The challenge of climate changeadaptation: Learning from national planning efforts in Britain, China, and the USA

Journal of Environmental Law

Volumn 23, Issue 3, 2011, Pages 359-382

  Farber, Daniel A ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ADAPTIVE MANAGEMENT; CLIMATE CHANGE; ENVIRONMENTAL PLANNING; HUMAN RIGHTS; INTERNATIONAL LAW; NATIONAL PLANNING;

CHINA; UNITED KINGDOM; UNITED STATES;

EID: 80855150808     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqr015     Document Type: Article

References (129)

1. Indeed, some effects of climate change are already being seen
2. See IPCC, 'Summary for Policymakers' in Susan Solomon and others (eds), Climate Change 2007: The Physical Science. Contribution ofWorking Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2007) 1, 5.
3. IPCC (n 1) 16
4. Failure to reach international agreement on binding greenhouse gas limitations makes the need for adaptation all the greater. 'Facing the Consequences: Adapting to Climate Change' The Economist (27 November 2010) 85.
5. Daniel A Farber,'Climate Adaptation and Federalism: Mapping the Issues' (2009) 1 San Diego J of Climate & Energy L 259
6. For a broader survey of EU efforts, see E Carina H Keskitalo (ed), Developing Adaptation Policy and Practice in Europe: Multi-level Governance of Climate Change (Springer 2010)
7. 'The poorest developing countries will be hit earliest and hardest by climate change, even though they have contributed little to causing the problem'. Nicholas Stern, The Economics of Climate Change: The Stern Review (CUP 2007) xxvi.
8. David Archer and Stefan Rahmstorf, The Climate Crisis: An Introductory Guide to Climate Change (CUP 2010) 43
9. See K Hasselman and others, 'The Challenge of Long-Term Climate Change' (2003) 302 Science 1923, 1924. Figure 2 predicts a two meter increase in sea level under a 'business as usual' scenario by 2100; but only 20 cm under an optimum regulatory strategy.
10. On the potential for catastrophic melting in these areas, see Stern (n 5) 16; IPCC (n 1) 16
11. Changes in ocean temperature will also affect fish stocks
12. See Hans O Pörtner and Rainer Knust, 'Climate Change Affects Marine Fishes Through the Oxygen Limitation of Thermal Toleration' (2007) 315 Science 95
13. A Barrie Pittock, Climate Change: Turning Up the Heat (Earthscan 2005)
14. See Elizabeth Kolbert, Field Notes from a Catastrophe: Man, Nature, and Climate Change (Bloomsbury Pub 2006) 123-24 (British governmental study indicating that what are now 100-year flood events could become routine by late in this century)
15. See also Pittock (n 14)
16. (stating that without adaptive measures, annual financial losses as a result of flooding would increase from 1 to 24 billion in different scenarios)
17. Archer and Rahmstorf (n 6) 147
18. Heidi Cullen, The Weather of the Future: Heat Waves, Extreme Storms, and Other Scenes from a Climate-Changed Planet (Harper 2010)
19. On the flooding issues (in particular, the impact of climate change on catastrophic weather events), see Howard C Kunreuther and others, At War with the Weather: Managing Large-Scale Risks in a New Era of Catastrophes (MIT Press 2009) 11-12
20. These challenges are discussed in Tim Bonyhady, Andrew Macintosh and Jan McDonald, Adaptation to Climate Change: Law and Policy (The Federation Press 2010)
21. US Government Accountability Office, 'Climate Change Adaptation: Strategic Federal Planning Could Help Government Officials Make More Informed Decisions' (GAO-10-113 2009)
22. Stern (n 5) 417
23. William E Easterling III, Brian H Hurd and Joel B Smith, 'Coping with Global Climate Change: The Role of Adaptation in the United States' (Pew Center on Global Climate Change 2004) 17
24. Recent information about nationwide climate impacts in the United States can be found in US Global Change Research Program, Global Climate Change Impacts in the United States: A State of Knowledge Report (Thomas R Karl and others eds, CUP 2009) (hereinafter US Impacts)
25. Victor S Kennedy and others, 'Coastal and Marine Ecosystems & Global Climate Change: Potential Effects on US Resources' (Pew Center on Global Climate Change 2002)
26. US Impacts (n 22) 84
27. Cullen (n 18) 238
28. Gina M MacDonald, 'Water, Climate Change, and Sustainability in the Southwest' (2010) 107(50) Proceedings of the National Academy of Sciences 21256
29. Kenneth Strzepek and others, 'Characterizing Changes in Drought Risk for the United States from Climate Change' (2010) 5(4) Environmental Research Letters accessed 28 May 2011.
30. US Impacts (n 22) 131-2
31. See Louise Bedworth, 'Climate Change and California's Public Health Institutions' (Public Policy Institute of California 2008)
32. The White House Council on Environmental Quality, 'Progress Report of the Interagency Climate Change Adaptation Task Force: Recommended Actions in Support of a National Climate Change Adaptation Strategy' (2010) accessed 24 May 2011.
33. E Carina H Keskitalo, 'Climate Change Adaptation in the United Kingdom: England and Southeast England' in Keskitalo (n 4) 97-147, 102
34. Chris West and Megan Gawith (eds) Measuring Progress: preparing for climate change through the UK Climate Impacts Programme. UK Climate Impacts Programme Technical Report. (UKCIP 2005).
35. DEFRA, 'Adapting to Climate Change in England: A Framework for Action' (DEFRA 2008)
36. Sebastion Catovsky and others,'How Well Prepared is the UK for Climate Change?' (Committee on Climate Change Adaptation 2010)
37. Information Office of the State Council of the People's Republic of China, 'China's Policies and Actions for Addressing Climate Change' (2008) accessed 24 May 2011.
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40. Taryn Fransen and others, 'National Climate Change Strategies: Comparative Analysis of Developing Countries' (World Resource Institute 2009) 1, accessed 24 May 2011.
41. The framework for adaptation efforts in China is briefly addressed in Jolene Lin, 'Supporting Adaptation in Developing Countries at the National and Global Levels' in Benjamin J. Richardson and others (eds), Climate Law and Developing Countries: Legal and Political Challenges for theWorld Economy (Edward Elgar 2009) 127-50, 138-9.
42. National Development and Reform Commission, People's Republic of China, 'China's National Climate Change Programme' (2007) accessed 24 May 2011.
43. Information Office (n 67)
44. National Development and Reform Commission, People's Republic of China, 'China's Policies and Actions for Addressing Climate Change: The Progress Report' (2009) accessed 24 May 2011.
45. Information Office (n 67) 12
46. This article relies upon the English translations provided by the Chinese government of its plans and reports
47. Information Office (n 67) 12
48. Fransen and others (n 77)
49. Andrew Batson, 'China Seeks a New Self Through an Old Method' Wall Street Journal (New York, 13 October 2010) accessed 24 May 2011.
50. Deborah Seligsohn, 'China's Party Plenum Recommends Actions in the 12th Five Year Plan' (ChinaFAQs: The Network for Climate and Energy Information 29 October 2010) accessed 24 May 2011.
51. See also (www.news.cn, 27 October 2010)accessed 24 May 2011.
52. Seligsohn (n 88)
53. See ibid. The Party recently issued an opinion to the drafters of the Five-Year Plan. In Section 6, Item 22, the Opinion notes that: 'As parts of efforts for climate adaptation, China will emphasize capacity building to address extreme weather events', according to the informal translation by the World Resources Institute
54. (The original text is accessed 24 May 2011). The draft of the Five-Year Plan places considerable emphasis on climate change mitigation and discusses the need for adaptation measures such as preparation for extreme weather events.
55. See Deborah Seligsohn and Angel Hsu, 'How Does China's 12th Five-Year Plan Address Energy and the Environment?' (ChinaFAQs: The Network for Climate and Energy Information 7 March 2011) accessed 24 May 2011.
56. Information Office (n 67) 1
57. The main Chinese partner is the National Development and Reform Commission, see Ellen Kelly 'Introduction to ACCC' (Powerpoint presentation, ACCC Meeting 3 March 2010, ACCC ProjectWorkshop Documents)accessed 24 May 2011.
58. See Adapting to Climate Change in China accessed 24 May 2011.
59. Fransen and others (n 77) 2
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61. Fransen and others (n 77) 2
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63. Information Office (n 67) 34
64. National Development and Reform Commission, People's Republic of China, 'China's Policies and Actions for Addressing Climate Change: The Progress Report' (n 80) 33-34
65. For a good overview of these uncertainties and potential strategies for managing them, see Robert Willows and Richenda Connell (eds) Climate Adaptation: Risk, Uncertainty and Decision-Making (UKCIP 2003)
66. Daniel H Cole, 'The Stern Review and Its Critics: Implications for the Theory and Practice of Benefit-Cost Analysis' (2008) 48 Nat Resources J 53, 75
67. Feedback effects, such as methane releases triggered by temperature increases, threaten to accelerate temperature changes. Katey Walter Anthony, 'Methane: A Menace Surfaces' (2009) 301(6) Scientific American 68, 73.
68. Archer and Rahmstorf (n 6) 152
69. Jens Hesselbjerg Christensen and others,'Regional Climate Projections' in Susan Solomon and others (eds), Climate Change 2007: The Physical Science. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2007) 847, 921.
70. Scenario planning rests on a realisation that plans need to take into account multiple possible futures. The flip side of this is the realisation that our plans may not work out as we hope. This observation seems too obvious to be worth mentioning, but often the possibility of failure is entirely overlooked in government planning.
71. Dave Owen, 'Probabilities, Planning Failures, and Environmental Law' (2009) 84 Tulane L Rev 265
72. According to the Economist, It is tempting to imagine that adaptation decisions might wait for models that can provide greater certainty about what might happen where. This is a forlorn hope. .. Decisions about adaptation will be made in conditions of pervasive uncertainty. So the trick will be to find ways of adapting to many possible future climates, not to tailor expectations to one future in particular. 'Facing the Consequences' (n 2) 86.
73. Robert Verchick, Facing Catastrophe: Environmental Action for a Post-Katrina World (Harvard UP 2010) 239-49
74. Willows and Connell (n 104) 79
75. E A Parson, 'Useful Global-Change Scenarios: Current Issues and Challenges' (2008) 3(4) Environmental Research Letters 5 accessed 24 May 2011.
76. Verchick (n 109) 242-43
77. For this reason, it is particularly important to consider 'wild-card scenarios' in which the planner's assumptions are violated; see James A Dewar, 'The Importance of "Wild Card" Scenarios' RAND discussion paper accessed 24 May 2011.
78. 40] CFR x 1502.22(b) (1991).
79. Vicki O'Meara Masterman, 'Worst Case Analysis: The Final Chapter?' (1989) 19 Envt L Rep 10026, 10027
80. See Robertson v MethowValley Citizens Council, 490 US 332 (1989)
81. For an overview, see Edward A Fitzgerald,'The Rise and Fall of Worst Case Analysis' (1992) 18 U Dayton L Rev 1
82. See Notes, 'Federal Agency Treatment of Uncertainty in Environmental Impact Statements Under the EPA's Amended NEAP Regulation x 1502.22: Worst Case Analysis or Risk Threshold?' (1987-1988) 86 Mich L Rev. 777, 807-09.
83. 40] CFR x 1502.22(b).
84. Robertson v MethowValley Citizens Council, 490 US 332 (1989)
85. Oliver A Houck, 'Worst Case and the Deepwater Horizon Blowout: There Ought to be a Law' (2010) 40 Envt L Rep 11033
86. William H Rodgers Jr and Anna T Moritz, 'The Worst Case and the Worst Example: An Agenda for Any Young Lawyer Who Wants to Save the World from Climate Chaos' (2009) 17 Southeastern Environmental LJ 295
87. Daniel A Farber, 'Confronting Uncertainty under NEPA' (2009) 8(3) Issues in L Scholarship accessed 24 May 2011. 124 Parson (n 111).
88. See text accompanying (n 61)
89. National Grid Gas plc 'Climate Change Adaptation Report: National Grid Gas - Gas Transmission and Distribution' (September 2010) accessed 26 May 2011.
90. The San Francisco Bay Conservation and Development Commission is using scenario planning to address sea level rise. Seeaccessed 24 May 2011 (staff recommendations can be found under 'Proposed Climate Change Bay Plan Amendment'). The New York Sea Level Rise Task Force is taking a similar approach.
91. Seeaccessed 24 May 2011.
92. This kind of scenario planning resembles Toyota's set-based concurrent planning which encourages the consideration of large numbers of designs before a decision is made
93. See Durward K Sobek, Allen C Ward and Jeffrey K Liker, 'Toyota's Principles of Set-Based Concurrent Engineering' (1999) 40 Sloan Management Rev 67
94. Alex de Sherbinin, Koko Warner and Charles Ehrhart, 'Casualties of Climate Change' (2011) 304(1) Scientific American 64
95. For further discussion, see Kurt W. Campbell and others, 'The Age of Consequences: The Foreign Policy and National Security Implications of Global Climate Change' (Center for Strategic International Studies 2007).
96. Robert J Nicholls and others, 'Coastal Systems and Low-Lying Areas' in M L Parry and others (eds), Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2007) 315, 339.
97. IPCC, 'Summary for Policymakers' in Parry and others (n 130) 1, 12
98. Verchick (n 109) 16-19
99. Herbert R Padgett, 'Physical and Cultural Associations on the Louisiana Coast' (1969) 59 Annals of the Association of American Geographers 481
100. Suzanne Goldenberg, 'Rising Sea Level to Submerge Louisiana Coastline by 2100, Study Warns' The Guardian (London, 29 June 2009) accessed 24 May 2011.
101. Stephen Humphreys, Climate Change and Human Rights: A Rough Guide (International Council on Human Rights Policy 2008) 3
102. According to Eakin and Pratt: Studies on adaptive capacity, in many cases, challenge existing social and economic orders by illustrating that adaptation by the most vulnerable social classes may require redistribution of resources and improved access to finance, land, technology, water, and other assets, as well as enhanced access to decision making and governance
103. See Hallie C Eakin and Anthony Pratt, 'Are Adaptation Studies Effective, and What Can Enhance Their Practical Impact?' (2011) 2 Wiley Interdisciplinary Reviews: Climate Change
104. London's adaptation planning explicitly recognises risks to vulnerable groups, see Greater London Authority, The Draft Climate Change Adaptation Strategy for London: Public Consultation Draft (Greater London Authority 2010)
105. The Office of the UN High Commissioner for Human Rights also discusses the 'human rights implications of response measures'
106. See UN Office of the High Commissionerr for Human Rights, 'Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights' UN Doc A/HRC/10/61 (2009)
107. US Impacts (n 22) 90
108. Ulisses Confalonieri and others,'Human Health' in Parry and others (n 130) 391, 397. This is a relatively low estimate.
109. US Impacts (n 22) 90
110. Kelly (n 92) slide 4
111. Kate Raworth and others, 'Climate Wrongs and Human Rights: Putting People at the Heart of Climate-Change Policy' (Oxfam International 2008) Briefing Paper 117, 7 accessed 24 May 2011.
112. Women produce up to 80 per cent of food grown in sub-Saharan Africa, and 60 per cent in Asia. Yet only five per cent of agricultural services are directed to women farmers, and they own just two per cent of the land and receive one per cent of agricultural credit worldwide. In addition, women and girls spend many more hours fetching fuel and water during floods or droughts in poor countries. Women are also the main [caretakers] for sick children and family members, and will usually be the first in the family to eat less when food is scarce. As a result, climate impacts put women's rights to food, life, security, and health particularly at risk.
113. Verchick (n 109) 128
114. Zoe Loftus-Farren and Cáitrín McKiernan, 'Protecting People and the Planet: A Proposal to Address the Human Rights Impacts of Climate Change Policy' (International Human Rights Law Clinic, Miller Institute for Global Challenges and the Law, and Center for Law & Global Justice 2009) 4 accessed 26 May 2011.
115. The Office of the High Commissioner for Human Rights also discusses the 'human rights implications of response measures'. See Office of the High Commissioner for Human Rights (n 137).
116. Loftus-Farren and McKiernan (n 146) 6
117. For a brief description of the impacts of climate change on the right to life and security, the right to health, the right to food, the right to subsistence, and the right to health, see Kate Raworth and others (n 144) 6,Table 2
118. Loftus-Farren and McKiernan (n 146) 7
119. 42 USC 4331(a)
120. 42 USC 4331(b) (1), (3)
121. 444 US 223 (1980)
122. Robertson v MethowValley Citizens Council, 490 US 332, 351 (1989)
123. 16 USCA x 1531 et seq
124. 16 USCA x 1533
125. 16 USCA x 1536
126. 16 USCA x 1538
127. 529 F.2d 359 (5th Cir 1976).
128. See text accompanying n 41 to 42
129. Humphreys (n 136) 28