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Adaptation



02/05/2019

Restoration of protected lakes under climate change: what legal measures are needed to help biodiversity adapt to the changing climate? The case of Lake IJssel, Netherlands

By Jonathan Verschuuren (TLS)

Throughout the world, lakes are facing deterioration due to intensive economic use. Climate change is exacerbating this situation. The only way forward is through implementing massive ecosystem restoration and connectivity policies, adjusted water management, and policies aimed at assisted colonization of endangered species. Current international and EU law do not explicitly require such policies to be developed and implemented, at least not in a legally binding way. In order to discover the legal prerequisites that facilitate the adoption and implementation of climate change adaptation measures for lakes, it would be good to have a look at some of the current best practices. One interesting example of such best practices is Lake IJssel (IJsselmeer) in the Netherlands, a protected lake under the Ramsar Convention and the EU’s Natura 2000 framework. In this blogpost, I will have a closer look at the adaptation policies in place for this lake with the aim to discover the legal conditions that have to be met for the adaptation policy to be effective. This case study is part of a bigger paper on this topic that was presented at an international conference at the University of Tehran on 14 April 2019, available here.

The creation of Lake IJssel

Lake IJssel (IJsselmeer) only became an inland fresh water lake in 1932, when the former Southern Sea (Zuiderzee) was closed off from the North Sea through the construction of a dam, called the Closure Dam (Afsluitdijk).[1] Originally, this was a sea arm, part of the estuary of the IJssel and Vecht rivers consisting mainly of marshes and shallow salt and brackish tidal waters. The sea arm was closed off from the North Sea in order to end regular floods that were occurring in the area and to create new agricultural lands to improve food security. After the construction of the dam, parts of the new lake area were reclaimed and converted into land. This land was not only used for agriculture, but also for new cities in order to reduce population pressures in the nearby Amsterdam urban area. The remaining water area became a series of interconnected inland lakes, all of which are now protected areas under both the Ramsar Convention and the EU Wild Birds and Habitats Directives.[2] Lake IJssel also became the Netherlands’ most important fresh water reservoir for drinking water and agricultural irrigation. It is the biggest fresh water area in northwestern Europe.

Lake IJssel’s poor conservation status exacerbated by climate change

Many of the species and habitat types for which this lake has been designated under the EU Wild Birds and Habitats Directives are not in a favourable conservation status, as required by these important EU biodiversity instruments.[3] There are several reasons for this. First, and foremost, the transition from this area from a coastal marshland area into an artificial fresh water lake had severe consequences for the naturally occurring ecosystems. A new natural equilibrium has not been reached yet. The water of the lake has excessive quantities of sediments and is increasingly low on nutrients and marshes are disappearing. Over-fishing and increasing pressure by recreation, combined with active human manipulation of water levels to allow for intensive farming and urbanization have turned the lake basically into a big tub with muddy, empty water. The number of fish and other water organisms have declined tremendously, as has the number of birds. Climate change is exacerbating this already poor situation through:[4] increasing water temperatures (leading to reduced oxygen levels and increased harmful algae blooms), increasing intrusion of alien invasive species (such as the quagga mussel, which affects natural algae and native mussel populations, as well as power and water treatment infrastructure), increasing peaks both in low water levels caused by droughts and high water levels caused by increased precipitation and increased river water run-off, bigger impact of several chemicals, such as phosphates from agricultural run-off in case of high water situations, and chloride from upstream salt mines in France in case of low water levels in summer, bigger impacts from recreation due to longer recreation seasons, increased flood risks due to accelerated sea level rise, which will make it increasingly difficult to flow off river water into the (higher) North Sea.

Legal requirement to restore the degraded Lake IJssel

Lake IJssel was designated as a wetland of international importance under the Ramsar Convention in 2002 and as protected area under the EU Wild Birds and Habitats Directives’ Natura 2000 network in 2010. The EU Directives contain much stricter legal obligations than the Ramsar Convention and have much more legal force through the fact that EU legislation is directly binding under domestic law of the EU Member States and through an enforcement mechanism through the Court of Justice of the EU. As a consequence, the Ramsar Convention has lost much of its relevance for those areas that have also been designated under the EU’s Natura 2000 network (which is the case for all Ramsar sites in the Netherlands).[5]

For areas designated under the EU Wild Birds and Habitats Directives, conservation goals need to be set, aimed at the specific habitat types and species for which these areas have been designated. As most of the habitat types and species for which the Lake IJssel has been designated under the Natura 2000 network are not in a favourable conservation status, many conservation goals aim at increased populations or at increased acreage for certain habitat types. The latter can only be achieved through restoration, hence restoration is a legal requirement for Lake IJssel. In order to comply with this requirement, the management plans for the lake have adopted a wide range of restoration actions, some of which focus on the climate change related measures discussed in this paper (ecosystem restoration and connectivity, adjusted management, assisted colonization). These will be discussed below. It should be noted that the management plans for Lake IJssel do not just focus on nature conservation, but on all relevant environmental issues. A range of legal frameworks apply to the lake, partly stemming from the EU, such as on water quality and flood management, partly from domestic level, such as on polluted water soils and spatial planning. Furthermore, all of these plans are part of a broader development policy for the Lake IJssel area, called ‘Agenda Lake IJssel area 2050’, covering not just nature conservation, but also water safety, (drinking) water supply, water quality, fisheries, sustainable energy, infrastructure and transport, sand  extraction, landscape conservation, culture, recreation and tourism.[6]

Restoration plans for Lake IJssel

The first phase of the plans, which runs from 2017 until 2023, primarily aims at stopping the decline in quality and quantity of habitat types and species. To achieve that, the current plan has five main goals: improvement of marshes on the edges of the lake for breeding reed birds, creation of new sandy breeding areas for water birds that breed on sandy beaches, improvement of availability of food for birds, improvement and enlargement of certain habitat types, and more space and tranquility for birds.[7]

Most, if not all of these goals align with the climate change related adaptation measures that are generally considered important, such as restoration and connectivity, and adjusted management. It is remarkable, though, that climate change is not mentioned a lot in the various documents detailing the restoration requirements for Lake IJssel. I assume that this is because of the already poor conservation status that requires urgent action even without climate change.

The following table lists some of the restoration measures that contribute to climate change adaptation for the lake (despite the fact that they were not specifically proposed with that focus).[8]

Ecosystem restoration and connectivity
measure aim
  • Replacing artificial, fixed banks by more natural banks and borders
  • Creating sandy islands in the main water body of the lake
  • Constructing a fish migration river
  • Opening up old creeks and streams
  • Gradual transition from water to land
  • Increase breeding space for birds & help sediment settle down thus improving water quality for (shell)fish
  • Enable migratory fish to bypass artificial dams
  • Restore natural connection between land and water
Adjusted management
measure aim
  • Targeted reed management (keep young reed plants in some areas, and perennial reed in others)
  • Introducing permits for commercial fishing with conditions
  • Banning certain recreational activities (boasting, kite surfing) in some areas
  • Concluding voluntary agreements with recreational sector
  • Adjust water level management to more natural levels is preferred; however, this measure is postponed to later, to be aligned with water management plans under climate change
  • Enable expansion of various species of reed birds and reed mammals
  • Avoid water birds getting caught in nets and other fishing gear
  • Reduce disturbance of protected birds
  • Inform and educate the public so as to achieve less impact on breeding birds
  • Establish natural water levels, plan for climate change related variations of water levels

Assisted colonization is not specifically addressed in the management plans. Yet, to some extend, this measure is relevant, although not connected to climate change. In the 1980s the Eurasian otter became extinct in the Netherlands, mostly due to water pollution in the previous decades. The species, however, was reintroduced and now is back in a viable population in the Lake IJssel area. Furthermore, some of the restoration measures do aim to facilitate the natural relocation of species that were not present in the area before. The latter is particularly true for the white tailed eagle that has colonized the area and has been breeding here since 2006. The artificial fish migration river mentioned above helps salmon and other migratory fish to recolonize the lake and the rivers feeding the river. The assisted relocation of soil disturbing fish species from another part of the area to the lake is considered with the aim to improve the quality of the water soil.

Enabling factors for the restoration plans for Lake IJssel

In this section, I will deal with some important enabling factors that determine the success of the plans sketched above: the available financial budget, the role of the various authorities and other stakeholders involved, and the the role of the general public.

Financial budget: The measures discussed above, go at a cost. It is, therefore, important to adopt a multi annual budget. Otherwise, the risk exists that the plans are not executed, or that implementation stops mid-way. In the restoration plans for the Lake IJssel, implementation costs for each of the measures proposed has been included. The estimated budget consists of two elements: costs for construction or establishment of the restoration measures (once off costs), and costs for the first ten years of maintenance of the restoration measures. The total amount of once off implementation costs is between 630 and 1,060 million euro plus between 41 and 89 million euro for maintenance costs for the first ten years.[9]

The role of the various authorities and other stakeholders involved: The governance structure of Netherlands can be characterized as a decentralized unitary state. This means that central government involves the provinces, municipalities and water districts in the formulation and execution of its policies.[10] Hence, consensus building is considered to be of vital importance and the Netherlands has a long tradition of always looking for consensus among all those involved. This tradition dates back to early coastal defense and land reclamation activities around 1200, so even predating the establishment of the Dutch State: such activities were only possible with the collaboration of everyone, and, thus through balancing everyone’s interests. This has led to the enactment of laws that have a subtle, and somewhat complex, system of joint decision-making on such topics as water management, nature conservation, and spatial planning. As a consequence, many government bodies are involved in the implementation of the restoration plans for Lake IJssel, as follows. Central government is responsible for coastal and flood defenses that are of national importance (i.e., all coastal defense systems and flood defense systems of the main rivers), as well as for complying with EU-law requirements (vis-à-vis the European Commission). Provincial governments are responsible for nature conservation, and for coordinating water management and spatial planning. Water district boards are responsible for water management (in a broad sense, including water related nature conservation), and municipal governments are responsible for local spatial planning. As the Lake IJssel area is located within four provinces, has 32 municipalities and six water districts, and since five central government ministries are involved in the broader development plans of the area, intensive collaboration among all of these actors is in order. Such collaboration is coordinated by the Minister of Infrastructure and Water. Also involved in this process are non-governmental stakeholders, such as (agri-) businesses and environmental NGOs. Environmental NGOs actually play an important role, as several NGOs own property within the protected areas.

The role of the general public: Local residents, businesses and NGOs are also involved through the regular administrative procedures that need to be followed with all government decision-making (at all levels) and that require effective public participation and access to justice. Hence, there are public hearings and other forms of public participation, and all interested parties have the right to go to court. Thanks to the intensive collaborative decision-making processes aimed at reaching consensus (as sketched above), there, generally, is broad support for the plans once they are adopted. Nevertheless, every administrative decision that is taken to implement the restoration plans, can end up in court. Often, court cases focus on the question whether a certain decision is in compliance with EU law, for example with the EU Wild Birds and Habitats Directives.

Assessment of the Lake IJssel restoration plans

The restoration measures included in the first management plan for Lake IJssel are important first steps to bring the ecological quality of the lake back to an acceptable level. Species and habitat types that are in a favourable conservation status are much more resilient to climate change than species and habitat types that are in a poor condition. The measures aimed at increased connectivity, such as the creation of a fish migration river and of new islands in the lake for the sake of nature are spectacular and have fascinating results even within the first few years after these measures were taken. It is also clear, however, that much more is needed to make the area completely resilient to climate change. Especially those measures aimed at restricting harmful human activities still need to be taken. So far, only some preliminary measures aimed at regulating commercial fishing and recreation were adopted. More restrictions, especially for commercial fishing are considered necessary, which requires redistribution of existing fish permits and closing of certain parts of the lake for fishing. More drastic limitations on shipping and agriculture will follow from restoring natural water levels. Creating more connections with the sea, between the various parts of the lake area, and with the rivers feeding the lake, would also greatly enhance the resilience of the area, but is considered to be risky from a water safety perspective. The current approach of setting small steps towards a gradual more natural ecosystem seems effective for now, but we have to wait and see whether this approach will still work when tough decisions need to be taken that are costly and will have clear negative economic side effects.



[1] F. Palmboom, ‘Introduction. Lake IJssel – The IJsselmeer’ in: A.L. Nillesen et al. (eds.), Delta Interventions: Design and Engineering in Urban Water Landscapes (Delft University Publishers 2016) 52-53.

[2] Eemmeer, Gooimeer, IJsselmeer, Ketelmeer, Vossemeer, Markermeer, IJmeer, Veluwerandmeren and Zwarte Meer. Officially, these are all considered separate lakes, with the IJsselmeer being the largest. In this blogpost however, I treat them together under the overall name of Lake IJssel as they are largely (although not entirely) interconnected and all protected under the same legal regimes.

[3] See for example this document (in Dutch) that discusses the conservation status of a very long list of habitat types and species that require protection under EU law in part of the Lake IJssel area,

[4] R. Loeve et al., Klimaatverandering en waterkwaliteit (Future Water 2006), available online; Deltares, Mogelijke gevolgen van versnelde zeespiegelstijging voor het Deltaprogramma. Een verkenning (Deltares 2018), available online. See also the government website on climate change impacts for the Lake IJssel area.

[5] J. Verschuuren, ‘The Case of Transboundary Wetlands Under the Ramsar Convention: Keep the Lawyers Out!’ (2007/2008) 19(1) Colorado Journal of International Environmental Law and Policy 49-127.

[6] See the special website on this policy.

[7] Ministry of Infrastructure and Environment, Natura 2000 Beheersplan IJsselmeergebied 2017-2023. Publiekssamenvatting (Rijkswaterstaat 2017) 7-8.

[8] Taken from a range of documents on the management of the Natura 2000 sites of Lake IJssel,all of which are available here, and here.

[9] A. Remmelzwaal et al., Preverkenning IJsselmeergebied (Ministry of Infrastructure and water 2017).

[10] See extensively, Wil Zonneveld, Governing a Complex Delta, in Han Meyer, Steffen Nijhuis, Inge Bobbink (eds.), Delta Urbanism: The Netherlands (Routledge 2017), chapter 5.


24/01/2018

Suing Oil Companies for Climate Change Adaptation Costs

By Jonathan Verschuuren (TLS)

In the Netherlands, no cases have been lodged against emitters of GHGs yet. This is somewhat surprising, given that one of the world’s leading oil companies, Royal Dutch Shell (RDS), has its headquarters in the Netherlands and given the fact that around 60% of Dutch land is prone to flooding, either by rivers or by the sea. An extensive regulatory and administrative system is in place to plan for and execute measures to protect the land against sea level rise and increased water run-off in rivers under climate change.[1] It is estimated that the Dutch government needs to spend 26 billion euros for coastal and river adaptation measures alone.[2]

(Photo: Flickr user Shell)

(Photo: Flickr user Shell)

Dutch tort law would allow tort cases against polluters to be lodged, as long as complainants can show that they suffer damage caused, at least to some extent, by this and other GHG emitters. Between 1988 and 2015, Shell ranked as the 9th biggest emitter or GHGs, being responsible for 1.7% of all global GHG emissions.[3] There is some experience with tort cases against RDS in the Netherlands for its actions abroad. In 2013, several cases were lodged before the District Court of The Hague both against RDS and its Nigerian subsidiary for causing extensive damage by oil spills in Nigeria. These cases were lodged by individual Nigerian farmers and a Dutch environmental NGO, and were successful, be it only against the Nigerian subsidiary, not against the parent company.[4] The court determined that the Nigerian subsidiary of RDS violated a duty of care and was liable for negligence for not having taken measures to prevent sabotage to its wells, which caused the spills. The court ordered the subsidiary to pay damages to the Nigerian farmers.[5] Given their high public profile as one the biggest Dutch multinational corporations and given this successful case in the past, it is not unlikely that climate change related cases will emerge sooner rather than later.

The flood of cases against RDS and several other major oil companies in the United States may well be the trigger for such future cases in other countries, including the Netherlands. In 2017, seven Californian municipal and country governments filed cases against RDS and others (“big oil”), in an attempt to claim damages from sea level rise, altered water cycles, increased wild fires etc.[6] In January 2018, New York City filed another lawsuit in a federal court, again against RDS as well as BP, Chevron, ConocoPhillips and Exxon Mobil, to recover adaptation costs to protect the city against sea level rise and increased storm intensity.[7]

The complaint in the latter case is a very interesting document that in very strong and persuasive words argues that these companies’ actions constitute an unlawful public and private nuisance and an illegal trespass upon New York City property because they produced, marketed, and sold fossil fuels ‘for decades and at ever more dangerous levels while knowing of the harm that was substantially certain’ and that lead to ‘damage from climate change, including inundation, erosion, and regular tidal flooding’ of the city’s property and to ‘imminent threats to its property, its infrastructure, and the health and safety of its residents’.

As stated above, the case is entirely focused on adaptation costs. The complaint refers to a number of actions already taken on which billions of dollars have been spent:

-        Protect vulnerable residents during increasingly severe heat waves (which already kill more New Yorkers each year than all other natural disasters combined)

-        Reinforce NYC coastline and elevate its infrastructure within the floodplain.

In addition, it looks ahead to future adaptation measures that need to be taken:

‘the City must build sea walls, levees, dunes, and other coastal armament, and elevate and harden a vast array of City-owned structures, properties, and parks along its coastline (…) [such as] enlarge existing storm and wastewater storage facilities and install additional facilities and associated pumping facilities and infrastructure to prevent flooding in low-lying areas that are vulnerable to rising seas and increasingly severe downpours.’ According to the complaint, ‘these are long-term design and construction projects that must be built to last for decades, often up to fifty years or more. The City must take these actions as soon as possible in order to protect public health and safety and City property and infrastructure. The costs of these largely unfunded projects run to many billions of dollars and far exceed the City’s resources.’

What is particularly interesting in this case, is the emphasis that is placed on the special position that these big oil companies have, not just because of their large share in global fossil fuel production, but also because of their role in misinforming the public. The complaint devotes several pages of text to the campaign orchestrated by the oil companies to cast doubt on climate science and gives detailed examples of covert attempts to mislead the public. The complaint concludes:

‘Defendants are not only quantitatively different from other contributors to climate change given their massive and dangerous levels of fossil fuel production over many years—they are also qualitatively different from other contributors to climate change because of their in-house scientific resources, early knowledge of climate change impacts, commercial promotions of fossil fuels as beneficial despite their knowledge to the contrary, efforts to protect their fossil fuel market by downplaying the risks of climate change, and leadership roles in the API and other organizations that undertook a communications strategy for the fossil fuel industry. In this coordinated effort to discredit the science, which began in earnest during the 1990s and has continued in a subtler form even in recent years, Defendants and their agents and advocates have made the alleged “uncertainty” of climate science their constantly-repeated mantra. The purpose of this campaign of deception and denial was to increase sales and protect market share.’

In my view, these cases against ‘big oil’ in the US may very well pave the way for a global flood of litigation against oil companies. The recent adoption of the Principles on Climate Obligations of Enterprises by a group of former judges and law professors from around the world will help push this movement.[8]

Another interesting recent development is the growing pressure on investment banks and pension funds to divest in fossil fuel related projects.

In the Netherlands, in 2017 a first step towards challenging investment portfolios of banks and pension funds in case of climate unfriendly investment was taken by the submission of a complaint under the OECD Guidelines for Multinational Enterprises. Several environmental and development NGOs submitted a complaint against the Dutch multinational ING Bank, which is heavily involved in funding fossil industries, including funding new coal fired power plants in developing countries. According to the NGOs, ING is violating several provisions of the OECD guidelines, such as the duty to adopt ‘measurable objectives’ and ‘targets for improved environmental performance’ and to disclose greenhouse gas emissions, both ‘direct and indirect, current and future, corporate and product emissions.’[9] The NGOs request ING to start reporting on its indirect greenhouse gas emissions and to establish and pursue goals which will bring the bank’s indirect greenhouse gas emissions in line with the goals of the Paris Agreement. In November 2017, the National Contact Point of the Netherlands declared the complaint admissible. This seems to be the first time a climate change related complaint is found to be admissible by any National Contact Point for the OECD Guidelines.[10] Although this is not a procedure before a court of law, this case may provide a precedent for future cases before domestic civil courts.

 

[1] Jonathan Verschuuren, Jan McDonald, ‘Towards a Legal Framework for Coastal Adaptation: Assessing the First Steps in Europe and Australia’ (2012) 1:2 Transnational Environmental Law 355-379.

[2] https://deltaprogramma2016.deltacommissaris.nl/viewer/paragraph/1/deltaprogramma-/chapter/het-deltafonds-financieel-fundament-onder-het-deltaprogramma/paragraph/de-financiele-opgaven-van-het-deltaprogramma

[3] Paul Griffin, The Carbon Majors Database. CDP Carbon Majors Report 2017 (CDP 2017), 14.

[4] On January 30, 2013, the District Court of The Hague rendered separate judgments in five cases brought by four Nigerian farmers and fishermen, supported by the Dutch branch of Friends of the Earth (Milieudefensie), against the Nigerian subsidiary of Shell and its former and current parent companies in the United Kingdom and the Netherlands. The most important judgement is Akpan v. Royal Dutch Shell PLC, Arrondissementsrechtbank Den Haag [District Court of The Hague], Jan. 30, 2013, Case No. C/09/337050/HA ZA 09-1580 (ECLI:NL:RBDHA:2013:BY9854). An (unofficial) English translation of this and the other four judgments is available from Milieudefensie’s website.

[5] See in more detail, Nicola Jägers, Katinka Jesse, Jonathan Verschuuren, The Future of Corporate Liability for Extraterritorial Human Rights Abuses: The Dutch Case against Shell, (2014) American Journal of International Law Unbound “Agora: Reflections on Kiobel”, e-36/e-41.

[6] Michael Burger, Local Governments in California File Common Law Claims Against Largest Fossil Fuel Companies, blogpost Sabin Center for Climate Law, 18 July 2017, http://blogs.law.columbia.edu/climatechange/2017/07/18/local-governments-in-california-file-common-law-claims-against-largest-fossil-fuel-companies/, and Jessica Wentz, Santa Cruz Joins Other Municipalities Suing Fossil Fuel Companies for Damages Caused by Climate Change, blogpost Sabin Center for Climate Law, 8 January 2018, http://blogs.law.columbia.edu/climatechange/2018/01/08/santa-cruz-joins-other-municipalities-suing-fossil-fuel-companies-for-damages-caused-by-climate-change/.

[7] Nicholas Kusnetz, New York City Sues Oil Companies Over Climate Change, Says It Plans to Divest, Inside Climate News 11 January 2018, https://insideclimatenews.org/news/10012018/new-york-city-divest-sued-big-oil-climate-change-costs-exxon-chevron-bp-shell-mayor-deblasio . The full text of the complaint is available through this blogpost.

[8] Expert Group on Global Climate Change, Principles on Climate Obligations of Enterprises (Eleven International Publishing 2017).

[9] The full text of the complaint (in English) is available online through https://www.oxfamnovib.nl/persberichten/klacht-tegen-ing-vanwege-schending-oeso-richtlijnen.

[10] According to one of the NGOs involved, see: https://www.oxfamnovib.nl/nieuws/klimaat-klacht-tegen-ing-in-behandeling-genomen.

 

 

 

 

 

Category: Adaptation, 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!!!


02/06/2011

Coastal adaptation

By Jonathan Verschuuren (TLS)

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…

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