The Role of Legal Instruments to Support Green Low-Emission and Climate-Resilient Development
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Empowered lives. Resilient nations. The Role of Legal Instruments to Support Green Low-Emission and Climate-Resilient Development A Guidebook on Assessing, Selecting and Implementing Legal Instruments The Role of Legal Instruments to Support Green Low-Emission and Climate-Resilient Development A Guidebook on Assessing, Selecting and Implementing Legal Instruments AUTHORS Lal Kurukulasuriya (CERTI) Rachel Schutte (CERTI) Caroline Haywood (IDLO) Laura Rhodes (IDLO) CO-ORDINATORS Arkadiy Levintanus (UNEP) Stephen Gold (UNDP) Andy Raine (UNDP) Marie-Claire Cordonier Segger (IDLO) EDITOR Jeffrey Stern (Suazion) DESIGN Suazion (NY, suazion.com) PRINTED UNON Publishing Services Section, Nairobi, ISO 14001:2004 - certified The views expressed in this publication are those of the authors and do not necessarily reflect the views or policies of the Center for Environmental Research and Technology (CERTI), the International Development Law Organization (IDLO) and its Member Parties, the United Nations Environment Programme (UNEP), the United Nations Development Programme (UNDP) or the United Nations Member States. The designations employed and the presenta- tion of material in this publication do not imply the expression of any opinion whatsoever on the part of CERTI, IDLO, UNEP or UNDP concerning the legal status of any country, territory, city or their authorities, or concerning the delimitation of their frontiers or boundaries. Copyright © 2013 United Nations The Role of Legal Instruments to Support Green Low-Emission and Climate-Resilient Development Contents Foreword 1 Introduction 2 Chapter 1: Conducting a Legal Assessment Report 7 1.1 Adopt assessment criteria for existing legal instruments in support of Green LECRDS 7 1.2 Compile data on current legal and regulatory instruments, including rates of implementation, compliance and enforcement 8 1.3 Assess existing legal and regulatory frameworks using assessment criteria, noting gaps, barriers, challenges and opportunities 10 1.4 Draft a Legal Assessment Report validated through expert and stakeholder engagement 12 Conclusion 13 Chapter 2: Developing a Legal Action Plan 15 2.1 Assess the capacity to undertake legal reform 15 2.2 Determine the procedural requirements of domestic legal reform processes 17 2.3 Analyse a variety of formal legal reform instruments for best fit 18 2.4 Strategic sequencing and clustering of legal reforms 31 2.5 Validate options for legal and regulatory reform instruments through expert and stakeholder engagement 33 2.6 Identify and train persons to fine-tune drafting for clarity, coherence, enforceability and flexibility 35 2.7 Draft a Legal Action Plan to submit to decision-making bodies for approval 36 Conclusion 36 Chapter 3: Implementing the Legal Action Plan 37 3.1 Establish work plans to effectively implement reforms 37 3.2 Disseminate reforms and train key public and private actors 39 3.3 Conduct periodic assessments of reform effectiveness based on expert and stakeholder engagement 41 Conclusion 45 Chapter 4: Overall conclusion – Critical elements of an effective legal and regulatory reform process for Green LECRDS 47 Bibliography 48 i Contents Annexes 49 Annex 1: Examples of overarching Green LECRDS policies for national and sub-national governments by sector 49 Annex 2: Global databases of Green LECRDS legal and regulatory instruments and examples of national laws and regulations dealing with the implementation of Green LECRDS, developed from FAOLEX 54 Annex 3: International support for Green LECRDS legal reform 60 Boxes Box 1.1: Legal foundations—key questions 8 Box 1.2: Legal reforms that used firm, fair and transparent enforcement in order to address the non-compliance challenge 10 Box 1.3: An example of regulatory low-hanging fruit 10 Box 1.4: Sample table of contents for a Legal Assessment Report 12 Box 2.1: Capacity-building for Green LECRDS, national examples 16 Box 2.3: Environmental impact assessment 20 Box 2.4: Market-based instruments and Green LECRDS 21 Box 2.5: Negotiated rule-making in the Netherlands 22 Box 2.6: Co-management of fisheries in Canada 22 Box 2.7: Prioritizing legal reform instruments 24 Box 2.8: Example of country-specific legal reform and effective legislative reform 27 Box 2.9: World Trade Organization dispute on feed-in-tariffs 28 Box 2.10: Examples of relevant legal provisions of the UNFCCC 30 Box 2.11: Examples of a legal framework in support of Green LECRDS 32 Box 2.12: Green and white paper examples related to Green LECRDS 34 Box 2.13: Sample table of contents for the Legal Action Plan 36 Box 3.1: Examples of work plans for implementing reform 38 Box 3.2: Training on implementation of Green LECRDS 40 Box 3.3: Rate of reform progress 42 Box 3.4: Criteria to measure low-emission climate resiliency 43 Box 3.7: Sample table of contents for the Legal Monitoring Plan 44 Figures Figure A: Optional outcomes of the three steps of legal assessment and reform 4 Figure 2.1: Spectrum of legal reform instruments 18 Figure 2.2: Characteristics of good legal drafting 35 Tables Table 2.1: Criteria to determine ‘best fit’ legal reform instruments 23 Table 2.2: Example five-point scorecard for evaluating reform options using the criteria of environmental effectiveness 25 ii The Role of Legal Instruments to Support Green Low-Emission and Climate-Resilient Development The Role of Legal Instruments to Support Green Low-Emission and Climate-Resilient Development Foreword Climate change is one of the most significant challenges of our time. Its impacts affect all countries and threaten to reverse hard-earned development gains in many parts of the world. Many countries are responding to this challenge by adopting—or planning to adopt—policies and strategies aimed at low-emission and climate-resilient growth. These ‘green growth’ or ‘sustainable development’ strategies have emerged in various forms and have been afforded definitions that differ according to their scope of ambition and focus. A common thread is that these strategies seek to enable countries to effectively integrate low-emission and climate-resilient policies into national economic and social priorities and objectives (including the achievement of critical national development goals). Green, Low-Emission and Climate-Resilient Development Strategies (Green LECRDS) are one such approach being adopted by governments at various levels in pursuit of these objectives. Developed at the national and/or sub-national levels, Green LECRDS are cross-sectoral policy frameworks that provide a vision for inclusive and green low-emission and climate-resilient development. Preparing Green LECRDS Legal frameworks“ involves coordinated planning, assessments of on-the-ground vulnerability scenarios and identification will either help and prioritization of strategic options in order to arrive at a low-emission and climate-resilient develop- ment roadmap. Together with key financing partners (such as the Global Environment Facility), the United or hinder green, Nations Development Programme and the United Nations Environment Programme are working with a low-emission and number of countries on projects and programmes that contribute to the development of Green LECRDS. climate-resilient development; the Legal frameworks will either help or hinder green, low-emission and climate-resilient development; the best policies will be largely ineffective without support from well-designed, clear, coherent, flexible and best policies will be enforced legislation. Effective and enforced legal frameworks are also crucial to securing domestic and largely ineffective international private investment. without support In order to assist government decision makers and their advisers address this issue, the United Nations from well-designed, Development Programme and the United Nations Environment Programme (together with the clear, coherent, flex- Centre for Environmental Research, Training and Information and the International Development Law ible and enforced Organization), drew on the organizations’ collective experience in assessing, selecting and implement- legislation. ing legal instrument to support the implementation of Green LECRDs. The Guidebook aims to empower decision makers to undertake legal reforms by providing a generic process and an accessible toolkit of various options adaptable to country-specific contexts. It also provides select case studies that ground the material in current reality and illustrate possible approaches. ” It is our hope that this guidebook will contribute to countries’ initiatives to develop and implement green, low-emission and climate-resilient development strategies in their efforts to address urgent climate change challenges. Bakary Kante Olav Kjørven Director, Division of Environmental Assistant Secretary-General and Law and Conventions Director, Bureau for Development Policy United Nations Environment Programme United Nations Development Programme 1 Introduction Context and purpose of the Guidebook The need for countries to transition rapidly to low-emission and climate-resilient development path- ways is clear. To facilitate this transition, many countries have adopted (or are planning to adopt), rel- evant policies and strategies while also seeking to ensure that other development priorities (e.g. health, education, infrastructure, social services) are protected or advanced. Green, Low-Emission and Climate- Resilient Development Strategies (Green LECRDS) are one such approach being adopted by govern- ments in pursuit of these objectives.1 Developed at the