Preventing Climate Disasters Integrating Adaptation and Disaster Risk Reduction

4
Preventing climate disasters: integrating adaptation

and disaster risk reduction
Having canvassed, in Chapter 2, the initiatives under the United Nations

Framework Convention on Climate Change (UNFCCC),1 and various other
instruments, to deal at an international level with the challenges of climate
change, this chapter now discusses the various ways in which domestic law
can facilitate climate change adaptation and disaster risk reduction to
prevent, or at least ameliorate, the impacts of climate disasters. As discussed
in Chapters 2 and 3, in the past decade many regions and jurisdictions have
experienced catastrophic extreme weather events and slow onset climate
disasters. Many of these disasters have led governments and international
agencies to institute signicant inquiries into, or reviews of, existing legal,
policy and governance frameworks, which in turn have led to major law and
policy reforms. Most of the reform has occurred in developed economies
such as the European Union, the United States and Australia following
various climate disasters including oods, hurricanes and bushres. How-
ever, there are also recent initiatives emerging in developing countries such
as the Philippines and Vietnam. Many of these initiatives will be highlighted
in this chapter and, although they might seem jurisdiction-specic, they are
presented as the most up-to-date case studies from which other countries
might want to learn. Of course they could never simply be adopted else-
where without a proper domestic process of impartial and practical
reasoning about their suitability and need for renement and amendment.
4.1. Understanding adaptation: resilience, transition and

transformation
In Chapter 3, the concepts of vulnerability to climate disasters, adaptive
capacity, coping and resilience were analysed to support the case for a
Capability Approach to Climate Justice and Disaster Law. Adaptation,
1
Available at http://unfccc.int/les/essential_background/background_publications_htmlpdf/
application/pdf/conveng.pdf (accessed 24 February 2015).
156
Downloaded from https:/www.cambridge.org/core. Universitetsbiblioteket i Oslo, on 29 Apr 2017 at 07:39:30, subject to the Cambridge Core
terms of use, available at https:/www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316227534.005
resilience, transition and transformation 157
meanwhile, is one of the key processes for preventing, or at least ameli-
orating the impact of, climate disasters and for building resilience. It is
dened as:
the decision-making process and the set of actions undertaken to main-
tain the capacity to deal with future change or perturbations to a social-
ecological system without undergoing signicant changes in function,
structural identity, or feedbacks of that system while maintaining the
option to develop.2
Adaptation is both reactive and anticipatory because it responds to past or

current events but is also based on some assessment of conditions in the
future. Adaptation activities are undertaken by individuals, groups and
governments and can be manifested in myriad ways including through
market exchanges, the extension of social networks, or through the actions
of individuals and organisations to meet their own individual or collective
goals.3 The success of an adaptation response will depend on the spatial
and temporal scale. For example, short-term responses such as rebuilding
in the hazard zone may prove ultimately to be a maladaptive response.
Issues of governance are also critical as adaptation responses are crafted in
a typically hierarchical fashion from the international to the national,
regional and local levels. The wider effectiveness of adaptation responses,
meanwhile, may be assessed through lenses of economic efciency, equity,
and legitimacy.4 However, the efciency of a response must consider both
economic efciency, based on a cost-benet analysis, and also the non-
market benets, such as the public good elements of the ecological and
aesthetic impacts of non-traded ecosystem goods and services.5 From an
equity perspective, and as already alluded to in Chapter 3, adaptation
should include measures to reduce poverty and increase access to resources
thereby reducing vulnerability. As already discussed in Chapter 1 and
developed further in Chapter 7, the legitimacy of adaptation decisions
made by governments will depend on the authority of the information
upon which policy makers rely, in this case the perception of climate
change risks. Clearly, equity of outcome and legitimacy of decision-making
are both cornerstones of the perceived success of adaptation.6
2
Donald R. Nelson, W. Neil Adger and Katrina Brown. Adaptation to Environmental
Change: Contributions of a Resilience Framework (2007) 3 Annual Review of Environ-
mental Resources 395 at 397.
3
W. Neil Adger, Nigel W. Arnett, Emma L. Tompkins, Successful adaptation to climate
change across scales (2005) 15 Global Environmental Change 77 at 77.
4 5 6
Ibid. at 80. Ibid. at 82. Ibid. at 83.
158 preventing climate disasters
Importantly, from the perspective of relying on Amartya Sens idea of
procedural justice, the process of adaptation is negotiated and mediated
through social groups, and decisions are reached through networks of
actors that struggle to achieve their particular goals. Adaptation is con-
cerned with actors, actions and agency and is recognised as an ongoing
process,7 while social learning is regarded as a critical aspect of building
resilience. This entails the capacity for new values, ideas or practices to
be disseminated, popularised and become dominant in society and
requires active engagement with civil society and a high degree of citizen
participation.8
The Climate Justice implications are clear as the demands for adapta-
tion, and assistance with its implementation, are increasingly made by
those made vulnerable by increased exposure to risk.9 The fragility of
provisions under the UNFCCC to satisfy these demands has been dis-
cussed extensively in Chapter 2.
4.1.1. Adaptation as transformation

Pelling has asserted that current work on adaptation does not yet capture
the full signicance of adapting to climate change as a dynamic socio-
ecological co-evolution, especially given its focus on resilience.10 The
problem with resilience is that it aims to maintain functional persistence
which may have the effect of allowing unsustainable or socially unjust
practices to persist. Furthermore, it maintains the status quo without
seeking the broader change in social and political power relations that
can be achieved through adaptation.11 For Pelling, there are a further two
possible forms of adaptation transition and transformation. Transition
might be regarded as an intermediary form of adaptation where citizens
rights are expressed and enforced under existing political and governance
regimes. Unfortunately, rigidity traps can develop where people and
institutions try to resist change and persist with their current manage-
ment and governance systems. This is despite a clear recognition that
change is essential, as will be demonstrated in this chapter with the case
7
Nelson et al., see Note 2 at 398.
8
Mark Pelling, Adaptation to Climate Change: From resilience to transformation (London
and New York: Routledge, 2011) at 170. See also, for example, Good practices in and
lessons learned from national adaptation planning (UNFCCC Subsidiary Body for Scien-
tic and Technological Advice) FCCC/SBSTA/2014/MISC.8 http://unfccc.int/resource/
docs/2014/sbsta/eng/03.pdf (accessed 1 March 2015).
9 10 11
Nelson et al., see Note 2 at 396. Pelling, see Note 8 at 169. Ibid. at 170.
resilience, transition and transformation 159
study on planning for sea level rise in Australia. If these rights and their
application are inadequate, then the transition form of adaptation might
become more like the transformation form, and will require signicant
efforts to overcome entrenched vested interests in the status quo. This
opens up space for new rights to be won so that over time transform-
ational change occurs.12 Pelling asserts that when climate disasters strike,
there is the potential for new understandings of identity and social
organisation, as well as an alternative to established structures in the
social contract.
Under the transformation form of adaptation, the causes rather than
just the symptoms of vulnerability and risk, must be addressed.13 The
deep shifts which may occur in national political life at the time of
climate disasters, precipitated often by the instability generated by devel-
opment failures, can even catalyse regime change.14 Like the author,
Pelling states that in developing a transformational form of adaptation,
the interests of future generations, or citizens of second countries, should
be admitted to the conversation, which fundamentally challenges the
established social organisation based upon the nation-state.15 Pelling
notes further that if vulnerability to climate disasters is attributed to
unsafe buildings, inappropriate land use and fragile demographics, adap-
tation will be regarded as a local concern and more amenable to resilience
than transitional forms of adaptation. However, if the disasters are
framed as an outcome of the wider social processes at play then trans-
formation becomes relevant.16 There are clear links between a transform-
ational form of adaptation and the authors adoption of a Capability and
procedural justice approach to Climate Justice and Disaster Law.
Transformation and a human development approach

Pellings assertions regarding the transformative capacity of adaptation,
are mirrored in the UNs Human Development Report 2014 (HDR
2014).17 The Report emphasises the close links between reducing vulner-
ability and advancing human development, as well as the prospect of
disasters eroding peoples Capabilities and choices, which severely
12 13 14 15
Ibid. at 172. Ibid. at 172. Ibid. at 867. Ibid. at 84.
16
Ibid. at 97.
17
Human Development Report 2014 Sustaining Human Progress: Reducing Vulnerabil-
ities and Building Resilience (United Nations Development Programme (UNDP): 2014)
available at http://hdr.undp.org/sites/default/les/hdr14-report-en-1.pdf (accessed 5
January 2014).
restricts their agency and prevents them from coping with threats.18 The
HDR 2014 highlights the notion of life cycle vulnerability on the ground
that Capabilities accumulate over time and unless nurtured and main-
tained they can stagnate and decline.19 However, unlike poverty, which
can be directly observed, vulnerability cannot and so is essentially a
measure of what might happen in the future.20
The implication is that a sustained enhancement of individuals and
societies Capabilities, through climate change adaptation and disaster
risk reduction, is needed so that persistent vulnerabilities to climate
disasters can be reduced.21 Those living in extreme multi-dimensional
poverty and deprivation are the most vulnerable, while it should also be
remembered that many countries in the bottom tier of the Human
Development Index (HDI) are emerging from long periods of conict
and continuing armed violence.22
Clearly, as highlighted in Chapter 3, in the post-2015 world, vigorous
collective action, equitable and effective institutional responses, and far-
sighted leadership at the local, national and global scale are needed in a
time of escalating climate disasters.23 On the one hand, a systems approach
to reducing structural vulnerability is needed by committing to universal-
ism and the provision of, and access to, basic social services, including:
education, health care, water and sanitation, and public safety for all.
Meanwhile, social protections like unemployment insurance, pensions
and labour market regulations are equally important.24 On the other hand,
legal and policy disaster preparedness and response frameworks must be
adopted and enhanced to build resilience, in a way that may even be
tranformative. The provision, or even lack, of social services and protec-
tions are beyond the focus of this book but they are forever the background
text to its discussion about how governments and other institutions
intervene to build resilience to climate disasters.
In this chapter, instances of climate change adaptation which might be
regarded as truly transformational will be offered, especially in the context
of ecosystem adaptation and dramatic changes in land-use patterns.
4.2. The IPCC evaluates risks, adaptation and vulnerability

The Intergovernmental Panel on Climate Change (IPCC) Working
Group IIs (WG II) Report, entitled Climate Change 2014: Impacts,
18 19 20 21 22
Ibid. at 23. Ibid. at 3. Ibid. at 29. Ibid. at 1. Ibid. at 4.
23 24
Ibid. at 4. Ibid. at 5.
ipcc evaluates risks, adaptation and vulnerability 161
Adaptation and Vulnerability,25 has evaluated the risks of climate change
for human and natural systems and the ways that these can be managed
through adaptation and mitigation.26 This Report builds on the IPCCs
Fourth Assessment Report and the SREX Report, already discussed
elsewhere in this book. The Report addresses: Observed Impacts, Vul-
nerability, and Adaptation in a Complex and Changing World, as well as
Future Risk and Opportunities for Adaptation. The Observed Impacts
are incorporated in the discussion of climate science in Chapter 1. Here,
the focus is on adaptation and vulnerability.
Unsurprisingly, the IPCC makes the point that adaptation and mitiga-
tion are intrinsically interwoven because mitigation increases the time
available for adaptation potentially by several decades. Delaying mitiga-
tion actions reduces options for climate resilient pathways in the future.27
The IPCC acknowledges that the risks of climate change lie also at the
intersection between climate hazards (both natural variability and
anthropogenic climate change), vulnerability and exposure.28
4.2.1. Differential risks from climate change

Like the HDR 2014 Report, the IPCC acknowledges with very high
condence that non-climate differences in vulnerability and exposure,
as well as multi-dimensional inequalities associated with uneven devel-
opment processes, determine differential risks from climate change.
Marginalised people are especially vulnerable to climate change which
is rarely caused by a single factor. Rather, intersecting social and eco-
nomic inequalities exacerbate vulnerability and exposure.29 Meanwhile,
violent conict increases vulnerability to climate change.30 Global eco-
nomic impacts from climate change are difcult to determine as esti-
mates over the past two decades have not factored in the risks of
catastrophic changes, tipping points, and other factors such as the loss
of human lives and ecosystem services. However, even accepting these
limitations, the IPCC estimates that the losses for a rise in global
25
Climate Change 2014: Impacts, Adaptation and Vulnerability: Summary for Policymakers
(IPCC Working Group II: 2014) available at http://ipcc-wg2.gov/AR5/images/uploads/
WG2AR5_SPM_FINAL.pdf (accessed 16 July 2014).
26
The Report also incorporates a wider interdisciplinary literature review including scien-
tic, technical and socio-economic literature, while also covering a broader range of
topics and sectors. Human systems, adaptation and the ocean are given greater attention
than in the past; see IPCC ibid. at 3.
27 28 29 30
temperature below 2C are between 0.22 per cent of income (medium
evidence, medium agreement), but these are likely to be larger rather than
smaller, and there are large differences between countries (limited evi-
dence, high agreement). Also, livelihoods, especially for those living in
poverty, are negatively impacted by climate-related hazards because of
crop yield reduction, the destruction of homes and food price rises and
food insecurity.31 Surprisingly, given this evidence, the IPCC notes that
there is a signicant lack of preparedness associated with these impacts at
all levels of development.32 Others suggest that at present the balance
between ex ante and ex post interventions is tilted heavily in favour of ex
post interventions with about 95 per cent of funds being spent here.33
However, the IPCC conrms that other institutions such as insurance
programs, social security and disaster risk management may improve
resilience among poor and marginalised people where policies address
poverty and multi-dimensional inequalities.34
4.2.2. Current adaptation experience

The IPCC reports with high condence that adaptation is becoming
embedded in some planning processes, while adaptation experience is
also accumulating in the public, private and community sectors, with
governments beginning to develop adaptation plans and policies while
integrating climate change considerations into broader development
plans.35 Commonly implemented responses tend to be engineered or
hard technological responses, although social, institutional and soft
ecosystem-based responses are beginning to emerge (medium evidence,
medium agreement). Hard options include the construction of ood
protection infrastructure such as sea walls and dikes, and the climate
proong of essential infrastructure. However, very powerful storms are
likely to overwhelm such measures and even if they may be justied in
some selected places of high value and population density, such as cities,
the costs have to be weighed against the damage.36 Soft strategies have
also been regarded as cost-effective, no-regrets options37 and include: the
adoption of appropriate spatial land use planning laws and building
31 32
33
Stefan Hochrainer and Reinhard Mechler, Natural disaster risk in Asian megacities:
A case for risk pooling? (2011) 28 Cities 53 at 54.
34 35 36 37
IPCC, see Note 25 at 20. Ibid. at 8. Ibid. at 8. Ibid. at 24.
codes; and ecosystem protection and restoration.38 Mangroves, in par-
ticular, can be used for ood control, protection against strong winds and
cyclones and shore stabilisation as well as sea level rise.39
Experience with transformational adaptation

As discussed earlier, Pelling has proposed that adaptation response might
go beyond mere resilience to being truly transformational. In this regard
there are two recent examples of adaptation which the author regards as
transformational. These include the move towards soft or green infra-
structure adaptation policies, as well as the idea of land swaps, planned
retreat and relocation, which is gaining ground in some jurisdictions
especially following a climate disaster. The idea that land should simply
be sterilised from conventional development processes is what Gunder-
son and Arnold might regard as adaptive law in the way that it disrupts,
quite fundamentally, the property law notion of available land being used
for ever-increasing development. The notion of adaptive law is dis-
cussed later in this chapter.
Green infrastructure With regard to soft strategies, in December

2013, the European Union (EU) Parliament adopted a Resolution on
Green Infrastructure (GI) Enhancing Europes Natural Capital40
following a European Commission Communication on the issue,41 which
might be regarded as transformational. The Green Infrastructure Strategy
(the Strategy), which might be adopted by other jurisdictions, encourages
the adoption of green infrastructure and ensures that the enhancement of
natural processes becomes a systematic part of spatial planning. For
example, instead of building ood protection infrastructure, a green
infrastructure solution would be to allow a natural wetland to absorb
the excess water from heavy rain. Green infrastructure is regarded as
38
Ibid. at 25.
39
R. Parthasarathy and Soumini Raja, Values of the Mangrove Ecosystem of Gujarat, India
and its Socioeconomic Implications in Rajib Shaw and Phong Tran (eds), Environment
Disaster Linkages (West Yorkshire: Emerald Insight, 2012) at 241. For an extensive
discussion of the role of ecosystems in preventing climate disasters, see Robert Verchick,
Facing Catastrophe: Environmental Action for Post-Katrina World (Cambridge MA:
Harvard University Press, 2010), Chapter 1 Natural Infrastructure.
40
Available at www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-
TA-20130600+0+DOC+XML+V0//EN&language=EN (accessed 8 September 2014).
41
Available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52013DC0249
(accessed 8 September 2014).
providing environmental, social and economic benets while being
cheaper and more durable than conventional civil engineering responses.
The Strategy focuses on the following aspects:
Promoting green infrastructure in the main policy areas such as agri-

culture, forestry, nature, water, marine and sheries, regional and
cohesion policy, climate change mitigation and adaptation, transport,
energy, disaster prevention and land use policies. The Commission is
expected to develop Guidance documents for integrating GI into all of
these policy areas from 2014 to 2020.
Strengthening the knowledge base through improving research and
data, and promoting innovative technologies to support green
infrastructure.
Improving access to nance for green infrastructure projects the
Commission committed to setting up an EU nancing facility by
2014 together with the European Investment Bank to support green
infrastructure projects.
Supporting EU-level green infrastructure projects the Commission
will carry out a study to assess the opportunities for developing an
EU-wide network of green infrastructure by the end of 2015.42
The Strategy is regarded by the EU as a key step in implementing its EU
2020 Biodiversity Strategy43and specically Target 2, which requires that
by 2020, ecosystems and their services are maintained and enhanced by
establishing green infrastructure and restoring at least 15% of degraded
ecosystems.
Land swaps, planned retreat and relocation Soft climate change

adaptation approaches include land use and planning; building codes;
and even land swaps, planned retreat and relocation where circumstances
demand. The EU refers to land swaps as transformational adaptation,
required where the risks are so great that incremental adaptation meas-
ures may be inadequate. In such cases it may be necessary to transform
places or shift activities to new locations including: the retreat and
relocation of communities and infrastructure due to unacceptable risks
of ooding or coastal erosion; and the relocation of agriculture and
42
See http://europa.eu/rapid/press-release_IP-13404_en.htm (accessed 8 September 2014).
43
See http://ec.europa.eu/environment/nature/biodiversity/comm2006/2020.htm (accessed
6 January 2015).
industry to areas where there is better water availability, or replacing
those practices with less water-intensive activities.44
Indeed, retreat may be the only option when places cannot be
defended and governments may decide to abandon key infrastructure
and areas prone to ooding. This would represent one of the largest
losses of value in land and infrastructure and the largest transfer of
economic wealth in human history but may be the best option where
large-scale investments in disaster mitigation prove prohibitive.45 Land
use rules could then be developed to encourage open space and agricul-
ture which can withstand occasional storms. Following the catastrophic
201011 oods in Queensland, Australia, it was suggested by the Queens-
land Floods Commission of Inquiry that one option for government
could be compulsory acquisition, albeit with consequences for constitu-
tionally protected or common law property rights. Governments might
also establish buy-back programs where property is willingly sold, for
example, as part of a broader ood-plain management plan or on an ad
hoc basis. These schemes are expensive to administer and so tend to
occur only in very high risk areas and only where other ood risk
mitigation measures are insufcient to protect life. Land could be used
for nature conservation and recreational areas.46
4.2.3. The decision-making context

The IPCC states that, given the continuing uncertainties about the
severity and timing of climate change impacts and the limits of adapta-
tion, an iterative risk management decision-making framework47 is
useful. Here, there should be an assessment of the widest possible range
of potential impacts, including low probability, high consequence events,
and a range of complex adaptation responses should be applied coupled
with monitoring and learning.48 An iterative process is necessary
because, as the IPCC notes with high condence, the uncertainties about
future vulnerability and exposure are large. This is because of the various
interacting social, economic and cultural factors which, as discussed in
44
Ibid. at 99.
45
See Sean Hecht, Insurance, in Michael B. Gerrard and Katrina Fischer Kuh (eds), The
Law of Adaptation to Climate Change (New York: American Bar Association, 2012) 511
at 518.
46
See 2012 Queensland Floods Commission of Inquiry Final Report available at www.ood
commission.qld.gov.au/publications/nal-report (accessed 21 January 21, 2015) at 272.
47 48
IPCC, see Note 25, Figure SPM.3 at 9. Ibid. at 9.
Chapter 3, intersect with the risk of extreme weather events and slow
onset disasters, and yet which have been incompletely considered to date.
These factors include wealth distribution across society, demographics,
migration, access to technology and information, patterns of employ-
ment, the quality of adaptation responses, societal values, governance
structures, and conict resolution structures.49
4.2.4. Future risks and opportunities for adaptation

The IPCC has identied the key climate change risks where hazards are
high and the societies and systems exposed are highly vulnerable. Key
risks emerge when the following factors are considered: the large magni-
tude, high probability or irreversibility of events; timing of impacts;
persistent vulnerability or exposure contributing to risks; or limited
potential for risk reduction through adaptation or mitigation.50 Five
reasons for concern (RFCs) are subsequently identied given the add-
itional level of risk due to climate change: RFC 1 unique and threatened
species; RFC 2 extreme weather events; RFC 3 distribution of
impacts; RFC 4 global aggregate impact; and RFC 5 large-scale
singular events.
Consistently with the evidence already presented in this book, the
IPCC identies the following key risks with a high level of condence,
all of which span sectors and regions and contribute to one or more RFC:
Risk of death, injury, ill-health, or disrupted livelihoods in low-lying

coastal areas and Small Island Developing States due to storm surges,
coastal ooding and sea level rise (RFC 15). The relative costs of
adaptation vary among regions and countries but low-lying developing
countries and small island states are expected to have very high impacts
which could cost several percentage of GDP51
Risk of severe ill-health and disrupted livelihoods for large urban
populations from ooding in some regions; loss of rural livelihoods
and income through reduced water resources and agricultural product-
ivity; and mortality or morbidity during periods of extreme heat
especially for vulnerable urban populations (RFC 2 and 3)
Systemic risks from extreme weather events with consequent infra-
structure network and critical services, such as electricity failure as well
as ooding, drought, warming, precipitation variability and extremes
49 50 51
creating risk of food insecurity and food systems breakdown especially
for poorer populations in urban or rural areas (RFC 24).
Risk of loss of marine and coastal ecosystems, biodiversity and ecosys-
tem services especially for shing communities in the tropics and the
Arctic (RFC 1, 2 and 4).
Risk of loss of terrestrial and inland water ecosystems, biodiversity and
ecosystem services (RFC 1, 3 and 4).
According to the IPCC, increasing magnitudes of warming enhance the
likelihood of severe, pervasive and irreversible impacts.52 Limiting the
rate and magnitude of climate change can reduce the overall impacts of
climate change as well as the scale of adaptation that might be required.53
The IPCC also provides a detailed analysis of regional key risks and the
potential of adaptation to minimise those risks.54
4.2.5. Managing future risks and building resilience55

The IPCC provides a number of effective adaptation principles and states
that adaptation is place- and context-specic, and effective risk reduction
and adaptation strategies should consider the linkages between vulnerabil-
ity and exposure and socio-economic processes, sustainable development
and climate change.56 With high condence, the IPCC considers that
adaptation planning and implementation should occur across all levels,
from individuals to governments. There is robust evidence and high
agreement to suggest that national governments should coordinate the
adaptation activities of local and subnational governments, by providing
policy and legal frameworks and nancial support. Meanwhile, medium
evidence and high agreement point to the important roles to be played by
both local government and the private sector in enhancing the adaptation
capacity of civil society and managing risk information and nancing.57
With high condence the IPCC states that vulnerability and exposure to
current climate variability must be reduced as a rst step towards adapting
to future climate change. For example, the integration of adaptation into
planning and decision-making promotes synergies with development and
disaster risk reduction.58 Societal values and risk perception provide the
context for adaptation and planning at all levels of governance (high
52 53 54
Ibid. at 14. Ibid. at 14. Ibid. Assessment Box SPM.2 Table 1 at 21.
55
For a comprehensive categorisation of solutions, see Table SPM. 1, ibid.
56 57 58
Ibid. at 25. Ibid. Ibid. at 26.
condence). For example, Indigenous, local and traditional knowledge
systems are a major resource for adapting to climate change.59 Adaptation
can be fostered using existing and emerging economic instruments, such as
publicprivate partnerships, loans, payments for environmental services,
improved resource pricing, charges and subsidies, norms and regulations,
and risk sharing and risk transfer mechanisms. As discussed in Chapters 5
and 6, the latter, which can increase resilience, include insurance and risk
pools as long as they do not provide disincentives, cause market failure and
decrease equity. Government plays a key role as regulator, provider or
insurer of last resort (medium condence).60
4.2.6. Barriers to adaptation

The IPCC identies a number of constraints which can impede adapta-
tion planning and implementation. These include where: nancial and
human resources are limited; governance is not properly integrated or
coordinated; projected impacts are uncertain; perceptions of risk differ;
values compete; key adaptation leaders and advocates are absent; limited
tools exist to monitor the effectiveness of adaptation strategies; and there
is insufcient research, monitoring and observation.61 In its 2013 report
Adaptation in Europe: Addressing the risks and opportunities from climate
change in the context of socio-economic developments,62 the European
Environment Agency (EEA) adds to these constraints by highlighting the
following aspects:
Market failures for example, where there is insufcient information

about climate change risks such that well-informed adaptation deci-
sions are not taken. Moral hazards can lead individuals to build homes
in a ood plain condent that the government will engage in recovery
and reconstruction activities.
Regulatory barriers for example, where building regulations and the
planning systems are not properly integrated to provide a coherent
adaptation response to new or existing developments.
Governance and institutional barriers for example, where the legal
liability of levels of government to make land-use planning decisions is
uncertain in which case local government might defer decisions as a
result.
59 60 61
Ibid. Ibid. Ibid. at 28.
62
Available at www.eea.europa.eu/publications/adaptation-in-europe (accessed 27
August 2014).
multi-level governance approaches to adaptation 169
Behavioural barriers for example, where individuals have difculty

weighing up the costs and benets of adaptive actions which they
might take because of uncertainty about the impacts of climate change
and the long timeframes involved. This might result in them deferring
adaptation decisions.
Limited scientic knowledge and uncertainty which is a barrier to
political commitment especially where it is difcult to downscale
climate change risks to local, regional and national jurisdictions.
The lack of long-term planning strategies, coordination and the use of
management tools for example, the failure to consider the conse-
quences of climate change for water resources at a river basin scale.63
Insurance as an adaptation instrument

The EU has identied market failure as a barrier to climate change
adaptation. There is a view that insurance is not limited to playing a
compensatory role and should be regarded as a mechanism for providing
price signals and risk communication, that would inuence individuals,
governments and businesses to reduce their vulnerability through loss
prevention or mitigation.64 The role of insurance as a compensatory
mechanism will be discussed comprehensively in Chapters 5 and 6.
Sufce it to say, that insurance can enhance resilience by inuencing
land use and development decisions, and encouraging investments in
sustainable energy, water and other resource management.65 If insurance
is appropriately priced, it can motivate the taking of appropriate steps to
avoid losses.66 Conversely, insurance could create a moral hazard prob-
lem as people may avoid reducing their risk if insurance will compensate
for any losses.67 However the EU, for example, specically acknowledges
insurance as one of the tools for DRM, especially for assisting with risk
identication, risk modelling, risk transfer and recovery.68
4.3. Multi-level governance approaches to adaptation

The IPCC and the EEA have both identied the lack of integrated and
coordinated governance as a barrier to effective adaptation. Conse-
quently, it is instructive at this point to consider the EEAs approach to
63 64 65 66
Ibid. at 101. Hecht, see Note 45 at 515. Ibid. Ibid.
67
Ibid. at 516.
68
See European Unions Green Paper on the insurance of natural and man-made disasters
available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013DC
0213&from=EN (accessed 11 January 2015) at 6.
regional multi-level governance for mainstreaming adaptation, given that
it is a very recent, well-funded and evidence-based initiative. Compre-
hensive multi-level and multi-agency examples of adaptation governance
have also emerged recently in the United States under the political
leadership of President Obama. In considering the importance of gov-
ernance arrangements for adaptation it is important to remember the
important role which courts also play in the climate change adaptation
space. Courts are called upon to interpret the adaptation provisions, or
lack thereof, in environmental planning legislation as well as agency
action in that regard, and might also be required to determine whether
agency adaptation actions are unconstitutional and an infringement of
property rights.
The denition of governance adopted by the EEA is non-hierarchical
forms of policy-making, involving public authorities as well as private
actors, who operate at different territorial levels and who realise their
interdependence.69 A key characteristic of successful adaptation policy is
multi-level governance which relates to the vertical governance relation-
ships from the local level through to regional, national and EU levels.
With regard to the responsibilities of the various levels of government,
each plays a unique role in respect of adaptation responses. Local gov-
ernment is well-placed to implement concrete adaptation responses.
Regional governments play an important role when adaptation issues
cross municipal boundaries and spatial planning for adaptation needs to
be undertaken. Some countries have even created pan-regional adapta-
tion networks.
National governments are particularly important in mainstreaming
adaptation into national policies as well as providing background infor-
mation to stakeholders regarding regional climate data, climate change
scenarios and decision-support tools. Most important is the capacity of
national governments to develop national adaptation strategies as a
stimulus for national and coherent climate-proong legislation (such
as mainstreaming and climate nance). National governments are also
well-placed to address the issues of equity and fairness which result from
climate change impacts and ensure that regional differences in vulner-
ability, particularly in regional hotspots, are addressed.70
According to the EEA, the key pillars of multi-level governance are:
policy coherence; territorial governance and spatial planning for policy
69 70
integration; capacity-building at all levels of governance; securing access
to funding for adaptation; and developing the multi-level knowledge
base.71 There is also an important role for communication between
government authorities and public and private actors so as to build
institutional capacities across government levels. Accessibility to, and
the mobilisation of, funding to allow multi-level governance is crucial,
as is knowledge creation and dissemination. However, often local gov-
ernment, a key site for adaptation, does not have the best available
information, so an active dialogue between government and other actors,
including scientic institutions, is key.
The EEA acknowledges the instrumental role which stakeholder
involvement plays as part of multi-level governance of which there are
three levels for inclusion: information sharing, consultation and partici-
pation. For a successful stakeholder process the following steps must
be taken: the identication of target groups (public, private, research,
business and environmental NGOs, the education community and citi-
zens groups); the development of an engagement strategy; and ensuring
the long-term engagement of stakeholders, including by identifying a key
contact person as the focal point for communication.72 This will be
discussed in more detail in Chapter 7.
The EEA proposes four approaches to mainstreaming adaptation.73
These include: the enactment of specic climate change adaptation
71 72
73
The EUs response to climate change adaptation is extensive, providing general and
special sectoral strategies and guidance as well as an impressive funding package which
are not all discussed in this chapter. In April 2013, the European Commission adopted its
principle policy response the 2013 EU Strategy on Adaptation to Climate Change
available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52013DC0216
(accessed 2 September 2014). An important feature of the EUs Adaptation Strategy is
that it is supported by the 2013 Monitoring Mechanism Regulation (Regulation (EU) No
525/2013 of the European Parliament and of the Council of 21 May 2013 on a mechanism
for monitoring and reporting greenhouse gas emissions and for reporting other information
at national and Union level relevant to climate change and repealing Decision No 280/
2004/EC) available at http://rod.eionet.europa.eu/instruments/652 (accessed 2 September
2014) which requires Member States to report every four years on their national adapta-
tion planning and strategies. This Strategy must be read together with Climate change
adaptation, coastal and marine issues available at http://ec.europa.eu/clima/policies/adap
tation/what/docs/swd_2013_133_en.pdf (accessed 9 September 2014); Adapting infra-
structure to climate change available at http://ec.europa.eu/clima/policies/adaptation/
what/docs/swd_2013_137_en.pdf (accessed 9 September 2014); Adaptation to climate
change impacts on human, animal and plant health available at http://ec.europa.eu/
clima/policies/adaptation/what/docs/swd_2013_136_en.pdf (accessed 9 September
2014); and Climate change, environmental degradation, and migration available at
legislation; the enactment of sector-specic74 legislation for each adapta-
tion policy area; the adoption of national strategies, economic incentives,
and capacity building; and, nally, stand-alone individual sectoral strat-
egies. Many of these elements could be combined. The United Kingdom,
for example, has enacted the Climate Change Act 200875 which requires
the undertaking of a statutory UK-wide Climate Change Risk Assessment
(CCRA) every ve years. Certain utilities, such as energy and water, must
also report on the actions they have taken to address the risks of climate
change to their operations. A special Adaptation Sub-Committee76 of the
independent Climate Change Committee is established to support the
implementation of the Act.
4.3.1. The United States: a case study in multi-agency adaptation

governance
A good example of multi-level governance in terms of policy coherence
and integration is the Executive Action taken by United States President
Obama, who has taken a lead role in requiring government agencies to
undertake climate adaptation policy planning. President Obamas rst
Executive Order was for federal leadership in environmental, energy and
economic performance.77 While this Order dealt primarily with green-
house gas emissions reduction actions, section 8(i) required each admin-
istrative agency to prepare: an Agency Strategic Sustainability Performance
http://ec.europa.eu/clima/policies/adaptation/what/docs/swd_2013_138_en.pdf (accessed
9 September 2014).
74
The sectors most commonly dened in the EU include: water management and water
resources; forests and forestry; agriculture; biodiversity and ecosystems and human
health. However, infrastructure, spatial and coastal planning and tourism are also identi-
ed while the economy is conspicuously absent; ibid. at 74.
75
Available at www.legislation.gov.uk/ukpga/2008/27 (accessed 2 September 2014).
76
See www.theccc.org.uk/about/structure-and-governance/asc-members/ (accessed 2 Sep-
tember 2014). The Adaptation Sub-Committee sets the UKs direction on adaptation,
including independent advice on preparing for climate change. It comprises experts from
the elds of climate change, science and economics and is chaired by Lord Krebs, who is
currently the Principal of Jesus College, Oxford University. Other Committee members
include Professors from the London School of Economics, University College London,
Imperial College and a representative from the NGO sector. Committee members have a
legal duty to act impartially and objectively, and to avoid any conict of interest arising as
a result of their membership of, or association with, other organisations or individuals.
77
Federal Leadership in Environmental, Energy, and Economic Performance, (Executive
Order 13514 of 5 October 2009) (greenhouse gas emissions reduction in Federal agencies)
available at www.whitehouse.gov/assets/documents/2009fedleader_eo_rel.pdf (accessed
16 October 2014)
Plan, which evaluates agency climate change risks and vulnerabilities to
manage the effects of climate change on its operations and mission in
both the short and long term; and an Agency Climate Change Adapta-
tion Policy. The Chair of the Council on Environmental Quality was
given the responsibility to issue implementing instructions in this regard
which have now been published.78 Agency climate adaptation plans have
now been developed,79 and arising from the plans the Adaptation Science
Interagency Working Group has identied the research and information
needs of each agency in implementing the plans.80
78
See Federal Agency Climate Change Adaptation Planning: Implementing Instructions,
4 March 2011 available at www.whitehouse.gov/sites/default/les/microsites/ceq/adapta
tion_nal_implementing_instructions_3_3.pdf (accessed 16 October 2014).
79
See, for example, FEMA Climate Change Adaptation Policy Statement (23 January 2012)
available at www.fema.gov/media-library/assets/documents/33082 (accessed 16 October
2014), United States Army Corps of Engineers 2012 Climate Change Adaptation Plan and
Report (June 2012) available at www.corpsclimate.us/docs/2012_USACE_Adaptation_
Plan_and_Report_23_June_2012%20nal.pdf (accessed 16 October 2014), US Depart-
ment of Agriculture Climate Change Adaptation Plan available at www.usda.gov/oce/
climate_change/adaptation/adaptation_plan.htm (accessed 16 October 2014), Depart-
ment of Defence Climate Adaptation Roadmap (13 October 2014) available at www.cfr.
org/climate-change/department-defense-climate-change-adaptation-roadmap-2014/
p33607 (accessed 16 October 2014), Department of Homeland Security Climate Change
Adaptation Roadmap (June 2012) available at www.dhs.gov/sites/default/les/publica
tions/Appendix%20A%20DHS%20FY2012%20Climate%20Change%20Adaptation%
20Plan_0.pdf (accessed 16 October 2014), US Environmental Protection Agency Policy
Statement on Climate Change Adaptation (June 2014) available at www.epa.gov/climate
change/Downloads/impacts-adaptation/adaptation-statement-2014.pdf (accessed 16 Octo-
ber 2014), US Energy Sector Vulnerabilities to Climate Change and Extreme Weather (US
Department of Energy: July 2013) available at http://energy.gov/downloads/us-energy-
sector-vulnerabilities-climate-change-and-extreme-weather (accessed 16 October 2014),
the National Fish, Wildlife and Plants Climate Adaptation Strategy (National Fish, Wildlife,
and Plants Climate Adaptation Partnership: 2012) available at www.wildlifeadaptationstrat
egy.gov/ (accessed 7 October 2015), 2013 National Ocean Policy Implementation
Plan. With regard to oceans, following the Deepwater Horizon disaster President Obama
issued Executive Order 13547, Stewardship of the Ocean, Our Coasts, and the Great Lakes,
and established the Interagency Ocean Policy Task Force. Based on the Task Forces
recommendation the President adopted the National Policy for the Stewardship of the
Ocean, Our Coasts, and the Great Lakes. The National Ocean Council, also established
by Executive Order, has subsequently developed the 2013 National Ocean Policy Imple-
mentation Plan available at www.whitehouse.gov/administration/eop/oceans/implementa
tionplan (accessed 17 October 2014), which incorporates adaptation to climate change
impacts such as storms and sea level rise.
80
See FY 2013 Federal Agency Climate Adaptation Plans: Summary of Research and Infor-
mation Needs (Adaptation Science Interagency Working Group: August 2013).
On 1 November 2013, President Obama published an Executive Order
entitled Preparing the United States for the Impacts of Climate Change.81
In a statement of Policy, the President itemised the climate change
impacts which are already affecting human and non-human commu-
nities, natural resources, ecosystems, economies, and public health across
the US. He acknowledged that managing these risks requires deliberate
preparation, close cooperation, and coordinated planning by the Federal
government in cooperation with a wide range of government, private
sector and NGO stakeholders. The President committed the Federal
government to continuing support for the scientic research, observa-
tional capabilities, and assessments needed to improve understanding of,
and responses to, climate change. He also ordered government agencies
to promote: strong interagency partnerships and information-sharing;
risk-informed decision-making; adaptive learning; and preparedness
planning.
Multi-level governance for climate change preparedness and

resilience
In 2009, President Obama established the Interagency Climate Change
Adaptation Task Force, which was a joint project of the Council on
Environmental Quality, the Ofce of Science and Technology Policy
and the National Oceanic and Atmospheric Administration (NOAA).
This Task Force was replaced in 2013 under the Presidents Executive
Order by the Council on Climate Preparedness and Resilience (CCPR),
and the State, Local, and Tribal Leaders Task Force on Climate Prepared-
ness and Resilience was established.82 The Council is co-chaired by the
Chair of the Council on Environmental Quality (CEQ), the Director of
Ofce of Science and Technology Policy, and the Assistant to the Presi-
dent for Homeland Security and Counterterrorism. At least thirty gov-
ernment agencies will sit on the Council to ensure an integrated Federal
strategy to deal with climate change.
The task of the CCPR is to work across agencies and ofces, and in
partnership with State, local, and tribal governments (including the
81
Executive Order 13563 available at www.whitehouse.gov/the-press-ofce/2013/11/01/
executive-order-preparing-united-states-impacts-climate-change (accessed 16 Octo-
ber 2014).
82
See also Disaster Resilience: A National Imperative (Committee on Increasing National
Resilience to Hazards and Disasters; Committee on Science, Engineering, and Public
Policy; The National Academies: 2012) available at www.nap.edu/catalog.php?recor
d_id=13457 (accessed 17 October 2014).
Tribal Leaders Task Force), academic and research institutions, and the
private and non-prot sectors, to: develop, recommend, coordinate inter-
agency efforts on, and track implementation of, priority Federal govern-
ment actions related to climate preparedness and resilience; support
regional, State, local and tribal action to assess climate change vulner-
abilities, and increase climate preparedness and resilience of commu-
nities, critical economic sectors, natural and built infrastructure, and
natural resources; facilitate the integration of climate science in policies
and planning of government agencies and the private sector; and imple-
ment the recommendations of the Task Force.
All Federal government agencies are ordered to: remove barriers that
discourage investments in building climate change resilience while ensur-
ing continued protection of public health and the environment; reform
Federal policies and funding programs that may increase the vulnerabil-
ity of natural or built systems, economic sectors, natural resources, or
communities; identify opportunities for climate-resilient investments by
government, local communities and tribes, including in the context of
infrastructure development; and report on their progress in achieving all
of this.
The heads of all government agencies on the CCPR were ordered to
work with the Chair of CEQ and the Director of the Ofce of Manage-
ment and Budget (OMB) to complete an inventory and assessment of the
necessary changes to their land and water policies, programs and regula-
tions, so as to build resilience in the USs watersheds, natural resources
and ecosystems, and the communities and economies that depend on
them, by August 2014. In doing so, the potential of the USs ecosystems
to promote climate resilience and carbon sequestration should be recog-
nised. In October 2014, the Council on Environmental Quality released
its Priority Agenda Enhancing the Climate Resilience of Americas Natural
Resources.83
Agencies were also ordered to develop comprehensive plans that
integrate considerations of climate change into agency operations and
overall mission objectives. Agencies are required to report on progress
83
Available at www.whitehouse.gov/sites/default/les/docs/enhancing_climate_resilience_o
f_americas_natural_resources.pdf (accessed 16 October 2014). The Agenda has four main
components: fostering climate-resilient lands and water; managing and enhancing carbon
sinks; enhancing community preparedness and resilience by utilising and sustaining
natural resources; and modernising Federal programmes, investments, and delivery to
services to build resilience and enhance sequestration of biological carbon.
with their evolving Adaptation Plans, as well as any updates made
through the annual Strategic Sustainability Performance Plan process.
As part of the open data policy, Federal agencies are ordered to work
together to develop and provide authoritative, easily accessible, usable,
and timely data, information and decision-support tools on climate
preparedness and resilience. A web-based portal must be established to
allow agencies to share and coordinate their climate decision-making
data and tools. Here, agencies must describe how they are considering
improving climate adaptation and resilience with respect to agency
suppliers, supply chains, real property investments and capital equip-
ment purchases.
Interagency climate preparedness and resilience strategies for fresh-

water resources In 2010, the former Interagency Climate Change
Adaptation Task Force released the Progress Report of the Interagency
Climate Change Adaptation Task Force: Recommended Action in Support
of a National Climate Change Adaptation Strategy84 as well as a follow-
up report in 2011, Federal Actions for a Climate Resilient Nation85 both
of which were precursors to the Presidents 2013 Executive Order on
Climate Preparedness.
In 2011, the Interagency Climate Change Adaptation Task Force also
adopted the 2011 National Action Plan: Priorities for Managing Fresh-
water Resources in a Changing Climate,86 developed for the Task Force
by an Inter-agency Water Resources and Climate Change Adaptation
Work Group. The Work Group is made up of representatives from
Federal agencies involved in water resources management and co-chaired
by the Department of Interior, the Environmental Protection Agency
(EPA) and the CEQ. The National Action Plan was followed by the 2013
Implementation Plan for National Action Plan: Priorities for Managing
Freshwater Resources in a Changing Climate. The six key recommenda-
tions of the Implementation Plan are to: Establish a Planning Process;
84
Available at www.whitehouse.gov/sites/default/les/microsites/ceq/Interagency-Climate-
Change-Adaptation-Progress-Report.pdf (accessed 17 October 2014).
85
Available at www.whitehouse.gov/sites/default/les/microsites/ceq/2011_adaptation_pro
gress_report.pdf (accessed 17 October 2014).
86
Available at www.whitehouse.gov/sites/default/les/microsites/ceq/2011_national_ac
tion_plan.pdf (accessed 17 October 2014). See also the 2013 Implementation Plan for
National Action Plan: Priorities for Managing Freshwater Resources in a Changing
Climate available at http://acwi.gov/climate_wkg/nap_2013_implementation_plan_nal.
pdf (accessed 17 October 2014).
climate adaptation law: what kind of law? 177
Improve Water Resources and Climate Data; Strengthen Assessment of
Vulnerability; Improve Water Use Efciency; Support Integrated Water
Resources Management; and Educate Water Resource Managers and
Build Capacity including by establishing a core training program on
climate change science and engaging the youth, colleges and graduate
fellows in water management and climate change.87
The Federal Interagency Floodplain Management (FIFM)

Task Force The Federal Interagency Floodplain Management (FIFM)
Task Force was authorised and established by Congress in 1975 to
prepare proposals for Congress for a Unied National Program for
Floodplain Management. Having last met in 1997, it was reconvened
by President Obama in 2009. The Task Force is located within the
Federal Emergency Management Agency (FEMA) and comprises a
number of government agencies, including the: Department of the Army
Corps of Engineers; Department of Homeland SecurityFederal Emer-
gency Management Agency; Department of Agriculture; Department of
Commerce; Department of Defense; Department of Energy; Department
of Housing and Urban Development; Department of the Interior;
Department of Transportation; Environmental Protection Agency;
General Services Administration; Tennessee Valley Authority; Council
on Environmental Quality (Advisor); and the Ofce of Management
and Budget (Advisor). In 2013, the Task Force released its Floodplain
Management Work Plan.88
4.4. Climate adaptation law: what kind of law?

So much for multi-level and multi-agency adaptation governance. A key
question which emerges in the context of Climate Disaster Law is
whether laws and legal systems can respond to resilience science by
becoming more adaptive to nonlinear change in complex, interconnected
systems.89 The law needs to be able to respond, for example, to the
interconnectedness between ecosystems and social systems. Hurricane
Katrina is cited as an instance where altered coastal ecosystems, failed
87
2013 Implementation Plan ibid. at 3.
88
Available at www.fema.gov/media-library/assets/documents/21832?id=4708 (accessed 17
October 2014).
89
See Craig Anthony (Tony) Arnold, Resilient Cities and Adaptive Law (2014) 50 Idaho
Law Review 245.
engineered levee systems, inadequate disaster planning and response
systems, ill-conceived land use planning and socio-economic and polit-
ical dynamics all converged to facilitate a disaster.90 The law needs to
respond to scientic notions of resilient systems which have a high level
of adaptive capacity. There should be sufcient exibility, redundancy
and learning capacity to adapt to surprises and disturbances without
collapsing or ipping into fundamentally different systems.91 Building
the adaptive capacity and consequent resilience of a system includes
ensuring that needed changes can be made incrementally and gradually,
as well as the capacity to resist change.92
With regard to adapting to surprises, the EU reminds one of adapta-
tion tipping points (ATPs) which require consideration of the question
how much climate change can we cope with and for how long will any
given responses be effective? ATPs might be caused by physical, eco-
logical, technical, economic, societal and political causes, but they sym-
bolise the situation when boundary conditions, that are technical,
economic, spatial or socially acceptable limits, are exceeded. At this point,
alternative adaptation measures will be needed.93 Within the ATP
approach, climate and socio-economic scenarios dene the moment when
an ATP might occur. The occurrence of an ATP earlier on might result
from a risk-averse, or pessimistic, approach, whereas a risk-tolerant
approach which is more optimistic might see the ATP being triggered
later. The time range between these two occurrences reects the uncer-
tainty and results in the rejection of any single climate change scenario and
prefers rather adaptive and resilient approaches which can be cost-
effective and avoid early maladaptation.94 The EUs FP7 MEDIATION
(Methodology for Effective Decision-making Impacts and Adaptation),95
which is available as a resource online, explores further how tipping points
shape decision-making and the factors which inuence decision-making.
For the law to meet these challenges, Arnold proposes the adoption of
a social-ecological resilience approach, which is the interdependent resili-
ence of linked social systems and natural systems or ecosystems.96 He
regards this as necessary due to the cross-scale and often nonlinear
transformative feedbacks among both multiple systems in society and
multiple systems in nature. With regard to urban resilience there are
90 91 92
93 94
European Environment Agency, see Note 73 at 81. Ibid. at 82.
95
Available at www.mediation-project.eu/platform/ (accessed 2 September 2014).
96
Arnold, see Note 89 at 248.
three specic implications of a social-ecological perspective. First is the
ability to adapt to disturbances and to self-organise when system change
or renewal is required so that cities become centres of learning, innov-
ation, renewable and adaptive governance. Secondly, resilience planning
needs to consider the overall health and functions of natural systems, in
accordance with biophilic design principles which contribute to the
physical and mental health of residents and the political health of
communities. Environmental justice in land use planning principles must
ensure fair and healthy land use, including equitable access to green
infrastructure, while resilience strategies must be attentive to the political
and psychological legitimacy of governance institutions, and vital
regional and local economies. Thirdly, social-ecological resilience strat-
egies must encompass systems at a broader scale beyond nite jurisdic-
tional boundaries, such as to catchments and regions.97
4.4.1. Adaptive law: the new paradigm

Arnold and Gunderson have proposed a new paradigm called adaptive
law, which replaces rigid features of the legal system that tend to ignore
interrelationships among social and ecological systems, emphasise up-
front prescriptive rules, and are ill-equipped to adapt to rapid, unex-
pected change.98 They claim that the US legal system, and many other
legal systems for that matter, is maladaptive to disturbances and changes
in complex, interconnected social-ecological systems in three respects:
The legal system seeks to impose and protect the stability of human
affairs, for example through the role of precedent in judicial decision-
making and the protection of long-established property rights.
Laws, such as those protecting endangered species and their habitats, or
water resources, assume stability which is at odds with current scien-
tic understandings of natural systems.
Legal processes are designed for up-front prescriptive and fragmented
decision-making with permits often granted by different authorities for
long time periods with little opportunity for adjustments over time to
cope with changing conditions and new knowledge.99
97
Ibid. at 24950.
98
Ibid. at 251, referring also to Craig Anthony (Tony) Arnold and Lance H. Gunderson,
Adaptive Law and Resilience (2013) 43 Environmental Law Reporter 10426.
99
Ibid. at 2512.
By contrast, adaptive law requires four features: a multiplicity of articu-
lated adaptive goals; a polycentric, multimodal and integrationist struc-
ture; adaptive methods based on standards, exibility, discretion and
regard for context; and iterative legal-pluralist processes with feedback
loops, learning and accountability. To expand, according to Arnold the
following features are intrinsic to adaptive law:
Adaptive goals adaptive law envisages the achievement of poly-

resilience or multiple forms of resilience in all interconnected
systems, including the economy, the political systems, culture, water-
sheds, forests and wetlands.100
Adaptive structure adaptive law does not concentrate power and
authority in a single area of government but is rather polycentric, diver-
sifying shock and facilitating adaptive innovation by spreading power and
authority among multiple centres. Polycentric systems make failure and
collapse less likely as problems are addressed at multiple scales.101 A loose
integration among multiple centres and scales of governance and the
adoption of multiple methods and instruments is achieved.
Adaptive methods an adaptive law system has a high tolerance for
uncertainty, uses context for developing standards and allows decision-
makers exibility, discretion and authority to respond to new situ-
ations, adapt to changing conditions and experiment with various
possible solutions, instead of imposing rigid rules and excessive limits
on action and authority.
Adaptive processes an adaptive law system recognises iterative pro-
cesses among multiple participants rather than linear decision-making
and implementation by a single authority. It mandates feedback loops
for monitoring and evaluating the effects of decisions and actions so
that lessons can be learnt and decisions altered, while accountability
mechanisms are utilised.
It is clear that these proposals for adaptive law are responsive to all of
the principles which social scientists have espoused with regard to adap-
tation. Similar themes include the interconnectedness of various systems,
the polycentricity of power relations, a high tolerance for uncertainty
demanding exibility, and the need for continuing stakeholder engage-
ment and learning. These principles reinforce also the need for a proced-
ural justice approach to Climate Justice and Disaster Law.
100 101
A role for the courts
In as much as it is highly desirable that legislation reect the need for
adaptive law it is very likely that most Environmental Law, including
environmental planning and assessment law and natural resources man-
agement law, will say nothing about climate change adaptation. Having
instituted a major policy review of climate adaptation, as has occurred in
the EU and the US it is to be hoped that legislation will be reformed to
incorporate the kind of principles which Arnold espouses. Recent experi-
ence suggests that courts have an important role to play in climate
adaptation law in three respects. First, attempts by government to engage
transformative adaptation strategies might bring it into conict with
property owners; secondly, litigants will refer matters to the court argu-
ing that developments should not be permitted without a full consider-
ation of the climate change threats to the development; thirdly,
particularly in the United States, government agencies might engage in
climate adaptation actions like beach replenishment to counter the effects
of beach erosion at which point affected residents might claim that their
property rights have been taken. The litigation in this area is growing
exponentially and cannot be adequately represented here.102 However, a
few interesting cases studies are offered to demonstrate the important
role of courts in climate change adaptation, and consequently disaster
risk reduction, litigation.
Allowing landowners to defend their properties from the sea In a

fascinating case, which occurred in the coastal town of Byron Bay in
northern New South Wales, Australia, the local council had decided that
rather than construct coastal protection works to save the million dollar
beach houses perched on the top of sand dunes, it would adopt a policy
of planned retreat. As mentioned earlier, planned retreat is regarded as a
transformative type of adaptation. This policy brought the council into
conict with the property owners and resulted in litigation in the NSW
Land and Environment Court in Vaughan v Byron Shire Council.103 The
102
A comprehensive database of climate change litigation in the United States and else-
where is collated by the Sabin Centre for Climate Change Law at Columbia Law School;
see http://web.law.columbia.edu/climate-change/resources/litigation-charts (accessed 1
March 2015).
103
[2009] NSWLEC 88 (29 May 2009) available at www.austlii.edu.au/cgi-bin/sinodisp/au/
cases/nsw/NSWLEC/2009/88.html?stem=0&synonyms=0&query=title(vaughan%20v%
20byron%20shire%20council%20) (accessed 1 March 2015).
Vaughans owned a beach front property on the Belongil spit, to the west
of the Byron Bay township. Rock protection measures are in place along
this section of the coastline, with some exceptions including the Vaughan
property. The Vaughan property was protected by interim geo-bag
protection works and sand nourishment behind the wall, constructed
by Byron Shire Council pursuant to a 2001 development consent which it
had granted itself (the 2001 Consent).The 2001 Consent contained con-
ditions requiring ongoing maintenance of these protection works. A sub-
plan of the Councils Disaster Emergency Plan listed Council as the
agency responsible for the repair and re-establishment of interim meas-
ures at the beach.
In May 2009, a major storm hit Byron Bay. The properties on Belongil
Beach currently protected by rock walls suffered little or no damage,
notwithstanding the ferocity of the storm. However, all unprotected
properties suffered damage. The failure of the interim protection works
on the Vaughans property became evident on Friday 22 May. On the
evenings of Sunday 24 May and Monday 25 May, the property suffered
considerable damage losing about twelve metres of frontage due to the
geo-bag wall being overtopped by waves. The Vaughans made direct
pleas to Council for assistance. The storm was still raging and the highest
king tide of the year was known to be commencing and continuing.
There was a real risk that a large part of the property would be lost to
the sea.
Council commenced proceedings on 26 May seeking an injunction to
restrain the Vaughans from constructing their own erosion protection
works on their land until such time as they had been given development
consent to do this under the planning legislation. The Council argued
that the 2001 Consent was not a basis for it being required to undertake
the protection works notwithstanding the maintenance obligation in the
2001 Consent. An interlocutory injunction was granted restraining the
Vaughans from undertaking works to protect their land.
On 1 February 2010, prior to the listed hearing dates and by way of a
negotiated agreement between Council and the Vaughans, the parties
approached the Court with consent orders which the Court agreed to
make. The orders, in substance, discharged the Councils injunction and
made a number of signicant declarations. These declarations were that:
the 2001 Consent was a valid consent which applied to the Vaughan
land and the Councils adjoining land, and approved interim beach
protection works;
the terms of the 2001 Consent obliged Council to monitor, maintain

and repair the interim beach protection works (including by sand
nourishment) in accordance with the development application report
prepared for Council in 2001; and
the Vaughans are entitled, but not obliged, to maintain and repair the
existing protective works, including restoring those works to the same
height and shape as prior to the May storm event.
The Court also made further orders requiring Council to maintain the
existing geobag revetment wall to the heights specied in the Councils
own development application report for as long as the 2001 Consent
subsists and, by no later than 5pm on 31 March 2010, to re-establish the
sand dune behind the existing geobag wall on its own adjoining land to
the height and shape of the dune prior to the May storms.
Following this litigation, the NSW government passed amendments to
the Coastal Protection Act 1979 (NSW). The legislation included provi-
sions requiring councils to review their coastal zone management plans
to include an emergency action subplan, which must deal with emer-
gency actions carried out during periods of beach erosion;104 to allow a
person to construct emergency coastal protection works for which
planning approval is not required, although the works must still be
authorised by a certicate from the local council or the Director
General.105 Furthermore, under the Local Government Act 1993 (NSW),
councils are permitted to levy an annual charge for permanent coastal
protection services on a parcel of rateable land that benets from the
services. These include Coastal Protection Works (CPWs) constructed by
or on behalf of the owner or occupier of the parcel of land or jointly by the
owner/occupier and a public authority or council. Charges may relate to
maintaining and repairing CPWs or managing the impact of the works.106
This is an excellent example to illustrate Arnold and Gundersons concern
that law prefers to protect existing property rights rather than allow
transformative climate adaptive strategies and law to intervene.
Public law litigation against development consents In recent times,

litigation challenging development consent in areas affected by climate
change has taken on a life of its own. Here, courts are required to
interpret the legislation to determine whether the consent authority is
104 105
Coastal Protection Act 1979 (NSW) s.55C(b). Ibid. s. 55P.
106
Local Government Act 1993 (NSW) s. 496B.
required to consider, or has given sufcient consideration to, climate
change adaptation. This is the nature of judicial review of administrative
decision making. It might also be the case that an appeal on the merits
against the development is permitted under the legislation. In this case,
an independent administrative tribunal can step into the shoes of the
consent authority and decide on the facts whether to allow the develop-
ment to proceed, including by having regard to climate change even if the
consent authority failed to do so. In most jurisdictions, it is very likely
that the legislation in question was enacted at a time when climate
change was not a concern of legislators. Consequently, there is no
guarantee the court or tribunal will be persuaded that climate change is
a relevant factor to be considered when granting development consent.
This makes the imperative of reforming existing legislation to include
adaptive provisions even more important.
The constitutionality of climate adaptation actions taken by govern-

ment agencies In Stop the Beach Nourishment, Inc v. Florida Depart-
ment of Environmental Protection,107 the US Supreme Court afrmed the
right of a government agency to undertake climate change adaptation
works. Here, the city of Destin and Walton County acquired permits
from the Florida Department of Environmental Protection to restore 6.9
miles of beach eroded by several hurricanes by adding approximately
seventy-ve feet of dry sand seaward of the mean high-water line.
A number of beachfront property owners bordering the beach nourish-
ment project claimed that various of their constitutionally protected
property rights had been taken without just compensation, including
the right to have their propertys contact with the water remain intact.
However, basing its decision on two core Florida property-law principles
relating to ownership of land between the high and low sea water marks,
the US Supreme Court denied that any property rights had been taken.
The variety of climate change litigation being brought before the
courts demonstrates the integral role which courts can play in the climate
adaptation governance framework.
4.5. Disaster risk reduction laws for climate disasters

In addition to establishing all of the necessary frameworks for climate
adaptation, the risk of climate disasters also impose on governments the
107
998 So. 2d 1102, afrmed.
disaster risk reduction laws for climate disasters 185
duty to engage in disaster risk reduction (DRR) and management which
entails the processes for designing, implementing, and evaluating strat-
egies, policies, and measures to improve understanding of disaster risk,
foster disaster risk reduction and transfer, and promote continuous
improvement in disaster preparedness, response, and recovery prac-
tices.108 The goal of disaster risk management (DRM) is to assist all
social institutions, including ofcial and non-governmental actors, to
anticipate sudden, calamitous events and to bring the optimal portfolio
of legal rules to bear when such events occur.109 In Chapter 3, the
principal international disaster instruments, the Hyogo and Sendai
Frameworks for disaster risk reduction110 were discussed.
4.5.1. The European Unions Disaster Risk Management Policy and

Resilience Agenda
An example of a comprehensive regional DRR strategy is the EUs
approach to enhancing resilience to disaster risk, especially cross-border
risks. It is part of the Europe 2020111 strategy for smart, sustainable and
inclusive growth. The EU regards investing in disaster risk prevention
and management as a strong driver of innovation, growth and job
creation, as well as opening new markets and business opportunities.
Current policy DRM achievements in the EU include the adoption of a
new Civil Protection Mechanism, discussed in Chapter 5, for the imple-
mentation of a cross-sectoral DRM policy. This strategy incorporates and
implements many of the key adaptation and DRR principles already
discussed in this chapter, including those for adaptive law. Key actions
to support the EU DRM framework, from which other countries might
learn, include:
108
W. Kip Viscusi and Richard J. Zeckhauser Addressing Catastrophic Risks: Disparate
Anatomies Require Tailored Therapies (Vanderbilt University Law School Law and
Economics Working Paper, 2011) at 3.
109
Ibid.
110
Hyogo Framework for Action 20052015: Building the Resilience of Nations and Com-
munities to Disaster (United Nations International Strategy for Disaster Reduction
(UNISDR): 2005) available at www.unisdr.org/les/1037_hyogoframeworkforactionengl
ish.pdf (accessed 21 January 2015) and Sendai Framework for Disaster Risk Reduction
2015-2013 available at http://www.preventionweb.net/les/resolutions/N1516716.pdf.
111
Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:2020:
FIN:EN:PDF (accessed 6 January 2015).
Risk assessment and analysis the EU has prepared its rst cross-
sectoral overview of risks in the EU taking into account the future
impacts of climate change and the need to adapt. Member States are
now required to produce multi-hazard national risk assessments by the
end of 2015, to be followed up by assessments of national risk manage-
ment capabilities and improved risk management planning
Encouraging learning and exchange of experience to improve govern-
ance, as recommended by the IPCCs iterative risk management
approach
Guidance for disaster prevention is already under preparation on cross-
cutting themes of governance, planning, data, risk communication and
information and technology
Working towards EU standards and protocols for recording disaster
losses
Mainstreaming of DRM to support resilient investments in transport
and energy, research and innovation, critical infrastructure protection,
environmental impact assessment, green infrastructure, integrated
coastal management, agriculture, food and nutrition security, water,
ood risk management, all discussed later in the chapter
The release in April 2014 of the Green Paper on the insurance of
natural and man-made disasters112 proposing the use of insurance as
a DRM tool
Strong synergies between the DRM framework and adaptation to
climate change
Funding for science and innovation through Horizon 2020 to improve
disaster resilience through monitoring, prevention, prediction, early
warning, awareness raising, climate change mitigation and adaptation,
crisis communication, and technology transfer
Addressing the cross-border impacts of disasters
113
Enhanced preparedness.
In Chapter 3, attention was drawn to the signicant shortfalls for disaster
risk reduction in international aid budgets to developing countries. The
EC conrms that DRM will be an integral part of all EU humanitarian
aid and development assistance building on 2009 EU Strategy on DRR in
112
Available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013DC
0213&from=EN (accessed 6 January 2015).
113
EUH at 6.
Developing Countries114 and the 2011 Implementation Plan115 as well as
the 2012 Communication on Resilience116 and the subsequent Action Plan
for Resilience in Crisis Prone Countries.117 On 5 June 2014, the European
Council118 welcomed the Commissions communication and conrmed
the commitment of the European Union and its Member States to play
an active and constructive role in the ongoing negotiations to develop the
post-2015 Hyogo Framework, now the Sendai Framework.119
4.5.2. Vietnams Law on Natural Disaster Prevention and Control 2013

Vietnams principal DRR instruments are the National Strategy for
Natural Disaster Prevention, Response and Mitigation to 2020 (Strategy
2020) and the Law on Natural Disaster Prevention and Control 2013
(LNDPC), which came into force on 1 May 2014. As such it provides a
very recent example of a comprehensive legislative approach to DRR.
The LNDPC will be analysed with regard to how it implements the key
Priorities for Action under the Hyogo Framework.120
Priority Action 1 Ensure that disaster risk reduction is a

national and a local priority with a strong institutional basis for
implementation
The scope of the LNDPC is comprehensive as it applies to Vietnamese
agencies, organisations, households and individuals, foreign organisa-
tions and individuals and international organisations that are residing
or operating or engaged in natural disaster prevention and control in
Vietnam.121 Natural disasters are dened as abnormal natural
114
Available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52009DC0084
(accessed 8 October 2014).
115
Available at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%206666%202011%
20INIT (accessed 8 October 2014).
116
Available at http://ec.europa.eu/echo/les/policies/resilience/com_2012_586_resilienc
e_en.pdf (accessed 8 October 2014).
117
Available at http://ec.europa.eu/europeaid/sites/devco/les/swd-2013227_EN.pdf (accessed
8 October 2014).
118
See http://eu-un.europa.eu/articles/en/article_15109_en.htm (accessed 8 October 2014).
119
See http://www.unisdr.org/we/coordinate/wcdrr (accessed 6 January 2015).
120
The author is grateful to her student Nakita Prasad for providing the background to this
analysis of Vietnams LNDPC in her research paper submitted for the unit of study
Climate Disaster Law, taught for the rst time in the world in July 2014; see http://
sydney.edu.au/law/cstudent/coursework/units_study_2015/LAWS6320.shtml (accessed
24 February 2015).
121
Law on Natural Disaster Prevention and Control (Vietnam) (2013) available at https://
www.ifrc.org/Global/Publications/IDRL/Law%20on%20Natural%20Disaster%20Preven
phenomena, which may cause damage to human life, property, the
environment, living conditions and socio-economic activities122 and
include:
Typhoon, tropical low pressure, whirlwind, lightning, heavy rain, ood,
ashood, inundation, landslide . . . water rise, seawater intrusion,
extreme hot weather, drought, damaging cold, hail, hoarfrost, earthquake,
tsunami and other types of natural disaster.123
Ministerial responsibility for natural disaster prevention and control

(NDPC) remains with the Ministry of Agriculture and Rural Develop-
ment (MARD) which has responsibility for a wide range of functions
including: preparing the National Strategy and other plans for NDPC,
including on safety, agriculture, infrastructure such as dikes, dams and
other anti-ood measures, organising the scientic and technological
research needed to advance NDPC, to improve community awareness
of disasters and be the focal point for international cooperation on
NDPC.124 As an example of multi-agency disaster governance, the other
Ministries with responsibilities are: Natural Resources and Environment;
National Defense; Public Security; Information and Communications;
Transport; Industry and Trade; Construction; Finance; Planning and
Investment, Education and Training; Health; and Labor, War Invalids
and Social Affairs.125 Each ministry is required to elaborate annual plans
on and perform tasks of natural disaster prevention and control under
their management.126
Integrating risk reduction into development policies at all levels of
government is another key indicator of the Hyogo Framework. The
LNDPC requires natural disaster prevention and control plans to be
elaborated at the local, ministerial and national levels every ve years
and integrated into socio-economic development master plans and plans
at the district, provincial, ministerial and national levels.127 On the other
hand, the Peoples Committees at the provincial and district levels are
responsible for facilitating local involvement and implementing plans
relating to the construction of urban centres, rural residential areas and
technical infrastructure and production in accordance with local natural
disaster characteristics.128 These provisions are consistent with the Hyogo
tion%20and%20Control_No%20%2033_IFW.pdf Ibid (accessed 24 February 2015)

Art. 2
122 123 124 125
Ibid. Art. 3(1). Ibid. Ibid. Art. 42. Ibid.
126 127 128
Ibid. Art. 42(15). Ibid. Art. 15. Ibid. Art. 43.
Frameworks requirement for integrating DRR into development and
planning policy as well as the importance of accounting for local risk
features. However, notably the LNDPC fails to coordinate DRR, socio-
economic development and poverty reduction.
Resources for implementation A key factor in determining the success

of DRR is the attribution of resources. The Law on NDPC identies
human resource capacities as local organisations, households, individ-
uals, militia and defence forces, the Peoples Army and Peoples Public
Security forces and organisations.129 Although disaster funding is seldom
budgeted for, an innovative feature of the LNDPC is the availability of
nancial resources which are specically enumerated as: state budget
funds, NDPC funds and voluntary contributions of organisations and
individuals.130 Although the LNDPC does commit a specic percentage
of the state budget to DRR, which occurs through the State Budget Law
2002. Article 9(1) of the State Budget Law 2002 stipulates that:
The expenditure estimates of the central budget and the budgets of the
local administration of all levels shall be entitled to include a reserve of
between 2% and 5% of the total expenditure for spending on prevention,
combat and overcoming of consequences of natural calamities.131
Community participation The LNDPC requires households and indi-

viduals to take initiative in building, upgrading and protecting their
works and houses from natural disasters or to move away from areas
that can be severely affected by disasters,132 and they must take initiative
in procuring equipment within their capacity to receive natural disaster
forecasts and warnings.133 Individuals and households can also partici-
pate in the formulation of local plans on natural disaster prevention and
response.134 Furthermore, the Prime Ministerial Decision on Community
Awareness Raising and Community-Based Disaster Risk Management
2009135 enhances community participation to minimise fatalities and
129 130
Ibid. Art. 6. Ibid. Art. 8
131
For a discussion of these provisions, see Vietnam: Country Case Study Report: How Law
and Regulation Support Disaster Risk Reduction (International Federation of Red Cross
and Red Crescent Societies, May 2014) available at www.drr-law.org/resources/Vietnam-
Case-Study.pdf (accessed 4 February 2015) at 6.
132 133
LNDPC, see Note 121 Art. 34(2)(a). Ibid. Art. 34(2)(d).
134
Ibid. Art. 34(1)(d).
135
Available www.ifrc.org/docs/idrl/916EN.pdf (accessed 24 February 2015).
property loss; to limit the natural resource, environmental and cultural
heritage destruction caused by disasters that contribute to guaranteeing
national sustainable development, national defense and security.136 Some
of the community-based practices the Decision identies include annual
training courses for the community on disaster risk management and
facilitating the production of hazard and vulnerability maps by the
people for their community.137 The CBDR project will be implemented
between the years 20092020 and is expected to target about 6,000
communes and villages frequently affected by disasters in the country.
Priority Action 2 - Identify, assess and monitor disaster risks

and enhance early warning
National and local risk assessments, early warning, capacity, and regional
and emerging risks are indicators that assist to identify, assess and
monitor disaster risks under the Hyogo Framework. The LNDPC classi-
es natural disaster risks into various levels138 depending on the intensity
or danger of natural disasters, scope of effect and likely damage to
society.139 The assessment and zoning of natural disaster risks as well
as the creation of natural disaster warning maps is also required.140 The
Ministry of Natural Resources and Environment and the Vietnam
Academy of Science and Technology (VAST) are tasked with observing,
collecting, updating, monitoring, supervising, synthesizing and process-
ing information of natural disaster risks.141 This information must be
provided to the Central Steering Committee for Natural Disaster Preven-
tion and Control (CSCNDPC), various Ministries and localities to inform
their respective prevention and control activities.
Responsibility for assembling statistics and assessing disaster damage
is vested in a variety of individuals and institutions. For example, organ-
isations and individuals are under a duty to report accurately on any
damage caused by natural disasters to their commune-level commanding
committees for NDPC as well as search and rescue agencies. The colla-
tion of this information is important not only for the government of
Vietnams purposes but also to better inform bodies like the IPCC which
lacks adequate information upon which to make various ndings about
climate disasters. This information is then relayed through a hierarchy of
Peoples Committees at all levels, and ultimately to the CSCNDPC and
136 137 138

Ibid. Art. 1. Ibid. Components I and II. LNDPC, see Note 121 Art. 18.
139 140 141
Ibid. Art. 18(2). Ibid. Art. 17(1)(b). Ibid. Art. 17(1)(a).
government ministries. The MARD has the primary responsibility for
summarising and assessing the impact of a disaster and reporting to the
Prime Minister. The MARD must also collaborate with the Ministry of
Planning and Investment to guide the overall creation and assessment of
statistics and damage caused by natural disasters.142
With regard to early warning systems (EWS), the LNDPC requires
warnings to be communicated via the mass media following the distribu-
tion of meteorological and hydrographical forecasts and warnings by
MONRE, or earthquake and tsunami related forecasts by VAST.143
A bulletin from MONRE or VAST will be sent directly to Vietnam
Television and Voice of Vietnam for transmission to the public in
Vietnamese. However, to protect vulnerable groups, information is to
be transmitted also in ethnic minority languages.144
Despite these legislated early warning provisions in the LNDPRC, the
International Federation of Red Cross and Red Crescent Societies
(IFRCRCS) reports that access to the mass media is sometimes limited
so that loudspeakers are more likely to be used at the commune level to
warn the population, and messengers are required to go to households
which cannot be reached by loudspeakers.145
Priority Action 3 - Use knowledge, innovation and education

to build a culture of safety and resilience at all levels
Easily accessible and understandable information about the risk of disas-
ters, a requirement within the Hyogo Framework, is distributed by the
commune and district level Peoples Committees. Both are responsible
for organising information and communication to improve community
awareness about NDPC as well as identifying dangerous areas, evacu-
ation sites and organising training and drills.146 Different communica-
tion methods are to be used such as government websites, mass media,
developing specialised documents, journals and leaets, holding exhib-
itions, workshops and training courses.147 Documents will be interpreted
in ethnic minority languages, making communications inclusive for all
members of society including for rural and mountainous communities.
Education and training Integrating DRR into school curricula is the

responsibility of the Ministry of Education and Training (MET).148
142 143 144

Ibid. Arts. 31(6), 31(7). Ibid. Art. 24(3). Ibid. Art. 24(1).
145 146
IFRCRCS, see Note 131. LNDPC, see Note 121 Art. 15 (1).
147 148
Ibid. Art. 21(2). Ibid. Art. 21(3)(c).
Despite this, one of the barriers to education is the high teacher turnover,
approximately every ve years making knowledge transfer from one
generation to another a challenge.149
Research The LPNDPC prioritises international cooperation for

training, scientic research and technology transfer to upgrade natural
disaster prevention and control works.150 The MARD and similarly
MONRE have the responsibility to organise scientic and technological
research and the application of scientic and technological advances for
DRR.151
Priority Action 4 - Reducing the underlying risk factors

The LNDPC requires natural disaster prevention and control activities to
be based on a combination of traditional knowledge and scientic and
technological advances while combining structural and non-structural
solutions. Environmental protection, ecosystems and climate change
adaptation must also be considered.152
Integrating DRR into socio-economic development plans The

LNDPC integrates DRR into socio-economic development practices
and plans. Socio-economic development plans must have natural disas-
ter prevention and control contents that are contextually specic to each
region and locality in order to ensure sustainable development.153 Fur-
thermore, the law stipulates the need to identify measures to prevent and
mitigate the impact of natural disasters on the socio-economic develop-
ment process.154 Schools, health facilities and other public works are
identied as disaster evacuation centres. Protecting and strengthening
the construction and upgrading of these facilities is a priority, particularly
in natural disaster-prone areas.155 The new law goes on to dene the
responsibility for building and protecting natural disaster prevention and
control works between the government, ministries and ministerial agen-
cies, Peoples Committees as well as organisations and individuals.156 The
Peoples Committees at all levels are mandated to inspect and urge the
149
Thi My Thi Tong, Rajib Shaw and Yukiko Takeuchi, Climate disaster resilience of the
education sector in Thua Thien Hue Province, Central Vietnam (2012) 63 Nat Hazards
685 at 706.
150 151
LNDPC, see Note 121 Art. 38(4). Ibid. Arts. 42(2)(e), 42(3)(d).
152 153 154
Ibid. Art. 4(6). Ibid. Art. 16(1). Ibid. Art. 16(2)(a).
155 156
Ibid. Art. 20(2). Ibid. Art. 20(3).
disaster risk reduction and sustainable development 193
reserve of food supplies and all other basic needs, including water and
medical supplies, to proactively respond to disasters.157 To preserve
agricultural livelihoods, MARD must elaborate master plans on agricul-
tural production with a focus on limiting the damage caused by natural
disasters and ensuring sustainable development.158 The LNDPC also
focuses on agricultural remediation by incorporating a provision to
provide plant varieties, animal breeds, supplies, equipment and essential
fuels to restore production.159 It identies methods for emergency relief,
medium-term and long-term support. In particular, farming organisa-
tions and farmers suffering from damage following a natural disaster are
identied as recipients for medium-term support. Also, DRR is rmly
ingrained into the ex post disaster recovery stage. As such, infrastructure
damaged by natural disasters will not only be repaired and restored, but
also upgraded.160
Priority for Action 5 - Strengthen disaster preparedness for

effective response at all levels
The nal priority for action under the Hyogo Framework, reiterates
major activities required to ensure the mainstreaming of DRR. As the
foregoing discussion has demonstrated the LNDPC legislates to achieve
this in almost every respect and should be regarded as an example which
other countries might like to emulate.
4.6. Integrating climate change adaptation, disaster risk reduction

and sustainable development
The literature suggests that countries ought to integrate their DRR and
climate change adaptation161 (CCA) strategies162 or their disaster risk
157 158 159

Ibid. Art. 43(1)(e). Ibid. Art. 42(2)(c). Ibid. Art. 30(1)(C).
160
Ibid. Art. 32(3).
161
Adaptation is dened by the IPCC as, [i]n human systems, the process of adjustment
to actual or expected climate and its effects, in order to moderate harm or exploit
benecial opportunities. In natural systems, the process of adjustment to actual climate
and its effects; human intervention may facilitate adjustment to expected climate.; see
2012 Special Report on Managing the Risks of Extreme Events and Disasters to Advance
Climate Change Adaptation (SREX), Summary for Policymakers, available at http://ipcc-
wg2.gov/SREX/images/uploads/SREX-SPMbrochure_FINAL.pdf (accessed 24 February
2015) at 5.
162
William Solecki, Robin Leichenko and Karen OBrien, Climate change adaptation
strategies and disaster risk reduction in cities: connection, contentions, and synergies
(2011) 3 Current Opinion in Environmental Sustainability 135.
reduction (DRR) and development strategies.163 As foreshadowed in
Chapter 3, the author proposes, consistently with a Capability Approach
to Climate Justice, that in fact all three should be effectively integrated
within the framework of disaster risk management for a post-2015
world,164 given that climate disasters can impede and roll back the
achievements of the Millenium Development Goals.165 After all, DRR
and CCA share the goal of reducing the impacts of extreme events,
and increasing resilience to disasters among vulnerable populations.166
Indeed, in 2014, the United Nations Development Program issued a call
for action to integrate DRR into development planning. It reinforced the
devastating impact of natural disasters on progress towards development
goals and the urgency of ensuring a strong DRR focus in post-2015
development planning.167 The authors approach has been conrmed in
the recently drafted Sustainable Development Goals discussed in
Chapter 3.
To effectively develop integrated and adaptive governance arrange-
ments for CCA, DRR and sustainable development, it is worthwhile rst
to restate the fundamental premises of CCA and DRR. CCA accepts that
normal understandings of hazards and extreme events may no longer be
reliable indicators for assessing current or future climate change risks,
but extreme climate events are regarded as shifts within the bounds of
current system variability. However, DRR approaches extremes from a
different direction by understanding that extremes can interact with
existing vulnerabilities and result in disasters.168 Consequently, the dom-
inant paradigm for DRR has become addressing the root causes of
163
See Reducing Vulnerability and Exposure to Disasters: The Asia-Pacic Disaster Report
2012 (United Nations ESCAP, UNISDR, Thailand: 2012) at 92; available at www.unisdr.
org/les/29288_apdr2012nallowres.pdf (accessed 21 January 2015) at xxv.
164
The IPCC denes Disaster Risk Management as [p]rocesses for designing, implement-
ing and evaluating strategies, policies, and measures to improve the understanding of
disaster risk, foster disaster risk reduction and transfer and promote continuous
improvement in disaster preparedness, response, and recovery practices, with the expli-
cated purpose of increasing human security, well-being, quality of life, resilience, and
sustainable development; SREX Report, see Note 161 at 5.
165
Asia-Pacic Disaster Report 2012, see Note 163 at xxiii.
166
Solecki et al., see Note 162 at 135.
167
Disaster Risk Reduction Makes Development Sustainable: A Call for Action (UNDP:
2014) available at www.undp.org/content/dam/undp/library/crisis%20prevention/
UNDP_CPR_CTA_20140901.pdf (accessed 7 January 2015).
168
Riyanti Djalante, Cameron Holley and Frank Thomalla, Adaptive Governance and
Managing Resilience to Natural Hazards (2011) 2(4) International Journal of Disaster
Risk Science 1.
disaster risk reduction and sustainable development 195
vulnerability to disaster by focusing on risk assessment, multiple stres-
sors, livelihoods and well-being, institutional capacity building, risk miti-
gation investments and catastrophe risk nancing, as well as emergency
preparedness. Meanwhile, the non-linearity of DRR implementation
increasingly requires an adaptive governance approach.169 The need for
CCA to internalise more DRR approaches is conrmed by a recent study
which reveals the limits of adaptation and the costs of unmitigated
climate change in Bangladesh, Bhutan, The Gambia, Kenya, and
Micronesia. Affected communities suffered from loss and damage despite
undertaking coping and adaptation measures.170
Integrated and adaptive governance for climate disasters will generally
require facilitation through legislation, for without a binding legal direct-
ive, which obliges actors and agencies to take action, the inertia of
bureaucracies might mean that essential tasks are not undertaken. Law
can also be used to provide penalties and incentives by enforcing stand-
ards, empowering existing agencies, establishing new bodies and
assigning budgets.171
In addition to what has already been said earlier about the need for
adaptive law, the governance elements that effective DRR and CCA laws
have in common include the following:
The law provides legal and policy coherence by explicitly linking to

other laws and policies from relevant sectors and throughout all
administrative levels.
The law allocates adequate funding for implementation at all levels
with clarity about the generation of funds and procedures for accessing
resources at every administrative level regarded as the ultimate
litmus test of government commitment to DRR and remains one of
the major challenges for effective DRR.172
The law establishes institutional arrangements that provide both access
to power for facilitating implementation and opportunities to main-
stream DRR and CCA into development plans. A factor that affects the
169
Asia-Pacic Disaster Report 2012, see Note 163 at xxvi.
170
Pioneering Study Shows Evidence of Loss & Damage Today from the Front Lines of
Climate Change: Vulnerable communities beyond adaptation? (Loss and Damage in
Vulnerable Countries Initiative: December 2012).
171
Ibid. at 2.
172
Silvia Llosa and Irina Zodrow, Disaster risk reduction legislation as a basis for effective
adaptation (Global Assessment Report on Disaster Risk Reduction: ISDR: 2011) at 8;
available at www.preventionweb.net/english/hyogo/gar/2011/en/bgdocs/Llosa_&_Zo
drow_2011.pdf (accessed 7 January 2015).
political authority of the national disaster risk management (DRM)
body is its positioning in relationship to the highest level of govern-
ment and high-level support, particularly from the Prime Ministers
ofce. Often responsibility for DRM is delegated to civil defence and
protection organisations which may lack the competence to develop
the planning and regulation needed to engage with other sectors and
the necessary political authority within government to do so.173
The law should also include provisions that increase accountability and
enable coordination and implementation of DRR and CCA, including
clear identication of roles and responsibilities, requirements to estab-
lish and maintain a national risk database, a mandate to provide public
access to risk information, education and training, as well as providing
opportunities to participate in decision-making.174
4.6.1. The Philippines: a case study

One example of legislation which integrates CCA and DRR is the Philip-
pines Climate Change Act 2009 (PCCA).175 At the outset it adopts the
UNFCCCs objective of stabilising GHGs and the Hyogo Framework and
states that climate change and DRR are closely interrelated and effective
DRR will enhance CCA capacity, the State shall integrate DRR into
climate change programs and initiatives.176 The Philippines Disaster Risk
Reduction and Management Act 2010 (PDRRMA) likewise includes
several climate change references.177 Like the PDRRM Act, the PCCA
creates a Commission chaired by the President and attached to her
Ofce, which comprises the secretaries of all relevant departments as
well as the secretary of the Department of National Defence, in his
capacity as Chair of the National Disaster Coordinating Council, and
representatives from the disaster risk reduction community. The main
functions of the Commission are to ensure the mainstreaming of climate
change in synergy with disaster risk reduction, into the national, sectoral
173 174
175
The Philippines case study needs to be seen in the context of the 2009 ASEAN Agreement
on Disaster Management and Emergency Response which is aligned with the Blueprint for
the ASEAN Socio-cultural Community (20092015) available at www.asean.org/archive/
518719.pdf (accessed 7 January 2015). Note that South East Asia has the greatest
uptake (54%) of DRR and CCA initiatives in the Asia Pacic but there are three times
more DRR than CCA initiatives.
176 177
PCCA s. 2. PDRRMA subsec. 2(a)(d)(e)(g).
sectoral adaptation case studies 197
and local development plans and programs178 and to create a panel of
technical experts, consisting of practitioners in disciplines that are related
to climate change, including DRR.179 Meanwhile, the PDRRMA estab-
lishes the Local Disaster Risk Reduction and Management Fund and
stipulates that no less than 5 per cent shall be set aside for risk manage-
ment and preparedness of which 30 per cent is devoted to quick
responses to disaster.180 The Commission is allocated US$ 21 million
to implement the Act with unspent money remaining in the Fund to
promote risk reduction and preparedness.181
In accordance with adaptive governance, the PDRRMA calls for the
development of a framework to guide disaster risk reduction and man-
agement (DRRM) which must be reviewed on a ve-year interval, or as
may be deemed necessary, in order to ensure its relevance to the
times.182 The Act also calls for the development of assessments on
hazards and risk brought about by climate change.183 Likewise, the
PCCA calls for a framework strategy that will guide climate change
planning, research and development, with the monitoring of activities
to be reviewed every three years or as necessary.184 NGOs have four seats
in the Philippines National DRRM Council and the law mandates the
establishment of provincial, city and municipal DRRM councils as well as
local DRRM ofces in every province, city and municipality, in addition
to a local community (barangay).185 This recognises that both CCA and
DRR value multiple types of knowledge, such as expert and traditional or
local knowledge in an effort to reduce vulnerability.186 The Act also calls
for multi-stakeholder participation in the development, updating, and
sharing of DRM Information System and the GIS-based national risk
map as policy, planning and decision-making tools.187
4.7. Sectoral adaptation case studies

In this part, the discussion moves to investigating various sector-specic
case studies on adaptation and disaster risk reduction. The case studies
are taken from a number of jurisdictions but primarily the European
Union, Australia and the United States. As mentioned at the beginning of
178 179 180

PCCA s. 9(a). PCCA s. 10; ibid. at 8. PDRRMA ss. 21, 22.
181 182 183
Ibid. at 9. DRMMA s. 6(a). DRRMA s. 6(j).
184 185
PCCA s. 11; ibid. at 11. DRRMA s. 12(3).
186
Solecki et al., see Note 162 at 136.
187
DRRMA s. 6(d); see also Llosa and Zodrow, see Note 172 at 12.
the chapter, this is because these jurisdictions have in recent times
experienced catastrophic extreme weather events and disasters and have
devoted considerable resources to learn from these disasters and put in
place the law and policy instruments which they believe will prevent the
scale of the losses in future. All the principles, policies and laws discussed
here could be illustrative for other jurisdictions seeking to manage similar
extreme weather events and disasters.
4.7.1. Coasts: the EU and Australia case studies

As discussed in Chapter 1, the IPCC in its AR5 has drawn specic
attention to the threats of climate change to coastlines around the world,
including sea level rise, coastal erosion, storm surge and inundation.
Many jurisdictions have begun to consider law and policy responses to
these threats.188 Two responses are considered here: marine spatial
planning adopted by the EU; and the setting of sea level rise planning
benchmarks in Australia. These approaches might provide inspiration for
other jurisdictions grappling with coastal adaptation strategies.
Marine spatial planning: the EU case study

In 2014, the EU ofcially adopted marine spatial planning (MSP) as a
tool for comprehensively assessing all risks, including climate change, to
the EUs coastline following a process of policy development. In 2012, the
EU Commission recognised the value of coasts and coastal areas to the
EUs economy. It published Blue Growth Opportunities for marine and
maritime sustainable growth189(Blue Growth), acknowledging that the
EUs blue economy represents 5.4 million jobs and a gross added value
of just under 500 billion per year.190 The document refers to many
future economic opportunities in the areas of: blue energy (such as
offshore wind energy); aquaculture; maritime, coastal and cruise tourism;
marine mineral resources; and blue biotechnology.191
While the Blue Growth document emphasised the need to protect the
EUs coastal and marine environments for economic reasons, in 2013 the
188
See Jonathan Verschuuren and Jan McDonald, Towards a Legal Framework for Coastal
Adaptation: Assessing the First Steps in Europe and Australia (2012) Transnational
Environmental Law 355.
189
Available at http://ec.europa.eu/maritimeaffairs/documentation/publications/documents/
blue-growth_en.pdf (accessed 11 September 2014).
190 191
Ibid. at 3. Ibid. 812.
EEA focused its attention on the need for integrated coastal zone man-
agement. It published Balancing the future of Europes coasts knowledge
base for integrated management.192 This document emphasises the eco-
nomic importance of coastal regions for the EUs economy, given that
approximately 40 per cent of the EUs population lives within fty
kilometres of the sea. Almost 40 per cent of the EUs GDP is derived
from these regions while 75 per cent of the EUs trade is concluded
by sea. Activities such as shipping, resource extraction, renewable energy
and shing are all impacting on marine and coastal areas. A number of
pressures and impacts are present including: hydromorphological
changes; loss of habitats and species; non-indigenous invasive species;
eutrophication, harmful algal blooms and oxygen deciency; hazardous
substances; and marine litter. Many of the EUs coastal waters are
poor in quality with the Baltic Sea, followed by the Black Sea and North
Sea, being in the worst condition. Moreover, data on the conservation
status of the EUs coastal habitats and species is patchy with only
13 per cent of the coastal species assessments conducted under the
Habitats Directive193 being favourable, while the remainder were bad or
inadequate.
The rst step towards integrated coastal zone management in the EU
was the adoption, in 2002, of a Recommendation on Integrated Coastal
Zone Management (ICZM).194 However, the European Commission
found in 2012 that only 50 per cent of countries across the EU were
implementing the constituent principles because of a lack of clear admin-
istrative responsibility for implementing ICZM and the absence of com-
monly agreed objectives and timeframes.195 The EEA also identied the
need to improve the knowledge base for coastal areas to allow the
192
Available at www.eea.europa.eu/publications/balancing-the-future-of-europes (accessed
8 September 2014).
193
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and
of wild fauna and ora available at http://ec.europa.eu/environment/nature/legislation/
habitatsdirective/index_en.htm (accessed 8 September 2014). See also the Directive 2009/
147/EC of the European Parliament and of the Council of 30 November 2009 on the
conservation of wild birds (the Birds Directive) http://eur-lex.europa.eu/legal-content/
EN/TXT/?uri=CELEX:32009L0147(accessed 8 September 2014).
194
2002/413/EC available at http://ec.europa.eu/environment/iczm/rec_imp.htm (accessed
8 September 2014).
195
See EUs Adaptation Impact Assessment Part 1 available at http://ec.europa.eu/clima/
policies/adaptation/what/docs/swd_2013_132_en.pdf (accessed 9 September 2014) and
Impact Assessment Part 2 available at http://ec.europa.eu/clima/policies/adaptation/
what/docs/swd_2013_132_2_en.pdf (accessed 9 September 2014) at 5.
implementation of an ecosystems-based management approach, includ-
ing: spatial analysis of cumulative impacts; ecosystem capital accounts;
and coastal vulnerability assessments.196
The EEA recognises that climate change, including sea level rise and
the effects of storms, ooding, erosion and subsidence, is expected to
increase the vulnerability of these regions. For this reason, climate change
adaptation and preparing for coastal hazards and disasters, such as
winter storms and coastal oods, has come to the fore. As with other
adaptation strategies discussed earlier, in the coastal area the EU has a
preference for alternatives to traditional grey infrastructure responses.
Between 19982015, the total amount invested in coastal protection and
climate adaptation is expected to amount to 15.8 billion. Accepting the
mid estimate of temperature and sea level rise by the 2050s, suggested
response costs amount to 11 billion per year, albeit that the inherent
uncertainties are signicant.197
The EEA states that innovative assessment methods for managing the
coastal zone are needed including:
A spatial analysis of cumulative pressures and impacts which identi-

es the most important anthropogenic stressors and impacted bio-
logical features (including ecosystems). The sensitivity of the
ecosystems to different human stressors and an assessment of each
stressor on each ecosystem component must be included;198
Coastal ecosystem capital accounts accounting for ecosystem capital
depreciation as a result of their loss and degradation to be measured
against the cost of remediation; and
Coastal vulnerability assessments which should be prioritised.
199
Consequently, the EU has adopted the Directive 2014/89/EU of the

European Parliament and of the Council of 23 July 2014 establishing a
framework for maritime spatial planning.200 The Directive acknowledges
the various pressures on marine waters, ecosystems and marine resources
196
Ibid. at 6.
197
Ibid. at 35. These estimates are provided by ClimateCost, which is a major research
project on the economics of climate change, funded from the European Communitys
Seventh Framework Programme. It advances knowledge in three areas: long-term targets
and mitigation policies; the costs of inaction; and the costs and benets of adaptation,
available at http://www.climatecost.cc/ (accessed 8 September 2014).
198 199
Ibid. at 45. Ibid. 4450.
200
Available at http://ec.europa.eu/maritimeaffairs/policy/maritime_spatial_planning/
index_en.htm (accessed 8 September 2014).
leading to deterioration of environmental status, loss of biodiversity and
degradation of ecosystem services. These services include human activ-
ities, climate change, natural hazards and shoreline dynamics such as
erosion and accretion, which must be considered in the establishment of
maritime spatial plans. Moreover, healthy marine ecosystems and their
multiple services, if integrated in planning decisions, can deliver substan-
tial co-benets such as food production, recreation and tourism, climate
change mitigation and adaptation, shoreline dynamics control and disas-
ter prevention.201 The Directive identies maritime spatial planning as a
cross-cutting policy tool which enables public authorities and stakehold-
ers to apply a coordinated, integrated and trans-boundary approach. In
order to promote the sustainable development of marine areas and the
sustainable use of marine resources, maritime spatial planning should
apply an ecosystem-based approach.202 MSP also supports and facilitates
the implementation of the Europe 2020 Strategy for smart, sustainable
and inclusive growth203 and creates a framework for evidence-based
decision-making.204
Under the Directive, each Member State must establish and implement
maritime spatial planning, while taking into account landsea inter-
actions.205 Through their maritime spatial plans, Member States must
aim to contribute to the sustainable development of: marine energy
sectors; maritime transport; sheries and aquaculture, and to the preser-
vation, protection and improvement of the environment, including resili-
ence to climate change impacts. Other allowable objectives include the
promotion of sustainable tourism and the sustainable extraction of raw
materials.206 Each Member State must designate a Competent National
Authority to implement the Directive.207 For the purposes of monitoring
and reporting, Member States must send copies of their maritime spatial
plans, including relevant existing explanatory material on the implemen-
tation of this Directive, and all subsequent updates, to the Commission
and to any other Member States concerned within three months of their
publication. The Commission itself must submit to the European Parlia-
ment and to the Council, at the latest one year after the deadline for
establishment of the maritime spatial plans, and every four years there-
after, a report outlining the progress made in implementing this
Directive.208
201 202 203

Ibid. Preamble Cl. (13). Ibid. Preamble Cl. (3). Ibid. Preamble Cl. (4).
204 205 206 207
Ibid. Preamble Cl. (9). Ibid. Art. 1. Ibid. Art. 5. Ibid. Art. 13.
208
Ibid. Art. 14.
Australia: an environmental planning and assessment
approach to sea level rise
The exposure of Australias coastal assets to sea level rise is widespread
and the hazard will increase in the future especially as the population
grows.209 Coastal assets at risk from a combination of inundation and
shoreline recession include:
Between 5,800 and 8,600 commercial buildings valued at between A

$ 5881 billion (2008 replacement value)
Between 3,700 and 6,200 light industrial buildings valued at between
$ 4.26.7 billion (2008 replacement value)
Between 27,000 and 35,000 kilometres of roads and rail valued at
between $ 5167 billion (2008 replacement value).210
The focus on Australia, here, provides a cautionary tale about the dangers
of climate sceptic and neoliberal governments to effective coastal adap-
tation. As mentioned in Chapter 1, the current Coalition Federal govern-
ment has made every effort to divert attention away from the necessity to
engage in law- and policy-making initiatives, both with respect to miti-
gation and climate change adaptation. The same is true of Coalition
governments in the states of New South Wales and Queensland. Between
200911, the previous Australian Labor government exhibited a rm
209
One of the most recent reports on climate change threats to Australias coasts is
Counting the Costs: Climate Change and Coastal Flooding (Climate Council: 2014)
available at www.climatecouncil.org.au/uploads/56812f1261b168e02032126342619dad.
pdf (accessed 17 November 2014).
210
See Climate Change Risks to Australias Coasts (Australian Government, Department of
Climate Change: 2009) available at www.climatechange.gov.au/sites/climatechange/les/
documents/03_2013/cc-risks-full-report.pdf (accessed 17 November 2014) at 3; Man-
aging our coastal zone in a changing climate: The time to act is now (House of
Representatives Standing Committee on Climate Change, Water, Environment and the
Arts: 2009) available at www.aph.gov.au/parliamentary_business/committees/house_o
f_representatives_committees?url=ccwea/coastalzone/report.htm (accessed 17 Novem-
ber 2014); Developing a national coastal adaptation agenda (National Climate Change
Forum: Adaptation Priorities for Australias Coast: 2010) available at www.environment.
gov.au/climate-change/adaptation/publications/developing-coastal-adaptation-agenda
(accessed 17 November 2014); Climate Change Risks to Coastal Buildings and Infrastruc-
ture (Australian Government, Department of Climate Change and Energy Efciency:
2011) available at www.climatechange.gov.au/sites/climatechange/les/documents/
03_2013/risks-coastal-buildings.pdf (accessed 17 November 2014); and Coastal Climate
Change Risk Legal and Policy Responses in Australia (Blake Dawson: 2011) available at
www.climatechange.gov.au/sites/climatechange/les/documents/03_2013/coastal-cc-
legal-responses.pdf (accessed 17 November 2014).
commitment to understanding and dealing with the challenges of climate
change to Australias coasts. It commissioned and was responsible for
developing a number of adaptation policies.211 None of this policy work
is being carried forward by the current government.
In 2009, the former Labor State government in New South Wales
released the 2009 NSW Coastal Planning Guideline: Adapting to Sea-
level Rise212 to give guidance to consent authorities on how sea level rise
and its associated impacts should be considered in the planning and
development context in coastal New South Wales. The Guideline, pre-
sented here as a practical adaptation response which other jurisdictions
might like to consider, adopted six Coastal Planning Principles, as
follows:
In the context of Identifying Current and Future Coastal Risk Areas:

Principle 1 Assess and evaluate coastal risks taking into account the
NSW sea level rise planning benchmarks.
Principle 2 Advise the public of coastal risks to ensure that informed
land use planning and development decision-making can occur.
In the context of Strategic and Statutory Land Use Planning in Coastal
Areas:
Principle 3 Avoid intensifying land use in coastal risk areas through
appropriate strategic and land use planning.
Principle 4 Consider options to reduce land use intensity in coastal
risk areas where feasible.
In the context of Development Assessment in Coastal Areas:
Principle 5 Minimise the exposure of development to coastal risks.
Principle 6 Implement appropriate management responses and adap-
tation strategies, with consideration for the environmental, social
and economic impacts of each option.213
The Guideline acknowledged that preparing new and updating existing
coastal erosion and ood studies will take some time. Prior to the
completion of these studies, councils could adopt sea level rise investi-
gation areas (potential coastal risk areas) for the purpose of informing
strategic land use planning.214 The Guideline provided examples of
211
Ibid.
212
Available at www.planning.nsw.gov.au/Portals/0/PlansForAction/pdf/SeaLevelRise_Poli
cy_web%5B1%5D.pdf (accessed 11 January 2015).
213 214
possible measures that could be used in the identication of sea level rise
investigation areas, including:
Projected coastal erosion and recession distances along relatively long

and straight sandy coastlines 90 centimetre sea level rise may result in
coastal recession of 4590 metres landward;
Projected tidal inundation in the lower reaches of a coastal waterway
additional 40 centimetres by 2050 and 90 centimetres by 2100;
Projected extension of ood-prone land in tidal river reaches add-
itional freeboard added to the mapped ood planning area; and
215
Coastal areas below a set elevation in metres.
The extensive provisions in the Guideline have not been reproduced in
full here and the original text should be referred to for the sake of
completeness.
Despite the merit in preparing for sea level rise, the incoming NSW
Coalition government repealed the Sea Level Rise Policy. It claimed to
have done this as a result of the NSW Chief Scientist and Engineers
report216 that there is considerable variability in projections for future sea
level rise. However, what the government did not disclose was that the
report did not recommend abandoning the Policy but rather that the
projections be retained with work undertaken to ensure that the projec-
tions are updated as the science develops, and possibly tailored to specic
regions.217 The preferred approach of the current government is giving
councils exibility to consider coastal hazards in the context of their
local circumstances.218 The new coastal reform process of the govern-
ment fails to mention the words climate change at all.
Similarly, in 2012, the then Queensland Labor government released
the Queensland Coastal Plan 2012, which aimed to ensure that develop-
ment in the coastal zone was planned, located, designed, constructed and
operated, inter alia, to avoid the social, nancial and environmental costs
215
Ibid.
216
See Assessment of the Science Behind the NSW Governments Sea Level Rise Planning
Benchmarks (NSW Government Chief Scientist and Engineer: April 2012) available at
www.chiefscientist.nsw.gov.au/__data/assets/pdf_le/0016/26206/CSE-Report-Sea-
Level-Rise-Benchmarks_.pdf (accessed 11 January 2015).
217
Ibid. at 22.
218
See www.environment.nsw.gov.au/coasts/stage1coastreforms.htm (accessed 18 Novem-
ber 2014). See also Philippa England, Too much too soon? On the rise and fall of
Australias coastal climate change Law (2013) 30 Environmental and Planning Law
Journal 390.
arising from the impacts of coastal hazards, taking into account the
projected effects of climate change.219 The Queensland State government
mapped the states coastline in accordance with a coastal hazard area,
dened as a storm-tide inundation area, or an erosion-prone area. The
Queensland Coastal Plan required climate change to be factored into this
mapping, accounting for a sea level rise factor of 0.8 metres and a 10 per
cent increase in cyclone intensity by 2100. The Plan also contained a
development assessment code regulating development in erosion-prone
areas, and high and medium coastal hazard areas. The incumbent Coali-
tion government has repealed the Coastal Plan 2012.
All of the States coastal landuse planning and development provisions
are now contained in the State Planning Policy (SPP).220 The SPP, which
was introduced in July 2014, sets out the matters that must be considered
by the State before designating land for community infrastructure, and in
preparing and amending the new generation of regional plans. Local
councils will use the plan when they make a new planning scheme;
amend an existing planning scheme and grant development consent.
The SPP covers a number of key relevant sectors. It addresses the States
interest in those sectors, and discusses the risk management approaches
that should be employed by planning and development decision-makers.
What is almost inconceivable is that this Planning Policy, adopted by a
government in a State which has suffered catastrophic extreme weather
events, does not once mention the term climate change. It makes no
reference to scientic evidence, either by the IPCC or Australias peak
science agency, the CSIRO, about the challenges to development posed
by climate change. This is even though the terms environment, com-
munity resilience and adaptability to change are used in the Guiding
Principles. A natural hazard is dened as a naturally occurring situation
or condition, such as a ood, bushre, landslide or coastal hazard,
including erosion-prone areas and storm-tide inundation areas, with
the potential for loss or harm to the community, property or the
219
See Queensland Coastal Plan (Queensland Government, Department of Environment
and Heritage Protection: 3 February 2012) available at www.ehp.qld.gov.au/coastalplan/
pdf/qcp-web.pdf (accessed 14 November 2014). See also Justine Bell and Mark Baker-
Jones, Retreat from retreat the backward evolution of sea-level rise policy in Australia,
and the implications for local government (2014) 19 Local Government Law Journal 23
at 25.
220
See State Planning Policy (Department of State Development, Infrastructure and Plan-
ning: July 2014) available at www.dsdip.qld.gov.au/resources/policy/state-planning/
state-planning-policy-jul-2014.pdf (accessed 18 November 2014).
environment. In dening the States interest in the coastal environment,
there is no mention of climate change, sea level rise, storm surge, coastal
erosion, only planning and development decision-making should
employ risk-management approaches that take into account the pro-
jected impacts of a variable climate.221
4.7.2. Floods
Mitigating the risk of ood disasters occurring following extreme pre-
cipitation events is crucial given that between 19702010 the average
number of people exposed to ooding every year increased by 114 per
cent (from 32.5 to 69.4 million) annually.222 In the past decade there have
been signicant ood events in every region of the world. The 2002 oods
in six EU Member States caused more than US$ 21 billion in damages.223
From December 2013February 2014, the UK experienced severe
ooding, with 155 ood warnings issued and 7,000 properties ooded.
In Australia, the 201011 oods in Queensland resulted in the declar-
ation of 78 per cent of the state (an area larger than France and
Germany combined) a disaster zone with the economic cost estimated
to be in excess of A$ 5 billion.224 The oods in Thailand between
JulyDecember 2011 inundated fty-eight of Thailands seventy-six
provinces.225 Lloyds calculated the total damage from this ood as US$
30 billion or 8.68 per cent of GDP.226 Insured losses were $ 12 billion or
3.47 per cent of GDP, leaving an insurance gap of US$ 18 billion or 5.21
per cent of GDP. However, when the impact on international supply
221
Ibid. at 28.
222
See Global Assessment Report on Disaster Risk Reduction 2011 available at www.unisdr.
org/we/inform/publications/19846 (accessed 21 January 2015) at 22.
223
Urban adaptation to climate change in Europe, see Note 55 at 35.
224
See The Critical Decade: Extreme Weather (Australian Climate Commission: 2013)
available at www.climatecouncil.org.au/uploads/94e1a6db30ac7520d3bbb421322b4dfb.
pdf (accessed 21 January 2015) at 26.
225
See Reducing Vulnerability and Exposure to Disasters: The Asia-Pacic Disaster Report
2012 (United Nations ESCAP, UNISDR, Thailand: 2012) at 92; available at www.unisdr.
org/les/29288_apdr2012nallowres.pdf (accessed 21 January 2015); see also Global
Assessment Report on Disaster Risk Reduction, Revealing Risk, Redening Development,
Summary and Main Findings (United Nations Global Assessment Report (GAR): 2011)
available at www.preventionweb.net/english/hyogo/gar/2011/en/home/executive.html
(accessed 21 January 2015).
226
See Lloyds Global Underinsurance Report (Lloyds: October 2012), available at www.
lloyds.com/~/media/Files/News%20and%20Insight/360%20Risk%20Insight/Global_Un
derinsurance_Report_311012.pdf (accessed 21 January 2015).
chains is included the World Bank estimates the total loss to be US$ 45.7
billion, making this one of the top ve costliest natural disaster events in
modern history.227
As witnessed by Hurricane Sandy,228 which hit the east coast of the
United States in October 2012, extensive ooding can also occur where
catastrophic storm surge,229 winds,230and heavy precipitation con-
verge.231 Preliminary damage estimates are near US$ 50 billion232 with
only US$ 20 billion of the losses insured.233
The risk of ooding is of great concern in the Asian region. The World
Banks 2010 Report Climate Risks and Adaptation in Asian Coastal
Megacities234 states that thirteen of the worlds twenty largest cities are
located on the coast, and more than a third of the worlds people live
within one hundred miles (161 kilometres) of a shoreline.235 Many Asian
coastal megacities are built on deltas where signicant sinking is occur-
ring due to soil compaction or groundwater withdrawal for household or
industrial purposes. By 2070, nine of the top ten most population-
exposed cities are expected to be in Asian developing countries. Adapta-
tion poses an enormous challenge for ood-prone cities, such as Ho Chi
Minh City, Kolkata, Dhaka and Manila, facing potential sea level rise and
increased frequency and intensity of extreme weather events, with the
urban poor most at risk from exposure to hazards. Despite this, few
developing country cities have attempted to incorporate climate change
systematically into their decision-making processes.236
The Report selects three cities Manila, Ho Chi Minh City (HCMC)
and Bangkok for close study, as all are coastal megacities with popula-
tions (ofcial and unofcial) ranging from 8 to 15 million people.237 For
227
See 2011 Thailand Floods Event Recap Report (Aon Beneld: March 2012) available at
http://thoughtleadership.aonbeneld.com/Documents/20120314_impact_forecasting_th
ailand_ood_event_recap.pdf (accessed 21 January 2015) at 3.
228
See Tropical Cyclone Report Hurricane Sandy (National Hurricane Center: October
2012) available at www.nhc.noaa.gov/data/tcr/AL182012_Sandy.pdf (accessed 21
January 2015).
229
Storm surge is dened as the abnormal rise of water generated by a storm, over and
above the predicted astronomical tide, and is expressed in terms of height above normal
tide levels. Sandy caused water levels to rise along the entire east coast of the United
States from Florida northward to Maine; ibid at 8.
230 231 232
233
Hortense Leon, Sandys Aftermath (2012) 73(6) Mortgage Banking 68 at 69.
234
Available at http://siteresources.worldbank.org/EASTASIAPACIFICEXT/Resources/
226300-1287600424406/coastal_megacities_fullreport.pdf (accessed 21 January 2015).
235 236 237
Ibid. at xi. Ibid. at xi. Ibid. at xii.
Bangkok, the actual costs of a 1-in-30-year ood including costs
resulting from both climate change and land subsidence are predicted
to be close to US$ 4.6 billion in 2050, with climate change (in a high
emission scenario) adding US$ 1.5 billion, or approximately 2 per cent
of gross regional domestic product (GRDP). In Manila, a similar 1-in-30-
year ood can lead to costs of ooding ranging from US$ 0.9 billion
given current ood control infrastructure and climate conditions to
$ 1.5 billion with similar infrastructure but a high emission climate
scenario. Thus, the additional climate change costs would be approxi-
mately US$ 0.65 billion or 6 per cent of GRDP. Although the HCMC
study adopts a different methodology to analyse costs and so cannot
directly be compared to the costs of Manila and Bangkok, the ood costs
to HCMC, in present value terms, range from US$ 6.5 to US$ 50
billion.238 Ho Chi Minh City, which accounts for 40 per cent of Vietnams
GDP, has a current population of nearly eight million and is expected
to grow to 1222 million by 2050, so a climate-related disaster would have
enormous impacts on the economy.239
These disasters identify ooding as a global problem which warrants
urgent and concerted action towards risk reduction.240 The catastrophic
nature of these ood events indicates that the exposure of people and
ecosystems needs to be reduced. The EU suggests that the following ood
adaptation measures might be adopted:
Strategic planning for ood risk management with regional approaches

required given the cross-border nature of ooding;241
Grey or hard infrastructure approaches, including integrated river
basin water management, urban storm water disposal, integrating
238
Ibid. xivxv.
239
Roland J. Fuchs, Cities at Risk: Asias Coastal Cities in an Age of Climate Change (East
West Center No. 96: July 2010) at 4; see also Roland Fuchs, Mary Conran and Elizabeth
Louis, Climate Change and Asias Coastal Urban Cities: Can they Meet the Challenge?
(2011) 2 Environment and Urbanization Asia 13.
240
Abhas Jha et al. Five Feet high and Rising: Cities and Flooding in the 21st Century (World
Bank: 2011) available at http://library1.nida.ac.th/worldbankf/fulltext/wps05648.pdf
(accessed 21 January 2015) at 10. See also Faith Ka Shun Chan et al. Flood Risk in
Asias Urban Mega-deltas: Driver, Impacts and Response (2012) 3(1) Environment and
Urbanization ASIA 41. See also Robert L. Wilby and Rod Keenan, Adapting to ood risk
under climate change (2012) 36 Progress in Physical Geography 348, and William
Howarth, Private and public roles in ood defence (2003) 3 Non-State Actors and
International Law 1.
241
Jha, ibid. at 48.
temporary water storage in the design or redesign of cities, innovative
design of buildings and infrastructure;242
Green infrastructure approaches including river restoration, enhancing
the capacity of soil and vegetation to retain water through managing
agricultural and forested land appropriately, especially in areas
upstream of ood-prone cities;243 and
Soft measures, including the mapping of ood risks, forecasting and
early warning systems, as well as raising awareness and improving
capacity. Storm and ood resistance should also be integrated into
building codes and spatial planning instruments while regulations
should require such response measures.244
A barrier to such measures is that most local governments in low- and
middle-income countries have no functioning landuse planning or man-
agement system, or have lost control over managing land use changes
due to a rapid inux of people. Many major Asian coastal cities, for
example, lack updated master or land use plans, or they have been
produced for only part of the city with other parts occupied by informal
and unregulated settlement. Invariably, they fail to adequately consider
the risk posed by climate change, and so may be maladaptive and
inadvertently promote exposure to climate risk.245 In addition, even
where land use policies and legislation have been established, including
in high-income countries, they fail to take the risk of extreme weather
events into account.246 The design and enforcement of building legisla-
tion, regulations, codes and standards are equally problematic. Further-
more, in post-disaster contexts, overly complex codes and standards are
introduced which are prohibitively expensive for low-income house-
holds, so increasing the incidence of unregulated construction.247 While
it is beyond the scope of this book to go too deeply into the capacity
building requirements that are needed to overcome these barriers, the
adaptation and loss and damage mechanisms under the UNFCCC,
discussed in Chapter 3, provide international support to improve the
situation.
Soft measures: the Queensland oods

Following the devastating oods in the Australian summer of 201011,
discussed earlier, the Australian government established the Queensland
242 243 244 245

Ibid. at 49. Ibid. at 50. Ibid. at 52. Fuchs, see Note 239 at 8.
246 247
Llosa and Zodrow, see Note 172 at 128. Ibid. at 130.
Floods Commission of Inquiry and the National Disaster Insurance
Review. The Queensland Floods Commission of Inquiry Final Report248
and the National Disaster Insurance Review Final Report249 are two of
the most comprehensive recent analyses conducted in any jurisdiction of
the ways in which the risks of oods can be prevented, or at least
ameliorated. The United Kingdoms House of Commons Environment,
Food and Rural Affairs Committees Winter oods 20132014 report250 is
also highly relevant. In this chapter, the Queensland Floods Commission
Report will be dealt with in detail, albeit in a generic sense, while the
Disaster Insurance Report will be discussed in Chapter 6.
Although the Commissions recommendations relate specically to the
jurisdiction of Queensland, they provide useful guidance to other juris-
dictions with regard to ood management.251 It should be noted that,
because of the unique constitutional arrangements in Australia, State
governments are vested with specic responsibility for Environmental
Planning and Assessment. Consequently, in the discussion which follows
the term State government is used. In jurisdictions with different consti-
tutional arrangements, it may be that a national government is the
relevant planning authority. Indeed, even where State governments are
vested with constitutional authority for planning, it may be preferable for
national governments to intervene to provide consistency, provided that
the constitutional pathways exist. The Natural Disaster Insurance Review
recommended that the Commonwealth government establish an agency
to manage the national coordination of ood risk management and
operate a system of premium discounts and a ood risk re-insurance
facility, supported by a funding guarantee from the Commonwealth.252
The new agency would: coordinate ood mapping across the country;253
introduce national guidelines for ood risk mapping and classication;
act as a national repository for ood risk information; monitor and
248
Available at www.oodcommission.qld.gov.au/__data/assets/pdf_le/0007/11698/
QFCI-Final-Report-March-2012.pdf (accessed 8 January 2015).
249
Available at www.ndir.gov.au/content/report/downloads/NDIR_nal.pdf (accessed
6 June 2012). See also Queensland Floods Commission, Chapter 12, The performance
of private insurers, see Note 218 at 282348.
250
Available at www.publications.parliament.uk/pa/cm201415/cmselect/cmenvfru/240/240.
pdf (accessed 10 October 2014).
251
For a comprehensive analysis of ood risk management legislation, see Thomas Hart-
mann and Juliane Albrecht, From Flood Protection to Flood Risk Management:
Condition-Based and Performance-Based Regulations in German Water Law (2014)
26 Journal of Environmental Law 243.
252 253
Queensland Floods Commission, see Note 248 at 3. Ibid. at 4.
advise on the effectiveness of national ood risk mitigation activities; and
appropriately publish and disseminate ood risk information for various
groups, ensuring the quality of the information.254 In the UK, for
example, the principal legislation for managing oods is the Flood and
Water Management Act 2010255 under which the government has pub-
lished the 2011 National Flood and Coastal Erosion Risk Management
Strategy256 and the Department for the Environment Food and Rural
Affairs is the lead government agency on ood policy. The Environment
Agency manages ood risk from main rivers, estuaries, the sea and
reservoirs and is responsible for building ood defences where funding
is available.
Floodplain management The Queensland Floods Commission recom-

mended that recent ood studies of catchments and of all urban areas in
a state should be initiated and made available. The ood study should be
comprehensive and collate or create data on: rainfall; stream ow, tide
levels; inundation levels and extents; the operation of any dams, and river
channel and ood-plain characteristics. Suitable hydrologic models
should be produced and validated. A suitable hydraulic model should
also be produced which is able to determine ood heights, extents of
inundation, velocities, rate of rise and duration of oods.257 The study
should also analyse the probability of joint oods occurring in more than
one river and the characteristics of oods in all signicant locations in
the catchment. With regard to all urban areas, these should be ranked by
a State government in order of priority in terms of their need for a
current ood study.
Local councils should keep these studies up-to-date. The body con-
ducting a study should consult with surrounding councils and others to
check whether they are doing any work that might assist with the
development of the study. Elected council representatives should be
informed of the ood study so they can consider its consequences for
land use planning and emergency management.258 The data used in ood
studies should be maintained in a repository so that all levels of govern-
ment and dam operators can access it. Councils with requisite resources
254
Ibid. at 5.
255
Available at www.legislation.gov.uk/ukpga/2010/29/contents (accessed 10 October 2014).
256
Available at www.gov.uk/government/uploads/system/uploads/attachment_data/le/
228898/9780108510366.pdf (accessed 10 October 2014).
257 258
Queensland Floods Commission, see Note 248 at 12. Ibid. at 13.
should develop ood-plain management plans, and, where development
is expected to occur, they should develop ood behaviour maps which
indicate at least three zones of risk. Where they lack resources, they
should develop a ood map which shows at least three examples of the
likely extent of ooding. Similar recommendations are made for non-
urban areas where limited development is likely to occur. Where no
assessment of the likelihood of ooding has been done, councils should
inquire into whether a development site could be subject to ooding.
State governments should ensure that all councils have sufcient
guidelines for understanding best practice in the performance of ood
studies and the production of ood maps. All ood mapping should be
displayed on council and government websites and property specic
information should be available to the general public, including by
searching an online database. Prospective purchasers should be alerted
to the risk of ooding, including by standard contract conditions drawn
up by the relevant Real Estate Institutes and Law Societies.259
It is interesting to note that the 2007 EU Floods Directive260 also
endorses the undertaking of preliminary ood risk assessments and
indeed requires all Member States to undertake these assessments for
coastal areas, river basins and portions of international river basins.
Based on these preliminary assessments, Member States are required to
prepare ood hazard maps and ood risk maps.261 Flood risk manage-
ment plans must then be prepared by Member States based on the ood
hazard and risk maps, which must be coordinated at the appropriate level
such as the river basin district, and objectives and measures for reducing
the potential adverse effects must be established. All aspects of ood risk
management must be taken into account including prevention, protec-
tion and preparedness, including ood forecasts and early warning
systems. Importantly, when preparing management plans, Member
States should not adopt measures that might signicantly increase ood
risk in either upstream or downstream countries in the same river basin.
These plans must be completed by 22 December 2015.262 Preliminary
ood risk assessments must be reviewed by 22 December 2018 and every
259
Ibid. at 14.
260
Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007
on the assessment and management of ood risks, available at http://eur-lex.europa.eu/
legal-content/EN/TXT/?uri=CELEX:32007L0060 (accessed 9 September 2014).
261 262
Ibid. Art. 6. Ibid. Art. 7.
six years thereafter. Flood hazard and risk maps must be reviewed by
22 December 2019 and reviewed every six years thereafter, while ood
risk management plans must be reviewed by 22 December 2021 and
every six years thereafter. The likely impact of climate change on the
occurrence of oods must be taken into account in these reviews.263
Member States are also required to look for synergies between the Water
Framework Directive264 and the Flood Directive to improve efciency and
information exchange as well as achieving environmental objectives.
Flood risk management plans and river basin management plans should
be reviewed together and the active participation and involvement of all
interested parties in both Directives must be achieved.265 Information
regarding preliminary ood risk assessment, ood hazard and risk man-
agement maps, as well as ood risk management plans must all be made
publicly available.266 The Guidance for Reporting under the Floods Dir-
ective was released by the European Commission in 2013.267
State planning instruments State Planning Policies should be amended

to ensure that all relevant developments are assessed for ood risk.
Where a State Department of Community Safety exists it should have
the power to comment on State and local council planning schemes with
regard to the ood modelling and mapping in a planning scheme. It
should also be allowed to readily ascertain whether its comments are
being properly addressed.268
Local planning instruments State governments should draft model

ood planning controls that councils can adapt for local conditions and
they should require these controls to be reected in new planning
schemes. The government should include in the controls a model plan-
ning scheme policy and a requirement that councils have a ood overlay
map in their planning schemes.269 These should be included by local
councils even if the State government does not require them. A ood
overlay map should identify the areas that are: known to be affected by
ood and on which council can impose different planning controls; and
263
Ibid. Art. 15.
264
Available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32000L0060
&from=EN (accessed 8 January 2015).
265 266
Floods Directive, see Note 260 Art. 9. Ibid. Art. 10.
267
See http://icm.eionet.europa.eu/schemas/dir200760ec/resources/Floods%20Reporting%
20guidance%20nal.pdf (accessed 9 September 2014).
268 269
Queensland Floods Commission, see Note 248 at 15. Ibid.
areas for which there is no ood information available. Assessment
criteria relating to oods should be consolidated by councils in their
ood overlay codes. Councils should be allowed to amend planning
schemes to update ood mapping information by way of the minor
amendment process as long as adequate public consultation has
occurred.270
Community infrastructure, commercial property and bulk hazardous

materials The Queensland Floods Commission made various recom-
mendations with regard to oods and community infrastructure. These
include that: ood state planning policies be extended to community
infrastructure; and that local councils should require community infra-
structure to be located and designed to function effectively during and
immediately after a ood of a specied level of risk. The Commission also
recommended that the State government draft assessment criteria be
included in model ood planning controls to ensure that ood impacts
on commercial property be minimised.271 It found that State govern-
ments should also ensure that the model ood planning controls require
the manufacture or storage of bulk hazardous materials to take place
above a certain ood level, and that structures for these purposes on
ood-prone land should be designed to prevent the intrusion of ood-
waters.272 Recommendations were also made with regard to the con-
struction of levees and their implications for catchments, communities,
landholders and emergency management procedures.273
Development assessment in practice and building controls

Development consent authorities, usually local councils, should maintain
ood maps and overland ow maps for use in development assessments,
which should also be made available to applicants for development
applications.274 Whether or not this is included in a model planning
scheme policy, consent authorities should advise in their planning
scheme policies that storm water and ooding information must be
included in development applications (DA). This information should
also be provided to development applicants either at pre-lodgement
meetings, or at the time of receiving the DA, about how ood risks will
be assessed.275
270 271 272 273 274

Ibid. at 16. Ibid. at 17. Ibid. at 18. Ibid. at 19. Ibid.
275
Ibid. at 20.
The Commission recommended that building codes include a part
entitled Construction of buildings in ood hazard areas. These require-
ments could declare a height to be the expected ood level or adopt a
highest recorded ood level for the land to be developed. The code
should also declare a velocity to be the expected maximum velocity of
ood water for the area in which the lot is located.276
Grey or hard ood prevention measures Grey actions would

include the building of coastal and river ood defences such as dikes,
sea walls, or weirs and dams, all of which would require development
assessment and approval, as well as beach nourishment, which will be
discussed in more detail under coastal adaptation responses. The role of
ood-related infrastructure was recently highlighted in the UKs Winter
oods 20132014 report. In the UK, water and sewerage companies are
responsible for managing sewer ooding, while highways authorities
manage ooding from highway drainage and roadside ditches.277
Internal Drainage Boards are local public authorities responsible for
maintaining water levels in their drainage district and play an integral
part in managing ood risk and land drainage. Much of their work
relates to the maintenance and improvement of water courses and related
infrastructure such as pumping stations, weirs, sluices, culverts and
embankments within their drainage districts.278 The Winter oods report
highlighted that chronic underfunding by government of maintenance
on main rivers and water management infrastructure over decades has
made water management systems and infrastructure less resilient.279 In
response to the Floods, the government provided the following recovery
and ood defence commitments: an additional 130 million for emer-
gency repairs and maintenance, with 30 million to be spent in 2014 and
100 million in 2015; forty-two new ood defence schemes for 201415
to protect more than 42,000 households; and 370 million in capital
276
Ibid.
277
See Oliver Bennett, Flood defence spending in England (House of Commons Library:
February 2014) available at www.parliament.uk/business/publications/research/brieng-
papers/SN05755/ood-defence-spending-in-england (accessed 10 October 2014) at 8.
278
See An introduction to Internal Drainage Boards (Association of Drainage Authorities)
available at www.ada.org.uk/downloads/publications/IDBs%20An%20Introduction.pdf
(accessed 10 October 2014).
279
See Gazette Summer 2014 (Association of Drainage Authorities) available at http://
content.yudu.com/Library/A2w7jl/ADAGazetteSummer2014/resources/index.htm?refer
rerUrl (accessed 10 October 2014) at 5.
investment to improve ood defences in 201516, followed by the same
in real terms each year, rising to over 400 million by the end of the
decade.280
In as much as infrastructure such as dams might be built as a ood
resilience measure in river basins, the management of dams can also become
a crucial factor in precipitating catastrophic ooding. During the Queens-
land oods, for example, dam operators were forced to make large water
releases to prevent one of the major storage dams from collapsing and
causing unnecessary ooding downstream. The operators of the dam are
currently being sued in negligence by 4,000 individuals and businesses
affected by the oods, with damages claimed in the range of A$ 1 billion.
However, one of the other legal responses of the Queensland government
was to pass legislation to strictly control the activities of the dam operators to
release water from dams. This may have resonance in other jurisdictions.
In the rst place, dam operators conduct their activities in accordance
with an operations licence granted in accordance with a resource oper-
ations plan, for which a ood mitigation manual is required under water
supply safety and reliability legislation. The amending legislation vest in
the accountable Minister, rather than the dam operators, the ultimate
decision whether to alter the full supply level of dams. The Minister may
decide to review the full supply level for a dam based on considerations
including, for example, meteorological forecasts and the public interest.
Generally, the Minister would act if the Bureau of Meteorology issues a
seasonal outlook which indicates a potential emergency. The Minister
will act on the advice of the Director-General of the Department who
must consult with the dam operators and other entities.
The Director-General, in formulating the advice to the Minister, must
consider a range of matters, including the dam operators advice, the
extent to which the proposed temporary full supply level is likely to
mitigate the impacts of a potential ood or drought, possible impacts
on water security and the safety of the dam, and other positive or
negative effects, for example, impacts on public safety and environmen-
tal, social and economic impacts downstream of the dam. The Minister is
then vested with the power to alter the full supply level of the dam for a
period of no longer than six months, for the purpose of mitigating the
effects of a potential developing ood or drought situation, by publishing
a notice in the government Gazette. When the rst notice expires, the
280
Bennett, see Note 277 at 5.
Minister may make further notices. It is now an offence attracting
penalties for dam operators to fail to comply with the Director-Generals
directions with regard to the operation of the dams. Under the amend-
ments, the Director-General can also include, in dam safety conditions, a
requirement for the dam operator to give general ood information and
warnings to residents immediately downstream of the dam.
4.7.3. Critical Infrastructure

One of the most recent government interventions to protect critical
infrastructure in the face of climate disasters is President Obamas 2013
Presidential Policy Directive (PPD) on Critical Infrastructure Security and
Resilience,281 released following Hurricane Sandy. The Directive estab-
lishes national policy on critical infrastructure security and resilience. It
allocates shared responsibility among federal, state, local, tribal and
territorial (SLTT) entities, and public and private owners and operators
of critical infrastructure. It also acknowledges the Federal governments
own responsibility to strengthen the security and resilience of its critical
infrastructure. This Directive identies sixteen critical infrastructure
sectors, including Communication, Dams, Emergency Services, Energy,
Transportation Systems, and Water and Waste water Systems. The three
strategic imperatives to strengthen critical infrastructure security and
resilience are to: rene and clarify functional relationships across the
Federal government to enhance national unity for strengthening critical
infrastructure security and resilience; identify baseline data and systems
requirements for the Federal government; and implement an integration
and analysis function to inform planning and operations decisions
regarding critical infrastructure.
Administrative responsibility lies with the Secretary of Homeland
Security, who has the following functions which must be completed
within specic timeframes required by the President:
identify critical infrastructure and consider all physical and cyber

threats, vulnerabilities and consequences, in coordination with Sector
Specic Agencies (SSAs) and other Federal departments and agencies;
281
Available at www.whitehouse.gov/the-press-ofce/2013/02/12/presidential-policy-direct
ive-critical-infrastructure-security-and-resil (accessed 17 October 2014). See also the
EUs policy Adapting infrastructure to climate change available at http://ec.europa.eu/
clima/policies/adaptation/what/docs/swd_2013_137_en.pdf (accessed 9 September 2014).
maintain national critical infrastructure centres to provide integrated,

actionable information about emerging trends, imminent threats, and
the status of incidents that may impact critical infrastructure;
provide analysis, expertise, and other technical assistance to critical
infrastructure owners and operators and facilitate access to and
exchange of necessary information and intelligence;
conduct comprehensive assessments of the vulnerabilities of the
nations critical infrastructure;
coordinate Federal government responses to signicant cyber or phys-
ical incidents affecting critical infrastructure;
support the Attorney-General and law enforcement agencies with their
responsibilities to investigate and prosecute threats to and attacks
against critical infrastructure;
coordinate with SSAs and other appropriate Federal departments and
agencies to map geospatially, image, analyse, and sort critical infra-
structure by employing commercial satellite and airborne systems, as
well as existing capabilities within other departments and agencies; and
report annually on the status of national critical infrastructure efforts as
required by statute.
Various other departments and agencies are also vested with specialised
or support functions related to critical infrastructure security and
resilience.
Protecting electricity infrastructure from extreme rainfall

events and oods: a case study
The IPCCs Managing the Risks of Extreme Events and Disasters to
Advance Climate Change Adaptation (SREX Report)282 provides a com-
prehensive assessment of climate change impacts on electricity infra-
structure, as well as discussing the economic costs of adaptation
measures and global and regional climate disasters; implications for
development, recovery and reconstruction; and technologies for dealing
with extreme events. The Report notes that electricity transmission
infrastructure is particularly vulnerable to extreme storm events, espe-
cially wind and lightning, extreme rainfall events and oods, drought,
and in some cases heatwaves.283
282 283
SREX Report, see Note 161. Ibid. at 42, 235
With regard to the risk of ooding on electrical infrastructure and the
resultant exposure and vulnerability of communities, risk management
and adaptation methods are important. One of the most recent case
studies of the impact of oods on electricity infrastructure is the devas-
tating ood events that struck Queensland in 201011.There was wide-
spread damage to the electricity network with power outages experienced
even where the local electricity infrastructure was not damaged. This was
either the result of damage occurring elsewhere to connection parts of the
network or because of precautionary disconnections to prevent electric
shock.284
The Queensland Floods Commission of Inquiry, discussed earlier,
made a number of recommendations regarding electricity infrastructure
and oods. First, State government model ood planning controls
should require substations to be built so as to remain operational during
and immediately after a ood of a particular magnitude. That magnitude
should be determined by an appropriate risk assessment.285 If substation
development is captured during the planning stage this will allow for
better locational planning, which will provide better placement of such
infrastructure.286 Secondly, if model ood planning controls have not
been developed, these provisions should be captured in local planning
schemes.287 Thirdly, electricity distributors should consider installing
connection points where generators could be installed so as to provide
electricity supply to non-ooded areas that have had their supply cut
during oods.288 Fourthly, the State government should consider
whether there should be a legislative requirement that customer dedi-
cated assets be built at or above the applicable dened ood level.289 For
example, new high rise buildings electrical equipment should be raised
and located out of ood areas, which may exclude basement locations in
some areas.290 Finally, State government should consider implementing
mandatory requirements to ensure the sealing of all conduits for the
purpose of providing electrical supply below the applicable dened ood
level to prevent ood waters from entering them or owing into them.291
This is because electrical connections are supplied through this cabling to
commercial and industrial premises with the cables running from the
footpath through conduits to the substation inside a customers
premises.292
284 285 286 287

Queensland Floods Commission, see Note 248. Ibid. Ibid. Ibid.
288 289 290 291 292
Ibid. Ibid. at 248. Ibid. at 247. Ibid. at 249. Ibid.
Interestingly, shortly after Hurricane Sandy, a group led by the Col-
umbia Center for Climate Change Law led a formal petition with the
New York Public Service Commission (PSC) asking it to require all the
utilities it regulates to develop climate adaptation plans. This petition led
to the PSC ordering Con Edison, on 20 February 2014, to implement
state-of-the-art measures to plan for and protect its electric, gas and
steam systems from the effects of climate change. Expenditure of
approximately US$ 1 billion in storm hardening and resiliency measures
was also approved. Con Edison and the parties agreed on an interim
minimum design standard of the latest FEMA 100-year ood-plain
elevation plus three feet (nearly a metre) of freeboard to protect critical
infrastructure from future oods. This FEMA plus 3 standard will be
reviewed to see if higher levels of protection are warranted. The Order
conrmed Con Edisons commitment to conduct a Climate Change
Vulnerability Study in 2014 to provide important guidance on how the
utility can best prepare for rising sea levels, more intense storms, heat
waves and other potential effects of a changing climate.293
Electricity technology choices for adaptation and disaster risk

reduction
Technology choices can either alleviate disaster risk or signicantly
increase risks and adaptation challenges. For example, storms can render
modern energy systems and centralised communication systems, which
are dependent on physical structures, highly vulnerable to damage. It has
been suggested that relatively centralised high-technology systems, such
as the traditional electricity grids, are brittle, and, while they offer
efciencies under normal conditions, in the event of emergencies they
are subject to cascading effects.294 It has also been suggested that the
adoption of a Smart Grid might be a sound adaptation response. The
Smart Grid comprises two distinct components: an interstate sustainable
transmission grid which will transport clean utility-scale renewable
energy to the market across long distances; and a digital smart distribu-
tion grid to deliver this electricity efciently to local consumers.295 The
293
See http://blogs.law.columbia.edu/climatechange/2014/02/21/public-service-commission-
approves-con-ed-rate-case-and-climate-change-adaptation-settlement/ (accessed 9 January
2014).
294
SREX Report, see Note 161 at 493
295
Bracken Hendricks, Wired for Progress 2.0: Building a National Clean-Energy Smart Grid
(Washington, D.C: Center for American Progress, April 2009) at 10.
Smart Grid integrates advanced, two way communications systems and
sensors with the transmission and distribution network, which enables
utilities to optimise grid performance in real-time.296 For the purposes of
resilience, the Smart Grid gives utilities an enhanced ability to identify
the location of a failure and quickly re-route electricity to locations where
demand is most critical. This could occur during times of climate
change-induced crisis, or peak demand, and prevents outages through
proactive diagnosis of the grid and its individual elements. Importantly, it
enhances the ability of the grid to continue to provide power following a
catastrophic event and to support vital emergency responses as well as
military, economic and social activities during a crisis.297
4.7.4. Bushres
Many jurisdictions have experienced catastrophic bushres in recent
years. As discussed in Chapter 2, in 2009 the Australian state of Victoria
experienced a bushre which resulted in the destruction of 2,300 houses,
the death of 173 people and more than 1 million animals. Following this,
the Victorian Bushres Royal Commission was established which
released its nal report298 in July 2010. The Commission conservatively
estimated the damage to be A$ 4 billion and made sixty-seven recom-
mendations for reform, which will be discussed generically to provide
guidance to other jurisdictions in similar circumstances.
Land use and planning

The Commission recommended that the government identify a central
point of responsibility for and expertise in mapping bushre risk in the
state,299 and that it implement a regional settlement policy which
includes bushre risk assessment at the planning stage for new urban
296
See Rosemary Lyster, Smart Grids: Opportunities for Climate Change Mitigation and
Adaptation (2010) 36(1) Monash University Law Review 17391.
297
Kenneth Nahigian, The Smart Alternative: Securing and Strengthening Our Nations
Vulnerable Electric Grid (Alexandria, VA: The Reform Institute, June 2008) at 2, 8.
298
Available at www.royalcommission.vic.gov.au/Commission-Reports/Final-Report (accessed
6 June 2013). See also Anita Foerster, Andrew Macintosh and Jan McDonald, Transferable
lessons for climate change adaptation planning? Managing bushre and coastal climate
hazards in Australia (2013) 30 Environmental and Planning Law Journal 469.
299
Victorian Bushres Royal Commission. ibid. Recommendation 37.
developments in regional cities.300 It recommended further that State
government planning provisions should substantially restrict develop-
ment in the area of highest bushre risk and give clear guidance to
decision-makers,301 as well as implementing a retreat and resettlement
strategy for existing developments in areas of unacceptably high bushre
risk. This might require a scheme for non-compulsory land acquisi-
tions.302 The Commission also recommended that State government
require municipal councils to urgently adopt a bushre policy in their
Local Planning Policy Framework.303 With regard to the implications for
private property, the Commission recommended that the Sale of Land
Act 1962 (Vic) be amended to require that a vendors statement include
bushre risk information, including whether the land is in a designated
Bushre-prone Area.304
The then Labor Victorian government responded by amending the
Victorian Planning Provisions to introduce a new hazard assessment
mapping tool known as Bushre Management Overlay (BMO), as well
as a new bushre planning policy.
Building codes
The Commission recommended that construction standards and build-
ing codes be amended to include objectives and performance require-
ments accommodating bushre risk.305 It also recommended that
deemed-to-satisfy provisions for the construction of buildings in the
Bushre Flame Zone should not be permitted, so that each development
application is assessed on its individual merits. In response, the Building
Amendment (Bushre Construction) Regulations 2011306 now designate
bushre-prone areas across the State for the purposes of the building
control system. Those seeking to build new homes in bushre-prone
areas are required to undertake a Bushre Attack Level (BAL) assessment
and comply with minimum construction requirements. A BMO identi-
es when a BAL assessment is needed.
300 301
Ibid. Recommendation 38. Ibid. Recommendation 39.
302 303
Ibid. Recommendation 46. Ibid. Recommendation 33.
304 305
Ibid. Recommendation 53. Ibid. Recommendations 478.
306
See www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/93eb987e
badd283dca256e92000e4069/DB244E720AA9F91CCA2578FC001A941A/$FILE/11
092srbookmarked.pdf (accessed 21 January 2015).
The clearing of native vegetation
The Commission recommended that the government amend the state
planning provisions to facilitate the removal of native vegetation for re
hazard purposes, while developing guidelines for the maximum removal
for bushre risk mitigation.307 The Victorian government308 introduced
new exemptions from the requirement to obtain a planning permit to
remove native vegetation to help reduce fuel load around existing homes
and boundary fences.309
4.7.5. Drought and desertication

As discussed in Chapter 2, the IPCCs AR5 notes that the proportion of
the population currently experiencing water scarcity will increase with
the level of warming in the twenty-rst century.310 The United Nations
Convention to Combat Desertication (UNCCD)311 states that by 2015,
more than 2.8 billion people in forty-eight countries will face water
scarcity or stress conditions, and 2.4 billion people may be living in areas
subject to periods of intense water scarcity. Up to fty-four countries,
with a combined population of 4 billion people, or 40 per cent of the
projected global population, could face water stress or scarcity by
2050,312 with consequences for ethnic tensions and climate displaced
persons.313
307
Victorian Bushres Royal Commission Final Report, see Note 298, Recommendation 41.
308
Note that the New South Wales government introduced similar bush clearing provisions
known as the Rural Fire Service 10/50 Vegetation Clearing Code of Practice for New
South Wales available at www.rfs.nsw.gov.au/__data/assets/pdf_le/0003/18453/1050-
Vegetation-Clearing-Code-of-Practice.pdf (accessed 19 November 2014). These provi-
sions have proved highly controversial as landholders, who have long been prevented
under local government Tree Preservation Orders from removing trees, have used these
provisions to engage in indiscriminate land clearing and the destruction of trees (with
obvious climate change and biodiversity implications) for reasons other than genuine
re hazard reduction. These provisions are currently under review.
309
See Preparing for bushre: 10/30, 10/50 and Fence line clearing available at www.depi.vic.
gov.au/__data/assets/pdf_le/0009/221310/1030-Rule,-1050-Rule-and-fence-line-
clearing.pdf (accessed 21 January 2015).
310
IPCC, see Note 25 at 14.
311
Land-based Adaptation and Resilience: Powered by Nature (UNCCD: 2014) available at
www.unccd.int/Lists/SiteDocumentLibrary/Publications/Land_Based_Adaptation_ENG
%20Sall_web.pdf (accessed 24 November 2014).
312
Ibid. at 6.
313
Catherine Fitzgibbon and Alexandra Crosskey, Disaster risk reduction management in
the drylands in the Horn of Africa (Brief prepared by a Technical Consortium hosted by
It is widely accepted that it is necessary to integrate drought disaster
risk reduction (DRR) into all aspects of development and humanitarian
policy and programming. Unfortunately, DRR efforts to date are clearly
inadequate, as witnessed during the 2011 drought crisis. The Intergov-
ernmental Authority on Developments (IGADs) Drought Disaster
Resilience and Sustainability Initiative314 provides an opportunity for
governments in the Horn of Africa to re-examine and revise policy and
programming from a DRR perspective. Under this initiative, IGAD has
created the Regional Platform on Drought Resilience and Sustainabil-
ity,315 to mobilise resources, encourage knowledge management, and
formulate common regional goals and strategies.316
Meanwhile, a recent study commissioned by the UK Department for
International Development (DFID)317 compared the relative costs of late
humanitarian response, early response, and building resilience to disas-
ters. The study modelled the costs of drought on pastoralist communities
in the Horn of Africa over twenty years. It concluded that early response
is far more cost-effective than late humanitarian responses, as timely
assistance signicantly reduces the humanitarian survival needs of the
affected community. Early humanitarian response measures included
reducing the number of animals before body condition and livestock
prices declined, and multi-year food and cash transfers. The study also
concluded that while the cost of resilience is comparatively high, the
wider benets of building resilience can signicantly outweigh the costs,
and investment in resilience is the best value for the money.318
At present, emergency responses are over-reliant on food aid. While it
provides immediate assistance that is relatively accessible and highly
CGIAR in partnership with the FAO Investment Centre: 2013) available at http://
globalallianceforaction.com/docs/Disaster%20risk%20reduction%20management.pdf
(accessed 23 November 2014) at 4.
314
Intergovernmental Authority on Developments (IGADs) Drought Disaster Resilience
and Sustainability Initiative (2013) available at http://reliefweb.int/sites/reliefweb.int/
les/resources/IDDRSI_Strategy_Revised_January_2013.pdf (accessed 23 Novem-
ber 2014).
315
Available at http://resilience.igadhost.com/index.php/platform (accessed 23 Novem-
ber 2014).
316
Ibid. at 2.
317
See C.C. Venton et al., The Economics of early response and disaster resilience: lessons
from Kenya and Ethiopia (2012) available at www.gov.uk/government/publications/the-
economics-of-early-response-and-disaster-resilience-lessons-from-kenya-and-ethiopia
(accessed 23 November 2014).
318
Regional Platform on Drought Resilience and Sustainability, see Note 315 at 6.
politically acceptable, it is extremely expensive and cumbersome to
deliver. Communities tend to become highly dependent upon food aid
before, during and after drought in lieu of other limited or comple-
mentary assistance. Food aid supports households to survive an immedi-
ate crisis but it fails to build long-term resilience. Given that food aid is
rarely supplied on time or at the required level, households are often
forced to sell key livelihood assets such as core breeding stock, or to
abandon or lose their assets when eeing to survive the food insecurity
conict that ensues.319
4.7.6. Planned relocation and resettlement

Migration, planned relocation and resettlement are emerging as import-
ant adaptation responses,320 with recent empirical evidence suggesting
that to date relocation and resettlement occur almost entirely within
national borders.321 According to Warner et al., there are several categor-
ies of people for whom relocation should be specically planned,
including:
people who need to be relocated from areas prone to sudden-onset

natural disasters;
people who need to be relocated because of slow-onset impacts on their
livelihoods;
people who need to be relocated because their lands are needed for
mitigation measures; and
people who need to be relocated because their country or parts of their
country could become unsuitable for habitation, such as small island
states facing sea level rise.
Warner et al. report that there are eight interrelated risk factors associ-
ated with relocation: landlessness, joblessness, homelessness, marginal-
isation, food insecurity, increased morbidity and mortality, loss of access
to common property, and social disintegration. There is a risk of the
displaced becoming poorer than before displacement, more vulnerable
319
Ibid. at 8.
320
See Sheila McAnaney, Sinking Islands? Formulating a Realistic Solution to Climate
Change Displacement (2012) 87 New York University Law Review 1172 at 1188.
321
Koko Warner et al., Changing Climate, Moving People: Framing Migration, Displacement
and Planned Relocation (UN University-Institute for Environmental and Human Secur-
ity (UNU-EHS): June 2013) at 20.
economically, and disintegrated socially.322 For these reasons it is
important for governments to secure appropriate and sufcient land;323
allow several years to plan for relocation, which should be supported by
adaptation funding mechanisms;324 and apply human rights principles
such as freedom of movement and non-discriminatory access to public
services as criteria for evaluating planned relocation programs.325 With
respect to planned relocation, Warner et al. believe that resettlement
should be the last policy alternative after all others have been exhausted.
Where it is unavoidable, resettlement should be voluntary and participa-
tory in design, implementation and monitoring.326
The Ofce of the United Nations High Commissioner for Refugees
(UNHCR) on April 2011327 has also concluded that the planned reloca-
tion of whole populations or communities may in some cases be neces-
sary and that any relocation plans need to ensure the enjoyment of the
full range of relevant legal rights and a secure status for those
relocated.328 This includes: access to information about reasons and
procedures for movement; participation in the planning and manage-
ment of the relocation; the right to practice ones own culture and
traditions; and to enjoy rights to life, dignity, liberty, security, and self-
determination,329 including for Indigenous peoples.330
4.8. Cities: the adaptation and disaster risk reduction microcosm

Chapter 3 identied cities as major sites of climate disasters which are
perhaps uniquely situated at the intersection of climate hazards, exposure
and vulnerability. It is no surprise then that at the international level the
importance of integrating climate change adaptation and disaster risk
reduction in cities is gaining increasing traction. As discussed in Chap-
ter 3, the Sendai Framework has now been established. In a report on
national consultations with respect to the development of the Sendai
322 323 324 325

326
Ibid. at 37.
327
Summary of Deliberations on Climate Change and Displacement (UN High Commis-
sioner for Refugees: April 2011) available at www.unhcr.org/4da2b5e19.pdf (accessed 11
February 2014).
328
Ibid. at 7, cited by Marissa S. Knodel, Wet Feet Marching: Climate Justice and Sustain-
able Development for Climate Displaced Nations in the South Pacic (2012) 14
Vermont Journal of Environmental Law 127 at 138.
329 330
Ibid. at 8, cited by Knodel, ibid. at 138. Knodel ibid. at 150.
disaster risk reduction microcosm 227
Framework, the role of local governments and mayors was emphasised as
follows:
Local governments, mayors and community organisations are at the
frontline and center of disasters and knowledge of resilience-building.
Putting more emphasis on their views and Capabilities is critical for
success in reducing disaster risk and building resilience.331
Further,
Urbanization has profound effects on the communities and this is a topic
requiring much research, reection, and practical action. Because it is
expected that 80% of the worlds population will live in cities or their
agglomerations by 2050, the multi-faceted problems this entails for disas-
ter risk reduction need to be enumerated and investigated, and responses
must be attempted even if at rst they are only provisional. Urbanization
must be a concern of HFA2. It is not a subject that can wait.332
As aforementioned, law- and policy-making for resilient cities needs to

incorporate scientic notions of resilient systems which have a high level
of adaptive capacity. Thinking adaptively requires the acknowledgement
of uncertainty and accepting that potential future risks should not be
based on past data or optimistic assumptions. For example, historic
patterns should not be used to decide where to locate new developments
given the potential for expanded ood areas due to increased frequency
and intensity of storm events. Even green infrastructures can create
vulnerability unless they are based on principles of resilient design.333
Building the adaptive capacity and consequent resilience of a system
includes ensuring that needed changes can be made incrementally and
gradually, as well as factoring in the capacity to resist change.334 The
adaptive-management model rejects up-front, comprehensive, long-
term, static plans and instead involves a process of identifying goals
and making decisions for future action[s] that are exible, contemplate
uncertainty and multiple possible scenarios, include feedback loops for
frequent modication to plans and their implementation, and build
planning and management capacity to adapt to change.335 Ongoing
iterations are expressly built into the planning and re-planning (adapta-
tion) process. Feedback loops are essential. In other words, there should
331
Synthesis Report: Consultations on a Post-2015 Framework on Disaster Risk Reduction
(HFA2) (UNISDR: 2013) available at www.unisdr.org/les/32535_hfasynthesisreportf
inal.pdf (accessed 11 January 2014).
332 333 334 335
Ibid. at 3. Arnold, see Note 89 at 260. Ibid. at 247. Ibid. at 262.
be sufcient exibility, redundancy and learning capacity to adapt to
surprises and disturbances without collapsing or ipping into fundamen-
tally different systems.336
It is for these reasons that the EUs 2012 European Environment
Agency Report Urban adaptation to climate change in Europe337 is
discussed here as a sound example of policy-making which adopts all
of these principles.
4.8.1. Climate change threats to urban areas in Europe

The European Environment Agency (EEA) has conducted a thorough
scientic climate risk assessment for the urban environment and has
identied a number of vulnerabilities which may well, and probably do,
have resonance in other jurisdictions.
Urbanisation, population ageing and other socio-economic

trends interact with climate change
Three-quarters of Europes population lives in urban areas. The impacts
of climate change in the urban context need to be set against other socio-
economic trends. These include demographic changes such as ongoing
urbanisation, ageing populations, competing demands for increasingly
scarce water supplies, and densication in ood-prone areas including
ood plains. All of these increase the vulnerability of people, property
and ecosystems and are exacerbated by climate change. While urban
areas experience the impacts of climate change they can also be a
contributor to the impacts of climate change. For example, warmer
microclimates are created when natural vegetation is replaced with
articial surfaces and buildings altering temperature, moisture, wind
direction and rainfall patterns. Urban design can also make cities more
vulnerable if excessive rain water cannot naturally percolate the soil to
reach the groundwater table.338 Cities are also vulnerable because of their
dependence on other cities and regions to provide essential services, such
as the delivery of food, water, energy and infrastructure. Surrounding
336
Ibid. at 246.
337
Available at www.eea.europa.eu/publications/urban-adaptation-to-climate-change
(accessed 2 September 2014). See also Cities and Climate Change: National governments
enabling local action (OECD, 2014) available at www.oecd.org/env/cc/Cities-and-cli
mate-change-2014-Policy-Perspectives-Final-web.pdf (accessed 1 March 2015).
338
Ibid. at 6.
ecosystem services may provide clean air, store or drain ood waters and
provide drinking water.339 Cities reliance on external services can be
reduced in a number of ways, such as generating energy locally through
the use of Smart Grids and solar panels on roofs.340
Climate change requires drastic changes to the ways in which urban
and regional areas are managed, including by using spatial planning
instruments to situate housing, businesses and infrastructure away from
risk-prone areas. Evidence suggests that delaying adaptation action in
urban areas may increase costs unless infrastructure, including roads,
railways, bridges, energy grids and water and sewerage systems are
climate-proofed. This indicates that long-term planning is essential.341
Moreover, urban adaptation requires regional, national and global
approaches.
Heat impacts
Temperatures in Europe have increased by 0.3C per decade since the
1970s and it has experienced more heat incidents in the last two decades.
At least two summers in the most recent decade (2003 and 2010) were in
all likelihood the warmest in the past 500 years in Europe. Climate
change indicates the probability of increasing mega heatwaves over
highly populated areas of Europe, while the length, frequency and/or
intensity of heatwaves will increase. Southern Europe is particularly
affected.342 The greatest climate disasters experienced in the EU in recent
decades have been heatwaves, with the summer of 2003 resulting in up to
70,000 deaths during a four-month period in Central and Western
Europe.343 There is a recognition, however, that heatwaves are relative,
so that in Portugal this would be a 1C increase above 30C, whereas in
Sweden deaths increase signicantly if the temperature stays at more
than 2223C for two consecutive days.344 Vulnerability to heatwaves is
dependent also on a range of socio-economic and behavioural factors,
such as gender, age (over the age of 65),345 social isolation, youth, illness,
ethnicity, homelessness, lack of mobility, alcohol use, inappropriate
clothing, intensive outdoor labour, and low income or poverty.346
Beyond the direct human health impacts, heatwaves also impact on
psychological well-being, water resources, and the economy and infra-
structure, as employees are affected by the heat and public transport and
infrastructure is affected.347 Air pollution is also exacerbated by heat
339 340 341 342 343

Ibid. at 7. Ibid. at 15. Ibid. at 7. Ibid. at 24. Ibid. at 18.
344 345 346 347
through increased formation of ground-level ozone and more particulate
matter in the air.348
Urban adaptation to heat stress Urban heat stress can be ameliorated

through the adoption of grey and green infrastructure, as well as soft
measures. Although increased use of air-conditioning is an obvious grey
infrastructure response this is less desirable given its contribution to
greenhouse gas emissions where electricity is fossil-red. Preferable solu-
tions include building design, and public spaces which provide shade and
natural ventilation. For green infrastructure, green and blue areas in
cities should be conserved and improved as these can ameliorate the heat
island effect but also provide co-benets, such as recreational spaces,
enhanced biodiversity, air purication and water drainage and storage.
Vegetation also produces fresh and cold air particularly at night.349 With
regard to soft measures, simple health warning information such as
appropriate clothing, hydration and avoiding alcohol can produce behav-
ioural responses. Heat Health Warning Systems (HHWS) may also be
developed which provide individuals with an array of possible response
measures depending on the level of heat. Many EU countries have
adopted a HHWS.350
Flooding
Between 1950 and 2006, oods caused by heavy rainfall have caused
extensive economic loss. The types of oods which occur in urban areas
include: river oods triggered by heavy rainfall events; ash oods
resulting from the accumulation and release of run-off waters from
upstream mountainous areas; coastal oods caused by storm surges
exacerbated by coastal erosion; urban drainage ooding where water
retention and drainage systems fail; and groundwater ooding when
groundwater rises to the surface.351
Water scarcity and droughts

Water resources are expected to diminish in Europe as a result of an
increasing imbalance between demand and supply, which is likely to be
exacerbated by climate change. Urban water availability is also impacted
by a failure of the market to properly price water and adopt a user pays
principle. Spatial planning can also contribute to scarcity if developments
348 349 350 351

are situated in locations of water scarcity, while water efciency measures
in urban areas need to be up-scaled. EU countries waste between 1025
per cent of their water through inefciencies. Cities also compete with
other users such as energy generation (45 per cent of use), agriculture (22
per cent) and public water supply (21 per cent).352
Urban water scarcity impacts on: public water supply; energy produc-
tion; incomes, leading to losses; water prices, leading to increases where
desalination is adopted; surface and groundwater as well as wetlands;
health through water-borne infectious diseases associated with water
scarcity and high water temperatures; and buildings and infrastructure,
resulting from the shrinking and swelling of clay. The impacts of water
scarcity and drought events in Europe in the past thirty years are
estimated to have cost 100 million. From 19762006, the impact
doubled, rising to 6.2 billion per year in recent years. The 2003 drought
is estimated to have cost 8.7 billion.353
Adaptation responses include: increasing water efciency in buildings;
water-efcient products for domestic, commercial, industry and agricul-
tural use; reducing leakages; and halting desertication. These might be
categorised as follows:
Grey infrastructure approaches desalination, re-allocation of water

resources, rainwater harvesting, groundwater recharge and grey water
recycling;354
Green infrastructure approaches increased vegetation to slow water
run-off, store storm water and encourage soil inltration. Green roofs
can contribute to rainwater harvesting;355 and
Soft solutions including public awareness campaigns, water
rationing, special tariffs and reduction of low-value uses. The price of
water can be temporarily increased to reduce demand.356
4.8.2. Planning urban adaptation

According to the EEA, the key message for building adaptive capacity in
European cities although this is equally relevant for other cities is the
need to focus on knowledge and equity, access to technology and infra-
structure, economic resources and effective institutions. Meanwhile,
adaptation policy-making at the local level is enhanced by: good govern-
ance, the presence of national programs facilitating local action;
352 353 354 355 356

Ibid. at 55. Ibid. at 59. Ibid. at 60. Ibid. Ibid.
democratic and participatory institutions; the competencies and author-
ity of local government to regulate; the commitment of cities to climate
action; and the availability of economic resources. Little is known cur-
rently about the costs and benets of adaptation in Europe, including the
costs of climate change damage, the cost of including adaptation meas-
ures in urban policies and projects, and the cost of actual adaptation
measures.
However, emphasising the importance of up-to-date evidence upon
which to base policy responses, the EU commissioned two recent studies,
ClimateCost FP7357 and PESETA II, to analyse the climate change impact
costs for coastal systems, human health, agriculture, tourism and oods.
ClimateCost was funded by the European Commissions Community
Research and Development Information Service, to advance the know-
ledge on the economics of climate change in three key areas: the eco-
nomic costs of climate change (the costs of inaction); the costs and
benets of adaptation; the costs and benets of long-term targets and
mitigation. PESETA II was funded by the ECs Joint Research Centre to
make a consistent multi-sectoral assessment of the impacts of climate
change in Europe between 2071 2100. PESETA IIs April 2014 Report358
found that if the climate conditions expected in the 2080s were to happen
today, without climate adaptation, the EU household welfare losses
would amount to around 190 billion, almost 2 per cent of EU GDP,
although the geographical distribution of these damages is very asym-
metric with a clear bias towards the southern European regions. More
than half of the overall EU damages are estimated to be due to additional
premature mortality ( 120 billion). Moving to a 2C world, as envisaged
under the UNFCCC negotiations, would reduce climate damages by 60
billion, to 120 billion (1.2 per cent of GDP).
The EEA notes that without this type of information and awareness
about the need to adapt it is difcult to promote adaptation activities.
Communication of this need to policy-makers, planners and the public
should be promoted through national communication initiatives. The
development of multi-level, virtual information hubs on adaptation is
especially useful, such as the United Kingdoms UK Climate Impacts
Programme,359 which supports society in adapting to climate change in
357
See http://cordis.europa.eu/publication/rcn/14926_en.html (accessed 3 September 2014).
358
See Climate Impacts in Europe. The JRC PESETA II project available at http://ipts.jrc.ec.
europa.eu/publications/pub.cfm?id=7181 (accessed 3 September 2014).
359
See www.ukcip.org.uk/ (accessed 3 September 2014).
the areas of decision-making for adaptation; exchanging knowledge and
ideas; and creative adaptation.
According to the EEA, the key steps for engaging in urban adaptation
planning include:
1. Getting started by initiating climate adaptation, gaining political

support and managerial commitment, and establishing a mandate for
managing the adaptation process.360
2. Assess urban risks and vulnerabilities such as the built environ-
ment, transport networks, and critical infrastructure including electri-
city and water supply. Priority areas for adaptation should be mapped.
The citys adaptive capacity should also be evaluated and an analysis of
impacts and vulnerability should include economic analysis as well as
impacts on ecosystem services.361
3. Identify a range of adaptation options these should aim to manage
the identied risks to priority areas, sectors and elements of the urban
system.362
4. Assess and prioritise adaptation options based on their potential to
meet the adaptation objectives and their feasibility. The options
selected should preferably have elements of low-regret in the sense that
they are reversible and can deliver a number of related or co-benets,
such as reliance on green infrastructure.363
5. Implement adaptation actions an adaptation plan should list the
objectives, assign responsibilities and set deadlines for completion. The
amendment of local spatial planning policies should be considered.
Adaptation options should also be linked to established policy pro-
grams such as structural and infrastructural development funds.364
Environmental and Social Impact Assessment legislation should also
be reviewed with a view to integrating adaptation principles into those
instruments.365
6. Monitor and evaluate adaptation action a long-term monitoring
system must be established and evaluation and monitoring should be
carried out by an independent organisation.366
Land use planning

As discussed earlier in this chapter, and conrmed by the EEA, land use
planning is identied as being particularly important for cross-sectoral
360 361 362 363

EEA, see Note 337 at 74. Ibid. at 75. Ibid. Ibid. at 77.
364 365 366
Ibid. Ibid. at 78. Ibid.
adaptation, as it greatly affects the impacts of climate change on cities
and all infrastructure systems, which in turn should be located according
to population distribution. The development of land affects ood magni-
tudes and losses, water quality, water availability, and local heat island
effects. Potential damages can be reduced where new developments are
prohibited in ood zones. Commercial and residential developments
should not be situated in areas where transport is inaccessible during
extreme weather events.367
4.9. Concluding reections

This chapter has reviewed the climate change adaptation and disaster risk
reduction literature so as to arrive at a theoretical approach which is
consistent with, and carries through, the authors adoption of a Capability
and procedural justice approach to Climate Justice and Climate Disaster
Law. The approaches of resilience, transition and transformation for
adaptation have been discussed as well as the idea that for adaptation to
be successful it must satisfy the demands of economic efciency, equity,
and legitimacy.368 This has brought to the fore a number of examples of a
transformation approach to adaptation, including green infrastructure
responses and land swaps, planned retreat and relocation. It has also been
proposed that there should be an integration of adaptation, disaster risk
reduction and development policy responses so as to reduce the multi-
layered vulnerability of people in developing countries especially at risk
of climate disasters. This discussion has also uncovered ideas about how
governance structures and the law need to become more adaptive in the
face of climate change. Concrete and up-to-date examples have been
given of how governments in developed and developing countries have
started to respond, including on a sector-specic basis. Importantly for
the procedural Climate Justice project, the importance of engaging in an
impartial and practical reasoning process about the threats of climate
change and how to respond to it has been afrmed.
Importantly, from the perspective of relying on Amartya Sens idea of
procedural justice, the process of adaptation is negotiated and mediated
through social groups, and decisions are reached through networks of
actors that struggle to achieve their particular goals. Adaptation is con-
cerned with actors, actions and agency and is recognised as an ongoing
367 368
concluding reflections 235
process,369 while social learning is regarded as a critical aspect of build-
ing resilience. This entails the capacity for new values, ideas or practices
to be disseminated, popularised and become dominant in society and
requires active engagement with civil society and a high degree of citizen
participation.370
In the following chapter, the discussion turns to how governance,
policy and legal mechanisms need to respond during and ex post facto
a climate disaster so as to protect the victims. As will be discovered, all of
these mechanisms have an important, although inherently limited role, in
protecting and compensating the victims while also attempting to pre-
vent them from falling into ever greater cycles of poverty and
vulnerability.
369 370
Nelson et al., see Note 2 at 398. Pelling, see Note 8 at 170.

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4

Preventing climate disasters: integrating adaptation

Having canvassed, in Chapter 2, the initiatives under the United Nations

4.1. Understanding adaptation: resilience, transition and

Adaptation is both reactive and anticipatory because it responds to past or

4.1.1. Adaptation as transformation

Transformation and a human development approach

4.2. The IPCC evaluates risks, adaptation and vulnerability

4.2.1. Differential risks from climate change

4.2.2. Current adaptation experience

Experience with transformational adaptation

Green infrastructure With regard to soft strategies, in December

Promoting green infrastructure in the main policy areas such as agri-

Land swaps, planned retreat and relocation Soft climate change

4.2.3. The decision-making context

4.2.4. Future risks and opportunities for adaptation

Risk of death, injury, ill-health, or disrupted livelihoods in low-lying

4.2.5. Managing future risks and building resilience55

4.2.6. Barriers to adaptation

Market failures for example, where there is insufcient information

Behavioural barriers for example, where individuals have difculty

Insurance as an adaptation instrument

4.3. Multi-level governance approaches to adaptation

4.3.1. The United States: a case study in multi-agency adaptation

Multi-level governance for climate change preparedness and

Interagency climate preparedness and resilience strategies for fresh-

The Federal Interagency Floodplain Management (FIFM)

4.4. Climate adaptation law: what kind of law?

4.4.1. Adaptive law: the new paradigm

Adaptive goals adaptive law envisages the achievement of poly-

Allowing landowners to defend their properties from the sea In a

the terms of the 2001 Consent obliged Council to monitor, maintain

Public law litigation against development consents In recent times,

The constitutionality of climate adaptation actions taken by govern-

4.5. Disaster risk reduction laws for climate disasters

4.5.1. The European Unions Disaster Risk Management Policy and

4.5.2. Vietnams Law on Natural Disaster Prevention and Control 2013

Priority Action 1 Ensure that disaster risk reduction is a

Ministerial responsibility for natural disaster prevention and control

tion%20and%20Control_No%20%2033_IFW.pdf Ibid (accessed 24 February 2015)

Resources for implementation A key factor in determining the success

Community participation The LNDPC requires households and indi-

Priority Action 2 - Identify, assess and monitor disaster risks

136 137 138

Priority Action 3 - Use knowledge, innovation and education

Education and training Integrating DRR into school curricula is the

142 143 144

Research The LPNDPC prioritises international cooperation for

Priority Action 4 - Reducing the underlying risk factors

Integrating DRR into socio-economic development plans The

Priority for Action 5 - Strengthen disaster preparedness for

4.6. Integrating climate change adaptation, disaster risk reduction

157 158 159

The law provides legal and policy coherence by explicitly linking to

4.6.1. The Philippines: a case study

4.7. Sectoral adaptation case studies

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4.7.1. Coasts: the EU and Australia case studies

Marine spatial planning: the EU case study

A spatial analysis of cumulative pressures and impacts which identi-

Consequently, the EU has adopted the Directive 2014/89/EU of the

201 202 203

Between 5,800 and 8,600 commercial buildings valued at between A

In the context of Identifying Current and Future Coastal Risk Areas: