan for and take adaptation measures. The EU, for example, has just embarked on an ambitious programme to climate proof all existing Directives and Regulations. In 2013, the first climate proofed piece of EU legislation is expected to be adopted (a revised Directive on environmental impact assessment). It will probably take at least ten years before the entire body of EU law has been climate proofed. Similar programmes will have to be set up on all levels of government: international, regional, national/federal, provincial/regional and local. Since many impacts of climate change will be local impacts, and since these impacts can greatly vary from one location to another, it is important that at the local level the authorities take the lead in local adaptation programmes. At that level, planning law probably is the most important instrument in the authorities’ adaptation toolkit. Higher levels of government have to ensure that the authorities at the local level have sufficient room for manoeuvre. For adaptation issues at the higher levels, i.e., at the level of transboundary river basins, national or transboundary coastal areas, international marine areas, regional or international migration and others, international institutions will have to take the lead and coordinate international adaptation efforts. At all levels, issues of equity and justice arise and need to be incorporated into the law-making process. And yes… this blog will become more active as of now!!!


10/07/2011

Ongoing debate

By Jonathan Verschuuren (TLS)

This is my final blog from Australia, from tropical Queensland to be precise. It’s hard to believe, but throughout the six months I have been here, climate change has never been out of the news. Let’s have a look at the latest headlines, starting with the approval rating of Prime Minister Julia Gillard, which has hit an all-time low. She has brought it on herself by introducing a carbon tax in anticipation of an emissions trading scheme similar to the European model. Her days as Prime Minister appear to be numbered in a country where leadership of political parties is determined by the prevailing popularity of politicians in the polls. In the meantime, the introduction of the carbon tax does appear to be proceeding and the debate is focusing on the compensation program: how much money will the government give low-income households to compensate for the predicted rise in energy bills as a result of the carbon tax?

And then there are the death threats made to climate scientists at the Australian National University in Canberra. The university’s governing body subsequently moved them to secret locations in order to foil the threats. The university’s rector told the media that the scientists were severely affected by the threats. “Academics and scientists are actually really not equipped to be treated in this way. The concept that you would be threatened for your scientific views and work is something that is completely foreign to them.”

A new report was also published containing the latest insights into the rise in sea levels around Australia. Existing estimates are too low. Between 2000 and 2100, the average rise in sea level will be between 50cm and 1 meter rather than between 18cm and 76cm, as had been assumed till now. This has major consequences for low-lying cities such as Sydney and Melbourne. There are also huge regional variations. For instance, sea levels around Arnhem Land (named after the Dutch town by Dutch seafarers in the early 17th century) in northern Australia are rising by 7 mm per year, while the global average is 3.2 mm. The region’s Kakadu National Park, one of the world’s most beautiful tropical wetlands, will undergo a complete character change. From being a large fresh-water area, it will transform into a tidal salt-water area with completely different flora and fauna. This is bad news for the harmless fresh-water crocodiles (known to Aussies as ‘freshies’), which can still be found here, but good news for the highly dangerous salt-water crocodiles, which can grow up to 6 meters in length and are already present in large numbers.

Category: Australia, Climate

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