Incorporating Climate Change Adaptation Into Framework Environmental Laws
| Date | 01 April 2018 |
| Author |
48 ELR 10334 ENVIRONMENTAL LAW REPORTER 4-2018
Incorporating
Climate Change
Adaptation Into
Framework
Environmental
Laws
by Soa Yazykova and Carl Bruch
Soa Yazykova is a Sta Attorney at the
Environmental Law Institute (ELI). Carl Bruch is
the Director of International Programs at ELI.
Summary
is A rticle examines the various ways countries
throughout the world have started to incorporate
considerations of climate change adaptation into
their framework environmental laws, implementing
regulations, and other binding instruments. Drawing
upon searches in databases of environmental laws, it
examines national legislative and regulatory language,
focusing on various types of provisions that address
climate change adaptation. ese laws serve as a valu-
able source of mechanisms that can be used to imple-
ment adaptation, providing a toolbox of approaches.
e authors identify seven particularly important
categories of adaptation provisions—assessment and
science, planning, EIA, disaster preparedness and
response, funding, coordination through creation of
special committees and expert groups, and monitor-
ing and evaluation of adaptation measures—and oer
their reections on practical considerations.
The eects of climate change vary from place to
place, with droughts and wildres in some regions,
and oods and sea-level rise in others. ese
eects already reach countries all over the world and are
predicted to increase in frequency and severity, taking a
toll on these countries’ socia l, economic, and ecological
well-being.1 e changing climate presents corresponding
challenges for how countries govern their environment
and natura l resources.2
Historically, national environmental laws have sought
to prevent substantial changes to the environment—for
example, maintaining a ir quality, habitats, and species
for current and future generations. Increasingly, though,
countries are realizing that climate change undermines the
whole concept of maintaining the status quo. Environmen-
tal laws now need to consider how to manage the environ-
ment, public health, a nd human activities in a realm of
continuous (and often substantial) change. ey need to
consider how to incorporate climate cha nge impacts into
planning processes and into environmental impact assess-
ments (EIAs)3; they need to consider how climate change
will a ect critical habitats and protected a reas, and when
and how to change those designations4; and they need to
better prepare for both natura l disasters and technological
disasters triggered by oods, res, and other natural disas-
ters (so-called natechs).5
1. See, e.g., J.B. Ruhl, -
, 40 E. L. 363-431 (2010), available at
https://biotech.law.lsu.edu/climate/docs/ssrn-id1517374.pdf.
2. See, e.g., J.B. Ruhl, -
pacity in Legal Systems—With Applications to Climate Change Adaptation, 89
N.C. L. R. 1373-403 (2010/2011), available at http://heinonline.org/
HOL/LandingPage?handle=hein.journals/nclr89&div=49&id=&page.
3. See, e.g., Sirkku Juhola, Mainstreaming Climate Change Adaptation: e
, in D A
P P E: M-L G C
C 149 (Carina H. Keskitalo ed., Springer 2010); Trude Rauken et al.,
Mainstreaming Climate Change Adaptation at the Local Level, 20 I’ J. J-
S 408-23 (2015), available at http://www.tandfonline.
com/doi/abs/10.1080/13549839.2014.880412.
4. D S ., E L I, L
P T A B M C
C: R M (2011).
5. O E C- D,
OECD E, H, S P S
C A N. 27, A N 2 OECD
G P C A P, P-
, R (2 E.) A N H T-
T A (N) (2015), available at http://
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
4-2018 NEWS & ANALYSIS 48 ELR 10335
is Article examines the various ways countries
throughout the world have started to incorporate consid-
erations of climate change adaptation into their frame-
work environmental laws, implementing regulations, and
other broadly binding instruments.6 e research draws
upon searches in a number of databases of environmen-
tal laws, including the Climate Change Laws of the World
Database,7 ECOLEX,8 and FAOLEX.9
While some relevant laws date back a decade,10 most of
the laws have only recently been adopted.11 us, the eec-
tiveness of these laws is, for the most part, unclear. Many
of the recent laws have not been fully implemented yet, and
those that have been implemented often have not been thor-
oughly analyzed with rega rd to their eectiveness. With-
out this data, it is dicult to be certain which approaches
work—let alone which represent “best” practice.
e Article starts with an overview of considerations
related to incorporating climate change adaptation into
environmental laws, including whether to amend existing
legislation or draft new laws, whether to focus on national
or subnational legislation and planning, and whether to
have broad mandates or detailed provisions. It then exa m-
ines national legislative and regulatory language, focusing
on various types of provisions that address climate change
adaptation. We identify seven particularly important cate-
gories of adaptation provisions, namely assessment and sci-
ence, planning, EIA, disaster preparedness and response,
funding, coordination through creation of special commit-
tees and expert groups, and monitoring and evaluation of
adaptation measures. We conclude with a few reections
on practical considerations.
www.oecd.org/oc ialdocuments/ publicdisplay documentpdf/? cote=env/
jm/mono(2015)1&doclanguage=en.
6. For discussions of amending sectoral legislation to account for climate
change, see, for example, Carl Bruch & Jessica Troell, Legalizing Adapta-
tion: Water Law in a Changing Climate, 36(6) W I’ 828-45 (2011);
S ., supra note 4.
7. Grantham Research Institute on Climate Change and the Environment,
, http://www.lse.ac.uk/GranthamInsti-
tute/climate-change-laws-of-the-world / (last visited Feb. 13, 2018).
8. ECOLEX, , https://www.ecolex.org/ (last visited Feb. 13, 2018).
9. Food and Agriculture Organization of the United Nations, FAOLEX Data-
base, http://www.fao.org/faolex/en/ (last visited Feb. 13, 2018).
10. See Climate Change Act of 2008 ch. 27 (U.K.), http://extwprlegs1.fao.org/
docs/pdf/uk88225.pdf.
11. See, e.g., Climate Action and Low Carbon Development Act 2015 (No.
46 of 2015) (Ir.), http://extwprlegs1.fao.org/docs/pdf/ire150968.pdf;
Climate Change Act (2015) (Fin.), http://www.nlex.//laki/alk-
up/2015/20150609; Climate Protection Act (2017) (Aus.), http://extwpr-
legs1.fao.org/docs/pdf/aut135454.pdf.
I. Considerations in Incorporating
Climate Change Adaptation
Into Legislation
Countries have taken dierent approaches to integrating
climate cha nge adaptation into their environmental laws.
Some a mend existing environmental codes, while others
create new laws. Some devise strong national legislation,
while others focus on subnational laws. Some establish
general mandates, while others build intricate, detailed
provisions. Some address particular vulnerabilities and
areas important to them, while others do not. Examples
illustrating these various options are presented below.
A. Creating New Legislation Versus Amending
Existing Environmental Legislation
In addressing climate change adaptation through national
legislation, as of January 2018, at least 11 countries12 chose
to incorporate adaptation provisions into their existing
environmental codes, and at least 22 countries13 created new
climate change laws (see Figure 1). For example, Vietnam
updated its Law on Environmental Protection14 in 2014
to include a new chapter on response to climate change.
Similarly, Bulgaria’s Environmental Protection Act15 was
updated in 2011, Lao People’s Democratic Republic’s Envi-
ronmental Protection Law16 was revised in 2013, and El
Salvador’s Environmental Law was revised in 2012.17 In
all these cases, the amended environmental codes included
considerations of climate change adaptation. France’s Law
No. 2010-788 of 12 July 2010 on National Commitment
for the Environment18 amended both France’s Environ-
mental Code and Rural and Maritime Fishing Code to
include language related to climate change adaptation.
Countries that created new independent laws usually
titled them Climate Change Acts or Climate Protection
12. At least the following 11 countries (colored in gray in Figure 1) have
amended their framework environmental laws to adapt to climate change:
Bulgaria, Burkina Faso, El Salvador, France, Indonesia, Laos, New Zealand,
Tanzania, Turkmenistan, Tuvalu, and Vietnam.
13. At least the following 22 countries (colored in black in Figure 1) have cre-
ated new climate change laws: Austria, Bolivia, Brazil, Bulgaria, China, Cro-
atia, Finland, France, Guatemala, Iceland, Ireland, Kenya, Malta, Mexico,
New Zealand, Pakistan, Papua New Guinea, the Philippines, South Korea,
Switzerland, Tuvalu, and the United Kingdom.
14. Law on Environmental Protection No. 55/2014/QH13 ch. 4 (2014)
(Viet.), http://extwprlegs1.fao.org/docs/pdf/vie168513.pdf.
15. Environmental Protection Act (2011) (Bulg.), http://extwprlegs1.fao.org/
docs/pdf/bul52883.pdf.
16. Environmental Protection Law (2013) (Laos), http://extwprlegs1.fao.org/
docs/pdf/lao151747.pdf.
17. Legislative Decree No. 158 (2012) (El Sal.), http://extwprlegs1.fao.org/
docs/pdf/els142831.pdf.
18. Law No. 2010-788 of 12 July 2010 on National Commitment for the En-
vironment art. 117 (Fr.), https://www.legifrance.gouv.fr/achTexte.do?cid
Texte=JORFTEXT000022470434&categorieLien=id.
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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