9.5 Identification of the Legal Options, Their Limits,
and the Need for Legal Changes
9.5.1 General Findings
Although climate change issues are not explicitly mentioned in the regulations of
the HD, BD and WFD, most of the adaptation requirements for the areas can be
realised within the existing legal framework in the Central European Countries.
Area designation and area management and protection regulations are flexible
enough to introduce the measures needed, be it the designation of new protected
areas, the making or amending of (climate change adaption specific) management
plans, or indeed changes to the protection regime. The latter are typically difficult to
implement, as they usually require changing the protected areas statutory instrument or law. The differences in the implementation of nature protection law are
sometimes considerable, especially concerning the procedure and effects of area
management planning according to Art. 6 (1) HD and 4 (1) BD. For the water law,
the differences are far less significant, as the WFD hardly allows any room for
deviating implementations. The impact assessment procedure (Art. 6 (3), (4) HD) is
a suitable instrument with scope for scientifically uncertain climate change adaptation considerations, but binding permission decisions could then face more legal
uncertainty (Cliquet et al. 2009, p. 170). Generally, problems arise when climate
change adaptation conflicts with other land use interests, for instance with the
construction of highways or the extraction of water.
9.5.2 Nature Protection Law
9.5.2.1 Options for Climate Change Adaptation of Natura 2000 Areas
There are already many options within the Habitats and Birds Directive that allow for
climate change adaptation (Trouwborst 2011, p. 77). New areas can be designated
both for habitats and bird protection purposes, based upon the duties of Art. 4 (1) (4),
Art. 11 HD and Art. 4 (1) (4) BD, using the legal provisions that implement these
duties in the respective member state. In the case of SACs, this requires a report to
and the participation of the Commission, whereas new SPAs have to be designated
automatically as the distribution of wild bird species requires (see above 3.b.aa).
However, at least in the case of the Habitats Directive, it is sometimes argued that the
designation process is complete (Schumacher et al. 2013, 5.4.4.2, Footnote 454).
Area management can be adapted as climate change impacts require, more
effectively in countries with compulsory and regularly revised management planning.
In those countries where management planning is optional (cf. 3.b.bb), the need to
make a new management plan can arise from climatic changes that severely affect the
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and the Need for Legal Changes
9.5.1 General Findings
Although climate change issues are not explicitly mentioned in the regulations of
the HD, BD and WFD, most of the adaptation requirements for the areas can be
realised within the existing legal framework in the Central European Countries.
Area designation and area management and protection regulations are flexible
enough to introduce the measures needed, be it the designation of new protected
areas, the making or amending of (climate change adaption specific) management
plans, or indeed changes to the protection regime. The latter are typically difficult to
implement, as they usually require changing the protected areas statutory instrument or law. The differences in the implementation of nature protection law are
sometimes considerable, especially concerning the procedure and effects of area
management planning according to Art. 6 (1) HD and 4 (1) BD. For the water law,
the differences are far less significant, as the WFD hardly allows any room for
deviating implementations. The impact assessment procedure (Art. 6 (3), (4) HD) is
a suitable instrument with scope for scientifically uncertain climate change adaptation considerations, but binding permission decisions could then face more legal
uncertainty (Cliquet et al. 2009, p. 170). Generally, problems arise when climate
change adaptation conflicts with other land use interests, for instance with the
construction of highways or the extraction of water.
9.5.2 Nature Protection Law
9.5.2.1 Options for Climate Change Adaptation of Natura 2000 Areas
There are already many options within the Habitats and Birds Directive that allow for
climate change adaptation (Trouwborst 2011, p. 77). New areas can be designated
both for habitats and bird protection purposes, based upon the duties of Art. 4 (1) (4),
Art. 11 HD and Art. 4 (1) (4) BD, using the legal provisions that implement these
duties in the respective member state. In the case of SACs, this requires a report to
and the participation of the Commission, whereas new SPAs have to be designated
automatically as the distribution of wild bird species requires (see above 3.b.aa).
However, at least in the case of the Habitats Directive, it is sometimes argued that the
designation process is complete (Schumacher et al. 2013, 5.4.4.2, Footnote 454).
Area management can be adapted as climate change impacts require, more
effectively in countries with compulsory and regularly revised management planning.
In those countries where management planning is optional (cf. 3.b.bb), the need to
make a new management plan can arise from climatic changes that severely affect the
152
M. Gies et al.