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Linda Schumacher
The Law
of Coastal
Adaptation
Insights from Germany and New
Zealand
The Law of Coastal Adaptation
Linda Schumacher
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland
AG 2020
This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether
the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of
illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and
transmission or information storage and retrieval, electronic adaptation, computer software, or by
similar or dissimilar methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors, and the editors are safe to assume that the advice and information in this
book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or
the editors give a warranty, expressed or implied, with respect to the material contained herein or for any
errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional
claims in published maps and institutional affiliations.
This Springer imprint is published by the registered company Springer Nature Switzerland AG.
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
This work has been updated and slightly
modified for the purpose of publication.
Acknowledgements
First, I would like to thank my supervisors, Prof. Dr. Gerd Winter from the
University of Bremen and Prof. Barry Barton from the University of Waikato, for
their continuous and endless support. In all honesty, I could not have wished for
better and more dedicated advisors. Without their profound knowledge and generous
advice, this work would not have the same depth as it now does.
I would like to express my gratitude to the Deutsche Forschungsgemeinschaft
(DFG) for funding the INTERCOAST project and thereby my Ph.D. project.
Appreciation is due to the INTERCOAST project itself, and I would like to express
that I am grateful for the opportunity of being part of this international and interdis-
ciplinary graduate program. Furthermore, my sincere thanks goes to my colleagues
at the Forschungsstelle für Europäisches Umweltrecht (Research Centre for
European Environmental Law) at the University of Bremen.
Heartfelt thanks goes to my fellow INTERCOAST colleagues, many of whom
have become lifelong friends along our common path towards attaining our respec-
tive Ph.D. degrees. In particular, I would like to thank Pradeep Singh for his
friendship, our many discussions about the Common Law and his recipe for chicken
curry. Thanks to my lovely colleagues at the University of Waikato, I felt very
welcome during my research stay in New Zealand. Muchas gracias, Daniela Aguilar
Abaunza, for being a marvelous office mate as well as a friend.
Finally, very special thanks goes to my parents, Anke and Jochen Schumacher,
who raised me to be an independent and confident woman who is not afraid to spread
her wings and fly to the other side of the world. At the same time, thank you for
always being there for me and supporting me in all my endeavors, irrespective of
what situation in my life I am adapting to at the time.
vii
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Setting the Scene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1.1 Climate Change in the Coastal Context . . . . . . . . . . . . 1
1.1.2 The Need for Coastal Adaptation . . . . . . . . . . . . . . . . . 2
1.1.3 Adaptation in a Broader Sense . . . . . . . . . . . . . . . . . . 3
1.1.4 The Role of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.2.1 Climate and Climate Change . . . . . . . . . . . . . . . . . . . . 4
1.2.2 Climate Change Mitigation and Adaptation . . . . . . . . . 5
1.2.3 Vulnerability and Resilience . . . . . . . . . . . . . . . . . . . . 5
1.2.4 Hazard, Risk and Hazard Risk . . . . . . . . . . . . . . . . . . . 6
1.2.5 Coastal Zone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.2.6 Coastal Hazards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.3 On the Comparative Aspect . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.3.1 Reasons for Choosing Germany and New Zealand As
Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.3.1.1 Factual Similarities and Differences . . . . . . . 7
1.3.1.2 Institutional Differences . . . . . . . . . . . . . . . 8
1.3.2 Comparative Aspects of This Thesis . . . . . . . . . . . . . . 9
1.3.2.1 The Functional Method and the Presumption
of Similarity . . . . . . . . . . . . . . . . . . . . . . . . 9
1.3.2.2 Comparison of Overall Concepts . . . . . . . . . 10
1.4 Scope of the Thesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.4.1 Purpose of This Work . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.4.2 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2 Scientific Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.1 Climate Change and Rising Sea Levels . . . . . . . . . . . . . . . . . . . 15
2.1.1 Changing Climate . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ix
x Contents
xxiii
Chapter 1
Introduction
Not protecting cities such as Amsterdam, Rotterdam, and London during the 21st century is
not an option. On the other hand, there are coastal areas such as small islands where
protecting against several meters of sea level rise in the long term is not a viable option.
Failing to mitigate, thus increasingly commits us to a world where densely populated areas
lock into a trajectory of increasingly costly hard defenses and rising residual risks on the one
hand and less densely populated areas being abandoned on the other hand.1
This citation from the Fifth Assessment Report of the Intergovernmental Panel on
Climate Change (IPCC) illustrates the severity of impacts, challenges, and
far-reaching decisions that coastal communities around the world face in the light
of a changing climate and rising sea levels. Every part of the world is expected to
experience the impacts of climate change. The range of these predicted conse-
quences is broad and includes increasing temperatures, heat waves, droughts,
extreme precipitation, and rising sea levels.2 Hence, climate change and its adverse
effects are considered a “common concern of humankind.”3 Despite the recognition
as a common concern, mitigation efforts are not on the top of the agendas around the
world; in fact, emissions increased in 20174 and 2018.5 Present efforts to reduce
1
Wong et al. (2014), p. 395.
2
Field et al. (2014), p. 59 f.
3
United Nations Framework Convention on Climate Change: UNFCCC, Preamble.
4
International Energy Agency (2018), p. 3 f.
5
Tollefson (2018), p. 2141.
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to 1
Springer Nature Switzerland AG 2020
L. Schumacher, The Law of Coastal Adaptation,
https://doi.org/10.1007/978-3-030-48962-5_1
2 1 Introduction
greenhouse gas emissions are considered insufficient in speed and depth to meet the
targets set by the Paris Agreement.6 Even if the 1.5 C goal under the Paris
Agreement7 is achieved, current research suggests that the consequences of climate
change would already be disruptive under this scenario.8 Recent studies discovered
evidence for anthropogenic influence on extreme temperature events and, although
to a more limited extent, on extreme precipitation events like droughts and storms.9
Furthermore, other research has linked partial costs related to extreme weather
events to climate change. For New Zealand, costs attributable to climate change
were estimated at 840 million NZD10 for a 10-year period (2007–2017). However,
the scope of the assessment was limited to privately insured damages due to extreme
rainfall-related floods and economic losses associated with droughts. Thus, costs
caused by climate change are likely much higher than the estimate.11
Recent extreme events around the world may also have been exacerbated by
climate change. For the year 2018 alone the list of extreme events includes: a heat
wave in Europe,12 the Hurricanes Florence and Michael at the US coast,13 the Super
Typhoon Mangkhut in the Philippines and in China,14 and the heavy rain and
flooding in Italy.15 These weather-related disasters claimed lives and caused massive
destruction. Since such extreme events are likely to increase as a result of climate
change,16 they are sometimes considered to be ‘a glimpse into the future’.
Both the inevitability of climate change and the severity of the potential impacts
make climate change adaptation increasingly important. Sea level rise is almost
certain and coastal areas already experience increasing coastal erosion and higher
6
Climate Transparency (2017), pp. 6, 16 and 18.
7
Paris Agreement, Art. 2 (1) (a). The provision sets the goal to holding the increase of global
average temperature well below 2 C above pre-industrial levels and to pursue efforts to limit the
increase to 1.5 C above pre-industrial levels. The latter is therefore already the more
ambitious goal.
8
See for coastal areas: Nicholls et al. (2018) and Brown et al. (2018). See also below: Sect. 2.1.
9
Stott et al. (2016), especially pp. 23, 25 and 37; Baker et al. (2018), especially pp. 604 and 606.
10
This equals around 467million EUR based on the exchange rate on 10 of April 2020
(1 NZD ¼ 0.56 €).
11
New Zealand Climate Change Research Institute – Victoria University of Wellington and
National Institute of Water & Atmospheric Research Ltd (2018), p. 17. The amount is split between
120 million NZD related to floods and 720 million NZD to droughts.
12
BBC (2018).
13
CNN (2018).
14
The Washington Post (2018).
15
The New York Times (2018).
16
See below: Sect. 2.2.1.
1.1 Setting the Scene 3
Societies around the world need to address how to cope with a changing climate that
also alters the environment. Some of the projected changes are far-reaching. Sea
17
See below: Sect. 2.1.
18
Klein et al. (2001), p. 533.
4 1 Introduction
level rise, for instance, does not only put many coastal communities at risk but may
submerge complete nations. Therefore, the need for an adaptation strategy could not
be more evident. The European Union, for instance, recognizes the necessity to start
adapting to climate change.19
Law as a core instrument of society not only governs all state action but also sets
the framework for private individuals. Hence, law plays a key role in any adaptation
to climate change. Binding regulations can enforce, enable or impede adaptation.
Successful implementation of coastal adaptation, therefore, requires a facilitating
environment set by the legal framework. For this reason, the purpose of this research
is to analyze if and to what extent coastal adaptation is already enabled by current
legal frameworks, taking Germany and New Zealand as examples.
1.2 Definitions
Before engaging in a detailed analysis of the two legal systems chosen as examples,
the following section clarifies some of the key terms and concepts for coastal
adaptation to climate change.
Climate in a narrow sense refers to the average weather (e.g. temperature, precip-
itation, and wind) over a longer period of time, e.g. 30 years. In a wider sense,
climate is used to describe the state of the climate system, consisting of the
atmosphere, hydrosphere, cryosphere, lithosphere, and biosphere. The climate sys-
tem is influenced by internal dynamics and external impacts like volcanic eruptions
or changing compositions in the atmosphere. The latter is also influenced by
greenhouse gases.20
In accordance with the United Nations Framework Convention on Climate
Change (UNFCCC), the thesis uses the term climate change to refer to anthropo-
genic climate change. Article 1 of the aforementioned convention contains the
following definition: “a change of climate which is attributed directly or indirectly
to human activity that alters the composition of the global atmosphere and which is
in addition to natural climate variability observed over comparable time periods.”
19
Commission of the European Communities (2009), p. 3.
20
Intergovernmental Panel on Climate Change (IPCC) (2013), p. 1450 f.
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