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The Rise of Climate Change Adaptation Law

Wednesday, October 31, 2018
Sofia O'Connor

Sofia O'Connor

Staff Attorney

As the effects of climate change become more prominent, countries in various parts of the world begin to consider ways to incorporate climate change adaptation into their legal frameworks. Unlike provisions related to climate change mitigation, which usually set requirements for greenhouse gas emissions, statutory provisions addressing climate change adaptation can be wide-ranging and intricate.

Incorporation of climate change adaptation into laws requires an understanding that new statutory language should allow management of natural resources and various sectors of the economy under constantly changing climatic conditions. Some areas may experience a continuous increase in precipitation and flooding, while other areas may face increasingly higher temperatures and droughts. This may cause changes in natural habitats and in the value of natural resources. Consequently, statutory provisions should be written in such a way as to allow governmental agencies to reevaluate norms related to the management of resources and activities in various sectors of the economy, given the effects of climate change. It is not enough to have a legal provision that seeks to protect the status quo.

As countries rethink the laws that govern their water, forests, biodiversity, and the environment more broadly, they need to reconsider historic assumptions and approaches. For example, countries may want to consider new legal language that allows governmental agencies to redraw borders of parks and specially protected areas to account for the changes in habitat that occur due to climate change. Climate change is also associated with the spread of diseases, pests, and invasive species that some regions may not have previously observed. Accordingly, countries may want to empower their governmental agencies to monitor and prepare for these new threats. Countries may also find it beneficial to provide flexibility to governmental agencies to reclassify the types and uses of environmental resources, such as water and land, based on the changing environment. Furthermore, governmental agencies may want to ensure that their plans take into account the latest available science and information about the effects of climate change.

Almaty, Kazakhstan

The effects of climate change range drastically, from slow-onset climatic events, such as droughts and sea-level rise, to rapid-onset events, including floods, hurricanes, and wildfires. In some countries, there are opposite types of effects happening simultaneously, with increasing flooding in one part of the country and droughts in another. Preparation for and adaptation to various climatic events requires reliance on climate data and incorporation of adaptation into governmental planning processes. Governments can do this by creating adaptation plans and mainstreaming adaptation into existing planning processes. Some countries have already started doing both. Kazakhstan, for example, has begun incorporating climate change adaptation into its Environmental Code and laws governing key sectors likely to be affected by climate change, such as the Land Code, the Water Code, and the Health Code. This involves introducing a series of related programmatic measures, which together constitute an adaptation process that will take place at the national and regional levels. This process includes collecting information and conducting vulnerability assessments, incorporating adaptation into existing planning processes, developing and implementing adaptation measures, monitoring and evaluating the effectiveness of adaptation measures, and adjusting adaptation measures based on the results of the monitoring and evaluation. Incorporation of adaptation also involves providing proper competencies to various governmental bodies to fulfill their duties.

National considerations are crucial in the creation of adaptation-related laws and regulations. While one country might find it useful to keep certain decisionmaking and coordination responsibilities related to climate change adaptation in one agency, another country might choose to create an interagency committee to oversee climate-related work. It is essential to take into account the governmental structure, as well as the existing dynamics, capacity, and political will for implementation at various levels of the government. It is also important to ensure that all the priority sectors for adaptation and all the governmental bodies that will be involved in the implementation of the adaptation process are engaged and provide input. Such interagency cooperation will help agencies realize that climate change affects all of them, and that they depend on each other to find mutually beneficial solutions.

The number of countries that have started to incorporate climate change adaptation into their national laws is growing. This includes countries in Africa, Asia, and Europe. Some countries incorporate adaptation into existing laws, while others adopt new stand-alone legislation. Common areas of focus include vulnerability assessments and science, planning, disaster preparedness and response, funding, creation of special committees and expert groups, and monitoring and evaluation of adaptation measures. Some laws cover these areas in great detail, providing a comprehensive framework for implementation. Others address them to a lesser degree, but the very existence of those provisions can set a course for action. As the number of climate change adaptation laws rises, it is encouraging to see that more countries are tackling this new and complicated concept of climate change adaptation in their laws.

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