Forum of Legal Experts on Adaptation to Climate Change
Valletta Campus, Malta
14 October 2011
Introduction to and discussion on
the horizontal dimension of
regulating adaptation to climate
change: legal needs and
opportunities
Hannes Descamps
Affiliated Scientific Researcher
Leuven University
Overview
1. Focused Mandate
2. Refining the Framework
3. What Role for the Law?
•
•
•
EIA, SEA, Permits
Liability Rules
…
4. What kind of Financial
Instruments?
Malta, 14 October 2011
2
1. Focused Mandate
… a place of discussion, continuing
education and advice on developing
a legal framework on adaptation
• Stock taking, screening (climate proofing –
identification of gaps and obstacles) and
evaluation of, both horizontal and sectoral,
regulatory, policy and economic instruments
and (institutional) capacity building
Malta, 14 October 2011
3
1. Focused Mandate
Assist and guide EC DG CLIMA and other relevant
bodies (advice, recommendations, publications)
 Mobilize academics, senior policy makers and
other stakeholders
Example of the Florence School of Regulation on
mitigation

Focus on the relevant EU legal framework:
complementarity, subsidiarity (bottom up) and
creation of added value
X. Not about adaptation in the UNFCCC: ‘domestic
preparedness’
Malta, 14 October 2011
4
2. Refining the Framework
Adaptation (IPCC/UNFCCC):
"any adjustment in natural or human systems in
response to actual or expected climatic stimuli or
their effects which moderates harm or exploits
beneficial opportunities"

Cannot see it in isolation for other challenges

Priority for win-win, no-regret measures

Will we recognize the impacts when we see
them?

Will we see the impacts to get them recognized?

Malta, 14 October 2011
5
2. Refining the Framework

Adaptation (IPCC/UNFCCC):
In response? Reduce Vulnerability and/or Enhance
Resilience; Resist, Transform or Move?
By whom? the government(s) (legislator,
regulator) or the private sector (‘Autonomous
adaptation’ vs. ‘Maladaptation’) => responsibilities
To whom? Certain regions, sectors or vulnerable
groups => solidarity, equal treatment
Malta, 14 October 2011
6
2. Refining the Framework
Subject?
Effects: gradual, creeping (ice cap) vs ‘sudden and
accidental’ (super storm) => insurability;
Changes in variability (precipation pattern) or
absolute change (extreme temperatures) => Still
an ‘Act of God’ which breaks the ‘causal link’
Foundation?
Substantive and /or Procedural
When to act?
Distinction between anticipatory
(planning)/preventive (early warning) and reactive
(civil protection)/remedial (restoration) strategies :
uncertainty vs limitations
7
Malta, 14 October 2011
3. What Role for the Law?

•
•
•
•
It depends on the answer(s) to the previous
questions
Look at the law in the books or to the law in
practice?
Develop hard law or soft law instrument? Wide
range of instruments available
Stand alone initiative or amendments to sectoral
legislation at the occassion of the periodic
review? Cf. EIA Directive
Backload it to the monitoring phase after the
actual permitting?
Malta, 14 October 2011
8
3. What Role for the Law?
p. 39 Impact Assessment accompanying the White Paper:
2.3. When a preliminary impact assessment, with a
strong emphasis on the knowledge base and
subsidiarity & proportionality issues, would
conclude that a voluntary or a market based
approach will not yield the desired benefits and
improvements, introduce legally binding obligation
or harmonised standards across EU to achieve the
objective of guaranteeing the sustainability of
Europe in the face of climate change.
Malta, 14 October 2011
9
3. What Role for the Law?
“Financial constraints = one of the main barriers to
adaptation”

Climate proofing of the Multiannual Financial
Framework (Cohesion Funds, greening of the
CAP)

Article 10 Revised ETS Directive
At least 50 % of the revenues generated from the
auctioning of allowances …should be used for one
or more of the following: a) adapt to the impacts of
climate change
 Innovative sourcs of financing (PPS)
 EU-wide compulsory, publicly supported
insurance schemes
Malta, 14 October 2011
10