flexible enough to meet every possible adaptation need that could arise in future,
while at the same time not causing harm in cases where making use of their adaptive
potential proves not to be necessary (no-regret measures).
It follows that nature conservation and water management require better surveillance of all impacts and effects, improved planning taking account of uncertainties on a long-term time scale in a preventive manner (monitoring and
planning), and a more flexible system in order to react to unforeseen developments
on the local level. The preventive provisions ought to be open to foreseeable
changes from the beginning and should be designed in a highly resilient manner
(resilience improvement). Reactive instruments have to be led by adaptation principles that ensure that the aims of mitigation and averting negative impacts are not
set aside too quickly and that adaptation measures are targeted towards conservation aims, taking account of the new circumstances caused by climate change
(principled flexibility). Basically, pro-active prevention is the rule, whilst reactive
response should remain the exception. Typically, climate change specific monitoring and planning will lead to the implementation of management practices and
interference prohibitions needed to avert negative impacts on good conservation
status, e.g. early action in water management and water use regulations, when
climatic developments are expected to lead to a problematic situation for a wetland
habitat area. At the same time, regulations should be introduced that allow adequate
reactions to more unlikely, not preventively tackled or even completely unforeseen
events and impacts, e.g. the possibility to cancel permission granted for water
cooling of a power plant when climate conditions worsen unexpectedly or extreme
events have occurred. The last resort is the point where inevitable and final loss
must be accepted, i.e. a definition of situations where the protection goals or even a
whole protection area designation should be cancelled and possibly replaced. It
must be made very clear in binding legal terms that this is not an option where
reasonable efforts are still possible and bearable (Craig 2010, p. 69 et seq.).
The most challenging task is resilience improvement by reducing non-climatic
impacts. Adaptation to climate change means – generally in the field of environmental law – above all the intensification of protective and preventive standards, as
climate change mostly leads to an aggravation of existing environmental stresses,
with nature becoming more and more intolerant (Craig 2010, p. 43 et seq.). The
factual differences and consequently the legal difficulties are of a gradual, not
categorical, nature (Reese et al. 2010, p. 12).
The legal steps required in order to adapt to climate change can either be taken
on the level of the protection goals, or at the instrumental level of protection
measures. The former could be made more open to changes, so that dynamic
processes rather than fixed states become the goal of conservation: “Environmental
Protection and Environment Asset Usage will have to retire from the leading
principle of a relatively static environment that is to be conserved near the original
state. Instead, a dynamic protection concept is needed [. . .].” (cf. Reese et al. 2010,
p. 13). Rather than conserving ecosystem states and functions, the goal should be to
increase resilience and hence strengthen adaptive capacity (Craig 2010, p. 39).
However, it is important to bear in mind that such a goal, i.e. protecting dynamic
9 Legal Aspects of Climate Change Adaptation
141
while at the same time not causing harm in cases where making use of their adaptive
potential proves not to be necessary (no-regret measures).
It follows that nature conservation and water management require better surveillance of all impacts and effects, improved planning taking account of uncertainties on a long-term time scale in a preventive manner (monitoring and
planning), and a more flexible system in order to react to unforeseen developments
on the local level. The preventive provisions ought to be open to foreseeable
changes from the beginning and should be designed in a highly resilient manner
(resilience improvement). Reactive instruments have to be led by adaptation principles that ensure that the aims of mitigation and averting negative impacts are not
set aside too quickly and that adaptation measures are targeted towards conservation aims, taking account of the new circumstances caused by climate change
(principled flexibility). Basically, pro-active prevention is the rule, whilst reactive
response should remain the exception. Typically, climate change specific monitoring and planning will lead to the implementation of management practices and
interference prohibitions needed to avert negative impacts on good conservation
status, e.g. early action in water management and water use regulations, when
climatic developments are expected to lead to a problematic situation for a wetland
habitat area. At the same time, regulations should be introduced that allow adequate
reactions to more unlikely, not preventively tackled or even completely unforeseen
events and impacts, e.g. the possibility to cancel permission granted for water
cooling of a power plant when climate conditions worsen unexpectedly or extreme
events have occurred. The last resort is the point where inevitable and final loss
must be accepted, i.e. a definition of situations where the protection goals or even a
whole protection area designation should be cancelled and possibly replaced. It
must be made very clear in binding legal terms that this is not an option where
reasonable efforts are still possible and bearable (Craig 2010, p. 69 et seq.).
The most challenging task is resilience improvement by reducing non-climatic
impacts. Adaptation to climate change means – generally in the field of environmental law – above all the intensification of protective and preventive standards, as
climate change mostly leads to an aggravation of existing environmental stresses,
with nature becoming more and more intolerant (Craig 2010, p. 43 et seq.). The
factual differences and consequently the legal difficulties are of a gradual, not
categorical, nature (Reese et al. 2010, p. 12).
The legal steps required in order to adapt to climate change can either be taken
on the level of the protection goals, or at the instrumental level of protection
measures. The former could be made more open to changes, so that dynamic
processes rather than fixed states become the goal of conservation: “Environmental
Protection and Environment Asset Usage will have to retire from the leading
principle of a relatively static environment that is to be conserved near the original
state. Instead, a dynamic protection concept is needed [. . .].” (cf. Reese et al. 2010,
p. 13). Rather than conserving ecosystem states and functions, the goal should be to
increase resilience and hence strengthen adaptive capacity (Craig 2010, p. 39).
However, it is important to bear in mind that such a goal, i.e. protecting dynamic
9 Legal Aspects of Climate Change Adaptation
141