Municipalities use local-level land use law for a variety of purposes. The Land Use Law Center at the Elisabeth Haub School of Law at Pace University (the Center), in 2022, engaged in a project to analyze how municipalities are using their land use powers to advance the various goals of climate resilient development (CRD). The Center produced a set of guidelines for analyzing municipal CRD strategies by answering the following questions: 1. What CRD objectives does this strategy achieve, 2. What methods are there to ensure resilience, 3. What methods are there to avoid maladaptation, and 4. What is the feasibility of this strategy? These focus areas are borrowed from the Summary for Policymakers in the Intergovernmental Panel on Climate Change’s (IPCC) Working Group II Sixth Assessment Report, Climate Change 2022: Impacts, Adaptation and Vulnerability, which featured CRD as one of the proposed solutions.
In analyzing municipal CRD strategies to determine how well they adhere to the recommended guidelines as established by the IPCC, I concluded that many low-impact development (LID) strategies are similar and are based off an older definition of LID, which is “stormwater management.” Because of this, the LID strategies largely do not conform to the guidelines in the CRD guide. If the definition of LID were to be expanded to demonstrate its effectiveness as a tool to combat climate change, many vulnerable communities would benefit from the additional focus on climate adaptation, equity, resilience, and so on.
The Current Definition of LID
The relationship between climate change and human development is closely intertwined. Since the industrial revolution, human activities have caused greenhouse gas levels to rise, and deforestation along with the loss of animal habitats have caused numerous issues for both humans and those with whom we share our land. As the threat of climate change looms, all avenues must be explored to mitigate and adapt to climate challenges. The IPCC, in its 2022 Sixth Assessment Report Summary for Policymakers, noted:
Any further delay in concerted anticipatory global action on adaptation and mitigation will miss a brief and rapidly closing window of opportunity to secure a liveable and sustainable future for all.
Therefore, the connection between climate change and human development must be re-evaluated to determine if development can be used as a positive to reduce the effects of climate change. This can be accomplished by using CRD and LID specifically. In simple terms, CRD is using resilience, defined as “the ability to prepare and plan for, absorb, recover from, and more successfully adapt to adverse events” in the context of using development to combat climate change.
Today, LID has two definitions, one of which is more narrowly tailored and one that is broader. The U.S. Environmental Protection Agency takes the narrower of the two approaches to low-impact development (LID) and defines it as “systems and practices that use or mimic natural processes that result in the infiltration, evapotranspiration or use of stormwater in order to protect water quality and associated aquatic habitat.” The Sustainable Development Code takes a broader approach and outlines several LID strategies ranging from rain gardens to tree canopy cover and even promoting the use of water-efficient energy fixtures all with the goals of reducing water usage, preserving natural green spaces, and using infrastructure to minimize flooding in urban areas.
Expanding the Definition of LID
The CRD guide states that a successful strategy for implementing CRD should contain the following elements: CRD objectives (adaptation, mitigation, and equity); methods to ensure resilience; methods to avoid maladaptation; and elements of feasibility. Contemporary LID strategies do not contain most of these elements. Adaptation, defined by the IPCC in the context of climate change responses, is “reducing climate risks and vulnerability mostly via adjustment of existing systems.” Resilience can be defined similarly as the ability to maintain essential function/identity/structure of our society, and to also have the capacity for transformation. In the context of climate change this is critical for policy makers at the local and national level to implement as the window to limit warming to 1.5 degrees Celsius is rapidly closing, and the world will be left with some degree of permanent climate change and its consequences regardless of what degree warming is limited at. The United Nations Environment Programme (UNEP) recently published an article about the concerning gaps in adaptation efforts versus where they should be. At the global level, the amount of financing needed to keep pace with increasing climate risks is five to ten times greater than the amount developing nations are currently spending on adaptation efforts, and this gap is continuing to widen as climate change worsens.
Equity in climate change responses can refer to “climate equity” or “climate justice” though the two terms are often used interchangeably without clear definitions or distinctions for each. In 2021 the International Union for Conservation of Nature (IUCN) published a report attempting to clarify the difference between the terms and to explain the role equity can play in climate change law. The IUCN defined climate justice as a set of rights or obligations that the public sector, private sector, and individuals have to vulnerable people that will be disproportionately and significantly affected by climate change. Climate equity refers to an operational principle that considers the following four principles: 1. corrective justice, 2. distributive justice, 3. procedural equity, and 4. intergenerational equity. The importance of equity in climate law is important on an international level and there are threats here in the United States to be mindful of as well. For example, there is already an alarming amount of affordable housing developments located within areas that are vulnerable to coastal flooding that will be exacerbated by climate change, and the amount of vulnerable developments is set to triple by 2050. For example, in New Jersey, it is estimated that half of its affordable housing stock could flood at least four times per year by 2050, and cities of particular concern are Atlantic City, Camden, Penns Grove, and Salem.
Maladaptation in climate change is defined by the IPCC as an action taken in one place that could increase the vulnerability of another place, or the general population to future climate change events. For LID, and climate change strategies in general, it is important to ensure that the steps being taken will benefit not only the target community but will not harm other communities in the process. One example of climate change maladaptation comes from Vietnam. Forest protection policies were enacted and hydroelectric dams were installed to prevent flooding. The lowland areas targeted by this initiative benefited, but communities living upstream in mountainous areas faced severe constraints in access to land and forest products, limiting their ability to react to climate change events.
If municipalities take the various warnings about climate change seriously, there will need to be swift and strong actions taken to mitigate the future progression of climate change, and to adapt to the effects from the permanent warming that has already happened. For all strategies, not just LID, this will require re-evaluating traditional understandings of climate strategies. Wherever possible, policy makers should not attempt to invent a new policy or strategy to achieve a goal if there is an existing one from another municipality, or if there is a third-party certification that achieves most or all the same goals. Referring to other strategies and certifications can speed up the implementation process, which is crucial to meeting the IPCC’s goals. The Gaining Ground Database and the Sustainable Development Code are two examples of resources that can be utilized for this.