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Legal profession and adaptation

Adapting to climate change

Mitigation and adaptation

  • Mitigation involves actions to reduce greenhouse-gas emissions, thus reducing the severity of the long-term impacts of climate change.
  • Adaptation focuses on reducing vulnerability to the impacts of unavoidable climate change. The Intergovernmental Panel on Climate Change (IPCC) defines adaptation as ‘the adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities’.

Key issues for the profession

  • Is enough known, with a sufficient degree of certainty, to establish legal liability should there be a failure to act against the impacts of climate change?
  • 'As the financial impacts of climate change and adaptation begin to be recognised, we are likely to see the use of litigation as a means to recover costs … courts will examine claims and may decide it was reasonable, at the time the decision was made or advice given, to have foreseen the impacts of climate change, based on the information available in the public domain.' (The forecast predicts legal liabilities, Dowden M (2005), Estates Gazette)
  • Litigation is already occurring:
    • in Australia, where Council decisions relating to a failure to adapt and permit development in coastal zones and flood plains highly susceptible to climate change have been challenged and overturned
    • in the USA, where climate-change litigation has already been brought on several occasions over the last years.
  • A report by the United Nations Environment Programme Finance Initiative (PDF) identifies the impact of climate change as a risk that may affect any investment. Failure to assess climate-related risk more fully could result in beneficiaries making claims of neglect of fiduciary duty.
  • A survey by the Carbon Disclosure Project (PDF) reported a growing acknowledgement within the legal profession that there is now sufficient information available to take climate change into account both in short and long-term planning, and that failure to do so might result in legal action.

UK adaptation policy

Adaptation to climate change is increasingly featuring at the forefront of international and national policy. This trend will continue as more verified climate science becomes available to decision makers. 'If businesses do not introduce adaptation policies themselves, the government is increasingly likely to resort to prescriptive regulation' (The Adaptation Tipping Point: Are UK Businesses Climate Proof?, Firth, J, and Colley, M (2006), Acclimatise and UKCIP, Oxford)

National: Climate Change Act 2008 includes a UK-wide climate-change risk assessment, the provision of a national adaptation programme, and a variety of reporting requirements for local authorities and utilities about climate-change risk assessment and adaptation.

The Department for Environment, Food and Rural Affairs (Defra) published a framework for action (PDF) in July 2008, which summarises the government's programme for adaptation and comprises four work streams:

  • providing the evidence
  • raising awareness and helping others take action
  • ensuring and measuring progress
  • government policy and processes to embed adaptation.

National Planning Policy recently announced amendments stipulate that there is now a legal duty for National Policy Statements to show how they will adapt to climate change. This could have direct consequences on infrastructure design and provision.

Regional: Regional Spatial Strategies (RSSs) across the UK will integrate specific adaptation requirements into regional spatial planning.

Local: National Indicator 188 (PDF) (NI 188), a performance indicator, introduced in 2008 to assess how prepared local governments are for the risks and opportunities of climate change. Local authorities choosing to commit to NI 188 are obliged to take into account climate-change adaptations in their decisions, plans and measures. Central government will then assess the relevant authority’s performance against the goals of NI 188.

European Union (EU) adaptation policy

  • The European Commission (EC) published the first EU Adaptation Green Paper in June 2007. The paper addresses a wide range of issues, including:
    • taking adaptation into account in existing and future legislation
    • potential mechanisms to integrate into external relations
    • involving relevant stakeholders in the preparation of adaptation strategies
    • reducing uncertainty through integrated climate research
    • integrating adaptation into policies.
  • The Green Paper is non-binding and outlines possible priority areas for EU and Member State actions to improve adaptive capacity and promote adaptive actions.
  • The EU Adaptation White Paper published on 1 April 2009 contains proposals for Community action in climate-change adaptation and may be followed by proposals for draft EU legislation.

Further information

Produced in association with Ecofys UK Ltd