H.F.M.W. van Rijswick

Enabling the Contextualization of Legal Rules in Responsive Strategies to Climate Change

The paradigm of adaptive governance is paramount in policy discourses on the mitigation and adaptation strategies of climate change. Adaptability, resilience, and cooperative approaches are promoted as the appropriate vehicles to meet the contemporary conditions of uncertainty and complexity. We claim that the legitimacy and effectiveness of these responsive strategies might be augmented via the use of legal perspectives. Rather than the instrumental use of command and control type of regulation, the legal perspectives should focus on establishing principal norms that enable the search for different solutions in different contexts. From these assumptions, the concept of legal obligation is explored as embodying the meaning of legality, and at the same time conditioning and committing the probing of different ways of purposeful action in different local circumstances. We explore the innovative potential of legal norms and demonstrate how responsive strategies to climate change can be guided by the contextualization of legal norms.

The Concept of Resilience from a Normative Perspective: Examples from Dutch Adaptation Strategies

Both in academic literature and political practice, resilience is becoming a central evaluative concept for assessing climate adaptation policies. This makes sense because society’s main challenge in an altering the environment is to adapt to the inevitable changes. However, applying the concept of resilience to devise adaptation strategies reveals that social-ecological resilience acquires different meanings depending on the social context. There is no straightforward application of resilience. In this contribution, it will be argued that giving meaning to the concept of resilience in adaptation strategies requires making normative choices. These choices concern whether there is a public interest in adaptation, the distribution of private and public responsibilities, and striking a balance between individual rights and general interests. Because these normative choices can be questioned and revised, it is important that they are made explicit to enable a democratic debate on the direction that adaptation strategies should take. Simply referring to the concept of resilience in an adaptation strategy does not suffice, but occludes this discussion. Through formulating and applying a condensed scheme of politico-theoretical approaches that underpin diverging adaptation approaches, this contribution reveals the various underlying normative assumptions and explicates the relevant political choices. Three Dutch adaptation strategies serve as empirical examples. They illustrate the importance of the societal context in giving meaning to resilience in the development of adaptation strategies.

Prepared for climate change? A method for the ex-ante assessment of formal responsibilities for climate adaptation in specific sectors

Climate change-related risks encompass an intensification of extreme weather events, such as fluvial and pluvial flooding, droughts, storms, and heat stress. A transparent and comprehensive division of responsibilities is a necessary—but not the only—precondition for being prepared for climate change. In this paper, we present, and preliminarily test, a method for the ex-ante assessment of the division of public and private responsibilities for climate adaptation in terms of comprehensiveness, transparency, legitimacy, and effectiveness. This method proofs particularly suited for the assessment of adaptation responsibilities in combination with a sectoral approach. It helps identifying a number of shortcomings in divisions of responsibilities for climate adaptation. We conclude that this method is useful as a diagnostic tool for identifying the expected climate change preparedness level, and recommend to combine this with ex-post analyses of real-life cases of extreme events in order to assess the actual preparedness for climate change. Besides the scientific purpose of providing a generally applicable assessment method, with this method, we also intend to assist policy-makers in developing and implementing adaptation plans at various levels.

The effectiveness of the principle of recovery of the costs of water services jeopardized by the European Court of Justice - Annotations on the judgment in C-525/12

In Case C-525/12 the European Court of Justice concludes that cost recovery for water services as outlined in Article 9 of the Water Framework Directive is only one of the instruments for Member States to strive for a rational water use. It furthermore concludes that the wfd environmental objectives not necessarily imply that cost recovery should be applicable to all water-related activities mentioned in Article 2 (38) wfd. In this underlying contribution a number of critical remarks to this judgment are provided. In view of the authors, the European Court of Justice reduces the effectivity of the cost recovery principle too rigorously by reducing the principle of cost recovery for water services to a practically voluntary tool for Member States.

The Need for Flexibility and Differentiation in the Protection of Vulnerable Areas in EU Environmental Law: The Implementation of the Nitrates Directive in the Netherlands

The Nitrates Directive (91/676/EEC) offers EU Member States the unique choice to apply the nitrate regime in either designated areas or on their entire territory. The Netherlands has opted for a whole territory approach but is tempted to change this policy. This article investigates the legal options of the Netherlands to switch from a whole territory approach to a designated area approach. It also investigates two alternative possibilities to create a more area-based implementation of the Nitrates Directive in the Netherlands within a whole territory approach. The alternatives are (i) a further differentiation of the current manure policy and (ii) the possibility to integrate the implementation of the Nitrates Directive and the Water Framework Directive. The results of the research are placed in a European perspective.

Functions of OECD Water Governance Principles in assessing water governance practices: assessing the Dutch Flood Protection Programme

ABSTRACT The OECD Principles on Water Governance aim to contribute to good water governance. Learning and change through assessments are useful ways to strengthen water governance systems. This article presents a methodology for a learning assessment based on the OECD principles. The methodology has been applied to the Dutch Flood Protection Programme. The analysis revealed various functions of the OECD principles, from enhancing understanding to reforming the agenda, reflection and informed action. Recommendations are given on how the OECD principles can be used to come to meaningful action-oriented water governance assessments; they include contextualization, multiple methods, inclusiveness and periodic assessments.

Governance Arrangements for the Adaptation to Climate Change

Adaptation to climate change is not only a technical issue; above all, it is a matter of governance. Governance is more than government and includes the totality of interactions in which public as well as private actors participate, aiming to solve societal problems. Adaptation governance poses some specific, demanding challenges, such as the context of institutional fragmentation, as climate change involves almost all policy domains and governance levels; the persistent uncertainties about the nature and scale of risks and proposed solutions; and the need to make short-term policies based on long-term projections. Furthermore, adaptation is an emerging policy field with, at least for the time being, only weakly defined ambitions, responsibilities, procedures, routines, and solutions. Many scholars have already shown that complex problems, such as adaptation to climate change, cannot be solved in a straightforward way with actions taken by a hierarchic or monocentric form of governance. This raises the question of how to develop governance arrangements that contribute to realizing adaptation options and increasing the adaptive capacity of society. A series of seven basic elements have to be addressed in designing climate adaptation governance arrangements: the framing of the problem, the level(s) at which to act, the alignment across sectoral boundaries, the timing of the policies, the selection of policy instruments, the organization of the science-policy interface, and the most appropriate form of leadership. For each of these elements, this chapter suggests some tentative design principles. In addition to effectiveness and legitimacy, resilience is an important criterion for evaluating these arrangements. The development of governance arrangements is always context- and time-specific, and constrained by the formal and informal rules of existing institutions.

Ruimte voor dijken : Een onderzoek naar het juridisch instrumentarium voor het reserveren van ruimte voor toekomstige dijkenversterkingen, in: Pilot 'ruimtelijk instrumentarium dijken'

Er bestaan verschillende instrumenten om te sturen in het waarborgen van waterveiligheid en in de ruimtelijke inrichting op en rond dijken. Expliciet is het beschikbare en toekomstige juridisch instrumentarium onderzocht. Waarbij ook de aandacht is uitgegaan naar de toepasbaarheid van diverse ruimtelijke schaderegelingen, zoals planschade. In financiele zin heeft een analyse plaats gehad van de mogelijkheden die koop en sloop, verder te noemen koop & sloop, van aanwezige bebouwing kan bieden. Daarnaast is met diverse publieke en private partijen verkend wat zij belangrijk vinden in de inrichting van de dijk en uitvoering van dijkversterkingen. De resultaten van elk van deze onderzoeken worden hier kort weergegeven. Voor de uitgebreide onderzoeken wordt verwezen naar de desbetreffende eindrapporten

The Legal Instruments for the control of emissions of medicines for human and veterinary use, advies in opdracht van het RIVM

ion of drinking water in the Member States, OJ 1975, L194/34, amended by Directive 79/869. See extensively Van Rijswick 2008b, p. 132141. 132 ECJ Case C-60/01, ECR 2002, I-05679; ECJ, Case C-266/99, ECR 2001, I-01981; ECJ, Case C-56/90, ECR 1993, I-04109; ECJ, Case C-92/96, ECR 1998, I-00505; ECJ, Case C-337/89, ECR 1992, I-06103; ECJ, Case C316/00, ECR 2002, I-10527, ECJ, Case C-147/07.