Environmental Law

25/02/2014

Where is the legal framework for Climate Smart Agriculture?

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.

10/01/2014

First binding international law on climate engineering

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

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

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!

07/08/2013

Research Handbook on Climate Change Adaptation Law

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

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.

28/06/2011

CCS or algae?

Storing CO2 under the ground, which climate change specialists often refer to as CCS (carbon capture and storage), is seen as an important step on the road to a society in which we are no longer dependent on burning fossil fuels. The technology for removing CO2 from the air has existed for quite some time already (as evidenced by the addition of carbonic acid to drinks to make them fizzy). In a new generation of power plants, the CO2 could be removed before it ever has the chance to get into the atmosphere. But the transportation of the CO2 to the storage site, and the process of storing it, are more problematic. This is because the CO2 must be transported and stored in such a way that it cannot escape – ever again. A blow-out would not only defeat the whole object of storing the CO2 in the first place, it could also be very dangerous. A small leak from a pipeline in Berkel en Rodenrijs in 2008 received international attention, even though casualties were limited to a few ducks. But the worst case scenario at the back of everyone’s minds is the large-scale escape of CO2 from a lake in Cameroon in 1986 as a result of volcanic activity. The escaped gas suffocated 1700 people. Storage in thinly populated or uninhabited regions or under the sea bed would seem to be the best solution, but the disadvantage of this is that it requires long pipelines. Many trial projects are underway in both Europe and Australia, mostly still in their initial phase. In 2009, an EU directive was issued including regulations on the underground storage of CO2. These focused particularly on preventing any harmful environmental effects, especially over the longer term. The most important legal issue is liability. Who will be responsible if in the future, say 100 years from now, damage is caused despite all the security measures that have been taken? For American and Australian companies, this is now a cause for extreme caution in moving forward with CCS. In the EU, this problem has been solved by the automatic transfer of liability to the state after a certain period of time.

However, it now seems that new technology is becoming available which could be much more lucrative than CCS – that is recycling CO2. In Australia, a company has been set up which uses an industrial application of CO2 to cultivate algae and produce commodities such as cattle food, bio fuels and raw materials for medicines. I’m certainly curious about the legal issues that will arise from that!

02/06/2011

Coastal adaptation

Around the world, coastal defenses are an integral part of climate policy. The risk of flooding is increasing due to a number of factors – the rising sea level (which in the Netherlands is being exacerbated by subsidence), the increasing intensity of storms and rising water levels in rivers. The Dutch parliament is currently looking at proposals for a new Delta Law, which is designed to address these increasing dangers. This law, as well as the legislation that already exists, is among the most advanced in the world. But of course, that is because half of our country is susceptible to flooding, either from the sea or from rivers.

Unlike in the Netherlands, most of the coastal areas around the cities of southern and eastern Australia are in the hands of private landowners. These ‘ocean view properties’ are spectacular, and extremely expensive. That makes it difficult for the government to build coastal defenses. Many interesting legal cases are already underway in this area which will clarify how this aspect of climate law will be put into force in the future. Essentially, the law states that the authorities must create a coastal protection area where they can make provisions for the effects of climate change. This policy will determine whether projects in coastal areas are allowed to go ahead. But what should be done in cases where houses are under threat from the sea?

One of the most famous cases is that of a rich landowner in Byron Bay to the south of Brisbane. The government had decided not to defend a section of the coastal area against the increased risk of erosion, but rather to let nature take its course as a part of a wider plan that involved protecting other, more important areas. The owner of the land decided to take measures to protect the land from erosion himself by renewing the old coastal defenses. The government denied him permission to do this, for the same reason as it had decided not to do so itself. When it looked as if the dispute would be settled in favor of the landowner, the government decided to renew the coastal defenses after all. However, it is clear that this is only a temporary measure until the next storm comes along. There is no prospect of a definitive solution, not least because land owners are opposing the construction of new coastal defenses for the future. After all, this would mean their land would no longer be located directly on the coast, and so it would be worth considerably less…

30/05/2011

Cycling in Sydney

Cycling to work in Sydney is only recommended if you get a real kick out of danger and don’t really mind whether you arrive in one piece or not. Basically it involves dicing with death. In an attempt to reduce greenhouse gas emissions and relieve the pressure on Sydney’s overloaded traffic infrastructure, the government is trying to encourage people to take up cycling. Policy papers are being drawn up, short sections of cycle paths are being constructed here and there, and they have even produced a very nice plan of the city which shows the location of all those little pieces of cycle path. Many companies have installed showers for employees who cycle to work and want to shower and change before starting work, because cyclists here generally use racing bikes and wear cycling gear.

But it’s a risky undertaking. Those stretches of cycle path begin and end abruptly. When you do come across one, you’ll be happy that you can cycle safely for a while, but then when you suddenly reach the end of that particular stretch of cycle path, you’ll have to work out how to cross five busy lanes of traffic so you can continue your journey on the correct side of the road. Many roads in the city center are full to capacity. There is limited space, with as many lanes of traffic are squeezed in as possible. Basically, there’s no room for cyclists, and if you decide simply to ‘make room’, the best you can expect is to be hooted at by irritated motorists. In the worst case, car drivers will simply take back the space that you are occupying and run you off the road. Motorists tend to get angry with cyclists, which is understandable to some extent when you see how cyclists behave on the road. They are mostly tough young guys (think: broad-shouldered, tattooed Australian surfers). They use the footpath to avoid queues of traffic, cycle diagonally over intersections, ride straight through red stoplights – basically, they ignore all the rules of the road. And even the more cautious cyclists – and I count myself among them – often choose to cycle on the footpath. That is not allowed either, but in reality the police tolerate it because they understand that it is safer than cycling on the road.

Sydney still has a long way to go before cycling becomes as easy and as normal as it is in the Netherlands. But there is one similarity: on the very first day I used my bike here, it got stolen…

02/05/2011

Historic swing

28 March, 2011

Elections were held last Saturday for the parliament of New South Wales, the state where one third of the Australian population live (and of this third, more than half live in Sydney). These elections are crucial because the vast majority of policy issues, including environmental policy, are decided at the state level. We watched TV every night, astonished at the political ads that consisted of little more than insinuations and slurs. “What else does he have to answer for?” and other sentences along these lines. And hardly any information at all about the policy intentions of the ad’s sponsor.

The elections resulted in a historic loss for the incumbent Labor government. Never before in the history of Australia did so many districts switch their electoral preference (of the 50 Labor seats in the 93-seat parliament, there are now only 17 left). Labor had been in power here for 16 consecutive years. Until today. Wiped out, mainly through a series of internal disputes and scandals, including bribery scandals involving major projects. For many voters, the Labor coalition had become symbolic for deals in which project developers filled their pockets and for the unabated rise in the cost of living for ordinary people.

Opinion polls have shown that the climate tax proposed by the prime minister (also Labor) at the federal level, which I wrote about previously, played a crucial role in Labor’s monumental defeat in New South Wales. The coalition of the Liberal Party and National Party used this convenient little ‘present’ to underscore Labor’s role in the tenacious inflationary trends plaguing the country. High energy prices, layoffs, a real campaign of fear mongering on the climate tax issue. There were some who voiced dissent, of course, basing their opinions on lessons learned from experiences in Europe. They pointed out the number of jobs created in Germany because of the government’s commitment to renewable energy. However, this small voice of reason was drowned out completely by the bombastic rhetoric used by politicians down under.