Adaptatie aan klimaatverandering in het Nederlandse waterbeheer: Verantwoordelijkheden en aansprakelijkheid

Abstract

This thesis is about adaptation to climate change in Dutch water management. Within this framework, questions about legal responsibilities and (effects of) threatening liability have been addressed. However no clear adaptation obligations have been found in international and European law, especially the international climate debate proved to have an agenda-setting effect. Within both the EU and the Netherlands, adaptation policy has been developed. The due care principle (codified in the Dutch GALA) holds a general obligation, however, for Dutch water management authorities to take (uncertain) climate risks into account in their policy decisions, especially when it comes to implementing their legal duties of care. This obligation requires further elaboration in the Dutch Water Act. It has been found that mainly the criteria of unlawfulness and causality expectedly will raise a special threshold in the establishment of tort liability within the adaptation to climate change framework. Nevertheless, tort liability for climate damage cannot be excluded. For the application of the Dutch system of ‘nadeelcompensatie’ (compensation for loss due to lawful government conduct) it should, on the one hand, be assumed that adaptation measures are to be regarded as ‘normal social developments’, which means victims should in principle tolerate measures being taken despite their disadvantages. On the other hand, the uncertainty of climate risks under certain circumstances is likely to influence the criterion of the ‘normal social risk’, granting victims a higher chance of successfully claiming compensation. Furthermore, the system of liability for structural defects (article 6:174 of the Dutch Civil Code) should not be applicable in cases water damage occurs by defects in water control structures, mainly because application of this liability system is hardly compatible with the integral management tasks in Dutch water management . At last, unlike the so-called prevention doctrine suggests, water management authorities in their different decisions at different stages of the adaptation process turn out not primarily and certainly not only to be affected by threatening liability. The prevention doctrine in all its simplicity seems to be unsuitable for making predictions in complex situations, as these may occur within the framework of adaptation to climate change in Dutch water management