The implications of integrating “climate change law” and urban-spatial planning law: the 14th AIDRU conference held in Bucharest on 20 and 21 September 2024

The conference followed the typical structure of AIDRU meetings, adopted since 1997: national summary reports built around a framework established by the organizers and AIDRU leadership, and cross-sectional/summary analyses entrusted to highly prominent figures in the field, all interspersed with extensive moments of debate.
National reports were presented for the following countries: Belgium (two reports, one for the Flemish region, the other for the Walloon and Brussels regions, by Sigrid De Bois the first, and Alexandre Pirson and Emmanuelle Gothier the second); France (by François Priet); Germany (by Matthias Rossi); Greece (by Evangelia Koutoupa-Rengakou); Italy (by Sandro Amorosino and Elena Buoso), Portugal (by Fernando Alves Correira and Fernanda Paula Oliveira); Romania (by Mircea M. Dutu-Buzura); Spain (by Judith Gifreu Font); Switzerland (Valérie Défago and Frédéric Bernard); Turkey (by Bige Açimuz and Özge Aksoylu); and the United Kingdom (Edward Mitchell). Additionally, a “European” report by Francis Haumont was presented, which analysed the issues discussed during the meeting from the perspective of European law (European Union and Council of Europe).

The conclusions were presented by Professor Jacqueline Morand-Deviller, Emeritus at University of Paris 1 Panthéon-Sorbonne, and honorary president of AIDRU.

I.               The Transition Phase and the Difficult Challenge of Integrating European Legal Innovations and State Legal Traditions

The report that probably serves as a link between all the others is the European one. Professor Francis Haumont, who has been studying the intersections between European Union law and national urban planning laws for many years, highlighted in his analysis that, although the European Union does not have formal competencies in spatial and urban planning, it indirectly or even directly influences the planning laws of Member States. This happens through its powers in the fields of environmental protection, energy policy, and economic, social, and territorial cohesion policy. This scenario, which is also evident in the contribution that was awarded the AIDRU – GRIDAUH Prize (presented during the conference), has become even more significant considering the challenges posed by climate change.

The European report illustrated and analysed various European policies and legislative actions, all of which suggest how much national legal systems are currently influenced by the supranational framework, both regarding spatial planning, urban planning regulations, and the building permit system, as well as in terms of procedural safeguards (particularly concerning environmental assessment, participation, and consultation) and fundamental rights (the right to a healthy environment and the right to property).

Clearly, this poses the not simple challenge of being able to profitably graft the new European approach into the legal traditions of each national urban-spatial legal system.

II.            The Transition Phase and the Indispensable Need to Rewrite State Urban-spatial Planning Legislations

The first clear point that emerged from all the national reports is the need to innovate (if not revolutionize) existing urban planning systems in order to overcome the numerous limitations that urban planning law presents today — analysed at the conference by Prof. Frédéric Rolin — and achieve the climate goals set at the national and international levels. However, on the path to pursuing this “rewriting” of regulations, the different challenges are already apparent.

All the systems under analysis indicated a reform, or at least a serious intention to reform urban planning laws, sometimes with interventions and integrations to existing laws, mostly targeted and other times with a radical reform of the entire system of urban planning, territorial, and building laws and regulations.

However, it seems there is a lack of a unified vision on how to integrate global challenges related to climate change into the urban-spatial regulatory frameworks of different States (Professor Andrei Dutu-Buzura).

Looking broadly, it can be observed that national systems with the most ambitious climate change policies still seem reluctant to fully translate their actions into binding legal-regulatory acts, preferring to implement policies through soft law measures. On the other hand, national systems that have not adopted a formal climate change strategy seem to proceed with disconnected actions, sporadically integrating climate-related measures into sectoral legislation. These systems seem to take a more concrete and pragmatic view of using urban planning tools for climate purposes but risk foregoing a unified, national strategy.

Moreover, within the integration of climate-oriented laws and urban planning regulations, two further divergent approaches can be identified: on one side, there is a general approach focused on the relationship between land use and climate change; on the other, there is a tendency to limit action to specific regulatory interventions, mostly concerning energy and transportation, risking inconsistency and contradiction within the regulatory framework.

In the Austrian and French national reports, for example, a possible conflict emerged between laws aimed at limiting climate change and the current building and land-use regulations. States are therefore called upon to create the right balance between different categories of regulations.

A different approach worth considering is the German one. Here, urban planning regulations have been continuously updated and integrated, first with the introduction of “environmental” regulations and later with others directly related to climate change. The German system of urban planning law thus appears to be more adaptive and coherent in the face of the challenges posed by the current scenario.

III.          The Impact on Procedures and Participation

While the impact of climate change on urban planning legislation is certainly extensive, the effects on administrative procedures and citizen participation are equally significant.

Professor Anna Simonati had the difficult task of summarizing the scenario that emerged in this area from the various national reports. She chose an analytical approach based on “key points”, considering that a precise comparative analysis was difficult due to the substantial differences in participatory instruments present in the legal systems and the different descriptive approaches chosen by the authors of the national reports.

A)   The Influence of European Union Law and the Council of Europe on Urban-Climate Participation in Different States

Some national reports clearly highlight the weight of European membership. From almost all the analysed reports (mostly from European legal systems), it emerged that participation in administrative activities is now almost universally recognized in both the procedures for issuing environmental protection regulations and urban planning documents.

It is also useful to consider this “in reverse”, by looking at the laws of a non-EU Member State: Turkey. Here, the national report highlights the consequences of not being part of the European legal system, namely, the absence of specific rules on citizen participation in environmental decision-making processes. As a result, participatory rights are strictly linked to the legal and constitutional references regarding the right to access information. This does not represent an insurmountable barrier to innovation in legislation in the context of climate change and the conflicts that arise from it, as seen in many European States. There are instances of jurisprudence that aim to apply transparency principles restrictively, particularly when they defend individual interests (such as the right to financial privacy), and local authorities take the lead in making these rights effective, albeit indirectly, through participatory instruments that are primarily exercised within municipal councils.

B)   The Connections Between Participation and Transparency

The link that emerges and strengthens between participation and transparency in administrative actions can be well studied through the Austrian report. Here, the author emphasized how climate change itself is a potential driver of factual discrimination against the most vulnerable segments of the population, as it requires technical measures in construction and urban planning that can be very costly for private individuals. Their interests often must be sacrificed in favor of the public interest. States, however, differ in their approach to this issue. Two distinct procedural paths can be identified: some States have opted for legal instruments that allow for co-deliberated decisions, while others have chosen to strengthen what Professor Simonati has called “epistemic” participation, which helps overcome the knowledge gaps that multiply in today’s complex world. Spain offers an example of the need to expand the scope of participation to ensure a holistic view. According to the Spanish report, since the adoption of Law 27/2006, which regulates the rights of access to information, public participation, and access to justice in environmental matters, efforts have been made to better connect and integrate environmental and urban planning needs. However, the Spanish report also highlights the issue of limited and highly specialized participation in climate change and environmental protection related to urban planning, which is typically restricted to activists and associations. This suggests that more effort is needed to raise awareness and educate the public on these topics.

C)   The Coexistence of Legal Instruments and “Spontaneous” Participation

Most reports indicate examples of “formal” or “institutional” participatory instruments (particularly the French report) as well as informal and spontaneous ones (as in the case of Portugal). This suggests that participation in administrative procedures related to urban planning in a climate context is increasingly becoming a general principle capable of binding administrative actions even beyond legal provisions. However, this contrasts with the reality in other legal systems. The Romanian report, for example, revealed that in Romania, civil society involvement still seems to be limited to a “factual” level, with no real legislative or judicial awareness, and is left to political discourse. Thus, the need remains to resolve some fundamental dilemmas in the urban planning field: what is the proper relationship between participatory tools and legality? Should States strengthen formal participatory processes or allow spontaneity? Based on the discussions at the conference, there seems to be no single answer, as the context in which actions take place and the social conflicts that arise around public action both carry significant weight.

D)   Participation and Time

The Italian report offered interesting insights into participatory methods in an era marked by climate change. Italian citizens are allowed to participate in a mature draft of a plan (before it comes into force but after its adoption). The competent authority may be less inclined to accept modification proposals at this stage. Therefore, in urban planning law mixed with modern challenges, the best solution might be to allow citizen participation at a point when the content of the document is sufficiently mature but not yet finalized (Professor Simonati). The importance of timely public participation is also a key issue in the Belgian Flemish system. The report pointed out that the late involvement of the public in procedures is not only a frequent cause of litigation but also seen as a problem that often requires accelerating procedures. Of course, the pursuit of these acceleration goals comes at the expense of in-depth activities, which could lead to knowledge gaps.

E)    Participation and Vertical Subsidiarity

As shown by the different experiences of Switzerland, Greece, and Germany, a common denominator in the integration of urban planning regulations and “climate” participation in the analysed States is the role played by local authorities and the use of best practices (even those not codified by legislators).

Clearly, these changes must be channelled into a virtuous process in which now the State acts as a promoter and encourager of the role played by local authorities.

IV.          National Examples: Protagonism of Cities, Weakness of States, Energy Inefficiency and Lack of Legal Force of National Climate Strategies

The national reports were also tasked with providing examples to clearly illustrate how urban planning laws either help or fail to combat climate change or mitigate its effects. A total of 17 examples were presented, of which only two identified totally negative examples for combating climate change. Most of the examples focused on regulatory or planning instruments. During his presentation, Professor Thierry Tanquerel classified the examples into four categories: tangible developments (such as a square or park), legal disputes (e.g. aimed at blocking a building intervention already in progress), legal norms and instruments (e.g., energy efficiency regulations for buildings), and plans and strategies (e.g., “climate neutrality concept”, “sponge city concept”, etc.).

In nearly all the examples, the role of cities emerged as central. However, according to Professor Tanquerel, the emphasis on urban programs and policies may indicate insufficient commitment from central governments and regions.

Energy efficiency in buildings prominently featured among the tools described in the national reports, and several reports highlighted the lasting impact of outdated practices in this area.

Another issue raised in the various reports is the lack of legally binding force in the plans and strategies that are spreading across Europe and influencing national urban planning laws. This suggests that in the analysed States, there is weak implementation without effective legal remedies.

V.             The Proceedings of the Conference

There is no doubt that the Bucharest conference was a unique opportunity to hear serious and in-depth analyses on two highly interconnected areas that are often analysed separately. In keeping with the tradition of AIDRU conferences, the papers will be collected in a forthcoming volume, edited by Vera Parisio, Andrei Dutu-Buzura, and Thierry Tanquerel.

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