EVALUATING THE IMPACT OF ENVIRONMENTAL LAW AND POLICY IN CLIMATE CHANGE MITIGATION

ABSTRACT

Climate change has been a trending issue of major concern to all mankind. Change in the world climate system has affected virtually all aspects of human endeavours around the globe. The warming of the global system has increasingly occasioned a lot of natural and anthropogenic disasters ranging from melting of the polar ice caps to flooding, incessant earthquakes and landslides amongst other extreme events. Hence, the need to find lasting solutions to this intractable problem becomes necessary otherwise more devastating harms will occur and human beings who are the major causative agents and victims will continue to suffer. Recourse has been made to climate change laws and policies by setting up the same to either abate the rate of anthropogenic activities carried out by mankind through mitigation or cushion the effects of the climate change by adaptation. However, due to the soft nature of climate change laws and policies which makes them almost unenforceable, recourse has also been had to environmental law and policy by implications to complement or add flesh to the bone of climate change law and policies. Therefore, climate laws and policies which have been specifically devised or designated to control climate change have contributed little or nothing in mitigation of climate change. Environmental law and policy on its part have impliedly been resorted to for the control of climate change but unfortunately have not made any significant headway towards climate change mitigation. This research inter alia evaluates the impacts of environmental law and policy in climate change mitigation. The research also discusses the processes and procedures for climate change mitigation. This research finds out among others that climate change law and policies per se cannot achieve climate mitigation neither do environmental law and policies be sufficient enough to control climate change. We recommend inter alia that anthropogenic global warming and climate change should be incorporated expressly in all environmental laws for the consolidation and unification of both Climate and environmental law and policy as an effective measure to mitigate climate change.

CHAPTER ONE

GENERAL INTRODUCTION

Climate change is a long-term shift in weather conditions identified by changes in temperature, precipitation, winds, and other indicators. Climate change can involve both changes in average conditions and changes in variability, including; for example, extreme events.[1] The earth's climate is naturally variable on all time scales. However, its long-term state and average temperature are regulated by the balance between incoming and outgoing energy, which determines the Earth's energy balance. Any factor that causes a sustained change to the amount of incoming energy or the amount of outgoing energy can lead to climate change. As these factors are external to the climate system, they are referred to as ‘climate forcers', invoking the idea that they force or push the climate towards a new long-term state – either warmer or cooler depending on the cause of change.[2] Different factors operate on different time scales, and not all of those factors that have been responsible for changes in earth's climate in the distant past are relevant to contemporary climate change. Factors that cause climate change can be divided into two categories ­- those related to natural processes and those related to human activity. In addition to natural causes of climate change, changes internal to the climate system, such as variations in ocean currents or atmospheric circulation, can also influence the climate for short periods of time. This natural internal climate variability is superimposed on the long-term forced climate change.[3]

 

1.1. Background of the Study

It is no longer news that that global climate system is warming uncontrollably due to anthropogenic activities of human beings. Unfortunately, human beings who are the major causative agents of climate are also the victims of its devastating effects. It is against this backdrop we seek to evaluate the causes and effects of this adverse change of our climate system and proffers some processes and procedures by which mankind that are also the causative agents can mitigate the effects of climate change and/or adapt to it. The path of environmental law has come to a cliff called climate change, and there is no turning around as climate change policy dialogue emerged in the 1990s, however, the perceived urgency of attention to mitigation strategies designed to regulate sources of greenhouse gas emissions quickly snuffed out meaningful progress on the formulation of adaptation strategies designed to respond to the effects of climate change on humans and the environment. Only recently has this "adaptation deficit" become a concern now actively included in climate change policy debate. Previously, treating talk of adaptation as taboo, the climate change policy world has begrudgingly accepted it into the fold as the reality of failed efforts to achieve global mitigation policy has combined with the scientific evidence that committed warming will continue the trend of climate change well into the future regardless of mitigation policy success. But we do not expect adaptation policy to play out for environmental law the way mitigation policy has and is likely to continue.

Mitigation policy has been framed as an initiative primarily within the domain of environmental law[4] and thus it will be environmental law that makes the first move and other policy realms that apply support or pushback. By contrast, environmental law does not "own" adaptation policy; rather, numerous policy fronts will compete simultaneously for primacy and priority as people demand protection from harms and enjoyment of benefits that play out as climate change moves relentlessly forward. This makes it all the more pressing for environmental law, early in the nation's formulation of adaptation policy, to find its voice and establish its place in the effort to close the adaptation deficit.[5] Climate change adaptation comprises efforts by states, regional governments, and civil society actors, and individuals to adjust natural or human systems in response to actual or expected climatic stimuli or effects in order to moderate harm or exploit beneficial opportunities.[6]

Climate change adaptation law aims to ‘increase the capacity of humans, other species, society and the ecosystem’ to adapt to the continual transformation of our environment.[7]

Politically, economically and socially marginalised groups within developing states have the lowest adaptive capacity,[8] requiring concerted international action to enable them to adapt to the effects of climate change. Accordingly, the Inter-governmental Panel on Climate Change 2014 Assessment recognised a growing need for ‘institutional and social measures, including the provision of climate linked safety nets for those who are most vulnerable.’[9]

Although the United Nations Framework Convention on Climate Change recognised the necessity of adaptation,[10] the development of adaptation law and policy has thus far lagged behind that of mitigation.[11] The UNFCCC established a procedural requirement for adaptation, directing States Parties to ‘facilitate adequate adaptation to climate change’ through the formulation, implementation and publication of national adaptation measures.[12] The UNFCCC further highlighted several areas of focus for adaptation, including the management and protection of coastal zones, water resources, agriculture and lands susceptible to desertification or flooding.[13]

The Kyoto Protocol built on the UNFCCC by requiring developed States Parties to submit their national mitigation and adaptation programmes to the Conference of the Parties.[14]

The parties to the UNFCCC have since met on a yearly basis, adding incrementally yet minimally to the adaptation framework. The Nairobi Work Programme was established in 2005 under the UNFCCC’s Subsidiary Body for Scientific and Technological Advice to aid all states, particularly developing countries, including the Less Developed Countries and Small Island Developing States, to improve their understanding and assessment of impacts, vulnerability and adaptation to climate change, as well as to make informed decisions on practical adaptation actions and measures to respond to climate change.[15] Moreover, the 2010 Cancun Adaptation Framework (CAF) invited States Parties to the UNFCCC to undertake a variety of adaptation measures, including the formulation of national adaptation plans.[16] Two years later, in Doha, the parties approved the three-year work plan of the Adaptation Committee, an important step in ‘promoting coherence in adaptation under the Convention and providing technical support and guidance to the Parties.’[17] Nevertheless, the international community has struggled to undertake coordinated action to facilitate adaptation to the effects of climate change worldwide.

Climate change adaptation challenges closely align with concerns regarding human security.[18] Climate change threatens various types of human security, and adaptation measures are necessary to grapple with these threats.

Similarly, the Association South East Asian Nations Political-Security Community Blueprint acknowledges that security has ‘political, economic, socio-cultural, and environmental dimensions.’[19] With the Male’ Declaration on the Human Dimension of Climate Change, small island developing states affirmed that climate change poses a substantial and immediate threat to human security by endangering their citizens’ enjoyment of basic human rights, including the rights to life, food and property.[20]

Adaptation challenges are diverse, demanding action on international, national, regional and local scales. Implementing adaptation strategies requires involvement from a wide spectrum of actors in the fields of development, urban planning, rural affairs, conflict management and disaster planning. To this end, Climate change law and policies has played little but no significant roles in achieving mitigation and adaptation due to the complex, unstructured and multifaceted nature of climate change. Hence, recourse has been made to environmental law and policies as a complement to climate change law and policies. However, the existing international environmental law is not designed as it stands to limit emissions or achieve its mitigation. Many areas of Environmental law  though are relevant to the problems raised by climate change but the law as it stands was not created with the challenge of climate change in mind and is not always well suited to address it. In other to address these problems, we shall recommend a holistic overhauling and harmonization of all environmental and climate change-related laws and policies with a view to achieving an effective mitigation and adaptation to climate change.

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[1] Causes of climate change,’ published by service

  Canada; <http://www.climatechange.gc.ca/default.asp?lang=en&n=E18C8F2D-1> Last accessed:  February

  27, 2017.

[2] Ibid.

[3] Ibid.

[4] A form of pollution control on steroids.

[5] J. B. Ruhl, Climate Change Adaptation and the Structural Transformation of Environmental Law, 40 Envtl. L. 363       2010,pp.363-364.

[6] IPCC, Climate Change 2007: Synthesis Report. Intergovernmental Panel on Climate Change (2007). <https://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_synthesis_report.htm>     Last accessed:  27^th February, 2017.

[7]  R. K Craig, ‘Stationarity is Dead’ Long Live Transformation: Five Principles for Climate

Change Adaptation Law’, (2010) 34 Harv Environmental L Rev 9, 39.

[8]  T. G Puthucherril, ‘International law on Climate Change Adaptation: Has the

Time Come for a New Protocol?’ (2012) 8 Macquarie J Int’l & Comp Environmental L 42, 47.

[9]  IPCC, ‘Chapter 14: Adaptation Needs and Options’, Climate Change 2014: Impacts, Adaptation, and

Vulnerability (2014) 2.

[10] See UNFCCC, Art 4.

[11] D Freestone, ‘The International Legal Framework for Adaptation’, in Michael B Gerrard and Katina

Fischer Kuh (eds), The Law of Adaptation to Climate Change: US and International Aspects (American Bar Association, 2012) 603.

[12] UNFCCC, Art 4; Ibid.

[13] UNFCCC, Art 4(1)(e).

[14] Ibid., Kyoto Protocol, Art 10(b).

[15]  See, for example, UNFCCC, Adaptation Assessment: Planning and Practice – An Overview from the Nairobi  Work Programme on Impacts, Vulnerability and Adaptation to Climate Change (UNFCCC, 2010).

[16]   Cancun Agreements, Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative

  Action Under the Convention. Decision 1/CP.16, 4–5 (2010).

[17] See generally Draft Decision -/CP.18: National Adaptation Plans (Advance Unedited Version) at <http://unfccc.int/files/meetings/doha nov 2012/decisions/application/pdf/copl8 naps.pdf>.  Last accessed: 28^th  February, 2017.

[18]   UNDP, Human Development Report (UNDP, 1994) 24–25.

[19]   ASEAN Secretariat, ASEAN Political-Security Community Blueprint (2009) 2.

[20]  ‘Malé Declaration on the Human Dimension of Global Climate Change’ (14 November 2007) 2 at  <www.www.ciel.org/Publications/Male_Declaration_Nov07.pdf> Last accessed: 7^th February, 2017.

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