The European Consortium for Political Research, ECPR General Conference in 2023
The ECPR General Conference gather around 2000 political scientists every year, and is an important arena for presenting papers with findings from on-going research. This year the conference was located in Prague.
The CONTRA-project arranged the panel “The evolution of spatial planning law for environmental protection and climate transition”, to enable a wider discussion about our papers of the evolution in spatial planning law for climate transition. The background is that the current climate and environmental crises require numerous adaptations to our way of life. Many of these adaptations have consequences for the way we use scarcely available land. The land use claims made in the interest of the environment do not always enjoy public support and often collide with vested economic or social interests. Therefore, they present thorny regulatory challenges for which existing legal instruments are sometimes inadequate. The clash between environmental and economic claims on land has led to rethinking spatial law in several jurisdictions that should make sure infrastructure can still be built while environmental degradation does not progress. These twin demands lead to tensions between the fundamental judicial notion of legal certainty and the increasingly vocal calls for a flexibilization of the planning system. In this panel we are looking at regulatory systems in different jurisdictions to investigate and compare how they are dealing, or have dealt, with these particular instances of environmental/spatial conflict (Miller & De Roo 2000). Several systems are changing towards more flexibility, but the question remains whether the environment will truly benefit or whether economic interests will capture developments and unsustainable trends will persist or even escalate further. Papers will be presented on the various tensions involved, for instance between legal certainty and the need to quickly adapt to new environmental conditions and broad participatory rights of citizens and the representation of the common good. In the Netherlands for instance a shift is taking place from plan led planning to development led planning which should make sure that land use is both efficient as well as sustainable. To that end a more horizontal partnership between the administration and project initiators is envisioned. In Germany, cities have regulatory authority to require (solar) energy production on roofs in new projects, and Norwegian regulators are discussing amending the law to grant the municipalities the same authority. In Poland attempts to open up the planning system have been met with criticisms that project developers have been granted a free reign and can now contravene municipal zoning plans at will (Załęczna & Antczak-Stepniak 2022). These European perspectives will be contrasted with constitutional developments in Latin America. By tracing the history of and identifying current trends in the relationship between spatial planning and environmental protection, this panel will present an overview of a policy field that faces increasing polarization and juridification. The papers present both a descriptive view on the relevance of spatial law for environmental protection and climate transition as well as a normative perspective on what solutions would be preferable.
The panel mobilized five papers, where two of them are CONTRA-papers.
The first paper “Adaptive law, between flexibility, legal certainty and environmental justice”, was written by Tobias Arnoldussen (Tilburg University). In his paper, he shows that since the planning skepticism of the 1980s, spatial planning law and practice in Northern European countries has been shifting in the direction of more flexible procedures and are less reliance on formal institutional planning. Planning has generally become project led instead of plan led, decentralized, with strong roles for the municipalities and private stakeholders and open to managerial governance structures instead of regulatory/bureaucratic ones. This trend has been characterized and criticized as neo-liberal by various commentators. They highlight that planning has lost its egalitarian angle and embraced a pro-growth agenda, to the detriment of the common good. However, the turn to flexibilization can also be positively evaluated from an ecological perspective embraced by commentators who wish to integrate law within the framework of social-ecological systems. Theorists who work on a notion coined Adaptive Law argue that spatial governance that is less reliant on centralized bureaucratic planning, more experimentalist and less reliant on legal certainty as the core legal value, is more adaptive and fosters social resilience. The reasons given in favour of a more flexible, decentralized legal system are very different. The proponents of adaptive law place eco-system protection at the heart of their proposal while the current trend towards flexibilization seems more driven by a pro growth agenda. Although coming from a different angle and embracing different values, adaptive law also embraces a managerialist style of governance in which specifically legal values like certainty, distributive justice, fairness and equity are not accorded their proper place. This omission poses the risk that adaptive law will become a way to pay ideological lip service to ecological values while embracing an efficiency driven pro-growth agenda in practice. This article proposes to include normative notions of fairness taken from environmental justice within the framework of adaptive to correct the managerial rationality that pervades it. Such notions are the inclusion of the precautionary principle and a variation of John Rawls’ maximin principle: projects proposed and activities to be permitted have to show that the worst off in environmental terms benefit the most from them.
The next paper, called “Adaptivity and change, diagnosing changes in spatial planning regime using the adaptive law framework” by Tobias Arnoldussen (University of Tilburg), Esther van Zimmeren (University of Antwerpen), Katarzyna Szmigiel and Aleksander Wiaderek (University of Warszaw), Gro Sandkjær Hanssen (OsloMet) – compare the institutional framork for planning in the four COINTRA-countries. European countries have different legal traditions, also when it comes to spatial planning. The Planning- and building laws in different countries vary regarding the authority of the different layers of government, developers’ rights, participatory rights (for affected interests and citizens), and existing legal instruments. As societies need to adapt to climate change in order to meet the commitments in the Paris Agreement, the question arises how these legal traditions spur or hinder societal transition capacity. This paper will discuss this question based on an analysis and comparison of the Dutch, Belgian, Polish, and Norwegian legal frameworks for spatial planning. Each framework stems from a different spatial planning tradition, showing different strengths and weaknesses. As spatial planning legislation is in flux, specific attention will be paid to the direction in which these systems are moving. While these frameworks have been analyzed before in the literature, they have not been compared regarding transition capacity in response to environmental problems. Moreover, these systems react to the challenges in different ways, in many cases giving more room for the private sector to take the initiative and to citizen participation to safeguard the political support base. The Norwegian framework is known for its relatively liberal character and the strong role developers are allowed to play in spatial planning. Is this a model to emulate for other countries and if so, what opportunities should be seized and what pitfalls should be avoided?
The paper of Florence Van Durme (Universiteit Antwerpen) “Funding as an element of access to justice in environmental protection cases in Belgium: a socio-legal analysis” study the funding structures in environmental protection cases. Like many other countries, in the last years Belgium has seen a rise in environmental and climate litigation. At first sight, one could argue that this proves that claimants in environmental and climate cases manage to find their way to court. Following some legislative amendments, the legal standing of litigants acting in the collective interest in Belgium seems to have improved. However, this constitutes only one part of the story, and a closer look at some high-profile environmental and climate cases in Belgium suggests that litigants acting in the collective interest often rely on crowdfunding or other forms of private funding to be able to pay the fees. This chapter investigates whether the legal framework currently in force in Belgium ensures a satisfactory level of equality when it comes to access to funding for parties acting for the protection of the environment. To establish what a “satisfactory” level of access to justice could be, we rely on the multi-layered understanding of this right as established by the relevant supranational and international legislation and case-law, as well as by the Belgian Constitution as interpreted by the Belgian constitutional court. Through a small selection of cases from Wallonia, Brussels and Flanders and semi-structured interviews with claimants acting for the protection of the environment, we offer an overview of the funding instruments and modalities used in practice to bring environmental protection cases before Belgian courts. Our contribution is meant as an exploratory study into the topic of funding for these types of cases. In doing so, we point out how the legal framework on legal aid (public funding) currently in place in Belgium proves unable to guarantee access to justice in environmental matters, resulting in litigants looking for other, often private, sources.
The paper of Rogier Kegge (Universiteit Leiden), “The programmatic approach, environmental law on thin ice?” discusses different aspects of the programmatic approach. In our pursuit of a sustainable future, environmental law often proves to be static and obstructive. Scientists and governments are therefore looking for more flexible systems that are based on the principles of adaptive management. Adaptive management is a method that is increasingly being put into practice and used in legal systems with the aim of creating more flexibility in regulating complex systems prone to uncertainty. The programmatic approach is considered a textbook example of adaptive management in environmental law. In recent years, the programmatic approach has become popular in the Netherlands as a flexible policy and legal instrument. It seeks to balance economic development with environmental goals and measures, such as improving the air quality or improving the conservation status of Natura 2000 sites. The programmatic approach is characterised by a twofold objective, allowing new economic activitities on the one hand and taking measures to protect the environment on the other hand. The programmatic approach is also aimed at facilitating decision-making and seeks to deregulate and facilitate new activities. However, a programmatic approach can also entail unacceptable environmental risks. This became evident from the Programmatic Approach to Nitrogen case . In our paper we will examine under what conditions a programmatic approach could be compatible with the precautionary principle. In this context, we will focus on the tension between prior scientific certainty as required by the precautionary principle and the role of ex-post monitoring of the effects of the programmatic approach. The precautionary principle is based on the assumption that uncertainty can, and should, be resolved with prior scientific research. But is this approach also appropriate for ontological uncertainty that is inherent in complex systems? In complex systems, like ecosystems, uncertainty is often due to variability in many different factors. These dynamic complex systems are subject to non-linear reactions and unexpected trigger points and are not susceptible to precise prediction. Prior research might not give rise to a sound basis for responsible decisionmaking. Can monitoring and adjustment provide a solution to this problem? Or will this inevitably lead to irreversible harm because of its reactive nature and the inherent limitations on monitoring complex systems? Or is this a false dichotomy and are flexible, adaptive legal systems conceivable that both comply with the precautionary principle while providing meaningful monitoring and timely adjustment?
The last paper, “Is Water Worth More than Gold?: Constitutional rights-based approaches to glacier protection in Argentina” of Asmaa Khadim (Universiteit Leiden), explores the implications of constitutional environmental rights for the protection of glacial systems and interconnected water resources in Argentina. Environmental rights were incorporated into the Constitucion de la Nacion Argentina in 1994. While the inclusion of such rights was perhaps not well-thought out by its drafters, who were more focused on devising a constitutional framework that would attract foreign investment, the consequences have been profound for community stakeholders, resource development companies, and federal and provincial governments. Constitutional environmental rights provisions have repeatedly been invoked by communities seeking to prevent or redress environmental harm due to mining where environmental planning controls fail to include their views or account for environmental risks, particularly where there is risk to water resources, as in the case of gold mining. Valle del Cura in San Juan, Argentina, is said to constitute one of the most important gold and silver districts in the world. However, despite the significant economic potential of resources in this area, projects have been mired in social conflict. This is largely because the area is also home to another invaluable natural asset, namely glaciers. Glaciers are large water reserves that contain 75 percent of the world’s fresh water. The rock glaciers of the Andes Mountains are a significant source of Argentina’s water supply and, therefore, critical to ecosystem survival. Over 20,000 glaciers and extensive ice-rich periglacial areas are distributed throughout what are, otherwise, some of the driest areas of the planet. Extractive methods used in gold mining are viewed as a threat to these glacial and water resources and present climate risks, but San Juan is not amongst the provinces that banned open-pit mining or the use of cyanide. This has led to protracted conflict with local communities and interest groups across the country, campaigning under the banner, ‘Water is Worth More than Gold’, a sentiment echoed across Latin America.
In response to public pressure and pursuant to its constitutionally mandated obligations, the national government enacted glacier protection legislation setting minimum standards for environmental protection and banning harmful activities on or near glaciers. It also authorized the development of a glacier inventory to support conservation efforts. This legislation was challenged by mining companies, but the Argentine courts relied upon constitutional environmental rights provisions to uphold the law. Moreover, constitutional environmental rights provisions empowered the judiciary to hold state actors accountable through criminal and administrative penalties. While outcomes have been mixed, the Argentine courts have on occasion taken an active role in ensuring that public officials fulfill their constitutional duties vis-à-vis the environment. The articulation of environmental values within the Constitution clarifies the minimum standard of environmental protection that is legally required and affords a powerful voice to citizens in the face of development pressures that can fill the gaps in planning measures. This, in turn, can allow for a more comprehensive dialogue about the merits of pursuing certain activities, particularly where irreparable harm to critical water resources is imminent.
Katarzyna Szmigiel and Aleksander Wiaderek (University of Warszaw) from the CONTRA-project acted as commentators, and spurred good discussions among the panelists and participants at the panel. Hence, ECPR-panels are valuable for presenting project-papers and discuss them with other researchers having an external view of our work. In this way, we got to discuss our findings in wider perspectives.