The new Spanish Law for the protection (or not?) of the coast against the effects of climate change

Teresa Parejo
Professor of Law
Universidad Carlos III de Madrid (Spain)

Spain has recently adopted a potentially promising reform to its coastal law to update it in response to climate change threats. However, a close read suggests that the reform contains contradictions that illuminate a less-public minded purpose behind the Law.

The Law 2/2013, of 29th of May, for the protection and sustainable use of the Coast that modifies the Coastal Law of 1988 (published in the Spanish Official Gazette number 19, on the 30th of May, 2013), introduces for the first time in the Spanish coastline regulation a series of preventive measures for the protection of the maritime-terrestrial public domain (which includes, broadly, the territorial sea, the interior waters, the natural resources of the exclusive zone and of the continental shelf, as well as the beaches and the coastline area “as far as the sea has touched in the worst known storm”) against the effects of climate change (sea level rise, changes in swell direction, etc.).

The main measures aimed at, in principle, the protection of the maritime-terrestrial public domain are:

1) The protection of those stretches of the coastline that are under a serious risk of sea level rise (in which any new taking of the maritime-terrestrial public domain will not be possible). The “serious risk” will be defined via scientific criteria, with details established by a future regulation.

2) The need for an Adaptation Strategy (by the Ministry in charge) or Plan (by the Autonomous Communities that have been assigned the management of the maritime-terrestrial public domain land) of the coastline to assess the risks associated with climate change that could affect the Spanish coastline. The Strategy should propose measures to confront the probable effects of such risks.

3) The inclusion of a new cause of extinction of the concession of the public domain when infrastructure and facilities are at serious risk of being hit by the sea.

4) The addition of energy efficiency and water saving criteria in the reparation and retrofitting of buildings that are occupying a conservation easement and the public domain.

Based on the above, some important contradictions have been detected in the Law regarding the law’s purported aims of “sustainability” and “protection of the coastline”:

1) It is difficult to understand the reduction of the protection zone easement from 100 meters to 20 meters for some specific areas of the coastline (those that are especially vulnerable due to urban conditions) or for riverbanks, and at the same time, the introduction of: a) the provision for the extinction of the concession in the case of serious risk to confront a sea level rise situation (which, in most cases, will be included in the Adaptation Strategy due to the risks associated to the climate change effects); and b) the promotion of building setbacks due to sea level rise.

2) It is also difficult to understand the introduction of energy efficiency criteria in the existing building stock located at coastal urban areas without taking into account any adaptation measures (if needed), adding them to the energy efficiency and water saving criteria.

In short, the Spanish government twists the meaning of the word “sustainable,” hiding its real interests, which are far from the protection of the coastline but in the satisfaction of other stakeholders’ interests.

Shelley Welton

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Published April 9, 2021

April 2021 Updates to the Climate Case Charts

FEATURED CASE

Second Circuit Rejected New York City’s State Law Climate Claims Against Oil Companies

The Second Circuit Court of Appeals affirmed the dismissal of New York City’s lawsuit seeking climate change damages from oil companies. The Second Circuit’s decision largely followed the reasoning of the district court’s 2018 decision. First, the Second Circuit held that federal common law displaced the City’s state-law public nuisance, private nuisance, and trespass claims because the lawsuit would regulate cross-border greenhouse gas emissions, albeit “in an indirect and roundabout manner,” and because state law claims “would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” The Second Circuit then held that the Clean Air Act, in turn, displaced federal common law claims related to domestic emissions. The Second Circuit cited American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), as establishing “beyond cavil” that the Clean Air Act displaced federal common law nuisance suits to abate domestic transboundary greenhouse gas emissions, and found that Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), provided “sound reasoning” for determining that the Clean Air Act also displaced federal common law damages claims. The Second Circuit also rejected New York City’s contention that the Clean Air Act’s displacement of federal common law claims resuscitated its state law common law claims. Finally, the Second Circuit held that although the Clean Air Act did not displace New York’s federal common law claims addressing emissions outside the United States, foreign policy concerns foreclosed such claims. The Second Circuit said holding the oil companies liable for “purely foreign activity” would “sow confusion and needlessly complicate the nation’s foreign policy, while clearly infringing on the prerogatives of the political branches.” City of New York v. BP p.l.c., No. 18-2188 (2d Cir. Apr. 1, 2021).