1. INTRODUCTION
Adaptation and mitigation are two indispensable pillars in addressing climate change and are closely interlinked.Footnote 1 However, they also differ in many important aspects.Footnote 2 Adaptation is defined in the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) as ‘the process of adjustment to actual or expected climate and its effects’,Footnote 3 and involves the adjustment, development, modification or transformation of human economic and social systems to reduce vulnerability and minimize adverse impacts of climate change.Footnote 4 There is hardly a policy or legal field that is not affected by climate change. Correspondingly, adaptation could involve a wide range of policies and laws in the areas of water, marine, agriculture, fisheries and biodiversity.Footnote 5 This article examines adaptation responses and actions which involve a combination of government policies, legal measures and court decisions, and which focus particularly on responding to climate change impacts or risks with the goal of reducing vulnerability to climate change and improving adaptive capacity.
After more than a decade of prioritizing mitigation over adaptation, the climate change community, at both the international and domestic levels, now recognizes the urgency and importance of adaptation,Footnote 6 and is beginning to adopt it as a policy goal.Footnote 7 The Paris AgreementFootnote 8 placed unprecedented importance on adaptation by committing signatory states to serious adaptation planning, financing and implementation. However, finding the most effective way to achieve this is a challenging task. Individual and autonomous adaptation to climate change is not new as an empirical reality,Footnote 9 but there is still the risk of many socially undesirable outcomes, including market failures, institutional barriers, and lack of capacity.Footnote 10 As such, government intervention through deliberate adaptation policies and laws is necessary.Footnote 11 Although adaptation still lags behind mitigation at the country level in terms of its legal development,Footnote 12 political leadership, and resource allocation,Footnote 13 the legislative, executive, and judicial branches of many countries to a greater or lesser extent are making diverse adaptation efforts in practice.
The United States (US), Australia, and China are three key countries on the international climate change arena. How they respond to adaptation challenges has important consequences for both the international community and countries with a similar vulnerability to climate change. Although these three countries are climatologically, environmentally, economically, politically and legally different, they face the common challenge of using their existing legal frameworks to adapt to varied adverse climate change impacts across vast territories.Footnote 14 All three countries have put considerable efforts into adaptation, but they have done so in very different ways. For example, although the US and Australia experience high levels of climate change litigation, adaptation litigation in these two countries has resulted in different adaptation outcomes. The US and China have both relied on their executive branches to take adaptation action, but have pursued initiatives in various forms and at different levels. Further, although specialized environmental courts have been established in both Australia and China, they play very different roles in facilitating adaptation claims. These convergences and divergences indicate that a comparative study of the legal and policy pathways of these countries towards adaptation could yield important insights into adaptation efforts more generally.
As Mehling has argued, comparative analysis is a promising approach for gaining insight into efforts to address climate change across different legal systems.Footnote 15 Comparative studies are not uncommon in this area, and include both studies of the general differences in climate change law between the three countries, and studies on specific topics such as climate change litigation or adaptation planning.Footnote 16 However, a very important question that has not yet been addressed in existing literature is why these countries have developed such varied approaches to adaptation issues in practice. It remains unclear, for example, why one country favours adaptation planning while the adaptation efforts of another country have been driven mainly by litigation. This is an overarching question to be analyzed before a comparison of specific adaptation policies, laws, and planning can be meaningfully undertaken. This research gap was noted by the Fifth IPCC Assessment Report and has also been acknowledged by academics.Footnote 17 This article attempts to address this gap and further our understanding of specific adaptation pathways, and of adaptation governance more generally, from a systematic and macro-level perspective. A comparative analysis also enriches our understanding of the opportunities for meaningful adaptation solutions, and the obstacles to implementing them across different nations. Such a study could yield valuable insights for a variety of countries. When adopting new adaptation pathways, cross-jurisdictional learning will be particularly useful. This article also seeks to lay the groundwork for new and much needed comparative scholarship in climate law that engages with large developing countries like China, and which is not limited to discussion of mitigation or greenhouse gas (GHG) reduction.
This article comprises three further sections. Section 2 illustrates adaptation practices initiated by the legislature, executive, and judiciary in each country. Drawing from the respective experiences of these three countries, Section 3 explores the possible forces that drive different adaptation choices: climate politics and awareness of adaptation, the status of environmental principles, and the role of the judiciary. Specifically, the article will discuss how these different forces shape adaptation responses. Section 4 concludes by reflecting on each path and offers a prediction for future adaptation practices.
2. ADAPTATION AT THE GATE: LEGISLATIVE, EXECUTIVE, AND JUDICIAL RESPONSES
Given the inherent uncertainty and complexity of the underlying challenges of adaptation,Footnote 18 the legislature, executive, and judiciary in the US, China, and Australia have undertaken various efforts to explore the potential of existing legal frameworks to manage negative climate change impacts. Some prominent examples include drafting special regulations, creating adaptation plans, issuing executive orders and related policies, and supporting adaptation claims. However, in each of the three countries, the balance of legislative, executive, and judicial involvement differs. This reflects different policy and legal pathways for identifying adaptation needs, addressing adaptation challenges, and shaping adaptation behaviour.
2.1. Legislative Efforts on Adaptation
Adaptation legislation can ‘give expression to institutional rules, shape processes of policy formulation, regulate behaviors, define liabilities and responsibilities, and determine access to decision-making processes’.Footnote 19 Thus, it can enable flexible adaptation measures, the effective implementation of adaptation policies, and quick responses to new knowledge and information.Footnote 20 In addition, adaptation laws can create a legal framework in which the benefits and losses arising from climate change are distributed across society, conflicts on adaptation are managed, and relief is provided.Footnote 21 Furthermore, if laws involving economic instruments and incentives for adaptation are properly designed, they hold the potential to promote resilient actions and correct poor adaptation.Footnote 22 Some countries have already formulated special climate change laws to establish a comprehensive legal framework for both mitigation and adaptation. For instance, the United Kingdom (UK) Climate Change Act sets out the government’s responsibility for reporting climate change risks, assessing risks and formulating plans to address them.Footnote 23 Although the US, Australia, and China have attempted to enact comprehensive climate change laws, none has been successful.
United States
Centred on mitigation, climate change legislation during the Clinton administration through to the Obama administration can best be described as turbulent, and much uncertainty remains regarding its future.Footnote 24 Whereas some researchers believe a climate change bill covering both mitigation and adaptation will eventually survive the legislative process,Footnote 25 others are sceptical.Footnote 26 Moreover, in light of the Trump administration’s objection to the Paris Agreement and the US Clean Power PlanFootnote 27 it is reasonable to predict that federal legislative efforts may not proceed beyond the present stage.Footnote 28
In terms of adaptation ‘there has been no comprehensive approach to climate change adaptation taken in any federal, state, or local legislation or agency regulation’;Footnote 29 nor are there any immediate prospects of this occurring.Footnote 30 Given the federal legislature’s silence on climate change, America’s adaptation responses rely largely on existing environmental statutes such as the Clean Water Act (CWA),Footnote 31 the Clean Air Act (CAA),Footnote 32 the National Environmental Policy Act (NEPA),Footnote 33 and the Endangered Species Act (ESA).Footnote 34 On many occasions, these statutes have been used to bring adaptation-related claims to court. For example, the Center for Biological Diversity has filed suits against the US Fish and Wildlife Service, alleging that the Service’s regulations violated the NEPA because they failed to address ‘the impacts to polar bears from disturbance by oil and gas activities in the context of a warming climate’.Footnote 35 At the same time there have been some legal developments in areas such as coastal land-use control and public land-use management that require serious consideration of climate adaptation.Footnote 36 For example, the federal consistency requirement of the Coastal Zone Management Act offers coastal states a legal mechanism to challenge federal actions when they attempt to implement coastal climate adaptation policies.Footnote 37
Similar to federal legislation, most state-level legislative efforts centre on mitigating GHGs or reforming energy efficiency, yet they are far less amenable to the consideration of adaptation. For example, as the leading state in climate mitigation efforts, California has passed dozens of climate change laws, yet adaptation has not been addressed appropriately.Footnote 38 Although the Californian Senate introduced an adaptation bill in 2015 to improve the coordination, implementation and integration of adaptation planning efforts, the bill has not yet been adopted.Footnote 39 So far, New York is the only state to regulate public and private behaviour with regard to climate change in its state-level Community Risk and Resiliency Act. This Act requires state government agencies to mainstream climate change considerations through the issuing of permits, building infrastructure, and developing model local laws in order to strengthen the state’s preparedness for the sea-level rise, storm surge and flooding.Footnote 40
Australia
Although approaches to climate change have differed over time along with different governments, Australia has made progress in passing energy-centred climate change legislation, such as the Mandatory Renewable Energy Target during the Howard government,Footnote 41 and the Clean Energy Act during the Gillard government.Footnote 42 Not surprisingly, these pieces of national legislation do not explicitly address proactive measures to prepare the country for future climate change impacts. As in the US, ‘there are currently no laws in Australia the sole or primary purpose of which is climate change adaptation’.Footnote 43 Adaptation responses therefore rely mainly on pre-existing legal frameworks. For example, the transparent decision-making process developed in Australia’s Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) enables the federal and state governments to review ministerial decisions through the environmental assessment and approval procedure. The EPBC Act remains crucial in preventing or reducing ‘significant impact’ on proposed development actions, although it does not specifically mention climate change.
Australia’s six states share considerable legislative power in the environmental field, with each state governing land-use planning, water distribution, and coastal protection.Footnote 44 This state power has extended to climate change issues in some states at times when the possibility of passing comprehensive federal climate change legislation seemed unlikely. For example, the state of Victoria assumed a leading role in managing climate change risks through legislation with the adoption in 2010 of the Climate Change Act.Footnote 45 This was replaced in 2017 by the new Climate Change Act, which requires the relevant portfolio minister to prepare an Adaptation Action Plan and embed climate change in policy objectives.Footnote 46 Other state-level legislation, however, has a strong focus on mitigation, such as the South Australian Climate Change and Greenhouse Emissions Reduction Act 2007 and the Climate Change and Greenhouse Gas Reduction Act 2010 in Australian Capital Territory. Queensland’s Sustainable Planning Act 2009, the principal legislation directing Queensland’s planning and development assessment system, requires the decision-making process only to consider and address the adverse effects of development on climate change.Footnote 47 It does not, however, recognize and consider climate change impacts on development where adaptation is needed.
China
In 2009, the National People’s Congress (NPC) Standing Committee adopted a Resolution, which proposed the strengthening of China’s legal framework on climate change by adding climate change-related legislation to the legislature’s agenda and reviewing pre-existing laws.Footnote 48 Following the adoption of this Resolution, the Chinese government formulated a specific Law on Addressing Climate Change in 2010 and published a draft in 2012.Footnote 49 Although the draft required both central and local governments to include climate change adaptation as part of their national and specialized planning for economic and social development, it failed to provide supporting institutions and legal instruments for its implementation.Footnote 50 Moreover, unlike the US and Australian governments, the Chinese government has yet to use existing environmental laws to address adaptation needs.
Before a national climate change law is put in place, some provincial Chinese governments have undertaken proactive action by formulating their own government regulations. So far, two provincial regulations on climate change have been enacted as pilot projects to explore the possibility of formulating special regulations at the provincial level. These are: (i) Measures of Responding to Climate Change in Qinghai Province (Qinghai Measures) in 2010, and (ii) Measures of Responding to Climate Change in Shanxi Province in 2011 (Shanxi Measures). These regulations acknowledge the localized nature of climate change impacts and the different response priorities.Footnote 51 For example, Shanxi suffers from water scarcity as a result of its dry climate, and therefore the Shanxi Measures focus on improving water-saving technology and harnessing the capacity of agriculture to resist climatic events.Footnote 52 Qinghai Province has a vulnerable ecosystem and the focus of its provincial legislation has been on adaptation through approaches such as climatic risk assessment and improving ecological stability.Footnote 53 Both sets of regulations require consideration of the adverse impacts of climate change when formulating plans on land use, environmental protection, and water use. Nonetheless, these legislative efforts are still preliminary and tentative. Whereas mitigation efforts are guaranteed by clarified targets and a cadre evaluation system, political and institutional support for adaptation is lacking.
2.2. Executive Efforts on Adaptation
The executive branch possesses the flexibility required to respond promptly to challenges as they arise. In the context of climate change, executive responses may result in a change in the governmental structure, such as the establishment of special climate commissions, or in reform of the governance regime, such as changing decision-making processes.
United States
Although the US falls behind many other developed countries in initiating and implementing specific adaptation policies, it has the potential to move quickly when the political will exists.Footnote 54
The defeat of climate change legislation in Congress has compelled the government to make good use of existing executive authorities.Footnote 55 Adaptation only became a focus of US policy under the Obama administration.Footnote 56 Most adaptation responses during this time were initiated by executive orders premised on existing legislative authority. For example, the Executive Order entitled Preparing the United States for the Impacts of Climate Change was released to strengthen the US’s climate resilience and promote strong partnerships among different levels of government.Footnote 57 This order required federal agencies to consider both the potential effects of a proposed project on climate change and the potential effects of climate change on a proposed project.Footnote 58 The Clean Power Plan also calls on federal agencies to integrate adaptation into their activities, and to assist state and local adaptation efforts.Footnote 59 Correspondingly, in 2016, the Council on Environmental Quality released a guide for the consideration of climate change impacts in the NEPA.Footnote 60
Executive orders during the Obama administration also created institutions such as the Council on Climate Preparedness and Resilience to develop recommendations for federal agencies’ adaptation planning.Footnote 61 As a result of the Council’s efforts, many federal agencies released plans to undertake adaptation measures or integrate adaptation concerns into existing laws. For example, in 2014 the US Environmental Protection Agency (EPA) released its Climate Change Adaptation Plan, which sets future goals, priorities, and principles to incorporate climate change considerations into its policies, rules, and programmes.Footnote 62 Other federal agencies – such as the Department of the Interior, the Department of Agriculture, and the Department of Transportation – have also stepped forward to meet this challenge and ‘mainstream’ consideration of climate change adaptation across their operations, programmes, and policies.Footnote 63 However, these federal adaptation efforts may soon be gutted by the Trump administration, which has proposed to release economy-centred executive orders,Footnote 64 shut down adaptation programmes, and defund climate science.Footnote 65
At the state level, however, adaptation planning initiated either through executive or legislative action continues to flourish, even in the absence of federal incentives or dedicated sources of funding.Footnote 66 As of February 2015, 31 states, Washington, DC, and one territory had participated in some form of adaptation planning.Footnote 67 These state-level adaptation efforts vary significantly as a result of their diverse sensitivity and vulnerability, and depending on the impetus for the plan and the level of political support.Footnote 68 Generally, coastal states that suffer from increased risks of inundation and storm surges are more likely to incorporate adaptation plans than their inland counterparts.Footnote 69 Alaska, California, Florida, Massachusetts, Oregon and Washington have developed, or are in the process of developing, special adaptation plans to undertake decisive and coordinated planning, funding and actions.Footnote 70 Eight states – including New York, Tennessee and Vermont – address climate change explicitly in their Wildlife Action Plans.Footnote 71 Other states have either made recommendations to create state-wide adaptation plans or have developed a Climate Action Plan that covers both mitigation and adaptation.Footnote 72 Although state-level adaptation plans vary, they generally follow the same approach of assessing impacts, evaluating planning capacities, and making recommendations across a spectrum of policy areas.Footnote 73
Localities are well-positioned to take initiatives in response to climate change through implementing adaptation plans. A recent survey of 298 local governments shows that 59% are engaged in some form of adaptation planning.Footnote 74 Whereas some cities, such as New York City, have executed plans that describe how at-risk infrastructures could be protected, others, such as Seattle, address how specific water-supply impact projections could be created. Moreover, cities like Boston have looked into upgrading sewage treatment plants to accommodate sea level rise.Footnote 75 Some local governments have cooperated to form regional adaptation planning initiatives.Footnote 76 A prominent example of this is the Southeast Florida Regional Climate Compact, which aims to work collaboratively on mitigation and adaptation strategies for a more resilient Southeast Florida, despite the lack of support at state level.Footnote 77
Australia
Because of Australia’s highly vulnerable ecosystem, the Australian government has a relatively better understanding of the threats posed by climate change and the urgent need to develop an adaptation policy.Footnote 78 In 2007, the federal government formed the National Climate Change Adaptation Framework to help government decision makers to incorporate climate change factors into policy and operational decisions.Footnote 79 Moreover, the government published a position paper in 2010, which identified six national priority areas for action: water, coasts, infrastructure, natural ecosystems, natural disaster management, and agriculture.Footnote 80 The paper emphasized the sharing of responsibility between government and private parties, and among different levels of government. Further, the paper discussed a desire for a national partnership to implement adaptation efforts.Footnote 81 In 2015, the government released the National Climate Resilience and Adaptation Strategy, which sets out Australia’s vision, principles, and approaches for effective resilience and adaptation.Footnote 82
While the federal government provides leadership, information and research support at the national level,Footnote 83 state and local governments are responsible for developing adaptation planning and instruments.Footnote 84 Unlike the rapid proliferation of state-level adaptation planning in the US, most state governments in Australia have just begun preparatory work for adaptation planning. New South Wales (NSW) is generally at the stage of assessing its climate change vulnerability and building planning parameters.Footnote 85 Some states have only just formed preliminary adaptation frameworks,Footnote 86 while in others comprehensive adaptation plans are still in the course of development.Footnote 87 The Climate Change Act prompted the Victorian government to launch the Climate Change Adaptation Plan in 2013. The updated version of the plan in 2017 sets adaptation priorities, builds partnerships, and embeds adaptation in core policies.Footnote 88 At the same time, some local governments funded by the federal government have taken the lead in developing adaptation plans and projects in practice, such as the City of Melbourne Climate Change Adaptation Strategy and Action Plan, and Mornington Peninsula Shire Council’s Sustainable Peninsula Initiative.Footnote 89 Because over 85% of the nation’s population is vulnerable to physical risks associated with rising sea level and changing weather patterns, the primary adaptation concern of local governments is how to respond to impacts or risks caused by sea level rise, coastal erosion, and extreme weather events.Footnote 90 Local councils, therefore, face more legal risks if they fail to give reasonable consideration to future climate change impacts when approving land-use or coastal development plans.Footnote 91
China
China’s actions to tackle climate change have focused mainly on energy production and energy efficiency, but it has still managed to establish a policy framework for adaptation at the national, provincial, and sectoral levels since 2007.Footnote 92 China first officially expressed its political commitment to climate change adaptation in its 2007 National Climate Change Programme (NCCP).Footnote 93 The NCCP outlines guidelines, principles, objectives, and an institutional framework for addressing climate change.Footnote 94 Its identification of key adaptation areas and measures to enhance adaptive capacity reflects remarkable progress in setting policy guidance and impetus for climate change adaptation. Further, both the 12th and 13th Five-Year Plans for national economic and social development require climate change factors to be taken into consideration in economic planning decisions and the construction of large-scale infrastructures and projects.Footnote 95 In its Second National Communication, completed in 2012, the central government committed to developing a national adaptation policy framework. Shortly thereafter, the National Strategy for Climate Change Adaptation, which was the first adaptation-oriented policy, outlined expectations for enhancing risk management, improving relevant technical standards, and enhancing disaster response systems.Footnote 96 This Strategy further promoted the development of a City Action Plan of Climate Change Adaptation to improve the adaptive capacity of cities through integrating adaptation factors in urban and rural planning, construction standards, and industrial development planning.Footnote 97 The National Plan to Address Climate Change (2014–20), released in 2014, sets clear targets for improving adaptive capacity. It marks significant progress in responding to climate change because it applies target responsibility and accountability mechanisms to evaluate cadre performance.Footnote 98
Because provincial governments have only recently started to take an interest in climate change issues, most provincial policies do not explicitly address climate change-related challenges. Although all 31 provinces, including autonomous regions and municipalities, have released provincial-level climate change plans,Footnote 99 they are not distinctive in terms of their adaptation strategies and approaches, and do not adequately consider the varying localized climate change impacts, ecosystem vulnerability, and adaptive capacity. Furthermore, as a result of prioritizing political incentives in relation to economic growth and social stability, most lower-level governments have failed to recognize the importance of undertaking proactive adaptation measures to respond to climate change risks.Footnote 100 Policy gaps therefore remain with regard to incorporating climate risks, undertaking regulatory measures, and allocating institutional responsibilities.Footnote 101
2.3. Judicial Responses to Adaptation
The judiciary plays a critical role in the interpretation and enforcement of environmental law and regulation to further the goal of achieving sustainable development.Footnote 102 Frustrated by inadequate legislative and executive responses to climate change, several states, localities, and non-governmental organizations (NGOs) in countries like the US, Australia, the Netherlands, and PakistanFootnote 103 have turned to the courts to obtain damage relief, complement regulatory gaps, and implement change.Footnote 104 As Peel observes, ‘courts, with their independence from government and capacity to develop legal principles of broad application, can offer an attractive mechanism for spurring legal change where political processes are deadlocked’.Footnote 105
United States
Since the 2007 Supreme Court case of Massachusetts v. Environmental Protection Agency, litigation has played an increasingly important role in driving the course of climate regulation in the US.Footnote 106 Since the 2007 case, climate change lawsuits have cropped up in a variety of litigation contexts, ranging from statutory claims and common law claims to those related to constitutional rights.Footnote 107 Most of these cases have attempted to address emerging climate change concerns either by arguing that statutes should be interpreted to include climate change considerations or by creating common law claims to compensate for climate change harm.Footnote 108 In common law cases, large emitters, such as coal-fired power plants, may be sued for damages or injunctive relief based on tort and public nuisance laws.Footnote 109 A recent example of this is the adaptation litigation brought by three Californian communities against some of the world’s largest oil, gas and coal companies, seeking compensation for the current and future adaptation costs associated with sea level rises.Footnote 110 However, there have been no cases yet that involve substantive adaptation regulation and enforcement.Footnote 111
Recent adaptation-related lawsuits focus on the response to climate change impacts, particularly in connection with the ESA and the NEPA. Sections 7 and 9 ESA provide a sound legal basis for listing or delisting species that are endangered or threatened as a result of climate change.Footnote 112 For example, in Center for Biological Diversity v. Kempthorne Footnote 113 the court granted the Center’s petition to extend ESA protection to polar bears as a result of habitat changes attributed to rising temperatures and glacial melting.Footnote 114 Unlike mitigation litigation centred on reducing GHGs, adaptation litigation focuses on procedural claims to incorporate adaptation considerations into various government planning and land valuation decisions.Footnote 115 One common procedural claim involves whether adaptation to climate change impacts is adequately considered in an environmental impact statement, or the adequacy of an agency’s effort to do so according to federal or state NEPAs.Footnote 116
Regulatory takings claims based on the Fifth Amendment of the US Constitution – which requires government assertions of eminent domain authority to be for public use and accompanied by just compensation – are also emerging in response to state and local efforts to restrict development in coastal areas.Footnote 117 In many cases, courts have held that the protective effects of governmental adaptation actions should be taken into account when making the just compensation calculation.Footnote 118 Additionally, private companies may be subject to lawsuits for failing to take into account climate change impacts in their related actions or projects. For example, ExxonMobil was sued for violating the CWA and the Resource Conservation and Recovery Act by failing to consider climate change impacts in its storm water pollution prevention plan, spill prevention, control and countermeasures plan, and facility response plan.Footnote 119
Adaptation lawsuits are still relatively nascent in the US. However, with increasing awareness of climate change-induced risks, more adaptation claims based on existing statutes are anticipated.Footnote 120 The judiciary, therefore, is likely to play a crucial role in shaping the future adaptation action of the US.Footnote 121
Australia
In Australia, public law actions seeking judicial or merits review are a common means of addressing climate change impacts.Footnote 122 Climate change litigation in Australia primarily involves challenging administrative decisions made under environmental law, rather than claims based in tort law. Key adaptation cases challenge government development proposals or approval decisions that do not sufficiently consider future climate change impacts.Footnote 123 A central question in these lawsuits concerns the extent to which climate change impacts must be factored into the decision-making process.Footnote 124 The outcomes hinge on the interpretation of environmental statutes in the context of climate change.
While most environmental statutes do not explicitly require the application of ecologically sustainable development (ESD) principles in response to climate change issues, Australia’s environmental courts have indicated that adequate consideration of climate risks in both public and private development plans under the umbrella of ESD principles is an important and necessary means of protecting public interests.Footnote 125 In Walker v. Minister for Planning the court found that ESD was an implied mandatory consideration for decision making and that the Minister should have evaluated the impacts of climate change in approving the development proposal.Footnote 126 Although the Court of Appeal did not go as far as to apply ESD principles, it nevertheless acknowledged that it was important for the consenting authority to address aspects of ESD principles when dealing with development applications. In Gippsland Coastal Board v. South Gippsland Shire Council Footnote 127 the Victorian Civil and Administrative Tribunal applied the precautionary principle to conclude that the land was unsuitable for development because of the reasonably foreseeable sea level rise and risk of inundation.Footnote 128 This case further prompted amendments to Victoria’s planning regime, requiring the application of the precautionary principle.Footnote 129 Unlike the US, where federal government or agencies are the defendants in the emerging adaptation litigation,Footnote 130 in Australia state and local governments are more frequently susceptible to lawsuits. As such, state courts and tribunals, especially environmental and planning courts, are the most important arenas for adaptation litigation development.Footnote 131 Local planning is another broad field in which adaptation claims are brought to challenge the failure to take into account climate change risks. In Northcape Properties v. District Council of Yorke Peninsula, for example, the court found that the plaintiff’s development proposal did not conform with local planning provisions because it failed to adequately consider rising sea levels and changes in flood patterns caused by global warming.Footnote 132 Furthermore, given Australia’s particular ecological vulnerability and population distribution, adaptation litigation mainly involves climate-related disasters, sea level rise and associated impacts, such as property protection and land-use change.
China
As a result of establishing environmental courts in 2007, the Chinese judiciary has assumed a key role in settling environmental disputes and ensuring compliance with environmental laws.Footnote 133 In 2014, following the establishment of an environmental tribunal by the Supreme People’s Court, environmental courts at various local levels proliferated.Footnote 134 However, their remit involves resolving civil environmental disputes and holding polluters accountable rather than challenging government agencies.Footnote 135 China’s new Environmental Protection Law (EPL), which came into force in 2015, grants NGOs standing to bring cases on behalf of the public if they satisfy certain criteria.Footnote 136 Implicit in this construction is the fact that litigants can only sue polluters and not the government authorities who make the relevant decisions or permit polluting acts.Footnote 137 This is fundamentally different from the situation in the US and Australia, where public authorities are often the primary targets of litigation.
Climate change litigation against private entities has not been a widespread phenomenon in China. A database search of court documents with the keywords ‘climate change (气候变化)’, or its synonyms ‘global warming (全球变暖)’ and ‘extreme weather event (极端气候)’ shows some civil cases that involve the impacts of climate change.Footnote 138 However, in-depth analysis reveals that the majority of these cases are contract disputes induced by climate change impacts and do not address climate change-related concerns per se. Furthermore, since adaptation-related claims often involve a review of government planning and decision making, the difficulties of bringing suits against the government under the new EPL make adaptation litigation unlikely in a Chinese court, notwithstanding the new environmental public interest clause in the EPL.Footnote 139
Preliminary Assessment
Notwithstanding their significant legal, economic and political differences, the US, Australia, and China display certain similarities in the development of climate adaptation responses across the legislative, executive, and judicial spectrum. In each country the development of adaptation legislation has encountered barriers and setbacks. This is not surprising as climate change legislation cuts across many legal fields, including administrative law, tort law, property law and international law, and thus may involve profound changes to existing legal procedures and substantive rules.Footnote 140 With some exceptions, legislation at the state or provincial level encounters similar barriers. However, setbacks may simultaneously provide an opportunity to review, re-interpret and improve existing statutes and regulations to enable more proactive adaptation action and higher adaptive capacity.Footnote 141 Furthermore, legislative inaction may spur the development of other, non-legislative solutions to adaptation, such as executive policy and planning. As discussed earlier, litigation has also emerged as a potentially crucial means of addressing the regulatory gap for adaptation in both the US and Australia, which have a more litigious culture and a stronger recognition of the rule of law compared with China.Footnote 142
The analysis also reveals that the three countries have developed different non-legislative responses to climatic impacts and adaptation challenges. The US strongly relies on executive action, which will now in all likelihood come to a halt as a result of the current administration. The unpredictability of executive action has also motivated the judiciary to play an increasing role in holding government and corporations to account for adaptation. US state-level adaptation planning, although still emerging, has been particularly successful in preparing vulnerable states for unavoidable climatic impacts. In Australia, judicial interpretation of climate-related legislation has been more progressive than executive responses to adaptation issues in responding to development proposals or decisions, as demonstrated by the courts’ interpretation of well-articulated ESD principles.Footnote 143 As such, the judiciary plays an important role in reviewing the action, or inaction, of federal, state and local authorities for their adaptive or maladaptive effects.Footnote 144 Government policy in China plays the key role in relation to climate change adaptation. In contrast to the US and Australia, legal instruments and responses such as regulation, statutory interpretation, planning and litigation have not been widely adopted as adaptation governance tools.Footnote 145
3. RATIONALE BEHIND DIFFERENT ADAPTATION PATHWAYS: CONSIDERATIONS AND CONSTRAINTS
Having analyzed various adaptation pathways in the US, Australia, and China, the crucial question is what accounts for their divergence. As a multi-dimensional regulatory issue, adaptation choices may depend not only on physical climatic vulnerability, but are also shaped by a complex mix of political, cultural, social and legal factors.Footnote 146 For example, Carlarne has attributed the convergences and divergences of climate law and policy in the European Union (EU) and the US to factors such as ‘systems of governance, societal notions of risk and precaution, media and civil society involvement, and economic and ethical reasoning’.Footnote 147 While ‘the whole point of the work on adaptation processes is to have risks associated with climate change … actually addressed in decision-making at some practical level’,Footnote 148 how climate risks are perceived, regulated and addressed in a specific political, social and legal context will be crucial in explaining the divergence of adaptation approaches. To be more specific, the adaptation awareness and political debate indicates a regime’s perception of climate risks and its willingness to undertake proactive adaptation action, while the status of environmental principles will inform whether and how climate risks will be regulated and accounted for when there is no clear statutory requirement for adaptation. The role of the judiciary and the judicial application of flexible environmental principles largely determine the extent to which climate risks can be integrated within existing legal frameworks, which further determines the destiny of adaptation-related claims.
3.1. Climate Change Politics and the Awareness of Adaptation
As an inherently scientific, economic and social issue, climate change can be understood and interpreted in many different ways.Footnote 149 Responses to climate change depend largely on how climate change issues are perceived and framed.Footnote 150 Political parties often focus on different aspects of climate change to justify their pro-regulatory or anti-regulatory actions. For example, while the Bush administration promoted climate scepticism and emphasized scientific uncertainty to downplay the importance of climate change law and policy, the Obama administration consistently framed climate change as an essential factor in economic well-being and national security.Footnote 151
Identifying itself as extremely vulnerable to climate change impacts like sea level rise and extreme weather events,Footnote 152 Australia’s political parties have reached a consensus on the urgency of adaptation and the necessity of precautionary measures.Footnote 153 This has contributed to Australia’s relatively well-advanced adaptation policies and government-supported adaptation research.Footnote 154 Furthermore, the immediacy and obviousness of extreme weather events – such as flooding in Queensland, bushfires in NSW and Victoria, and extreme heatwaves throughout the country – have also raised the adaptation awareness of stakeholders, affected communities, and local governments. This advanced awareness has not only produced advanced local action plans, but has also spurred them into bringing litigation even in the absence of overarching adaptation legislation.Footnote 155 For example, property owners who encounter disputes with local councils can go to court to challenge the development decisions of local governments.Footnote 156 At the same time, environmental judges’ overall understanding of climate risks increases the chances of successful adaptation claims. Judge Brian Preston from the New South Wales Land and Environment Court (NSWLEC) has quite often spoken publicly about the courts’ important role in facilitating preventative adaptation measures.Footnote 157
Adaptation awareness in the US pales in comparison with that in Australia in part because US representatives do not make it a priority.Footnote 158 Although the US has also suffered great economic and human loss from extreme weather events, the diversity of local impacts and the uncertain relationship between a single event and climate change have produced divisive political opinions on climate risks.Footnote 159 Partisan politics at the federal level has a far more profound effect on preventing unanimous climate change policy and regulations in the US than in Australia.Footnote 160 For example, executive orders on adaptation made by the Obama administration have not been enforced by the Trump government. The deep divisions between Republicans and Democrats on climate change risks, as well as on how to reconcile economic and environmental interests, make it nearly impossible to establish effective and sustainable legal responses at the federal level.Footnote 161 As a result, state-level adaptation planning, which is less politically controversial, has been the dominant adaptation pathway in the US.
In China, many government officials do not fully understand climate risks and adaptation.Footnote 162 The central government’s policy and legal commitment to address climate change favours mitigation while various levels of government show little interest in or commitment to adaptation issues. With economic development and social stability as the core interests of Chinese government, adaptation ranks at the bottom of the government’s agenda unless it is perceived as a threat to sovereign legitimacy.Footnote 163 As a result, both its adaptation planning and policy suffer from lack of specificity, commitment, and urgency.Footnote 164
3.2. The Status of Environmental Principles
Environmental principles are supposed to provide guidelines for government action and judicial review. The status of environmental principles in legislation and court rulings differs in the three studied countries, which results in differing developments in adaptation jurisprudence.
Environmental principles such as sustainable development and the precautionary principle are absent in American environmental law. Although regulatory approaches that contribute to sustainability can be found in most federal environmental statutes, ‘sustainable development’ or ‘sustainability’ has never been stipulated as an environmental legal principle.Footnote 165 Furthermore, the US Supreme Court demonstrates indifference to the principle of sustainable development in its environmental cases.Footnote 166 With regard to the precautionary principle, only a few cases have used it to challenge the validity of federal laws adopted under scientific uncertainty.Footnote 167 The US government also has been reluctant to embrace it for fear of overregulation.Footnote 168 Moreover, the desire to avoid excessive and unreasonable expense deters government decision makers from applying the precautionary principle in environmental situations that are fraught with uncertainties.Footnote 169 As a result, the precautionary principle has only limited application in the US, particularly when compared with other developed countries such as the EU Member States and Australia.Footnote 170 Without acknowledging its value in statutes and federal policies, the government will struggle to design a comprehensive regulatory adaptation response. Moreover, judicial bodies may experience pushback when applying it in reviewing adaptation-related decisions.
The legal status of environmental principles in China shares intriguing similarities with that of the US. For 30 years following the first EPL in China in 1979,Footnote 171 environmental principles have functioned more as political slogans than as legal norms to be applied.Footnote 172 Neither administrative agencies nor the courts have developed legal techniques or applied them in environmental disputes. The 2014 EPL refers to environmental principles for the first time,Footnote 173 anticipating that they will play an important role in guiding lower-level regulation, legal interpretation and adjudication.Footnote 174 However, the unclarified meaning of these principles may bring undesirable consequences such as expanding the scope of decision makers’ discretion and threatening the integrity of China’s newly minted environmental rule of law.Footnote 175 Specific guidelines and criteria should be developed to provide an objective point of reference as a basis for the Chinese government to take proactive adaptation action.
Environmental principles hold a far more significant position in Australia. Regarded as a central policy goal of planning and environmental law, ESD principles are incorporated in a wide range of environmental statutes and policy instruments, and are applied in many environmental court cases.Footnote 176 While government decision makers are criticized for only paying ‘lip service’ to ESD principles, environmental courts in Australia ‘have a history of advancing the goals of ESD’.Footnote 177 They have established a legal requirement for decision makers to consider ESD when assessing planning proposals. In Gray v. Minister for Planning the NSWLEC found an environmental assessment to be invalid for its failure to consider relevant principles of ESD – namely the precautionary principle and intergenerational equity.Footnote 178 When climatic impacts challenge the balance between environmental and development considerations, Australian judges are more willing to translate the general concepts of ESD into specific planning and decision-making requirements in areas at risk of climate change impacts.Footnote 179
3.3. The Role of the Judiciary and the Environmental Courts
The court’s discretion in undertaking judicial review means that judicial receptiveness to adaptation litigation may differ from case to case. Compared with Australia, the US has developed a unique legal and regulatory system through its judicial review process and susceptibility to more political controversy about legal rules and processes.Footnote 180 In the context of environmental cases, US courts lean more frequently towards judicial restraint than judicial activism.Footnote 181 Courts often employ issues such as lack of standing, the political question doctrine, and displacement to dismiss a plaintiff’s claim for climate change-induced damage or injunctive relief.Footnote 182 Generally, the legislative and executive branches are regarded as better equipped than the judiciary to respond to climate change. In American Electric Power v. Connecticut, for example, the US Supreme Court stated that ‘the expert agency is surely better equipped to do the job than federal judges, who lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order’.Footnote 183 Therefore, US courts have until now refrained from ‘deciding whether and how administrative agencies must take climate change into account in decision-making under existing statutes’.Footnote 184 As Justice Konenkamp of the Supreme Court of South Dakota wrote in a court opinion:
As members of the judiciary, we refrain from settling policy questions more properly left for the Governor, the Legislature, and Congress. No matter how grave our concerns on global warming are, we cannot allow personal views to impair our role under the Constitution’.Footnote 185
Moreover, because most climate change cases in the US are filed in general jurisdiction courts rather than environmental courts, general court rules such as standing and causation must be strictly followed. This may deter possible plaintiffs from bringing adaptation-related claims.
Courts in Australia, in contrast, are less strict in their application of the separation of powers doctrine, and have not made standing a significant barrier to accessing courts in climate-related cases.Footnote 186 For example, while acknowledging the different competencies of the judiciary compared with those of the legislature and executive, the Chief Justice of the NSWLEC has stated that ‘the courts would be justified in taking a more interventionist approach’, especially given the ‘seriousness, magnitude and extent’ of climate change impacts.Footnote 187 Moreover, environmental advocates have been successful in convincing the courts to interpret and apply the EPBC Act progressively in relation to climate change issues.Footnote 188 The judiciary has therefore ‘stepped into a breach that legislators and executive branch agencies have typically avoided’.Footnote 189 Moreover, as a world leader in creating specialized environmental courts,Footnote 190 Australia’s state-level environmental courts and tribunals have been empowered with reasonable flexibility and innovation to respond to emerging environmental problems.Footnote 191 Specifically, they add value to administrative decision making by formulating, applying, and developing environmental principles.Footnote 192 This does not mean that a positive outcome for adaptation claims is guaranteed, but environmental courts, because of their special knowledge and expertise, are more likely to develop innovative remedies and holistic solutions for environmental issues.Footnote 193 With the mission to determine environmental, planning and land-use disputes in a ‘just, quick and cheap way’Footnote 194 environmental specialist courts have paved the way for adaptation litigation as a result of their comparatively liberal standing requirements, flexible procedural and costs rules, and specialized judges.Footnote 195
In China, while legislative, executive and judicial powers are respectively vested in the People’s Congress, administrative organs and the judiciary, the principle of separation of powers is regarded as a Western philosophy and is not compatible with China’s system of government.Footnote 196 The concept of an independent judiciary has been openly and resolutely resisted by China’s top judicial officials.Footnote 197 As such, for many years the Chinese judiciary has had inadequate judicial independence from other government entities.Footnote 198 Governmental authorities have interfered with the judicial system by deciding which cases will be accepted and how they will be decided.
Although the creation of specialized environmental courts shows a political desire to promote the rule of law in response to environmental issues, it would appear that ulterior motives are at play. Some observers warn that environmental courts in China are ‘not a step toward judicial empowerment … but an effort to enlist courts to serve alongside government bureaus in a multipronged environmental campaign’.Footnote 199 Environmental courts are expected to cooperate and coordinate with government agencies to address serious environmental crises. As such, judges from environmental courts assume the role of environmental regulators, forced to strike a balance between environmental protection and economic development.Footnote 200 Furthermore, as China undergoes unprecedented social and economic change, judicial interpretation of laws often goes beyond the technical application of legal rules to cater to social needs.Footnote 201 In light of this reality, adaptation claims will not be able to proceed until the Chinese government attains a profound understanding of the socio-economic and environmental challenges imposed by adaptation.
4. CONCLUSIONS AND THE WAY FORWARD
Different countries, both intentionally and unintentionally, form their own particular pathways towards adaptation, based on their specific legislative and regulatory frameworks. Their adaptation choices are shaped by various factors such as adaptation awareness, climate politics, perceptions of risk, the application of environmental principles, and the role of the judiciary and the environmental courts. This article has argued that the differences and interplay between these factors are key drivers in determining how governments and courts in federal systems react to adaptation challenges when faced with legislative gridlock and scientific uncertainty.
In societies centred on the rule of law, the judiciary typically encounters adaptation disputes and responds to them before the legislature and executive are aware of adaptation problems, or construct regulatory mechanisms to deal with them. The way in which independent judges adjudicate adaptation cases, however, is often constrained and influenced by applicable statutes, the extent to which they permit ‘climate friendly’ interpretation, and the role of the judiciary within a legal system.Footnote 202 Australia’s adaptation litigation has been more advanced than that in the US, which shares a similar system of rule of law. This is mainly as a result of Australia’s unique environmental court system and its application of ESD principles as contained in environmental statutes. The consensus on taking adaptation actions among individuals, governments and judges also contributes to advanced adaptation litigation.
While adaptation litigation has the capacity to increase awareness, influence regulation and change behaviour,Footnote 203 the time, cost, and unpredictability of court rulings, as well as the possibility that positive outcomes will be undermined by subsequent legislative changes, all limit the judiciary’s role in preventing and reducing climate risks and harm.Footnote 204 Moreover, in many cases, the executive branch is better positioned and equipped than the judiciary to undertake proactive adaptation measures. With an increasing number of adaptation disputes flooding the courts, it is imperative that the Australian government establish a clear, consistent and effective regulatory landscape for adaptation.
During the Obama administration, climate change adaptation discourse in the US moved beyond endless political disputes towards practical action. The frequent use of executive orders and widespread adoption of state-level adaptation planning gave administrative decision makers, rather than judges, a leading role in responding to adaptation needs. However, the adoption of executive orders for adaptation is highly dependent on the ruling party’s perception of risk and its views on the precautionary principle. Moreover, executive orders may be reversed by less enlightened successors if they have not been incorporated into legislation.Footnote 205 Where the federal reaction to adaptation is sluggish and unpredictable, state-level adaptation planning is often the optimal choice for coastal states vulnerable to climatic impacts. However, states may be constrained by an established governance regime which has already ‘locked in’ the role of each institution. As such, the US’s future challenges include how to achieve strong political consensus and enshrine executive efforts into undefeatable legislative authority to ensure their continuity.
In contrast, when China focuses on economic development and social stability, treats environmental principles as political slogans, and sets barriers for suing government authorities, policy becomes the primary pathway for managing adaptation challenges. Policy holds the potential to send a strong signal to subnational officials under China’s authoritarian regime. However, adaptation policies in China tend to lack measurable and clearly defined targets and approaches, and do not provide government authorities with specific guidance. The future of adaptation will still depend largely on government attitudes towards competing interests associated with climate change. Until China establishes the rule of law, the judiciary will struggle to play a meaningful role in facilitating adaptation. At the same time, China has much to learn from the US and Australia with regard to applicable subnational adaptation planning and in applying environmental principles.
No matter which pathway dominates in the practice of adaptation, successful adaptation will need coordination, cooperation, and the mutual support of the legislature, executive, and judiciary. How these goals are achieved will depend on the specifics of each country’s political and legal regime. Cross-jurisdictional learning and studies of adaptation efforts, past and present, can nevertheless offer critical lessons for making more effective adaptation pathway choices.
