Ambitious law reform programmes needed to prepare for changing climate – by Jonathan Verschuuren

September 13, 2013

Author Articles, Environment

Climate change is here to stay, at least for the time being. If we stopped all greenhouse gas emissions today, we would only see marginal changes for the better in 30 to 40 years. So we have to adapt to the changing climate.

In the new book Research Handbook on Climate Change Adaptation Law, Jonathan Verschuuren and his team analyse—from a global law perspective—the legal challenges and barriers to climate change adaptation and how they can be overcome.

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 my new book I want to provide a full overview of current adaptation law scholarship on all topics, in all relevant sectors.

Research Handbook On Climate Change Adaptation LawTo 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 has a primary focus on the US. My new book, the ‘Research Handbook on Climate Change Adaptation Law, has just been published by Edward Elgar. This 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. Following this, the book dives into a series of more specific topics, ranging from disasters, public health, and forestry to planning law, green building and electricity infrastructure.  A full list of chapters can be found here, and Chapter 1 can be downloaded by clicking here.

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.

Jonathan VerschuurenDr. Jonathan Verschuuren is Professor of International and EU Environmental Law in the Tilburg Sustainability Center at Tilburg University and extraordinary professor of law in the Faculty of Law at North West University, South Africa.

Read more from Jonathan on his Climate blog.

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