International Yearbook of Soil Law and Policy 2018 [1st ed.] 978-3-030-00757-7, 978-3-030-00758-4

Table of contents :
Front Matter ....Pages i-xiv
Front Matter ....Pages 1-1
Urbanisation and Urban Land Use: A Normative Compass for Sustainable Urban Governance (Sabine Schlacke, Ulrike Jürschik)....Pages 3-28
Sustainable Cities in India: A Governance Challenge (Bharat H. Desai, Balraj K. Sidhu, Nitu Kumari)....Pages 29-54
Sustainable Management of Urban Soils: The New Zealand Approach (David Grinlinton)....Pages 55-82
Land Take and Soil Sealing—Drivers, Trends and Policy (Legal) Instruments: Insights from European Cities (Sandra Naumann, Ana Frelih-Larsen, Gundula Prokop, Sophie Ittner, Matt Reed, Jane Mills et al.)....Pages 83-112
Environmental Law Tools for the Idea of a Compact City. Learning from the Dutch Case (Marlon Boeve)....Pages 113-129
Tradable Land Planning Certificates to Reduce Land Take: Results of a Simulation Game with Communities in Germany (Detlef Grimski)....Pages 131-147
Artificialised Land and Land Take: What Policies Will Limit Its Expansion and/or Reduce Its Impacts? (Maylis Desrousseaux, Bertrand Schmitt, Philippe Billet, Béatrice Béchet, Yves Le Bissonnais, Anne Ruas)....Pages 149-165
Cleaning Up Contaminated Sites in Urban China: Who Should Be Liable? (Huanhuan Wang)....Pages 167-187
The Rehabilitation of Contaminated Land to Enhance Future Options for Cities (Elizabeth J. Brandon)....Pages 189-213
An Environmental Perspective on Urbanization: Research Needs for Strengthening Environmental Aspects in Urban Development (Daniel Reißmann, Ulrike von Schlippenbach)....Pages 215-226
Front Matter ....Pages 227-227
UNCCD COP 13: From Awareness to Action in a Complex World (Grammenos Mastrojeni)....Pages 229-247
Implementing the Paris Climate Agreement: Risks and Opportunities for Sustainable Land Use (Eric Fee)....Pages 249-270
Implementing the New Urban Agenda: Urban and Territorial Integration Approaches in Support of Urban Food Systems (Jackson Kago, Stephanie Loose, Remy Sietchiping)....Pages 271-293
Front Matter ....Pages 295-295
Canadian Soil Law (Patricia L. Farnese)....Pages 297-313
Soil Protection Law in Uganda (Emmanuel Kasimbazi)....Pages 315-330
The Design of the Political and Legal Framework on Soil Conservation in Mozambique: Deeply Unfinished (Eduardo Alexandre Chiziane)....Pages 331-344
Front Matter ....Pages 345-345
Human Rights Based Approach to Sustainable Agricultural Policies and Food Security (Hilal Elver)....Pages 347-372
Unlocking the Potential of Soil Organic Carbon: A Feasible Way Forward (Ronald Vargas-Rojas, Rosa Cuevas-Corona, Yusuf Yigini, Yuxin Tong, Zineb Bazza, Liesl Wiese)....Pages 373-395

Citation preview

Harald Ginzky Elizabeth Dooley Irene L. Heuser Emmanuel Kasimbazi Till Markus Tianbao Qin Editors

International Yearbook of Soil Law and Policy 2018

International Yearbook of Soil Law and Policy

Series editor Harald Ginzky German Environment Agency Dessau, Germany Advisory editors Jerry Anderson, Drake University, Des Moines, USA Ralph Bodle, Ecologic Institute, Berlin, Germany Ben Boer, Wuhan University, Wuhan, Hubei Eduardo Chiziane, Eduardo Mondlane University, Maputoo, Mozambique Victor Castillo, UNCCD, Bonn, Germany Maylis Desrousseaux, Aix-Marseille University, Marseille, France Qun Du, Wuhan University, Wuhan, Hubei Alexander Erlewein, Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH, Bonn, Germany Ian Hannam, University of New England, Armidale, Australia Robert Kibugi, University of Nairobi, Nairobi, Kenya Marcia Leuzinger, University of Brasilia, Brasilia, Brazil Paul Martin, University of New England, Armidale, Australia Grammenos Mastrojeni, Department of Foreign Affairs, Rome, Italy José Rubens Morato Leite, Federal University of Santa Catarina, Brazil Kamunde Nelly, Kenyatta University, Nairobi, Kenya William Rees, University of British Columbia, Vancouver, Canada Jesse Richardson, West Virginia University, Morgantown, USA Oliver Ruppel, Stellenbosch University, Stellenbosch, South Africa Bernard Vanheusden, University of Hasselt, Hasselt, Belgium Patrick Wegerdt, European Commission, Brussels, Belgium Michael Windfuhr, German Institute for Human Rights, Berlin, Germany

The International Yearbook of Soil Law and Policy is a book series that discusses the central questions of law and policy with regard to the protection and sustainable management of soil and land. The Yearbook series analyzes developments in international law and new approaches at the regional level as well as in a wide range of national jurisdictions. In addition, it addresses cross-disciplinary issues concerning the protection and sustainable management of soil, including tenure rights, compliance, food security, human rights, poverty eradication and migration. Each volume contains articles and studies based on specific overarching topics and combines perspectives from both lawyers and natural scientists to ensure an interdisciplinary discourse. The International Yearbook of Soil Law and Policy offers a valuable resource for lawyers, legislators, scholars and policymakers dealing with soil and land issues from a regulatory perspective. Further, it provides an essential platform for the discussion of new conceptual approaches at the international, national and regional level. More information about this series at http://www.springer.com/series/15378

Harald Ginzky • Elizabeth Dooley • Irene L. Heuser • Emmanuel Kasimbazi • Till Markus • Tianbao Qin Editors

International Yearbook of Soil Law and Policy 2018

Editors Harald Ginzky German Environment Agency Dessau, Germany

Elizabeth Dooley University of Exeter Exeter, UK

Irene L. Heuser Specialist Group on Sustainable Soils and Desertification IUCN World Commission on Environmental Law Kleinmachnow, Germany

Emmanuel Kasimbazi Makerere University Kampala, Uganda

Till Markus Research Centre for European Environmental Law University of Bremen Bremen, Germany

Tianbao Qin Research Institute of Environmental Law Wuhan University Wuhan, China

ISSN 2520-1271 ISSN 2520-128X (electronic) International Yearbook of Soil Law and Policy ISBN 978-3-030-00757-7 ISBN 978-3-030-00758-4 (eBook) https://doi.org/10.1007/978-3-030-00758-4 Library of Congress Control Number: 2018965123 © Springer Nature Switzerland AG 2019 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword

Cities are potential hot spots for innovation, creativity and sustainable lifestyles. By 2030, six out of ten persons worldwide are expected to live in cities. The German Advisory Council on Global Change has described the twenty-first century as the ‘century of the cities’.1 Thus, cities should be a focus for transformative actions towards sustainability. We, at the German Environment Agency (UBA), agree: cities deserve our full awareness. Forecasts show that the rapid worldwide urbanisation will continue for the next decades with all potential negative effects unless appropriate measures will be applied. Nowadays, in developing countries and emerging economies, one third of the urban population does not have access to adequate housing. If the trend is continued, in Africa, for example, 80% of the people will live in cities by 2100— and 60% of them in slums—with all the social, economic and environmental consequences. Cities and agglomerated areas are sensitive to several environmental issues like groundwater depletion, storms and flooding, as well as urban heat, droughts and water scarcity. However, we have to realise that such aspects currently only play a subordinate role in the process of urban development. This must be changed: issues like climate adaption, air quality, noise reduction, reduction of land take and the protection of soils must be stronger integrated. For Germany, we can conclude that many helpful measures have already been established: an effective town planning system, an obligation to assess and consider the effects on the environment, as well as a commitment to compensate unavoidable negative effects—at least to a certain extent. Nevertheless, many urban problems that relate to environmental protection are still omnipresent. As inner city land, for example, is scarce, it is often the easiest solution to satisfy the needs by expanding our cities into the surrounding area on Greenfields—causing

See the WBGU’s flag ship report ‘Humanity on the move: Unlocking the transformative power of cities’, published in 2016.

1

v

vi

Foreword

unnecessary land take when doing so. Although Germany aims to limit land take to less than 30 ha/day by 2030, more effective solutions are still required to achieve this. Of course, we observe that we are already on track concerning this challenge— stepwise. In Germany, for instance, we modified our legal planning system several times: now we have a legally binding priority for inner urban development over Greenfield developments. Cities are now also by law obliged to consider their inner urban land potential substantially before they start expanding into the surrounding area. This is a major step ahead. However, several studies prove that much more inner urban land is potentially available for development: projections estimate some 165,000 ha throughout Germany consisting of brownfields, vacant lots and areas for densification: more than double the area of Berlin! The massive trend to urbanisation—the extremely rapid settlement dynamics— thus requires a prudent handling of environment, economic and social concerns. The environmental issues to be dealt with also include various threats to our soils. The need for fertile soils is increasing because of the growing global demand for renewable raw materials and meat and fostered by the persistent population growth. Moreover, soils are the second largest sequester of carbon and, in this regard, of eminent importance for protecting our climate. At the same time, we see a loss of fertile, healthy soils as a result of land take and degradation processes such as erosion, salinisation and contamination. Globally, it is estimated that about 20–25% of soil resources are degraded, i.e. have a reduced functional capacity. Soil degradation is an ongoing process that affects an additional 5–10 million ha each year. Soil degradation across the world will therefore jeopardise global food security and deprive, in particular, rural regions of one of sources of income and economic development. Moreover, soil degradation would pose a major obstacle to achieving the objectives set by the Paris Agreement in 2015. Next to agriculture, infrastructure projects such as roads or railways, and industry, urbanisation is one of the major drivers of soil degradation. Thus, our cities growing hunger for land, e.g. for building or trade activities, as well as for green and open spaces, has to be reasonably dealt with. The urban rural interface may accelerate these negative trends as cities need land not only for building activities but also for the use of resources, like raw materials, agricultural products, infrastructure and waste depositories. In order to avoid negative path dependencies, soil and land use should adopt some key principles, such as reducing soil degradation (or soil remediation), environmental and social acceptable densification by keeping the relevant soil functions, orientation towards soil as a common good and good governance in soil management. Within cities, most of the natural soil functions are affected. If soils are completely or partly sealed, they cannot be a basis for life or a habitat for plants and soil organisms. Water and nutrient cycles are disturbed; the filter and buffer functions suffer severely. To accept the challenge for soil protection within cities, first of all the remediation of contaminated sites is one of the main tasks. This is very often accompanied by brownfield recycling, which leads to a lower consumption of Greenfield areas. This

Foreword

vii

offers sometimes possibilities for efficient, environmentally friendly and nevertheless cost-effective solutions for the development of city quarters. The need for sustainable management of soils has been more and more recognised by policy makers, scientists and the civil society. In 2015, the UN General Assembly adopted the ‘2030 Agenda for Sustainable Development’. It consists of 17 goals and 169 targets. The 2030 Agenda spells out commitments for both developing and developed countries. Sustainable Development Goal 15 postulates: ‘Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss.’ Target 15.3 specifies: ‘. . . by 2030, combat desertification, and restore degraded land and soil, including land affected by desertification, drought and floods, and strive to achieve a land-degradation neutral world’. The objective of achieving ‘a land-degradation neutral world’ means that in the future, net soil loss through, e.g. erosion, sealing and other forms of soil degradation, must be balanced by adequate soil restoration. Since soil degradation cannot be prevented completely, it must at least be minimised, and non-avoidable soil degradation must be compensated—through restoration or rehabilitation measures. In order to achieve this objective, all relevant drivers of soil/land degradation must be considered: agriculture, infrastructure projects, industry and also urbanisation. We at the German Environment Agency (UBA) have committed ourselves to both topics—sustainable urbanisation and sustainable management of soils and land. Both strands are—to a certain extent—interlinked and thus require an integrated scientific approach. We must develop sustainable visions that are, on the one hand, scientifically verified and environmentally effective. On the other hand, however, solutions must also be politically acceptable to be implemented. So we must strengthen the science policy interface in our research design and should work together closer with the stakeholders instead of only working in ivory towers. Here are some examples: the successful German model project on tradeable land planning permits (see article by Grimski in this volume of IYSLP) has gained very much from working close to practice by directly involving the municipalities. Furthermore, we must involve the stakeholders also in the finding process for future research topics. UBA has adopted a close stakeholder cooperation developing a strategic research agenda on urban environmental protection that addresses such issues in an integrated manner, considering both urban development and environmental protection. As described in the article of Reißmann et al. in this volume of the International Yearbook of Soil Law and Policy, our aim is to strengthen the role of environmental aspects in urban development policy and planning practice considerably. The research should result in effective measures and actions for an environmentally oriented urban development that optimally addresses several challenges, e.g. soil protection and climate adaptation, at once. Several research projects related to sustainable soil management in particular have been mandated by UBA recently. They all referred to the Land Degradation Neutrality (LDN) obligation and aimed at the development, first, of an appropriate and measurable indicator for land/soil

viii

Foreword

degradation; second, of appropriate legal measure to implement the LDN objective on national level; as well as, third, of realistic options for future international soil governance. And last but not least, this volume of the International Yearbook of Soil Law and Policy itself hopes to play a part in the ongoing process of detecting and ultimately implementing sustainable urbanisation patterns and measures for sustainable soil management. Moreover, it could be certainly regarded as impressing that Volume 3 of the International Yearbook of Soil Law and Policy is already about to be published. This clearly underlines the fact that sustainable soil management, to be implemented fully and in all its various facets reaching from, inter alia, agriculture to urbanisation, is still in need of intense discussions. German Environment Agency (UBA) Dessau-Roßlau, Germany

Maria Krautzberger

Preface

The prefaces of the International Yearbook of Soil Law and Policy Volumes 1 and 2 both commenced by saying—in different words—that soil has been the neglected environmental medium for a long time. While this is obviously true—just a look at the evolvement of national and/or international environmental legislation confirms this statement—one could also say: ‘times are changing’. We would like to think that the fact that we can proudly present Volume 3 of the International Yearbook of Soil Law and Policy indicates that the societal need for sustainable soil management and for interlinking soil management with other crucial challenges, such as climate change and food security, has increasingly come to the attention of policy makers, academics and civil society. How to establish effectively soil governance at national, regional or even international level is the underlying theme of the International Yearbook of Soil Law and Policy. We are well aware that sustainable management requires—next to ambitious and effective regulations—a sound scientific basis, an enabling institutional arrangement, as well as sufficient financial resources. Thus, the contribution of the International Yearbook of Soil Law and Policy could be described as both insufficient and key. It is insufficient, on the one hand, because other means are required too but key, on the other hand, because good governance is essential for sustainable soil management. The International Yearbook of Soil Law and Policy is intended to provide a platform for discourse on soil governance topics for academics, legislators and policy makers. Similar to the former volume, this volume again assumes the following parts: • • • •

Part I: The Theme Part II: Recent Developments of Soil Regulation at International Level Part III: National and Regional Soil Legislation Part IV: Cross-Cutting Topics

ix

x

Preface

We are very grateful to Maria Krautzberger, president of the German Environment Agency, for incisively highlighting the importance of sustainable soil management for environmentally sound urbanisation in the Foreword. Part I (The Theme) is dedicated to the ‘urbanization and sustainable management of soils’. It encompasses a compilation of chapters on that general topic from different perspectives and disciplines. In this volume, Part II first includes a global perspective on sustainable urbanisation (Schlacke/Jürschik), followed by national perspectives on the topic from India (Desai), New Zealand (Grinlinton), Netherlands (Boeve) and China (Wang). In addition, the part covers chapters with specific thematic focus, such as land take and soil sealing (Naumann et al.), tradable planning land certificates (Grimski), artifizcalised land (Desrousseaux) and soil rehabilitation (Brandon). The part concludes with a chapter on future research needs in sustainable urbanisation (Reißmann et al.). Part II contains specific chapters on latest developments under UNCCD (Mastrojeni), UNFCCC (Fee), as well as UN Habitat (Kago et al.), whereas Part III—on national and regional soil legislation—foresees reports on the national soil legislation in Canada (Farnese), Uganda (Kasimbazi) and Mozambique (Chiziane). Lastly, Part IV on cross-cutting topics presents the thoughts by Elvers on the right to food and its implications for sustainable soil management and Vargas et al. on the relevance of increasing soil organic carbon for achieving sustainable soil management. In addressing one of the major drivers of soil degradations, Volume 3 offers important and insightful information on the specific topic of ‘urbanization and sustainable management of soils’. It also contains useful information on the latest developments at international level and reports on national legislation with the view to achieving a common understanding and identifying innovative concepts for soil legislation. Acknowledging the fact that sustainable soil management has almost endless interlinkages, this volume also attempts to explore an array of connecting themes and their related implications. Although the International Yearbook of Soil Law and Policy only represents a small piece to the puzzle, we nevertheless hope that, as a platform for discussion and interaction, it serves its purpose to support the development towards sustainable soil governance. In that connection, we would like to draw attention to the ‘Global Pact for the Environment’, adopted by the UN General Assembly in 2018. In this initiative, the UN General Assembly has mandated the UN General Secretary to prepare a report analysing possible gaps in international environmental law and has requested for an ad hoc open-ended working group to come up with proposals for additional international instruments. The question of whether gaps on international soil governance will be identified in this report is to be awaited.

Preface

xi

Finally, we would like to express our deep gratitude to the respective authors of this volume for their engagement, commitment and contribution; to the members of the advisory board for helping us with the review process; and, last but definitely not least, to the publishing house SPRINGER for technical assistance. Dessau, Germany Urbandale, IA, USA Kleinmachnow, Germany Kampala, Uganda Bremen, Germany Wuhan, China

Harald Ginzky Elizabeth Dooley Irene L. Heuser Emmanuel Kasimbazi Till Markus Tianbao Qin

Contents

Part I

The Theme: ‘Urbanisation and Sustainable Management of Soils’

Urbanisation and Urban Land Use: A Normative Compass for Sustainable Urban Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sabine Schlacke and Ulrike Jürschik Sustainable Cities in India: A Governance Challenge . . . . . . . . . . . . . . . Bharat H. Desai, Balraj K. Sidhu, and Nitu Kumari Sustainable Management of Urban Soils: The New Zealand Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . David Grinlinton Land Take and Soil Sealing—Drivers, Trends and Policy (Legal) Instruments: Insights from European Cities . . . . . . . . . . . . . . . . . . . . . . Sandra Naumann, Ana Frelih-Larsen, Gundula Prokop, Sophie Ittner, Matt Reed, Jane Mills, Francesco Morari, Simone Verzandvoort, Stefanie Albrecht, Anna Bjuréus, Grzegorz Siebielec, and Tomasz Miturski

3 29

55

83

Environmental Law Tools for the Idea of a Compact City. Learning from the Dutch Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Marlon Boeve Tradable Land Planning Certificates to Reduce Land Take: Results of a Simulation Game with Communities in Germany . . . . . . . . . . . . . . . . 131 Detlef Grimski Artificialised Land and Land Take: What Policies Will Limit Its Expansion and/or Reduce Its Impacts? . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Maylis Desrousseaux, Bertrand Schmitt, Philippe Billet, Béatrice Béchet, Yves Le Bissonnais, and Anne Ruas

xiii

xiv

Contents

Cleaning Up Contaminated Sites in Urban China: Who Should Be Liable? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Huanhuan Wang The Rehabilitation of Contaminated Land to Enhance Future Options for Cities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Elizabeth J. Brandon An Environmental Perspective on Urbanization: Research Needs for Strengthening Environmental Aspects in Urban Development . . . . . 215 Daniel Reißmann and Ulrike von Schlippenbach Part II

Recent Developments of Soil Regulation at International Level

UNCCD COP 13: From Awareness to Action in a Complex World . . . . 229 Grammenos Mastrojeni Implementing the Paris Climate Agreement: Risks and Opportunities for Sustainable Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 Eric Fee Implementing the New Urban Agenda: Urban and Territorial Integration Approaches in Support of Urban Food Systems . . . . . . . . . . 271 Jackson Kago, Stephanie Loose, and Remy Sietchiping Part III

National and Regional Soil Legislation

Canadian Soil Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Patricia L. Farnese Soil Protection Law in Uganda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Emmanuel Kasimbazi The Design of the Political and Legal Framework on Soil Conservation in Mozambique: Deeply Unfinished . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 Eduardo Alexandre Chiziane Part IV

Cross-Cutting Topics

Human Rights Based Approach to Sustainable Agricultural Policies and Food Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 Hilal Elver Unlocking the Potential of Soil Organic Carbon: A Feasible Way Forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373 Ronald Vargas-Rojas, Rosa Cuevas-Corona, Yusuf Yigini, Yuxin Tong, Zineb Bazza, and Liesl Wiese

Part I

The Theme: ‘Urbanisation and Sustainable Management of Soils’

Urbanisation and Urban Land Use: A Normative Compass for Sustainable Urban Governance Sabine Schlacke and Ulrike Jürschik

1 Introduction The German Advisory Council on Global Change (WBGU) described the twentyfirst century as the ‘century of the cities’. To date, the majority of the world’s population lives in cities, and the urban population will increase. A total of 2.4 billion additional inhabitants are expected to live in cities by 2050, and today an estimate of about 200,000 people migrate from rural areas to cities worldwide every day.1 Cities are substantial drivers of global environmental change.2 The current issue of the International Yearbook of Soil Law and Policy covers an important and underestimated topic in the international discussion about cities and sustainable development: land degradation is one of the most urgent and less regarded environmental challenges, in which cities play a critical role, as urban activities can be seen as a meta-underlying driver of land degradation.3 However, local and regional governments can also be contributors to existing and potential solutions.4 Most of This article is mainly based on WBGU’s flagship report ‘Humanity on the Move: Unlocking the Transformative Power of Cities’ published in 2016. The authors are grateful to Benedikt Huggins and Jens Weuthen for detailed comments on draft versions of the text. Any remaining errors are the responsibility of the authors. 1

ICLEI (2017), p. 1. WBGU (2016), pp. 68–75. 3 ICLEI (2017), p. 2. 4 ICLEI (2017), p. 2. 2

S. Schlacke (*) · U. Jürschik (*) University of Münster, Münster, Germany German Advisory Council on Global Change (WBGU), Berlin, Germany e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2019 H. Ginzky et al. (eds.), International Yearbook of Soil Law and Policy 2018, International Yearbook of Soil Law and Policy, https://doi.org/10.1007/978-3-030-00758-4_1

3

4

S. Schlacke and U. Jürschik

the goods and services causing soil sealing worldwide are produced and consumed in cities where citizens are more likely to have resource-intensive lifestyles because of higher incomes and better access to goods and services.5 Moreover, urban infrastructure causes soil sealing. Hence, cities are important actors to tackle sustainability challenges like land degradation.6 Cities are also important actors to provide solutions to other global environmental challenges such as climate change. Cities united in alliances have already proven to be pioneers in climate change actions.7 They are seen to have the potential for sustainable strategy implementation because decisions are made within a smaller and more homogenous group.8 In the United States, many cities committed themselves to uphold the Paris Agreement on Climate Change after the federal government decided to withdraw from the agreement. Many policies that cause climate change or remedies against climate change are implemented and influenced on regional and local levels, e.g. urban land use planning, transportation and waste management.9 The ability and capacity of cities for progressive sustainable development actions depends on different factors, such as leading individuals, past successes, business consensus, public opinion, market opportunities, environmental advocacy and especially the legal framework of the respective state.10 This chapter aims at contextualising sustainable city development and sustainable urban land use within legal discussions. Therefore, key results of the German Advisory Council on Global Change’s (WBGU’s) flagship report ‘Humanity on the Move: Unlocking the Transformative Power of Cities’ with respect to the legal perspective on sustainable urban development and land use will be presented. Firstly, the importance of international provisions for sustainable urban development and land use will be outlined. Does international law already reflect the importance of sustainable development and land use in cities (Sect. 2)? Secondly, WBGU’s normative compass will be presented, which may provide long-term orientation towards sustainability (Sect. 3). The interaction between cities and other players, such as states, is highly relevant for urban sustainability. Therefore, an analysis of the institutional and legal framework for sustainable actions of cities within their borders, as well as in international city networks, will be provided (Sect. 4). This part includes the presentation of transformative planning, which is in the opinion of the WBGU one of the most important instruments towards sustainable urban land use.

5

WBGU (2016), p. 71. ICLEI (2017), p. 2. 7 WBGU (2016), p. 402. 8 Bodansky et al. (2017), p. 281. 9 Bodansky et al. (2017), p. 281. 10 Schröder and Bulkeley (2009), p. 314, further explanations in Sect. 4.1. 6

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

5

2 International Law on Sustainable City Development and Land Use Internationally, several declarations and treaties are passed or worked on to address the great sustainability challenges of our time. How do they affect sustainable city development? Do they provide guidance and orientation for sustainable city development and the challenge of urban land use? Traditionally, international law addresses not subnational entities like cities but rather states. Cities are not subjects of international law.11 However, international agreements on sustainable development mention and also address the local level more and more explicitly. Accordingly, the following examples will illustrate how international law and declarations related to land use influence sustainable city development and urban land use: the Sustainable Development Goals, international soil protection (UNCCD), human settlement policies (UN-Habitat) climate change politics and agreements (UNFCCC and the Paris Agreement).

2.1

Sustainable Development Goals

In 2015, the International Community agreed on the Agenda 2030 with 17 non-binding Sustainable Development Goals (SDGs) that followed the Millennium Development Goals (MDGs).12 In total, 17 goals and 169 targets have been defined to guide worldwide development until 2030. SDG 11 directly addresses sustainable city development: ‘Make cities and human settlements inclusive, safe, resilient and sustainable.’ The countries further acknowledged the crucial role of cities in this new agenda: ‘We recognize that sustainable urban development and management are crucial to the quality of life of our people. We will work with local authorities and communities to renew and plan our cities and human settlements so as to foster community cohesion and personal security and to stimulate innovation and employment.’13 Thus, it promotes cooperation of governments and public institutions with local authorities.14 Sub-themes to sustainable city development pointed out in the targets of SDG 11 are as follows: housing, basic services and slums (11.1); transport systems (11.2); inclusive and sustainable

11

Aust (2017), p. 142 ff. UN General Assembly (2015) Transforming our World: The 2030 Agenda for Sustainable Development. Resolution Adopted by the General Assembly on 25 September 2015, A/Res/70/1. 13 UN General Assembly (2015) Transforming our World: The 2030 Agenda for Sustainable Development. Resolution Adopted by the General Assembly on 25 September 2015, A/Res/70/1, rec. 34. 14 UN General Assembly (2015) Transforming our World: The 2030 Agenda for Sustainable Development. Resolution Adopted by the General Assembly on 25 September 2015, A/Res/70/1, rec. 45, 52. 12

6

S. Schlacke and U. Jürschik

urbanisation in human settlement planning and management (11.3); protection and safeguard on the world’s cultural and natural heritage (11.4); death rate and other consequences of disasters (11.5); environmental impact of cities, including air quality and waste management (11.6); and access and quality of public spaces (11.7). Also, national and other subnational planning practices should be improved to better link urban, peti-urban and rural areas (11.a). An increasing number of policies and plans towards inclusion, resource efficiency, mitigation and adaptation to climate change, resilience to disasters and development of holistic disaster risk management at all levels should be adopted and implemented (11.b), and the least developed countries should be supported in building sustainable and resilient buildings utilising local materials (11.c). Cities are explicitly addressed throughout the agenda, not only in SDG 11.15 Other goals and targets mentioning the ‘local’ level are laid down in 6.b (participation of local communities in improving water and sanitation management) and 15.9 (integrate ecosystem and biodiversity values into national and local planning [. . .]). Also, cities are at least implicitly, as one of ‘all the levels’ addressed by more general goals, such as goal 5 (gender equality), target 6.5 (integrated water resources management), target 14.3 (enhanced scientific cooperation to address the impacts of ocean acidification), target 15.b (finance sustainable forest management), goal 16 (promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels). The concept of decentralisation is not mentioned in the Agenda 2030. This concept is seen as an important element in strengthening the local level and its ability to act.16 The challenge of land degradation is acknowledged in target 15 (protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification and halt and reverse land degradation [. . .]), target 2.4 (ensure sustainable food production and implement resilient agricultural practices [. . .] that progressively improve land and soil quality) and target 3.9 (reduce the number of deaths and illnesses from hazardous chemicals and air, water and soil pollution and contamination).17 Target 15.3 establishes the concept of land degradation neutrality.18 Land degradation neutrality not only strives for halting seal soiling but also includes restoration and rehabilitation if degradation processes cannot be avoided.19 Certain goals are at least implicitly linked to soil protection, such as goal 7 (energy), goal 11 (cities and human settlements) and goal 12 (sustainable consumption and production patterns), as the areas referred to in these goals foster land degradation.

15

WBGU (2016), p. 377; UN General Assembly (2015) Transforming our World: The 2030 Agenda for Sustainable Development. Resolution adopted by the General Assembly on 25 September 2015, A/Res/70/1, rec. 52. 16 WBGU (2016), p. 377; Porras (2009), p. 556. 17 Ehlers (2017). 18 Ehlers (2017). 19 Wunder et al. (2018).

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

7

The same applies to goal 1 (poverty), goal 6 (water and sanitation) and goal 13 (climate change), which refer to problems that may result from land degradation.20 Overall, the Agenda 2030 provides orientation to sustainable development for cities and defines a target system for sustainable land use and towards land degradation neutrality for the first time. However, its text is vague and ambiguous. Hence, it must be fleshed out and substantiated by the cities and states. Important issues, such as sustainable urban land use, are not mentioned explicitly in the sustainable development goals.

2.2

International Soil Protection Law and the UN Convention to Combat Desertification (UNCCD)

The topic of land use as a sustainability challenge has been noticed internationally since the Stockholm Conference in 1972.21 However, the topic of soil protection has never been treated in a comprehensive manner. Recently, however, the topic has drawn more attention: states recognized the importance of soil protection in the Rio +20 Declaration ‘The Future We Want’ and prioritised soil protection and sustainable land use in SDG 15.22 The only UN international hard law on this topic is the 1994 UN Convention to Combat Desertification (UNCCD),23 which was negotiated after the Rio Conference 1992.24 Originally, the Convention only governed land degradation in arid, semiarid and dry sub-humid areas (article 1 UNCCD), and its scope of application was thus limited to about 40% of the terrestrial surface of the earth.25 The acknowledgement of land degradation neutrality (LDN) in target 15.3 of the SDGs has increased the importance of the UNCCD.26 The UNCCD 2018–2030 Strategic Framework shows that the UNCCD incorporated the task of implementation of SDG 15 and target 15.3 (land degradation neutrality). Nowadays, the parties of the UNCCD agreed on a universal promotion of land degradation neutrality.27 Parties may now

20

Ehlers (2017). Boer et al. (2017). 22 Boer et al. (2017), p. 54 f.; See also Sect. 2.1. 23 UN General Assembly (1994), International Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly Africa (UNCCD). Resolution adopted by the General Assembly on 14.10.1994, A/AC.241/27 (entered into force 1996); further analyses in: Beyerlin and Marauhn (2011), pp. 205–209. 24 Boer et al. (2017), p. 53. 25 Boer et al. (2017), p. 61. 26 Desai and Sidhu (2017), p. 43. 27 UNCCD (2017) The future strategic framework of the Convention. ICCD/COP(13)/L.18. 21

8

S. Schlacke and U. Jürschik

apply voluntarily the UNCCD mechanisms for policies relating to desertification, land degradation and drought beyond the original geographic scope.28 Today, the UNCCD fills in the existing gaps of international cooperation towards land degradation neutral land use. However, since the implementation is not binding, the success of the mechanism under the UNCCD depends on the willingness of the contracting parties of the UNCCD.29 Whereas land degradation neutrality will be a big task for growing cities, today, the productivity of land as a major factor for ensuring security of supply for cities is already an important issue. The UNCCD stresses the critical role of local implementation for the success of the convention in its preamble. As analysed above, this is common in recent agreements and declarations such as the 2030 Agenda (SDGs) and the Paris Agreement but a rather new approach in comparison to older treaties, such as the UNFCCC and the Convention on Biodiversity (CBD), both signed in 1992.30 Nevertheless, cities still do not play an important role in implementation strategies today: a UNCCD mechanism towards land degradation neutrality is the LDN Target Setting Program, which supports countries in their national target-setting processes.31 This program aims to enable states to define what land degradation neutrality means in their specific context. According to this mechanism, parties shall set LDN targets within national strategies. The UNCCD Global Mechanism proposes LDN working groups, including all important stakeholders on the national level to determine the LDN targets. Cities or municipalities are not explicitly considered to be distinct stakeholder groups in this respect.32 As cities are mainly responsible for land use because of their continuing growth and extensively growing consumption needs, they need to participate in international soil protection.

2.3

UN-Habitat, UN Conferences on Human Settlements and the New Urban Agenda

Human settlement and urbanisation is the main topic for the UN-Habitat Programme and the UN-Habitat conferences. UN-Habitat is the United Nations human settlements programme based in Nairobi, Kenya.33 It focuses on thematic policy work and technical cooperation to promote sustainable city development and design.34 UN-Habitat depends on 28

Boer et al. (2017), p. 62. Boer et al. (2017), p. 63. 30 Aust (2017), p. 170 ff. 31 https://www.unccd.int/actions/ldn-target-setting-programme (accessed 23 June 2018). 32 The Global Mechanism of the UNCCD (2016), p. 11. 33 Further information on the programme available under: https://unhabitat.org/. 34 WBGU (2016), p. 111. 29

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

9

fluctuating voluntary contributions by member states because of the fact that the core funding provided by the UN is limited.35 The standing within the UN system is weak. UN-Habitat could be developed to be the knowledge generator, a consultative institution and a multiplier of sustainable city development, but therefore its structures, standing and policy departments need to be enforced.36 ‘Land’ is one of the ‘urban themes’ that UN-Habitat is working on. UN-Habitat founded the Global Land Tool Network, an alliance of global, regional and national partners. Main objectives of the initiative are contributions to the Millennium Development Goals (MDGs) and SDGs through land reform, improved land management and security of land tenure.37 One result is the initiative on land-related indicators (Global Land Indicators Initiative), a platform that elaborated indicators for land-use monitoring and contributed to the SDG process.38 UN conferences on human settlements (Habitats I–III) were held in 1976, 1996 and 2016. This 20-year cycle will be continued. The results of these conferences are the Vancouver Declaration (1976); the Istanbul Declaration, together with the Habitat Agenda (1996); and the New Urban Agenda (2016). All these declarations were noted by the UN General Assembly, but no other, more binding legal status has been given to them.39 In the Vancouver Declaration, the states acknowledge land as one of the fundamental elements in human settlements and define public control over use and tenure of land as a guideline for action.40 The Istanbul Declaration and the Habitat Agenda are reclaiming the challenges of improper land use and insecure land tenure. The Member States committed themselves to providing legal security of tenure and equal access to land to all people, as well as to the efficient and rational use of land.41 The New Urban Agenda (Quito Declaration) is the latest result of this Habitat process and is intended to be the guidebook of the next 20 years of sustainable city development.42 It does not impose any legal binding commitments and has been endorsed by the UN General Assembly.43 The New Urban Agenda absorbs and compiles the important and prominent topics concerning sustainable city development that have been discussed in recent years, such as inclusiveness and people orientation of settlements, resource and climate protection, resilience, living 35

WBHU (2016), p. 381. WBGU made several propositions how to reform UN-Habitat, WBGU (2016), p. 381 ff. 37 https://unhabitat.org/gltn/ (accessed 25 June 2018). 38 http://gltn.net/home/global-land-indicators-initiative-glii/ (accessed 25 June 2018). 39 WBGU (2016), p. 111; WBGU (2017). 40 UN Habitat I, Vancouver Declaration. Available under: https://unhabitat.org/history-mandaterole-in-the-un-system/ (accessed 25 June 2018). 41 UN Habitat II, Istanbul Declaration ‘Habitat Agenda’ and the Habitat Agenda Goals and Principles, Commitments and the Global Plan of Action. Available under: https://unhabitat.org/ history-mandate-role-in-the-un-system/ (accessed 25 June 2018). 42 WBGU (2017), p. 1. 43 UN General Assembly (2016) New Urban Agenda. Resolution adopted by the General Assembly on 23 December 2016, 71/256. 36

10

S. Schlacke and U. Jürschik

conditions in dwellers (informal included) and the right to the city. It also recognises cities as key actors for sustainable development.44 The parties even commit to promote sustainable land use combining urban extensions with adequate densities and compactness to prevent and contain urban sprawl, as well as preventing unnecessary land-use change and the loss of productive land and fragile and important ecosystems45 and to improve land governance through strong, inclusive management frameworks and accountable institutions.46 Aside from this soft law provisions (‘promote’), further achievements have not been accomplished yet. Also, the agenda is only rarely linked to the climate change agreements and the sustainability agenda.47 For example, the land-related target 15.3 (land degradation neutrality) of the SDG Agenda has not been included. The New Urban Agenda lacks not only clear objectives but also a roadmap for the further implementation of the New Urban Agenda, as well as a robust monitoring mechanism.48 Precise time frames in which interim goals are noted could promote the successful implementation of the ambitious but abstract concepts listed in the agenda. It has been decided to maintain the 20-year cycle for Habitat conferences, which is far too long to address the urge of sustainable city development.49 The New Urban Agenda does not reflect adequately 2015’s achievements for sustainable land use (SDG 15).

2.4

UN Framework Convention on Climate Change (UNFCCC) and Paris Agreement (PA)

Since the Rio Conference in 1992, the multilateral collaboration against anthropogenic climate change is negotiated under the United Nations Framework Convention on Climate Change (UNFCCC). Important results are the Kyoto Protocol, which was adopted in 1997, and the Paris Agreement on Climate Change, which was adopted in 2015.50

44

WBGU (2017). UN General Assembly (2016) New Urban Agenda. Resolution adopted by the General Assembly on 23 December 2016, 71/256, annex, rec. 69. 46 UN General Assembly (2016) New Urban Agenda. Resolution adopted by the General Assembly on 23 December 2016, 71/256, annex, rec. 104. 47 WBGU (2017), p. 3. 48 WBGU (2017), pp. 1–2. 49 WBGU (2017), p. 3. 50 United Nations Framework Convention on Climate Change (UNFCCC) (2015) Adoption of the Paris Agreement. FCCC/CP/2015/L.9/Rev.1. 45

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

11

Soils are, following oceans, the second most important carbon reservoirs, and therefore they are sinks within the meaning of the UNFCCC.51 Soil protection is an important element of climate change mitigation and adaptation. Land use, land-use change and forestry (LULUCF) is therefore one topic under the UNFCCC.52 Joint action of the parties is taken forward under the title REDD-plus (‘Reducing emissions from deforestation and forest degradation and the role of conservation sustainable management of forests and enhancement of forest carbon stocks in developing countries’) in the section of forestry.53 The Paris Agreement, today’s most regarded environmental agreement, entered into force on the 4th of November 2016. It has been signed by 195 states and ratified by 176 parties.54 The Paris Agreement is a public international treaty according to the definition of the Vienna Convention on the Law of Treaties55 and contains various soft law and legally binding provisions.56 The treaty is also interpreted to be an exemplification of the transnationalisation of climate change law, including non-state actors as addressees.57 Many of its provisions are directed primarily at states, but the preamble of the adoption declaration of the Paris Agreement enhances cities as non-party stakeholders for regional and international cooperation in climate change matters. Cities formed a non-party stakeholder group during the Conference of the Parties under the UNFCCC.58 They are eligible donors to the Green Climate Fund.59 To hold the global average temperature to well below 2
C above pre-industrial levels is the most important binding obligation and is laid down in article 2 PA. A key instrument of the Paris Agreement not to exceed the binding 2
C goal is the obligation to prepare, communicate and maintain so-called nationally determined contributions (NDCs) to climate change mitigation pursuant to article 4 PA. Unlike the Kyoto Protocol, the Paris Agreement does not contain any absolute greenhouse gas emission reduction targets for specific parties but invites the parties to define their own contributions. Distinctions are made between developed countries, developing countries and the least developed countries concerning the level of ambition (principle of common but differentiated responsibilities and respective capabilities). The NDCs shall be updated regularly in a 5-year cycle. An expectation of

51

Boer et al. (2017), p. 58. https://unfccc.int/topics/land-use/workstreams/land-use%2D%2Dland-use-change-and-forestrylulucf, accessed 25 June 2018. 53 https://unfccc.int/topics/land-use/workstreams/redd%2B, accessed 25 June 2018. 54 https://treaties.un.org/Pages/ViewDetails.aspx?src¼IND&mtdsg_no¼XXVII-7-d& chapter¼27&clang¼_en, accessed 24 April 2018. 55 Sands and Peel (2018), p. 319. 56 Detailed overview in: Bodansky et al. (2017), p. 213 ff.; p. 251 ff.; from a German perspective: Nückel (2017). 57 Franzius (2017). 58 Further remarks in 4.2.2. 59 WBGU (2016), p. 378. 52

12

S. Schlacke and U. Jürschik

progression is reflected in article 4.3 PA to ensure the rise of ambition over time.60 Climate actions of cities can be shaped by these nationally determined contributions. A total of 113 out of 164 NDCs submitted prior to 31 August 2016 show relevant urban key words.61 This demonstrates that cities are relevant actors to implement climate action. Article 7 of the Paris Agreement establishes the global goal on adaptation to the adverse effects of climate change. One of these adverse effects is land erosion. Article 7.2 PA states adaptation as a global challenge, addressing all levels, including the local level. The contracting parties acknowledged the need to include local systems and knowledge in adaptation strategies (7.5 PA). Other important instruments for joint climate action of the parties to the Paris Agreement are support and cooperation. Articles 9 to 11 PA contain clauses for climate financing, technology development and transfer, as well as capacity building that developed countries are supposed to provide to developing countries. Article 11 PA emphasises the need to adapt capacity building to the specific national needs and the importance of country ownership at all levels, including the local level. Article 12 PA requires states to cooperate to enhance climate change actions. The Paris Agreement counts on soft compliance mechanisms. The most important mechanism is a monitoring framework that is implemented by articles 13 to 15 PA: an enhanced transparency framework, a global stocktake every 5 years (article 14) and an expert-based committee that reports annually to the Conference of the Parties (article 15). In conclusion, cities are relevant addressees of provisions concerning mitigation of and adaptation to climate change, two key elements of the Paris Agreement. NDCs address explicitly the urban level since adaptation shall be undertaken by respecting local systems and knowledge. The Paris Agreement demonstrates that it addresses, aside from state actors, also local actors in its pursuit of climate action at all levels. Climate change action in the LULUCF sector focuses on forestry. The potential and importance of soils for climate change mitigation and adaptation are being acknowledged; implementation strategies stay vague with the exemption of the forestry sector.

2.5

Conclusion

In international treaties and declarations, cities (forming part of the local level) are addressed as relevant non-state stakeholders and not as subjects of international law. Urbanisation has been identified as an important field of international cooperation (SDG 11), but international action still lacks effective implementation (New Urban Agenda). Land degradation neutrality is now one of the global objectives (SDG 15.3

60 61

Bodansky et al. (2017), p. 235. UN Habitat (2017).

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

13

and within the UNCCD). Cities do not play any important role in the policy development of land degradation neutrality. They will need cooperation and guidance to contribute to the transformation towards land degradation neutrality. The matter of sustainable urban land use is not yet emphasised in every legal document. Concerning the challenge of climate change, cities are already seen as important players, and climate change is an important topic within cities. Land-use challenges and the concept of land degradation neutrality need to be reflected also in the implementation of the Paris Agreement. This could be achieved by including the goal of land degradation neutrality in NDCs.

3 A Normative Compass as Guiding Principle for Sustainable City Development To provide concrete orientation for sustainable city development, the WBGU developed the normative compass as a normative guiding principle for long-standing visions of sustainable city development62: sustainable city development should firstly protect the natural life-support systems. Urban land use has an impact on ecological resources and, hence, creates urban environmental challenges, as well as global climate change protection issues.63 The second dimension to consider is substantial, economic and political inclusion. Land use and land tenure systems influence geographical access to and distribution of technical and social infrastructure and therefore determine conditions for substantial and economical inclusion.64 These dimensions so far are covered by the SDGs. However, the WBGU added a third dimension: ‘Eigenart’. Eigenart is a German expression that could be translated as ‘character’, meaning the uniqueness of every city in urban forms, lifestyles and architectures. Eigenart is a concept that values the variety and diversity of urban spaces and acknowledges the transformative potential of diversity for sustainable city development.65 For example, the protection of urban cultural heritage can strengthen identity and diversity in cities.66 Acting in accordance with the three dimensions of the normative compass will create trade-offs. These trade-offs must be considered and balanced, for example, during urban planning procedures.67

62

WBGU (2016), p. 127 ff. WBGU (2016), p. 166. 64 WBGU (2016), p. 166. 65 WBGU (2016), p. 142 ff. 66 WBGU (2016), p. 166. 67 Further explanations on urban planning in Sect. 4. 63

14

S. Schlacke and U. Jürschik

4 Freedoms and Limitations for Cities to Act Sustainably This part aims at displaying cities’ freedoms and limitations to act sustainably. Even if cities are willing to follow the normative orientation of international law and policies and WBGU’s normative compass, they are embedded in a national system. This system may enable or restrict the sustainable development actions of cities. Locally, cities interact with other stakeholders and are bound by decisions of supervisory national entities and their legislation. Today, cities also act transnationally among city networks. Sustainable actions of cities therefore raise multiple questions of legitimacy and effectiveness. The question is how to create an enabling environment for sustainable urbanisation.

4.1

National Frameworks for Shaping Sustainable Cities

Firstly, the framework conditions for cities need to be evaluated to decide whether they are unleashing or restricting cities’ transformative power. Every city is influenced by the concrete services it has to provide to its citizens, by the legal frameworks provided by its state and by the institutional setting within the city. Transformative planning is the most important instrument to shape sustainable cities. Institutional frameworks and power balances within cities are as different as the cities themselves and depend on the national organisation provisions and factual settings such as informal infrastructure development or business power. The following overview must therefore stay vague to a certain extent.

4.1.1

Responsibilities of Cities Towards Their Citizens

Cities fulfil autonomous administrative tasks for their inhabitants by providing central services to their inhabitants: drinking water supplies and sewage disposal, local public transport, waste disposal, housing, as well as the provision, maintenance and lighting of streets. Furthermore, city administrations deal with local environmental issues, such as air pollution, and are often responsible for social and cultural tasks, such as schooling, child care, cultural facilities and tourism. This includes the responsibility for planning, structural development, building standards and the maintenance of public buildings.68 In the last decades, however, many infrastructural services for citizens were conferred to private businesses (privatisation).69 Along with this withdrawal of municipal authorities, the tasks of the cities’ administrations have also changed: less often, they provide basic services to their citizens themselves but manage the 68 69

WBGU (2016), p. 99; further explanations in 4. WBGU (2016), p. 50.

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

15

cooperation with private service providers to ensure basic supply for the citizens.70 Today, the trend seems to be reversed as municipalities in Germany begin to regain authority over power supplies.71 In 1968, Henri Lefèbre introduced the concept of a right to the city in order to achieve more equitable cities and better opportunities for inclusion of urban citizens.72 The concept has been referred to by worldwide social movements and motivated some cities to implement citizen rights and duties towards the local administrations.73 While the rights of the citizens might constitute e.g. a claim for just resource distribution in respect of space, their responsibilities could include their participation in city development.74 For example, the Brazilian national constitution also enshrines specific rights to urban development policy.75

4.1.2

City Authorities in Legal Dependence of States

Cities are embedded in the constitutional and legal frameworks of their respective state. The extent to which local governments and authorities are able to implement sustainable development strategies is determined by the distribution of power between the state and the municipality.76 The degree of (in)dependence varies according to the extent of decision-making powers and financial capabilities on the municipal level. Two concepts are essential for this development: decentralisation and deconcentration, which go along with the principle of subsidiarity.77 In some countries, such as Mexico, city authorities are mainly local administrations. In other countries, such as those in Scandinavia and the German-speaking countries, city authorities can be described as local governments: their existence is constitutionally guaranteed, ensured by independent budgets and responsibilities.78 The WBGU identified six models of national-local power distribution: cities can either be a ‘creature of the state’, can have strictly limited powers under state control, can be provided with a predetermined list of powers, can have the authority to decide on local or urban concerns, can have comprehensive powers unless something is explicitly excluded or can be autonomous.79 National and other subnational authorities can use different strategies to facilitate (or obstruct) a sustainable city development: governing through authority

70

Porras (2009), p. 536. Schlacke and Kröger (2013). 72 WBGU (2016), p. 143. 73 WBGU (2016), p. 143. 74 Global Platform for the Right to the City (n.d.). 75 WBGU (2016), p. 143; further information on the Brazilian case in Fernandes (2007). 76 WBGU (2016), p. 100 ff. 77 Porras (2009), p. 552 ff. 78 WBGU (2016), p. 101. 79 Table 2.5-2, WBGU (2016), p. 102. 71

16

S. Schlacke and U. Jürschik

(regulations and land-use plans), governing through provisions (e.g., public infrastructure and services) and governing through enabling (financial and communicative measures to enable the urban administration to act sustainably).80 Not only decision-making on the local level is affected by institutions on national level, but cities can also influence the decision-making on higher levels, as far as (legally) intended or because of their de facto influence resulting from economic power.81 Some cities as agglomerations of economic power are in fact able to obtain a remarkable impact on state actors.82 Nevertheless, this de facto influence depends on the institutional frame. The needs of the implementation level should be reflected in national decisionmaking. Also, it needs to be evaluated if cities are willing to use more responsibility for urban tasks for the common good and sustainable development and land use. This may vary from city to city and depends on the local Eigenart. Many examples, though, show the transformative power of self-government.

4.1.3

Institutional Frameworks Within Cities

There are different public institutions within cities that share responsibilities and duties. Regularly, the mayor (and the administration under his/her authority) and often a city council are the main public players. Organisation models of cities differ, particularly the extent to which national (or in federal systems other subnational) authorities influence the composition of local governments and administrations. Also, relationships between mayors and city councils vary, which affects the cities’ level of dependence on or autonomy from national (and other subnational) authorities.83 In some systems, mayors are appointed by national or other subnational authorities; in others, they are elected by the city council or directly by urban citizens. City councils do not exist in every city, but if they do, they are commonly elected and entrusted with executive powers. The distribution of competence between mayors and city councils varies.84 Other important players to promote city development are businesses and the civil society.85 Urban law is the terminus for the law that sets out the rules for all actors involved, facilitating requirements for accountability and the foundation for stable and predictable decision-making within the cities.86 A new trend is the digitalisation of cities. Digital technologies designed by private businesses can create digitised sustainable cities, so-called smart cities or digital

80

WBGU (2016), p. 99 ff. WBGU (2016), p. 108. 82 WBGU (2016), p. 108. 83 WBGU (2016), p. 96. 84 An overview over different structures gives table 2.5-1, WBGU (2016), p. 98. 85 WBGU (2016), p. 96 ff. 86 UN Habitat (o.J.). 81

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

17

cities. The capacities and adaptation capabilities of city administrations are often challenged by these developments.87 For responsible and sustainable urban governance, a legal environment is needed where the public interests, such as sustainable land use, are reflected throughout the institutional setting. For this purpose, systems where citizens participate in the election of mayors and/or city councils are more suitable. Also, the participation of the public in decision-making may be useful.

4.1.4

The Instrument of Transformative Planning for Sustainable Urban Land Use

The WBGU identified in its flagship report several exemplary transformative action fields for sustainable city development.88 Five action fields are frequently discussed internationally: • • • • •

decarbonisation, energy and mitigation of climate change in cities; mobility and transport; urban form; adaptation to climate change; and poverty reduction and socio-economic disparities.

Furthermore, the WBGU identified three transformative action fields that are less discussed: • urban land use; • materials and material flows; and • urban health. Hereafter, the focus will lie on a transformative urban planning instrument geared towards sustainable urban land use. The sustainability of urban land use is heavily affected by the development of urban infrastructure. Different drivers influence infrastructure development. Planning seems to be one of the most important tools to navigate city development towards a sustainable pathway.

Driving Forces of Urban Land Use Development Acknowledging the vast diversity of cities worldwide makes generalisations quite difficult. WBGU identified three main drivers—three ‘master builders’—of city development, regardless of whether newly planned cities and districts, informal settlements or mature cities and districts are discussed: power, hardship and time. Economic and political power determines large-scale urban or district planning.

87 88

Lenk (2017). WBGU (2016), p. 151 ff.

18

S. Schlacke and U. Jürschik

Planning new cities or districts lies regularly with local or national governments, but in many cases multinational business groups also control the development of districts.89 Rapid population growth in Asia and in Africa pushes local decisionmakers in these areas to act and to challenge the lack of housing already today (hardship).90 The lack of housing causes informal or interim settlements to emerge or grow, which create or intensify conversely cramped housing conditions, lack of infrastructure and social and environmental problems. The time component illustrates the acceleration of population growth and rural exodus. Path dependencies of newly built cities can be real obstacles to sustainable city development in the future. The current infrastructure made of cement, steel and aluminium leaves an enormous CO2 footprint to deal with.91 Urban land use is largely affected by the land tenure system (land ownership being an expression of power relations), as well as informal settlements. Land tenure systems are slow to change.92 Land plots are regularly in private or public ownership. Some legal systems enable community use or protect traditional local rights.93 The intensity of land use is the responsibility and right of the owner of a plot of land. Development to a more privatised land tenure in cities can be observed.94 Private ownership is regularly protected by constitutional rights against state interference but limited by social responsibility, which is entailed by the use of property. Where ownership is formally not verifiable, customary law and religious or informal land use supplement formal land tenure systems.95 Especially, low-income population groups often do not have sufficient economic resources for proper land ownership.96 Hence, important drivers for city development in poor regions are informal processes and structures. If the formal system cannot keep pace with population growth, individual hardship leads to construction on illegally occupied land or land outside the legally standardised framework.97 Informal expansions play an important role in city development and can themselves be detrimental to sustainable development. A distinction can be made between informal processes driven by the administrations themselves (informality from above) and the self-organisations of citizens themselves (informality from below). These informal structures can be complementary or supplementary to formal ones.98 Land is not only a resource necessary for housing and production but also an economic investment. Prices for land and real estate are rising as a result of rapid

89

WBGU (2016), p. 339. WBGU (2016), p. 339. 91 WBGU (2016), p. 173 ff. 92 WBGU (2016), p. 161. 93 WBGU (2016), p. 158. 94 WBGU (2016), p. 161. 95 WBGU (2016), p. 158. 96 WBGU (2016), p. 159. 97 WBGU (2016), p. 161. 98 WBGU (2016), p. 100. 90

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

19

urbanisation.99 National and international speculations on land and real estate are forming important business models and increase the likelihood of a financial crisis, such as the global financial crisis in 2008. Speculative markets often result in high vacancy rates or unused building land.100

Guiding Principles for Transformative Land-Use Planning Urban planning comprises the planning activities that determine the infrastructure development within cities. In multi-level systems, it is determined or at least influenced by national and regional planning.101 Central instruments of urban planning are zoning maps and master and development plans. A city is divided into zones, which are attributed to different purposes (e.g. residential, commercial and industrial use).102 Other objectives may be integrated in land-related zoning, such as resilience strengthening, disaster management and crime reduction.103 Planning systems and single planning instruments that have been successfully used in one context repeatedly may not necessarily be copied successfully by other cities because of different political and cultural contexts and diversity in resources and governmental structures.104 Therefore, pathways to transformative land use must be identified individually considering local circumstances. The WBGU identified some general principles for sustainable urban land-use development105: • Minimisation of new land sealing by decentralised concentration and revitalisation: reduction of new sealed soil should be a priority. Cities should prioritise densification of underused land. Industrial wasteland outside cities should be revitalised. • Orientation of urban land towards the common good: privatisation and speculation on land and real estate are drivers for gentrification. Urban land should be reserved for common-good-oriented purposes to ensure the participation of a wide community in the cities. Increasing public land property in cities could foster usage based on common good. • Create public open spaces and spaces of encounter in the city: urban meeting places of various types enable urban coexistence and social cohesion. • Adaptability and reversibility of land uses: the expected adverse impacts of climate change will require several changes in land use over the next decades.

99

WBGU (2016), p. 161. WBGU (2016), p. 161. 101 WBGU (2016), p. 162. 102 WBGU (2016), p. 163. 103 WBGU (2016), p. 163. 104 WBGU (2016), p. 164. 105 In detail: WBGU (2016), p. 166 ff. 100

20

S. Schlacke and U. Jürschik

These requirements should influence today’s planning decisions, and soil should remain relatively unsealed. A starting point for transformative land use could be the implementation of diverse urban tenure forms and rights. Knowledge of boundaries of plots and ownership is the first requirement for effective planning. The documentation and securing of ownership and usage rights of certain land in central cadastres is therefore crucial for effective regulation. The success of new planning methods and targets depends on the local circumstances, especially economic and political power distribution. It is necessary to create adequate financial and personnel capacities for the planning itself and the implementation and enforcement of plans. Local contexts and existing informal structures may not be ignored but are to be included in and at best transferred to formal structures. Negotiations with and participations of inhabitants can be crucial to the success of transformative planning. Most importantly, matters of urban land use offer numerous gateways and opportunities for corruption. Therefore, a reform of urban development must entail prevention and fight against corruption.106 Specific management models can benefit the use of urban land for the common good and create a space for experimentation to identify specific needs of the cities’ population: reversible land use can present solutions for interim periods until the subsequent use is realised. Public spaces can be planned as shared spaces and, thus, be used in mixed ways. Streets can, for example, be declared temporarily car free to enhance recreational space for inhabitants. Citizen groups should be empowered to experiment with differentiated community-based land use, such as community gardens, car-sharing concepts or food cooperatives. Such public urban projects involve bottom-up participation and foster social networks, flexibility and creativity within the city. Community-based housing can enhance the diversity of land ownership and prevent land and real estate speculation of private investors.107

4.2

Legal Implications of Transnational Urban Activities

Today, cities do not only form part of a hierarchical state system (Sect. 4.1) but also engage in international relations. Cities gain more and more weight on the international stage. This phenomenon is attributed to their rising urban population, their economic power and the development of cultural, social and political innovations in cities.108

106

WBGU (2016), p. 168 ff. WBGU (2016), p. 169 ff. 108 WBGU (2016), p. 109. 107

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

21

However, cities are not (yet) subject of international law themselves.109 They neither are entitled to rights, nor do they need to comply with obligations of international law, nor could they be parties in cases brought before the International Court of Justice.110 Furthermore, international law leaves the relationship between cities and their states unaffected.111 Even though cities act as agents on international level or influence their states’ foreign policy (vertical urban governance), only a few framework treaties provide guidelines for cross-border cooperation between sub-state level actors. Cities advocate their interests in transnational networks and organisations to directly influence international negotiations (horizontal urban governance). This might cause conflicts within national legal orders. Enhancing transnational impacts of cities could be an enabling factor for sustainable development. As pointed out above, the important topic of sustainable urban land use is yet rarely reflected by international agreements and declarations.112 Cities’ presence in the international sphere may improve the standing of urbanisation challenges, such as urban land use.

4.2.1

Vertical Urban Governance: Influence on International Law in Agency of States

Pursuant to article 4 ASR—ILC Draft Articles on State Responsibility—and customary international law acts of cities can be legally attributed to their states.113 Cities can therefore breach international obligations of their states and thereby trigger the state’s responsibility.114 By executing international treaties, cities may contribute to their interpretation in accordance with articles 31 to 33 of the Vienna Convention on the Law of Treaties. Especially, cities can exercise subsequent practices in application of the treaties in accordance with article 31 subs. 3 lit. b. Those practices do not affect the state’s responsibility if they contradict the official state practice or if the state authorities distance themselves.115 Similarly, municipalities can have an impact on the emergence and the further development of customary international law.116

109

Aust (2017), p. 142 ff. Aust (2015), p. 270. 111 WBGU (2016), p. 111. 112 Part II. 113 Aust (2017), p. 148. 114 Aust (2017), p. 148. 115 Aust (2017), p. 152 ff. 116 Aust (2017), p. 152 ff. 110

22

4.2.2

S. Schlacke and U. Jürschik

Horizontal Urban Governance: Bilateral Cooperation and Transnational Networks of Cities

As already mentioned above, cities organise their own ‘foreign politics’, either directly or in transnational networks. Cooperation of cities has a notable history. An example is the cooperation of Hanseatic cities during the medieval period and early modern times.117 These partnerships were settled in different surroundings than city networks are nowadays, characterised by weaker or not yet existing states.118 In the second half of twentieth century, city cooperation increased. Bilateral city partnerships, so called town twinning, promoted informal exchange after a period of war.119 Only a few international framework agreements cover transnational urban cooperation. Traditionally, cooperation was a matter of municipalities located at states’ borders.120 Often, this bottom-up cooperation takes place outside the regime of international law.121 In Europe, legal certainty and stability for transnational city cooperation was created by conventions adopted by the Council of Europe, the Madrid Convention and its additional protocols, and regional conventions.122 The African Charter on the Values of Principles of Decentralization, Local Governance and Local Development determines the target to enhance cross-border cooperation of local administrations and is complemented by the Niamey Convention—the African Union Convention on Cross-Border Cooperation—which covers differentiated purposes of cross-border cooperation.123 By signing framework agreements on cross-border urban cooperation, the parties to the agreements express the opinion on international law that municipalities possess a right to cooperation across borders.124 Nowadays, cities engage in international city networks that form part of the global civil society125 and act independently from national foreign policies. For example, cities come together to foster democratic local self-government within the network United Cities and Local Governments (UCLG). Especially, climate change mitigation and adaptation caused the establishment of cross-border city alliances, such as the C40 Cities Climate Leadership Group, the Climate Alliance of European Cities or Local Governments for Sustainability (former International Council for Local Environmental Initiatives (ICLEI)).126 Especially in terms of sustainable

117

Overview in Aust (2017), p. 30 ff. Aust (2017), p. 30. 119 Aust (2015), p. 258. 120 Aust (2017), p. 157. 121 Aust (2017), p. 157. 122 Aust (2017), p. 157. 123 Aust (2017), p. 162 ff. 124 Aust (2017), p. 164. 125 Porras (2009), p. 539. 126 WBGU (2016), p. 109; Bodansky et al. (2017), p. 281 ff. 118

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

23

development, city networks enable mutual learning and offer a chance for a good practice exchange.127 Also, cities are often motivated to engage voluntarily in the field of climate change mitigation by economic or political needs or willingness.128 The three leading city networks in climate change mitigation (C40, ICLEI and UCLG) founded the Compact of Mayors, which aims at mitigating climate change. One result of this cooperation is a carbon Climate Registry (cCR) to record reductions of greenhouse gas emissions on the local and subnational level.129 Besides the exchanging and coordinative effect of city networks, which supports sustainable development of cities inwards, city networks also represent a part of the global civil society in the negotiations under the UNFCCC. C40, ICLEI and UCLG are listed as NGO observers of the negotiations under the UNFCCC.130 In the observer process, cities join a distinct loose group, called constituency, under the title Local Governments and Municipal Authorities. That status gives them the right to make joint constituency statements in the plenaries and to address states. ICLEI has served since 1995 as coordinator of the Local Governments and Municipal Authorities observer group under the UNFCCC.131 The impact of the Local Governments and Municipal Authorities opinions is significant compared to their observer status because of their representation of the local level. ICLEI and UCLG are also accredited civil society organisations to participate in the negotiations under the UNCCD.132 It is, however, not known in how far they participate.133 It is noteworthy that legitimacy issues arise for transnational city networks because of their informal nature. The degree to which they participate depends on the personnel resources and economic power of the participating cities, thus fostering important metropolitan areas’ dominance.134

4.2.3

National Legal Restrictions to Urban ‘Foreign Policy’

Conflicts regarding the state’s division of competence and foreign policy may occur as cities increasingly engage in cross-border activities.

127

WBGU (2016), p. 109. WBGU (2016), p. 109. 129 WBGU (2016), p. 112. 130 Current list of observer NGOs available under: http://unfccc.int/parties_and_observers/ngo/ items/9411.php (accessed 08 March 2018). 131 WBGU (2016), p. 112. 132 Current list of accredited Civil Society Organisations available under: https://knowledge.unccd. int/search?text¼&f%5B0%5D¼type%3Acso (accessed 19 June 2018). 133 At least ICLEI published a Briefing Sheet on land degradation and cities in 2017, ICLEI (2017). 134 WBGU (2016), p. 381. 128

24

S. Schlacke and U. Jürschik

For instance, cities committed themselves to cut emissions of CO2135 or ban gravestones produced by child labour in statutes of a German municipal cemetery.136 This behaviour promoting sustainable development has raised legal concerns, whether municipalities exceed their competences by implementing international law through local regulations. The specific legal issues vary from legal system to legal system. To give an example, Aust analysed possible fields of constitutional conflicts for German municipalities.137 Article 32 subs. 1 German Constitution (Grundgesetz) defines relations with foreign states as a matter of the federal government but does not consider transnational activities of municipalities without formal legal status.138 Article 28 subs. 2 sentence 1 German Constitution grants municipalities the right to self-administration. They have the right to autonomously address local matters in their communities within the framework of existing legislation whenever a matter is of local relevance. Cross-border issues have local relevance if they have a strict connection to the municipal territory or local responsibilities. The question therefore is whether global challenges, such as climate change and land degradation, do have local relevance. This competence to govern global challenges as local matters has to be determined on a case-by-case basis.139 Limitations to the municipalities’ competences are especially the principles of rule of law, the legal reservation for infringements of civil rights and article 32 German Constitution (obstructing national foreign policies).140

4.3

Perspectives for Enhancing Cities’ National and Transnational Impacts

Different suggestions have been made to strengthen the national and international position of cities.

135

In the United States of America 1000 mayors agreed to reduce greenhouse gas emissions to meet the Kyoto protocols target though the US Government didn’t sign the protocol; http://www.iclei. org/details/article/1000-us-mayors-commit-to-kyoto-targets.html. 136 BayVerfGH, decision 7.10.2011, Vf. 32-VI-10; WBGU (2016), p. 380. 137 Aust (2017), p. 63 ff. 138 Aust (2017), p. 70 ff. 139 Aust (2017), p. 120. 140 Aust (2017), p. 139.

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

4.3.1

25

WBGU: A Polycentric Responsibility Architecture for Sustainable City Development

The analyses above demonstrate that cities need to be active in dealing with local problems. Further, they should not be left alone with the mitigation of and adaptation to globally and locally caused environmental challenges, such as land degradation. Hence, the WBGU proposes a polycentric responsibility architecture,141 which is required for implementing good and sustainable urban governance structures. This implies recognizing cities in the constitution, granting them the right to selfgovernance and allowing cities to take responsibility for local affairs, to distribute decision-making powers according to the subsidiarity principle, to secure city funding, to strengthen institutional and personnel capacity, to establish effective planning structures (including cooperation between urban and rural areas), to consult cities in national decision-making processes and in international negotiations, to enable urban societies to participate in the transformation process and to draft charters for the urban transformation at local, national, regional and global levels.142

4.3.2

Cities’ Role in International Negotiations

Today, cities and city networks are part of the global civil society. The question whether cities themselves should be recognised as subjects of international law has been part of the debate about enhancing the transnational impact of cities. The difficulties that such recognition could pose are especially the hierarchy of the city and the national state.143 The complexity of international negotiations would further increase if not only 200 states but also countless cities could participate.144 Barber proposed a global parliament of mayors that would be a subject of international law.145 The complexity of such propositions is not to be underestimated. Cities are part of a hierarchical national system (Sect. 4.1), and conflicts could derive from international obligations directly caused by cities. The legitimacy of such a parliament is another critical issue: how to decide how many and which mayors would be part of the parliament? How would the rural population be represented?146 Cities mostly cannot formally have an influence on national legislation. What would be the reason to involve them formally in international legislation? The WBGU considers cities to be contributors to the implementation of international agreements. They should not be involved in global negotiations equally to

141

WBGU (2016), p. 17. WBGU (2016), pp. 18, 384. 143 WBGU (2016), p. 338. 144 WBGU (2016), p. 379. 145 Barber (2013). 146 WBGU (2016), p. 379. 142

26

S. Schlacke and U. Jürschik

states.147 Cross-border city cooperation should focus on exchange and mutual learning towards accelerated implementation. However, international negotiations should consider and reflect the needs of the implementation level.148 To promote effective implementation of international decisions and agreements, states must integrate local-level decisions and local laws into conventions of international law, such as the climate change regime or the UNCCD. The cities’ efforts in this regard should be encouraged and rewarded.149 Cross-border cooperation of cities should also be promoted legally and financially. City network organisations should be involved and should involve themselves as non-state stakeholders in all important international negotiations. Their engagement, especially in the UNCCD, could be valuable to inspire both states and cities. States need to acknowledge the meaning of urbanisation for sustainable development and land use to contribute to this global challenge, and cities need to develop ownership for pathways towards urban sustainability and global goals, such as land use neutrality. To use capacities more efficiently, activities of city networks could be coordinated by umbrella associations. The recognition of city networks in the international sphere could be enforced by a political voice in UN processes responsible for city development. Rights to participate in negotiations and monitoring processes could raise the international community’s awareness for local needs. The cities’ involvement in international climate change governance should have a pioneer character: the central city networks, ICLEI, UCLG and C40 bundled their activities in the Compact of Mayors, and alongside with the ‘Local Governments and Municipal Authorities’ group, they have a joint voice in the negotiations.150 Additionally, the financing of cross-border and networking activities by international funding mechanisms could improve the networks’ ability to act and, thus, strengthen the capabilities to implement provisions of international treaties.151

5 Conclusion It has been proven that cities are important factors for sustainable development and for sustainable land use. The importance of local implementation of international environmental goals and agreements is more and more reflected in international law and soft law. The importance of cities for sustainable development seems to be acknowledged within the SDGs, the climate change regime and UN-Habitat but underestimated within the UNCCD. However, the challenges of urbanisation are not

147

WBGU (2016), p. 380. WBGU (2016), p. 380. 149 WBGU (2016), p. 380. 150 Sect. 4.2.2. 151 WBGU (2016), p. 381. 148

Urbanisation and Urban Land Use: A Normative Compass for Sustainable. . .

27

tackled with ambition on the international stage. The connection between urbanisation and land-use challenges has not been established yet. Land degradation neutrality needs to become an important orientation for sustainable city development. As WBGU points out in its flagship report, rapid dynamics of urbanisation and different conditions and demands within cities need normative orientation and effective governance structures. WBGU proposes a normative compass for sustainable city development. Urban transformation needs to reflect and promote Eigenart. This compass does not only include international goals and agreements (sustain natural life-support systems and ensure inclusion) but also establishes Eigenart as an additional normative objective. Cities are unique and so may be their transformation pathways. Social diversity and cohesion are central for sustainable development. Effective governance structures may be established by the polycentric responsibility architecture as the WBGU suggested. To ‘unleash the transformative potential of cities’, they need to be capable of responsible action. One concrete instrument to implement the normative framework is transformative planning, which is crucial for sustainable urban land use. Today, it seems that a high degree of self-administration could liberate the potential of cities to tackle the great sustainability challenges. However, this thesis needs to be proven empirically. Cities gain in importance on the international level by participating in transboundary city networks, but they depend on national institutional and legal frameworks. City networks fulfil an important task towards better implementation of international goals and agreements in cities and recognition of the challenge of sustainable urbanisation on the international stage.

References Aust HP (2015) Shining cities on the hill? The global city, climate change and international law. EJIL 26(1):255–278 Aust HP (2017) Das Recht der globalen Stadt. Grenzüberschreitende Dimensionen kommunaler Selbstverwaltung. Mohr Siebeck, Tübingen Barber BR (2013) If mayors ruled the world: dysfunctional nations, rising cities. Yale University Press, New Haven and London Beyerlin U, Marauhn T (2011) International environmental law. Hart et al., Oxford Bodansky D, Brunnée J, Rajamani L (2017) International climate change law. Oxford University Press, Oxford Boer BW, Ginzky H, Heuser IL (2017) International soil protection law: history, concepts and latest developments. In: Ginzky H, Heuser IL, Qin T, Ruppel OC, Wegerdt P (eds) International yearbook of soil law and policy, vol 1. Springer, Cham, pp 49–72 Desai BH, Sidhu BK (2017) Striving for land-soil sustainability: some legal reflections. In: Ginzky H, Heuser IL, Qin T, Ruppel OC, Wegerdt P (eds) International yearbook of soil law and policy, vol 1. Springer, Cham, pp 37–45 Ehlers K (2017) Chances and challenges in using the sustainable development goals as a new instrument for global action against soil degradation. In: Ginzky H, Heuser IL, Qin T, Ruppel OC, Wegerdt P (eds) International yearbook of soil law and policy, vol 1. Springer, Cham, pp 73–84 Fernandes E (2007) Constructing the ‘right to the city’ in Brazil. Soc Leg Stud 16(2):201–219

28

S. Schlacke and U. Jürschik

Franzius C (2017) Das Paris-Abkommen zum Klimaschutz. Auf dem Weg zum transnationalen Klimaschutzrecht. ZUR 2017:515–525 Global Platform for the Right to the City (n.d.) What’s the right to the city? Inputs for the New Urban Agenda. Available via http://www.righttothecityplatform.org.br/download/publicacoes/ what-R2C_digital-1.pdf Lenk K (2017) Schlaglichter auf die Bedeutung der digitalen Transformation. In: Hartwig J, Kroneberg DW (eds) Die Bürgerkommune in der digitalen Transformation. LIT, Berlin, pp 27–42 Local Governments for Sustainability (ICLEI) (2017) Land degradation and cities: the essential role of local and regional governments. ICLEI Briefing Sheet (2017), No. 3 Nückel D (2017) Rechtlicher Charakter des Pariser Übereinkommens – hard law oder soft law? ZUR 2017:525–532 Porras IL (2009) The city and international law: in pursuit of sustainable development. Fordham Urb Law J 36:537–601 Sands P, Peel J (2018) Principles of international environmental law, 4th edn. Cambridge University Press, Cambridge Schlacke S, Kröger J (2013) Zur Unionsrechtskonformität des EEG bei zunehmender Rekommunalisierung der Elektrizitätswirtschaft. DVBl 2013(7):401–409 Schröder H, Bulkeley H (2009) Global cities and the governance of climate change: what is the role of law in cities. Fordham Urb Law J 36:313–359 The Global Mechanism of the UNCCD (2016) Achieving land degradation neutrality at the country level. Building blocks for LDN target setting. Available via https://www.unccd.int/sites/default/ files/documents/18102016_LDN%20country%20level_ENG.pdf UN Habitat (2017) Sustainable urbanization in the Paris Agreement. Comparative review of nationally determined contributions for urban content. UN Habitat, Nairobi UN Habitat (o.J.) Urban law. Leaflet. Available via http://www.uln.gltn.net/images/publications/ Urban_Law_Leaflet.pdf. Accessed 16 May 2018 Wissenschaftlicher Beirat der Bundesregierung globale Umweltveränderungen (WBGU) (2016) Humanity on the move: unlocking the transformative power of cities. Flagship report, Berlin, WBGU Wissenschaftlicher Beirat der Bundesregierung globale Umweltveränderungen (WBGU) (2017) New urban agenda: implementation demands concerted effort now. Statement, 27th February 2017. Available via http://www.wbgu.de/en/statements/2017-nua/. Accessed 16 May 2018 Wunder S, Kaphengst T, Frelih-Larsen A (2018) Implementing land degradation neutrality (SDG 15.3) at national level: general approach, indicator selection and experiences from Germany. In: Ginzky H, Dooley E, Heuser IL, Kasimbazi E, Markus T, Qin T (eds) International yearbook of soil law and policy 2017, vol 2. Springer, Cham, pp 191–222

Sustainable Cities in India: A Governance Challenge Bharat H. Desai, Balraj K. Sidhu, and Nitu Kumari

1 Introduction The world around us is moving at a faster pace in this widely believed age of Anthropocene and the growing urban transition.1 Over a period of time, the changes in the human society reflect attitudes wherein urbanization has come to be considered equivalent to so-called development. People can live good life in rural areas as well, but the concentration of economic activities and employment opportunities in urban areas, mostly in emerging economies of the developing countries, has been instrumental in driving the people from rural to urban areas. The modernization of city areas has become a means to flaunt development even though it does accrue adequate benefits to the masses. Ironically, well-equipped cities with high-rise buildings and glitzy shopping malls are considered signs of new development spree in developing countries. It has led to problems of iniquitous growth and heightened rich–poor divide in most of the cities. The search for employment, higher incomes and a better standard of living has pushed the population migration from rural to urban areas.2 The crowding of the cities has been facilitated by city-centric model of developmental patterns. Such has

1 2

McGranahan and Martine (2012), p. 2. O’Meara (1999), p. 5.

B. H. Desai (*) · N. Kumari Centre for International Legal Studies, SIS, Jawaharlal Nehru University, New Delhi, India e-mail: [email protected] B. K. Sidhu Indian Institute of Technology, Kharagpur, India e-mail: [email protected] © Springer Nature Switzerland AG 2019 H. Ginzky et al. (eds.), International Yearbook of Soil Law and Policy 2018, International Yearbook of Soil Law and Policy, https://doi.org/10.1007/978-3-030-00758-4_2

29

30

B. H. Desai et al.

been the passion of the populace, i.e. toward urbanization, that almost 50% of the world’s population now lives in cities. This is expected to reach 60% by 2030.3

2 City-Centric Development In fact, cities have started to matter for a number of reasons. They are an important source for revenue generation and compete with each other to attract investors.4 With all the facilities at the doorstep, cities are becoming a preferential hub for the working people. Urban areas also provide citizens with a comfortable life and the means to live a desired standard of life. The current development pattern suggests that by 2050, more than 6 billion people, i.e. approx. 70% of the population worldwide, will be living in cities.5 Urbanization has become the trend, and people in large numbers are shifting to cities because of their inherent benefits. Asia has witnessed this unprecedented and rapid change as half of the global population lives in this continent. The shift is largely propelled by the fast pace of industrialization and urbanization in the two Asian giants—China and India6—which now have fastest growing economies in the world. During the twentieth century, most of the developing countries have followed the developmental pattern of the Western countries. As a consequence, there is a serious crisis of governance, especially owing to unsustainable patterns of urbanization and industrialization. It is expected that in the next two decades, the pace of urbanization will be seen mostly in Africa and Asia. India with a population of more than 1.3 billion (where 181 million people were added in the last decade alone), 90 million people joined its urban ranks between 2001 and 2011. In fact, Indian cities are projected to be home to another 250 million people by 2030.7 Urbanization does present an opportunity for the country to transform its economy and join the ranks of richer countries in both prosperity and livability. This positive side can be undermined by the pressures of urban population growth on infrastructure, basic services, land, housing, and the environment. In the wake of a massive urbanization challenge, India launched its flagship mission on “smart cities”—cities that leverage the latest in technology and connectivity to make better decisions and achieve the urban aspirations of its residents. It is seeking to leverage its homegrown information technology (IT) industry to construct 100 smart cities, with a first-year budget of US $1.2 billion.8

3 Challenges and way forward in the urban sector Sustainable Development in the 21st century (SD21), p. xi. 4 Ibid, p. iii. 5 Ibid, p. xii. 6 Ibid, p. xiii. 7 World Bank (2013), p. 1. 8 http://www.smartcitiesprojects.com/union-cabinet-approved-100-smart-city-projects/.

Sustainable Cities in India: A Governance Challenge

31

3 What Is Urbanization? Urbanization is generally defined as a process whereby there is an increase in the number of cities and a rapid accumulation of people in the cities.9 It appears that sometimes urbanization is considered a by-product of development since cities are equipped with all the facilities of life. Cities concentrate human resources and become an engine for the countries’ economic growth. The growing influence of urban areas on the socioeconomic development is widely observed in many parts of the world. Notwithstanding this, urbanization has also contributed to social, economic, and environmental stress. The process of urbanization, however, is not a static phenomenon. It is a process that is continuously growing and needs to have room to manage the challenges.10 Urbanization in the present scenario does not mean existence of cities only. It needs to comprise efforts to make those cities sustainable. In India, unprecedented population growth and migration of people have contributed to unprecedented urban population. It further fuels growth of cities and their satellite towns. India’s national capital, Delhi (and New Delhi), is at the center of a huge urban conglomerate called National Capital Region (NCR) of India. More and more towns and cities are blooming with a change in the land use along the highways and in the immediate vicinity of the city commonly known as “urban sprawl.”11 Places situated on the edge of India’s cities like Sriperambudur near Chennai, Noida and Gurgaon near Delhi, and Raigarh near Mumbai have witnessed rapid growth. Because of lack of prior planning, these outgrowths are devoid of basic amenities like water, electricity, sanitation, etc. Provision of certain infrastructure facilities like new roads and highways fuel such sprawls, which ultimately results in inefficient and drastic change in land use, affecting the ecosystem. With regard to the four mega cities of India, namely Chennai, Delhi, Kolkata, and Mumbai, approximately 5 million, out of an approximate total of 19 million people, live in slums or spontaneous settlements.12 It does present a serious challenge of governance as it can trigger health hazards, pandemics, severe air pollution leading often to health emergencies, contamination of water, transportation woes, and lack of other basic infrastructural facilities. Thus, it has become necessary that development of cities is juxtaposed with protection of environment so as to make them livable and sustainable.

9

Dao (2002), p. 86. Davis (1955), p. 429. 11 Sudhira et al. (2003) at http://wgbis.ces.iisc.ernet.in/energy/paper/mapind/aecomn.htm. 12 Chaudhuri (2015), p. 88. 10

32

B. H. Desai et al.

4 Challenges of Urbanization The human quest to conquer nature through science and technology has brought us on to the present brink. The threats to our ecosystem essentially emanate from human activities in almost every sector. However, there are some major threats that merit our urgent attention and efforts to resolve them.13 Ecological upheavals, among others, are posing a serious challenge. The rising incidence and catastrophic consequences of these upheavals call for a concerted effort to identify, prevent, and, if possible, manage them. Most of the human activities directly responsible for causing disasters need to be properly regulated. We have now reached a critical stage wherein environmental imperatives must coexist with developmental needs. Any development that is not sustainable cannot stand for long. Most of the developing countries are bearing a brunt of the fallout of the Limits to Growth14 predicted by the Club of Rome in 1972. Therefore, both industrially developed countries and emerging economies need to come together to come up with a common approach to work for ecologically sound development.15 Some of the simmering threats in the era of growing urbanization can be summarized as follows.

4.1

Environment Destruction

In the course of the long process of human evolution, we have now reached a stage wherein our power to affect the present and future state of the earth is assuming significant proportions. The earth’s natural systems are fast deteriorating—forests are depleting, deserts are spreading, agricultural top soils are being washed away, ozone layer is swiftly thinning, greenhouse gases add to global temperatures, biodiversity is fast diminishing, air pollution is choking most of the urban areas, water pollution is poisoning our scarce drinking water supply, ill effect of increasing noise pollution has started taking its toll, and our fast growing cities have become unmanageable.16 The situation is aggravated by unsustainable pattern of development in “cities” fueled by unprecedented urbanization.

13

Desai (1992), p. 589. The Club of Rome set out in 1968 “to examine the complex of problems troubling men of all nations: poverty in the midst of plenty; degradation of the environment; loss of faith in institutions; uncontrolled urban spread; insecurity of employment; alienation of youth; rejection of traditional values; and inflation and other monetary and economic disruptions.” The Club of Rome described these seemingly divergent parts of the “world problematique,” as having three characteristics in common: (i) they occur to some degree in all societies; (ii) they contain technical, social, economic, and political elements; and, most important of all, (iii) they interact; see The Club of Rome’s report by Meadows et al. (1972), p. 10. 15 Desai (1990), p. 1071. 16 Desai (1992), p. 589. 14

Sustainable Cities in India: A Governance Challenge

33

It has been predicted since the 1972 Stockholm Conference that the earth is facing a serious crisis of survival.17 In the process of evolution, the human race has reached a stage when, armed with the prowess of science and technology, it has considerably transformed our living environment. It, in turn, is threatening our fragile essential ecological processes. Ironically, much of the development is based upon squandering of our “biological capital”—soil, forests, animals, plant species, water, and air. Even many of our economic, monetary, and trade policies in sectors such as energy, agriculture, forestry, and human settlements tend to induce and reinforce development patterns and practices that are nonsustainable.18 Ironically, some patterns of development have improved environmental conditions, while others have only tended to degrade them—sometimes irreversibly. It is rather revealing that in the post-Stockholm period, most of the developing countries have witnessed massive environmental deterioration in the wake of sudden industrialization, explosive urbanization, and population explosion. In fact, the capacity of a number of developing countries to manage their environment, especially in the cities, has come under severe stress, following the rapid and unevenly distributed population growth and inadequate socioeconomic development.19 We need to keep in mind that many of the critical issues of survival are related to uneven development, poverty, and rapid population growth. In turn, the uncontrolled development has placed unprecedented pressures on our lands, waters, forests, and other natural resources. The lack of development may degrade the quality of life more than the adverse environmental impacts of development. There is, however, now a growing realization in national governments and multilateral institutions that many forms of development erode the environmental resources upon which they must be based, and environmental degradation can undermine economic development. The issues stated above call for a pattern of development that is sustainable and require changes in current patterns of growth to make them less resource and energy intensive and more equitable. A stocktaking of our actions and behavior in the post-Stockholm era calls for the exercise of political will to save our planet.20 Sustainable development (SD) implies not only environment preservation but also the maintenance of social and economic stability in the face of global socioeconomic changes.21 The ideas of sustainable development require expanded priorities of urban management. Therefore, modern cities have aimed at financial wellbeing and effective land management, energy efficiency, careful attitude to water sources, reduced transport tension, slum upgrading, development of public spaces, etc.22 In this context, cities can be both means and end to achieve the three pillars of

17

Desai (1986), p. 27. Ibid. 19 Desai (2013b), p. 3. 20 Desai (1992), p. 595. 21 UN General Assembly Resolution 66/288, “Future we want”, 27 July 2012. 22 World Bank, “Sustainable Development” available at: http://www.worldbank.org/en/topic/ sustainabledevelopment/overview#3. 18

34

B. H. Desai et al.

SD—environmental, social, and economic. Some policy-making initiatives for urban centers include embracing low carbon growth and providing better public transportation, including23 metro rail, rapid transit systems, and seemless connectivity to the regional urban hubs. Since this process requires huge public investments, multilateral financial institutions such as the Asian Development Bank (ADB) and the World Bank have been providing the countries and their cities a way out and the support needed to maintain equilibrium between the two. The newly established Asian Infrastructure Investment Bank (AIIB) has been instrumental in pushing this investment in a big way as Asian countries now account for 60% of global growth even though 11% of the Asian population lives in poverty. It is expected that by 2030, Asia’s investment in infrastructure will rise to USD2 trillion a year.24 It has been providing support for improvement in energy efficiency in buildings and public transport, as well as carefully planned development based on low-carbon growth and social inclusion, including public services, among other areas, for sustainable urban development.25

4.2

Global Warming and Climate Change

It has now been scientifically proven that emission of greenhouse gases (GHG) has been resulting from industrial activities and activities within the transport sector into the atmosphere [(see Desai (2013a)]. Gases like carbon dioxide and chlorofluorocarbons (CFCs) are accumulating above the earth’s surface and form a shield that allows sunlight to penetrate but does not allow the heat to escape.26 As a result, there is a steady warming of the earth resulting in a big greenhouse, in which heat is encapsulated leading to rise in global temperatures. This is mainly caused by emissions of gases from automobiles and factories27 mostly located in cities. Cities are vulnerable to climate change because of extreme weather events that can be especially disruptive to complex urban systems.

23

Ibid. See Opening Address of AIIB President Jin Liqun at the Meeting of the Board of Governors, Mumbai, 26 June 2018; available at: https://www.aiib.org/en/news-events/news/2018/20180626_ 001.html. 25 See the World Bank initiative Global Partnership for Sustainable Cities (GPSC) at https://www. thegpsc.org/. Also see, Wang et al. (2018). 26 See, https://unfccc.int/process/transparency-and-reporting/greenhouse-gas-data/what-is-green house-gas-data. 27 Desai (1992), p. 590. 24

Sustainable Cities in India: A Governance Challenge

4.3

35

Land and Construction

Cities develop in a very small area. This is done by making multistoried buildings (skyscrapers) that can provide accommodation to a considerable number of people on a small tract of land. Many of emerging metropolis and even medium towns in India witness this phenomenon. But the necessities of the city dwellers consume bulk of the resources. According to an estimate, almost 78% of carbon emissions are accounted to city dwellers, and some 60% of consumable water is used by cities in one form or another.28 Uncontrolled construction, often termed as “concrete jungles,” causes enormous damage to the environment. For instance, the growing number of vehicles contributes to severe air pollution, unchecked sewerage causes water pollution and, energy needs cause depletion of resources. Existence of concrete pavements does not allow rainwater to reach the ground and hence blocks recharging of ground water and often results in uprooting of trees, especially during storms.29 Unplanned construction to accommodate the ever-growing population has been a matter of worry as it creates hazards, worsens already precarious situations in cities, and makes them inhabitable. The mushrooming growth in the construction of high-rise buildings in cities does pose problems of energy efficiency and lack of longevity.

4.4

Transportation

The quest for personal vehicles has become a status symbol of life in the urban areas. In the Soviet Union and Eastern Europe, for instance, the growing demand for automobiles led to triple rise in production in the seventies.30 This, in turn, exacerbated the level of air pollution in these cities.31 The era of cars seemed to promise a dazzling future that had speed, freedom, and convenience. But the consequences of overreliance on cars overshadowed the benefits.32 The problem of traffic congestion and air pollution has been choking the cities and haunting the life of urban dwellers.33 Even electric cars, which were introduced to lessen the effects of air pollution, have not solved the problem of traffic congestion. The race for automobiles was followed blindly in developing countries like India, which resulted in massive air pollution, traffic jams, congestion, as well as dangerous and inhospitable streets.34 It has, in turn, resulted in increased blood pressure, negative mood, distress, 28

O’Meara (1999), p. 7. Lowe (1991), p. 6. 30 See n. 29, p. 8. 31 Ibid, p. 9. 32 Ibid, p. 5. 33 Ibid, p. 5. 34 Ibid, p. 12. 29

36

B. H. Desai et al.

hypertension, and aggressive driving.35 Moreover, it also causes economic36 and environmental crises. Ironically, even if the automobiles become clean or fuel efficient, they still cannot solve the problem of traffic congestion and decreasing spaces in urban areas.37 Suburban model of development was considered ideal at one point of time where connectivity was assured by hassle-free transportation system connecting the suburban areas with inner cities. But the growing number of vehicles and the status consciousness of the people are causing enormous problems of traffic snarls, fuel wastage, loss of time, and other mobility-related problems.38

4.5

Air Pollution

Air pollution has emerged as one of the major causes of health hazards in cities across the globe. The dependency on coal to fulfill energy requirements is posing a grave threat to life in the form of persistent air pollution.39 Recently, the city of Delhi was compared to a “gas chamber” as air quality index plummeted to 448 in the scale of 500.40 It led to the Supreme Court mandated Graded Response Action Plan,41 and a notification under the Environment (Protection) Act, 1986, was issued to that effect on January 12, 2017.42 In such a scenario, it is said that breathing is equivalent to smoking 10 cigarettes a day.43 Existing air pollutants are also a major cause of acid rain, and they can erode the ancient buildings in the cities.44 Though the decay can also be due to structure dating to antiquity, pollution seems to expedite the process.45 The extreme form of air pollution—particulate matters—is even more dangerous. In fact, WHO has opined that nearly 92% of the world’s population lives in places where air quality levels exceed WHO limits.46 Reports by UNEP and WHO have

35

Ibid, p. 11. See n. 29, p. 5. 37 Ibid. 38 Ibid, p. 6. 39 French (1990), p. 6. 40 See the report entitled “In ‘Gas Chamber’ Delhi, Schools Shut, Parking Hiked To Cope With Smog”; available at: https://www.huffingtonpost.in/2017/11/07/in-gas-chamber-delhi-schoolsshut-parking-hiked-to-cope-with-smog_a_23269173/. 41 It has added a new category of “Severe+ or Emergency” to the existing categories under Air Quality Index (AQI) namely, Moderate & Poor, Very Poor, and Severe as per National Air Quality Index. See Graded Response Action Plan for Delhi & NCR; available at: http://cpcb.nic.in/uploads/ final_graded_table.pdf. 42 See the notification no. S.O. 118(E) of 12 January 2017 issued by Ministry of Environment, Forests and Climate Change; available at: http://cpcb.nic.in/uploads/GRAP_Notification.pdf. 43 Ibid, p. 5. 44 Ibid. 45 Ibid, p. 23. 46 WHO (2016). 36

Sustainable Cities in India: A Governance Challenge

37

found excessive levels of sulfur dioxide, nitrogen dioxide and lead in the air.47 The extensive use of gadgets and appliances in city areas, such as refrigerators, air conditions, coolants, and air-conditioned cars, which make life pleasant and luxurious in cities, has its own list of repercussions. They produce ozone, which causes long-term environmental and health damages.48

4.6

Water Crisis

Management and conservation of water are very important because if required steps are not taken on time, then things might get worse [for more details see, Gude (2017)] . For instance, in Cape Town, ceiling has been placed on the consumption of water because of water crisis as the government was ignoring the available data and even the warning of water crisis that was issued way back in 1990.49 Ironically, the government took action only in January 2018, where it identified 200 sites from which 25 liters a day cap has been put on 20,000 eligible residents. Cape Town is one of the more unequal cities that defy the concept of sustainability and providing dignity to the poor. We have now reached a stage where preserving clean air and water for our survival is most important. The processes of rampant industrialization and urbanization have taken a heavy toll of our precious air and water resources. Now the land is replete with huge dumps of garbage and other solid wastes. The poisoning of the air we breathe and the water we drink has a serious impact on our existence. The industrialized countries are already facing acute problems of smog, acid rain, and choking of the urban areas. The developing countries are also not far behind as it has been seen in many exploding cities of rapidly emerging economies. The lack of awareness among the people and lack of will on the part of the decision makers led to a sordid state when it is feared that if the current pace persists, people will be forced to move with gas masks in some of the megacities in the not-too-distant future. The question of making available clean and potable drinking water to the populace remains one of the basic concerns in most of the developing countries. Though some steps have been taken to control air and water pollution, yet the situation is worsening day by day. The lack of basic hygiene and availability of potable drinking water has brought with it health hazards and a host of other problems in the developing countries.50 Many of the Indian cities, including the capital, New Delhi, have been facing severe water shortages owing to exploding water demands from expanding cities.

47

See n. 58, pp. 12, 14 and 15. Ibid, p. 12. 49 Poplak (2018). 50 Desai (1992), p. 593. 48

38

4.7

B. H. Desai et al.

Energy

Energy in the form of electricity is one of the top requirements for city dwellers. The luxurious life of the dwellers will come to a halt if the energy requirements are not met. The generation and distribution of electricity in the era of growing urbanization has become one of the world’s largest businesses. But at the same time, it is also causing serious environmental problems.51 The generation of electricity requires fossil fuels, particularly coal, which accounts for one third of global emissions of carbon dioxide and two thirds of sulfur dioxide.52 As a result, the countries have become more conscious on the efforts to develop strategies for sustainable energy, especially in the post-Rio Earth Summit period.53

5 Governance Challenge The abovementioned problems are the result of the long-term neglect of warning signs, misplaced policies, and governance priorities of the governments. Hence, the solution lies collectively in the hands of all the governments. In fact, they need to make challenge of sustainable cities and process of urbanization as core governance priority so that providing a resilient and sustainable city becomes the core agenda. In an ominous sign, one of the biggest challenges has been now forecasted by the UN Department of Economic & Social Affairs (UN DESA). Its 2018 Revision of the World Urbanization Prospects indicates that “more people now live in urban areas than in rural areas, with 55% (as compared to 30% in 1950) of the world’s population residing in urban areas in 2018. . ., and by 2050, 68% of the world’s population is projected to be urban.”54 By 2030, the world is projected to have 43 megacities with more than 10 million inhabitants, most of them in developing regions. Moreover, India, China, and Nigeria are expected to lead other countries and account for 35% of the projected growth in urban population by 2050. In fact, with a current population of 29 million, Delhi is projected to continue growing and to become the most populous city in the world around 2028.55 The gravity of the situation also demands concerted global cooperation because the exploding population in the cities and urban areas, as well as choking of many cities and mess in governance, can be seen across continents. It does have a serious transboundary effect, including challenge of

51

Flavin and Lenssen (1994), p. 5. Ibid, p. 6. 53 Ibid. 54 United Nations, World Urbanization Prospects: The 2018 Revision; available at: https://esa.un. org/unpd/wup/Publications/Files/WUP2018-KeyFacts.pdf. Also see editorial: “Growing cities: on Urban Governance”, The Hindu (18 May 2018); available at: http://www.thehindu.com/opinion/ editorial/growing-cities/article23918410.ece?homepage¼true. 55 Ibid. 52

Sustainable Cities in India: A Governance Challenge

39

migration and border controls. No nation can stand secure or remain free from pollution in the growing era of globalization, galloping population growth, and exploding urbanization. In line with the vision to achieve the Sustainable Development Goals (SDGs) of safe, sustainable, and resilient cities (Goal 11), governments need to bring about drastic changes in policy and regulatory and governance mechanisms. The unsustainable patterns of development pursued since long has contributed in the deterioration of the conditions. Unsustainable cities become a storehouse of urban decay, misery, and health hazard for the burgeoning populace. In view of this, to make the cities sustainable, drastic measures are required in policy formulations, funding priorities, and governance structures. Governance challenges need to comprise provision of environmentally benign services that have the least carbon footprint so as to ensure sustainability.56 The abovementioned issues call for an action on the part of the governments across the globe, though the challenge may vary in degree, depending on the prevalent situations in the countries. Therefore, the menu of key governance challenges and the measures taken till date to make cities sustainable can be outlined as follows: (a) The ringing of the alarm bells toward ozone depletion propelled the move for a corrective action that resulted in the 1985 Vienna Convention for the Protection of the Ozone Layer. As a follow-up to it, the Montreal Protocol on Substances That Deplete the Ozone Layer (1987) provided for measures to protect human health and the environment against adverse effects from human activities that modify or likely to modify the ozone layer.57 Since the ozone’s depletion is still largely due to human activity, it poses vital questions regarding the activities of men—the profligate lifestyles in cities and industrialized countries and abject poverty in much of the developing world. In the aftermath of this, the Rio Conference (1992) witnessed the adoption of the UN Framework Convention on Climate Change (1992) to address global greenhouse gas (GHG) emissions. The climate change regime, subsequently, came to comprise the Kyoto Protocol (1997) and the Paris Agreement (2015). (b) With respect to depletion of biodiversity, the Convention on Biological Diversity (1992) came to be adopted at the Rio Earth Summit (2012). It seeks to address “the conservation of biological diversity; sustainable use of its components; and the fair and equitable sharing of benefits arising from genetic resources.” The implementation58 of this Convention not only would help biodiversity-rich areas but also have spillover benefits for cities and urban areas. It was followed by further instruments such as the Cartagena Protocol on Biosafety (2000), as well as the Nagoya Protocol on Access to Genetic Fiorino, “Sustainable cities and governance: what are the connections?”, Center for Environmental Policy, Working Paper 2, American University; available at: https://pdfs.semanticscholar.org/ 7bb7/9e828580a61a041b7ce6dbb36687682c9b75.pdf. 57 Ibid, p. 591. 58 On this issue, for a detailed analysis, see Desai et al. (2011), p. 39. 56

40

B. H. Desai et al.

Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization (2010). (c) The unsustainable pattern of construction has also caused much disaster. In order to be sustainable, the buildings need to generate more energy than they consume and to purify their own water.59 They consume 25–40% of the produced energy and are responsible for 30–40% of carbon emission and discharge the same amount of solid waste.60 At the same time, the increasing number of urban dwellers puts enormous pressure on land and compels the construction of new buildings apart from spaces for transportation, parking, and recreation. Thus, it seems that urbanization alone cannot remain a hallmark of development. There is simultaneous need for relooking into policies related to the development of rural areas as well so that the increasing pressure on cities can be reduced. It calls for sustainable construction to include modifications in design principles using low energy and zero emissions. Construction of buildings need to keep in mind factors that can reduce cost, i.e. use of natural cross-ventilation, storing solar heat, maximizing daylight, and similar other basic principles.61 (d) The growing number of private vehicles and the consequences in the form of dense air pollution have called for a revisit on the model of transportation. The congestion on the roads has called for building alternative modes of transportation, including mass rapid transit systems, to cater to large-scale movement of people within and beyond megacities. The transport systems need to be sustainable so that urban space can safely accommodate public transport, cyclists, and pedestrians, instead of being dominated by cars.62 Buses and trains carry more people than private vehicles.63 The deteriorating conditions of traffic and pollution led the Soviet Union and Europe to use effective and comprehensive public transport such as buses, tramways, metros, and suburban trains.64 Sustainable transportation also includes car pools and van pools, which can reduce congestion at roads.65 Another way to make cities sustainable is to make attempts to recapture the spaces occupied by private vehicles. In this direction, restriction of cars in the market and shopping area and prohibition of parking can make a drift toward effective public transportation.66 For instance, in Goteborg (Sweden), the city center is divided into five pie-shaped zones and is accessible by a ring road on the periphery. Private vehicles are not allowed to cross the zone boundaries,

59

See Challenges and way forward in the urban sector: Sustainable Development in the 21st century (SD21); available at: https://sustainabledevelopment.un.org/content/documents/chal lenges_and_way_forward_in_the_urban_sector_web.pdf. 60 See n. 29, p. 23. 61 Ibid, p. 24. 62 Ibid. 63 Ibid, p. 15. 64 Ibid. 65 Ibid, p. 13. 66 Ibid, pp. 24 and 26.

Sustainable Cities in India: A Governance Challenge

41

but public transport, emergency vehicles, bicycles, and mopeds are. Similar attempts were made in the Connaught Place area in New Delhi, India, whereby a three-month “No Go Car Zone” was decided to be implemented on an experimental basis to reduce traffic congestion and air pollution.67 Restricted parking, on the other hand, compels people to seek public transportation. For instance, Geneva prohibits car parking at workplaces in the central city. It motivates commuters to use the city’s excellent public transport system.68 However, it appears that every effort made to increase reliance on public transport will become futile if the transportation system is not improved accordingly. The situation of public transportation in most of the developing countries is dismal as buses and trains are overcrowded. In general, people are reluctant to opt for public transport and instead choose cabs and hire vehicles. Therefore, it requires innovative method of public private partnership to increase the means of conveyance. Apart from public buses, private buses can also be run on the roads and duly regulated by the government. Such has been the scarcity of space in Japan that it has to open a floating lot for parking in the local bay.69 Automobile parking, according to Newman and Kenworthy, is almost a litmus test of a city’s craziness toward cars. They found that most spaces, apart from vehicles, were occupied by parking spaces, and there were more than 500 parking spaces per 1000 jobs.70 (e) The overdependency on personal vehicles can be mitigated and the effective utilization of urban spaces can be done through zoning. Jobs, homes, and services need to be consolidated and created near public transport so that accessibility is hassle free.71 Toronto, for instance, has used zoning and incentives for developers to concentrate projects in certain areas and near subway stops.72 It shows that dependency on private automobiles can be lessened by combining public transport expansion with planned land use to create higher densities and shorter travel distance.73 Similarly, Singapore implemented a low-income housing program to place jobs and homes within short distances to relieve cities of traffic congestion without investing much on public transportation system.74 Taking a reference from all the efforts worldwide to decrease reliance on transportation and traffic congestion, Pakistan initiated a program called “Metroville,” which enables working people to build their own homes within walking distance of their place of work.75 Thus, it seems that exploring

67

Express News Service (2017). See n. 29, p. 24. 69 Ibid, p. 7. 70 Ibid, p. 39. 71 Ibid, p. 6. 72 See n. 43, p. 30. 73 Ibid, p. 31. 74 Ibid, p. 32. 75 Ibid, p. 33. 68

42

B. H. Desai et al.

sustainable alternatives is the only solution to provide cities with clean, efficient, and reliable transportation. (f) The gravity of the issue of air pollution forced governments to make efforts to restore air quality in cities. For instance, the United States passed the Clean Air legislation (1970) to restore urban air quality.76 Similarly, a pressure group named “Coal Smoke Abatement Society” was founded in London to combat the expansion of soot, which led to the death of thousands of people in London. Such has been the appearance of soot in London that it was named “black fog.”77 In view of persistent and heavy fog conditions in Delhi, the Supreme Court of India forced government agencies to prepare Graded Response Action Plan whenever “health emergency” is declared because of severe air pollution.78 Despite the efforts made, the success rate has been marginal as it requires drastic reforms in the energy, transportation, and industrial sectors.79 As seen in several metropolitan cities in India, China, the Philippines, Mexico, and Brazil, the smoke and pollutants from industries and vehicles are contaminating water, land, and air, as well as make life miserable. Efforts have been made to install desulfurization devices, electrostatic precipitators, and filters to control the emission of pollutants.80 These, however, have their limits. For instance, the scrubber that comes out of desulfurization is a hazardous waste, which also needs proper disposal.81 The means to combat air pollution, which has risen because of the unsustainable pattern of living in the cities, needs to be addressed holistically. It will require modifications in transportations and the means to produce energy and a change in attitude toward lifestyle. As mentioned, the situation is getting worse in many of the developing countries as people are craving more for urban living and are therefore getting exposed to polluted cities.82 The extent of pollution now is not confined to urban areas alone but has its extended outreach to suburban and rural areas as well.83 (g) The overutilization of resources in cities is also one of the prominent reasons of environment degradation. The squandering of water resources and poor management of wastes are adding to the misery.84 There are ways in which things

76

Ibid, p. 7. Ibid. 78 See Emergency plan in force as air quality dips to ‘severe’, The Hindu, 08 November 2017; available at: http://www.thehindu.com/news/cities/Delhi/emergency-plan-in-force-as-air-qualitydips-to-severe/article20000675.ece. 79 Ibid. 80 Ibid, pp. 24 and 25. 81 Ibid, p. 26. 82 Ibid, p. 9. 83 Ibid, p. 6. 84 See n. 19, p. 8. 77

Sustainable Cities in India: A Governance Challenge

43

need to be addressed effectively. For instance, there is a need to recycle used water.85 On June 28, 2017, India signed an MoU with Israel on National Campaign for Water Conservation in India. The key objective of the MoU is to promote the reuse, recharge, and recycle of water.86 To minimize the cost of recycling, it is also necessary that household water and industrial water should be segregated.87 Garbage needs to be managed at first hand so that it does not mix up with water and make the cleanup costly. (h) It is also a major challenge to provide reliable and sustainable energy supply to city dwellers. As already seen, the traditional means of energy based on fossil fuel are causing enormous pollution. Hence, the challenge lies in providing for alternate means of energy generation. The other forms of generation of electricity such as gas turbines, wind turbines, fuel cells, and solar generators are both economically and environmentally viable.88 Geothermal energy, wind energy, and solar energy produce limited air pollution and are capable of producing most of the world’s electricity needs, if not all.89 Though electricity is considered as a symbol of development and modernity, it is costlier than other forms of energy.90 For some time, governments have switched to the use of nuclear energy to reduce carbon emissions from fossil fuels, but the accidents at Three Mile Islands and Chernobyl made the effort futile because of public backlash.91 Considering the environmental pollution caused by burning of fossil fuels, the governments took some initiatives to tackle the issue. As a result, strict pollution laws were passed, and industries were asked to install desulfurization units to remove sulfur dioxide, which causes acid rain.92 Some of the hydroelectric projects have also been halted because of public outrage concerning inundation of land,93 which is a common consequence of rapid urbanization. This unsustainable and unequal pattern of development widens the gap between the rich and the poor. Notwithstanding above, in an epoch-making event, India and France took an initiative to launch an International Solar Alliance (ISA)94. It heralded a giant step in

85

Ibid. Press Information Bureau, Government of India, “Cabinet approves MoU between India and Israel on National Campaign for Water Conservation in India”; available at: http://pib.nic.in/ newsite/PrintRelease.aspx?relid¼166960. 87 See n. 71. 88 See n. 77, p. 7. 89 Ibid, p. 24. 90 Ibid, p. 10. 91 Ibid, p. 12. 92 Ibid, p. 13. 93 Ibid, p. 13. 94 The Framework Agreement on the establishment of the International Solar Alliance (Marrakesh, 15 November 2016). It entered into force on 6 December 2017 and registered with the UN vide no. 54949 on 06 February 2018. For the Framework Agreement see: https://treaties.un.org/doc/ 86

44

B. H. Desai et al.

human evolution to launch a global effort to tap the unlimited reservoir of solar energy and “draw on the beneficence of the sun.” A foundation stone was laid for the headquarters of ISA in Gurugram (near New Delhi) on January 25, 2016. It was the 2015 Paris Declaration, which sought to provide, through ISA, a “common platform for cooperation among solar resource rich (121) countries lying fully or partially between the Tropics of Cancer and Capricorn.” ISA has projected the mobilization of more than $1000 billion worth of investments needed by 2030 for the “massive deployment of affordable solar energy.”95 It was a significant development when the Delhi Solar Agenda, which was unveiled on the ISA Founding Conference on March 11, 2018, decided to “Recognise the New Urban Agenda’s commitment to promoting environmental sustainability through promoting clean energy.”96

6 Smart Cities in India Urbanization in India is not the result of post-independence factors such as liberalization, privatization, globalization (LPG), or mixed economy. There were urban centers in the early historical period as well that facilitated administrative works such as trade and revenue collection.97 Mahatma Gandhi was a steadfast supporter of selfsufficiency of villages, which has guided the Indian economy for long;98 however, things started changing with the rise in population and lack of opportunities in villages. The focus in rural areas remained on agriculture alone, and this could no longer sustain the growing population.99 The rapid urbanization across the world started influencing nations of developing countries as well, which too started catering for smart and sustainable cities.100 The experience of India with growing urbanization demanded better management of populations and unlocking of economic potential.101

Publication/UNTS/No%20Volume/54949/Part/I-54949-08000002804ed824.pdf; See Certificate of Registration on 29 March 2018; available at: https://treaties.un.org/doc/Treaties/2018/02/ 20180209%2003-13%20PM/Other%20Documents/COR-Reg-54949-Sr-68303.pdf. 95 Desai (2016), p. 11. 96 The Founding Conference on 11 March 2018 witnessed quick ratification of the ISA instrument by 32 countries as well as signature by other 30 countries; see Delhi Solar Agenda at: http://www. mea.gov.in/bilateral-documents.htm?dtl/29605. 97 History of Urbanization; available at: http://shodhganga.inflibnet.ac.in/bitstream/10603/30862/9/ 09_chapter%203.pdf. 98 M.K. Gandhi, Indian Home Rule or Hind Swaraj; available at: https://www.jmu.edu/ gandhicenter/wm_library/gandhiana-hindswaraj.pdf. 99 Vakil and Roy (1965), p. 326. 100 UNIDO, “Sustainable Cities Hubs of Innovation, Jobs, Industrialization, and Climate Action”, p. 3. 101 Ravi et al. (2016), p. 4.

Sustainable Cities in India: A Governance Challenge

45

As aforementioned, India has undergone rapid urbanization, witnessing a surge in cities.102 To cater to the issues developed by this phenomenon, the governing authorities have taken up initiatives over the years in the form of programs that have mainly focused on providing basic infrastructure services and utilities to the cities, but they have not paid much attention to achieving sustainability in their approach. In 2015, the government launched “Smart Cities Mission” (SCM) with a view to driving economic growth and improving the quality of life of people by enabling local development and harnessing technology as a means to obtaining smart outcomes for citizens.103 The objective is to promote cities that provide core infrastructure and give a decent quality of life to its citizens, as well as a clean and sustainable environment, and allow the application of smart solutions. The focus is on sustainable and inclusive development, and the idea is to look at compact areas and create a replicable model that will act like a lighthouse to other aspiring cities. The SCM is meant to set examples that can be replicated both within and outside the smart city, catalyzing the creation of similar smart cities in various regions and parts of the country.104 The guiding document on the smart cities defines a smart city in general as a place that can fulfill the aspirations and needs of the dwellers such as good infrastructure,105 services, and clean and sustainable environment.106 Nonetheless, the multipronged strategy—pan-city initiative—in which at least one smart solution is applied citywide. It comprises: develop areas step-by-step—three models of area-based developments (i) retrofitting; (ii) redevelopment and (iii) greenfield.107 To make cities sustainable, several programs were launched, which included Swachh Bharat 102

Census of India classifies urban centers into six classes. Urban center with population of more than one lakh is called a city and less than one lakh is called a town. Cities accommodating population between 1 and 5 million are called metropolitan cities and more than five million are mega cities. The urban population by size classification is based on the following: Class I II III IV V VI

103

¼ ¼ ¼ ¼ ¼ ¼ ¼

Population Greater than 100,000 50,000–100,000 20,000–50,000 10,000–20,000 5000–10,000 Less than 5000

See, http://smartcities.gov.in/content/innerpage/strategy.php. Ibid. 105 The list of core infrastructure elements is stated in para 2.4 of the document “Smart Cities Mission Statement & Guidelines”; available at: http://smartcities.gov.in/upload/uploadfiles/files/ SmartCityGuidelines(1).pdf. 106 Ministry of Urban Development, Government of India (2015), “Smart Cities Mission Statement & Guidelines”; available at: http://smartcities.gov.in/upload/uploadfiles/files/SmartCityGuidelines (1).pdf. 107 For details see, http://smartcities.gov.in/content/innerpage/strategy.php. 104

46

B. H. Desai et al.

Abhiyaan (Clean India Mission), 100 Smart Cities Mission, Atal Mission for Rejuvenation and Urban Transformation (AMRUT), the Sustainable Cities Integrated Approach Pilot (SC-IAP) project, etc.108 Initially, the growth in urbanization was witnessed not because of the addition of new towns but because of the enlargement of existing towns.109 With the launch of the smart city mission, the target was to increase the number of smart cities. The mission aims to upgrade 100 cities to smart cities.110 As per the report cited by the Press Trust of India, 99 smart cities have been selected through four rounds of competition,111 and Shillong became the 100th city after qualifying for the same.112 Apart from all the achievements attained in reaching the targeted number of smart cities, the key question remains the same: are the cities that are considered smart sustainable as well? The center of urbanization was focused on some specified corridors such as the Delhi-Mumbai Industrial Corridor (DMIC) and the ChennaiBanglore Industrial Corridor (CBIC), and this polarized urbanization in the country.113 Uneven urbanization has caused income disparities as well. The vision of creating livable cities is being negated by personal car ownership trend.114 Despite of the developments made, the rate of urban poverty in the country is quite manifest.115 The acquisition of land for smart cities without consideration for agriculture necessities is yet another issue of concern.116 The blind urbanization is causing more problems than prosperity. The unplanned urbanization, especially in cities like Delhi and Haryana, among others, have also caused indiscriminate encroachment upon natural resources.117 At the same time, the policy makers in India need to keep the diverse conditions of the country in mind while framing plans for smart cities. Most of the time, it appears that the urbanization model is based on the European model of urbanization, which serves no good. One of the glaring examples was the Lavasa project, which was a private initiative for smart cities and which later turned out to be termed “Highway to hell.”118 The same approach is applicable while selecting cities by government authorities as well.119

108

See n. 3, p. 13. Mohan and Dasgupta (2004), p. 2. 110 See n. 5, p. 6. 111 The criterion for qualification has been given in detail in ‘Smart Cities Mission Statement and Guidelines’, available at Ministry of Urban Development, Government of India Portal, http:// smartcities.gov.in/upload/uploadfiles/files/SmartCityGuidelines(1).pdf. 112 India Today (2018). 113 Roy (2016), p. 33. 114 Ibid, p. 33. 115 Ibid, p. 39. 116 Ibid, p. 40. 117 IpsitaPati (2017). 118 Miklian et al. (2014), p. 13. 119 See n. 14, p. 43. 109

Sustainable Cities in India: A Governance Challenge

47

But rather than focusing on a well-planned model to proceed with urbanization, the urbanization pattern has been haphazard. Urbanization got confined to mushrooming buildings and commercial structures.120 And it still continues to exist despite of the consequences. Recently, the National Green Tribunal had to ban construction in Gurugram owing to increased pollution in the Delhi NCR region.121 Problems such as social exclusion, food insecurity, mismanagement of solid waste, water crisis, etc. still haunt the urban dwellers.122 What needs to be done hence is to cope with issues of environmental degradation and urban poverty while going with the flow of rapid urbanization. Smart cities will serve no purpose if the basic amenities of life such as clean and healthy water, food, and air are not provided to the city dwellers.123

7 Is Urbanization a Necessity? The uncontrolled migration of people within countries, as well as across countries, has given rise to limited resources, congestion, and conflicts. In view of this, the Director General of the International Labor Organization (ILO) has recently sought to emphasize on the need to refocus on the rural economy and the rural sector.124 Cities have become the place where every service is now made available at the doorstep. However, one also needs to understand why only cities have been made capable of that potential and why villages that were considered self-sufficient in the past have been left out.125 In fact, uncontrolled and unplanned urban settlements are causing immense environmental damage not only at the center of settlement but also at the periphery. The drive for urbanization has led to the pollution of water, air and land, as well as increased noise and immense health hazards for the populace.126 Most of the pollutants that have transboundary character do create a trail of harmful effects in neighboring countries. Thus, processes of urbanization and industrialization that are largely centered on cities and urban conglomerates have woven a vicious cycle of developmental disorder that, in turn, poses the biggest challenge to sustainable development of cities. 120

Aizaz (2016). Jha (2017). 122 See n. 21, pp. 10–12. 123 Shaw (2018). 124 “Interview with ILO Director-General: India’s success vital for End of Poverty Initiative to succeed”, Indian Express, New Delhi, 12 July 2016. 125 This was exactly the case in India prior to British colonization that villages in India were selfsufficient. It was underscored by Mahatma Gandhi in his seminal book “Hind Swaraj” written in 1908 during his voyage from the UK to South Africa; available at: https://www.mkgandhi.org/ebks/ hind_swaraj.pdf. 126 See note 3, p. 6. 121

48

B. H. Desai et al.

The uncontrolled and unplanned pattern of urbanization has put enormous pressure on already scarce resources. The environment is profoundly affected by the way cities use land and other resources. The sprawling cities draw resources from the surrounding region to meet their needs.127 For instance, the essentials of the food and beverages industry, such as milk, grain, and vegetables, are met by productions from nearby localities, mostly villages, which, however, are left undeveloped. It has created a piquant situation wherein cities end up draining precious resources from already impoverished villages. It is pertinent to think that the source on which the existence of cities depends have not benefitted from the profit they accrue after selling the eatables. It is due to discriminatory and unplanned system of development that people are forced to migrate from villages to cities in search of an alternate source of livelihood.128 Hence, in order to make cities more viable, changes will need to be made in many areas (such as water, waste, food, energy, transportation, and land use)129 that hold the key to sustainability and well-being of the people. Thus, it seems that the real governance challenge lies in defining the concept of a sustainable city, taking a fresh look at urban governance and development of projects, and, in turn, carving out workable and effective structures to deliver sustainable outcome.130

8 International Instruments at Work Good governance and sound management of urban planning processes, as well as financing, remain keys to achieving sustainability of cities. It requires efforts to be made at both national and international levels. At the international level, the UN is making concerted efforts, through the UN-Habitat, to achieve the goal of safe, sustainable, and resilient cities. Several institutions such as the Global Environment Facility (GEF), the World Bank and other multilateral development banks, the United Nations, and other organizations are working at different levels to achieve the goals of sustainable cities. In line with this vision, the Global Platform for Sustainable Cities (GPSC)131 was launched in March 2016. It has been supported by GEF and led by the World Bank [see World Bank (2017)]. GPSC assists cities in various ways, such as providing knowledge and expertise on sustainable urban development and financing such vision. GPSC has created an Urban Sustainability Framework (USF) that provides a practical guide to achieving sustainability of cities. It offers a road map in a four-stage approach that can help achieve sustainability. This includes

127

Lowe (1991), p. 6. Ibid. 129 See n. 19, p. 7. 130 Monzon (2015). 131 World Bank (2018). 128

Sustainable Cities in India: A Governance Challenge

49

(i) diagnosis, (ii) vision and priorities for action, (iii) financing the plan, and (iv) a monitoring framework. The growing concern for sustainable cities at the global level has accelerated the process of international cooperation. The need to create resilient and sustainable cities was not on the global agenda almost until 2015. It was not on the list of the Millennium Development Goals (2000–2015). Hence the agenda came to be specifically placed in 17 Sustainable Development Goals (2015–2030) when the world was getting increasingly urban and the leaders of the world started realizing that cities can play an important role in achieving SDGs apart from being a goal itself.132 The whole concept of sustainable development rests on the three pillars of economic development, social development, and environment protection. In fact, cities are capable enough to strengthen these three pillars. Today, the cities alone generate 80% of the global GDP.133 Though there is an element of social exclusion in the cities, it is more on grounds of status and the amount of wealth that one owns. City dwellers rarely have time to discriminate on grounds such as color, creed, gender, or nationality. To overcome the problem of social discrimination, responsibility lies in the nation-states to lessen the gap of income so that the goal of social development can be achieved. Cities have also been instrumental in bringing to light environmental concerns at the global level. For instance, the growing pollution in the cities across the board compelled the nationstates to adopt the 2015 Paris Climate Agreement to limit global warming, which is largely propelled by greenhouse gases.134 Unsustainable cities have created enormous problems such as large-scale consumption of energy (70%) and an equal percent of carbon emissions. They generate enormous wealth and hence widen the inequality gap and also create situations of extreme poverty, unemployment, environment degradation, etc. These challenges, however, can be solved in cities only.135 Cities can be instrumental in generating capital, as well as in motivating nation-states to assemble and solve these problems through national and international cooperation. The report of the High-Level Panel of Eminent Persons for the post 2015 Development Agenda in this context observed that “cities are the place where the battle for sustainable development will be won or lost.”136 Efforts in this direction have already been initiated. For instance, Copenhagen has given considerable attention and secured investments to make itself a first carbon neutral city.137 As of May 2017, urban national policies were developed by 149 countries.138

132

Sustainable Development Solution Network (2016). Ibid, p. 11. 134 Ibid, p. 10. 135 Ibid, p. 11. 136 Ibid, p. 12. 137 See n. 104, p. 12. 138 Sustainable Development Knowledge Platform, “Target and Indicators for Sustainable Development Goal 11”; available at: https://sustainabledevelopment.un.org/sdg11. 133

50

B. H. Desai et al.

The concern for sustainable development has been rising on the agenda of nationstates and international organizations as well. The first of such step was taken by the United Nations General Assembly in the year 1974, when the United Nations Habitat and Human Settlements Foundation were established by Res. 3327 (XXIX) to address the challenges of urbanization.139 At that time, world did not realize the pace of urbanization. In the year 1976, the United Nations convened the first International Conference in Vancouver (Canada) to recognize the challenges of urbanization. It was called Habitat I.140 Later in the year 1996, the United Nations held a second conference, Habitat II, in Istanbul (Turkey) to assess two decades of progress since Habitat I. The outcome was in the form of over 100 commitments and 600 recommendations and was incorporated under the Habitat Agenda. On January 1, 2002, the General Assembly, through Resolution A/56/206, strengthened the mandate of Habitat and elevated its status to a fully fledged UN program. It gave birth to the United Nations Human Settlements Programme (UN-Habitat).141 After the adoption of SDGs in 2015, the third United Nations Conference on Housing and Sustainable Urban Development was held in October 2016. It took place at a time when 70% of the world population was residing in urban areas.142 The conference came out with a robust and action-oriented New Urban Agenda. It sets global standards to achieve the sustainable development goal of safe and resilient cities.143 Now we are gradually entering into an era wherein measurement criteria (rate of success) for sustainability of cities has become the need of the hour. It helps in providing the feedback that can enable adopting of better and improved plans for sustainability. One such instrument, which exists at the international level, is UN-Habitat’s City Prosperity Initiative (CPI). It is a global initiative that enables city authorities, as well as local and national stakeholders, to identify opportunities and potential areas of intervention for their cities to become more prosperous. Its composite index, made of six dimensions, serves to define targets and goals that can support the formulation of evidence-based policies, including the definition of city visions and long-term plans that are both ambitious and measurable.144 One such tool available at the country level is Janaagraha’s Annual Survey of India’s CitySystems (ASICS) 2017, which reveals improvement in city systems.145 Lastly, participation of the people is a sine qua non to make the cities sustainable. It could ensure active involvement of the people in maintaining physical

139

UN General Assembly resolution A/RES/29/3327 (1974). UN HABITAT: For a better Urban Future, “History, mandate & role in the UN system”; available at: https://unhabitat.org/history-mandate-role-in-the-un-system/. 141 Ibid. 142 See n. 104, p. 19. 143 UN HABITAT: For a better Urban Future, “UN HABITAT at a glance”; available at: https:// unhabitat.org/un-habitat-at-a-glance/. 144 UN HABITAT, “City Prosperity Initiative”; available at: https://unhabitat.org/urban-initiatives/ initiatives-programmes/city-prosperity-initiative/. 145 Janaagraha Centre for Citizenship and Democracy (March 2018). 140

Sustainable Cities in India: A Governance Challenge

51

involvement and also repose confidence in policies being worked out for the sustainability of the cities. This will help in the proper and effective implementation of targeted project goals.146

9 Conclusion Sustainable cities have now become a necessity even as we enter the era of “smart cities.” Governments all over the world are catering to the ambition of smart cities now. India has recently announced its mission to develop 100 smart cities, which will be cities based on a model that can cope with the challenges of urban living and also be magnets for investment.147 For others, the challenge lies in coping with the demands of sustainability. Chicago, for instance, has come up with a smart street lighting system where LED lights will be installed to reduce energy costs, carbon emissions, and maintenance costs.148 Thus, it seems that smart cities will lead the way in the coming years and also become synonymous with sustainable cities. The challenge of governance for sustainable cities also posits an opportunity to attain ambitious Sustainable Development Goals (SDGs) 2030 for providing more humane conditions for the population amidst a rapidly growing trend of urbanization in the twenty-first century. As a corollary, sustainability of cities will depend upon successful management of growth in urban areas in general and cities in particular. It will need to comprise all three facets of sustainable development, i.e. economic, social, and environmental. It is significant that sustainability has become a metaphor for the cities to become livable within their carrying capacity that is duly driven by best scientific and technological prowess available today. Hence, the challenge of governance lies in grappling with all the inclusive, equitable, and robust management of our cities of the future. In this context, the UN DESA’s 2018 Revision of the World Urbanization Prospects has come as a timely and handy notice to equip a country such as India to face the challenge squarely and in time for her teeming millions. The 2018 UN DESA forecast provides a framework for managing and putting in place appropriate and effective governance mechanisms for sustainable and healthier cities. One only hopes that wiser counsels will prevail on the part of the United Nations system, multilateral funding agencies, governmental agencies, and citizens to ensure sustainability of the cities and urban spaces where the bulk of the global population is expected to reside in this century.

146

Mahdavinejada (2011), p. 407. Puri (2014). 148 Woods (2018). 147

52

B. H. Desai et al.

References Aizaz R (2016) Challenge of making smart cities in India. Asie.Visions, No. 87, Ifri. Available at: https://www.ifri.org/sites/default/files/atoms/files/av87_smart_cities_india_aijaz_0.pdf Challenges and way forward in the urban sector Sustainable Development in the 21st century (SD21). Available at: https://sustainabledevelopment.un.org/content/documents/challenges_ and_way_forward_in_the_urban_sector_web.pdf Chaudhuri S (2015) Urban poor, economic opportunities and sustainable development through traditional knowledge and practices. Glob Bioethics 26(2) Dao M (2002) An analysis of growth of urbanization in developing economies. J Dev Areas 36 (1):81–91. Available at: http://www.jstor.org/stable/4192903 Davis K (1955) The origin and growth of urbanization in the world. Am J Sociol 60(5):429–437. Available at: http://www.jstor.org/stable/2772530 Delhi Solar Agenda. Available at: http://www.mea.gov.in/bilateral-documents.htm?dtl/29605 Desai BH (1986) Destroying the global environment. Int Perspect:27–29 Desai BH (1990) Managing ecological upheavals: a third world perspective. Soc Sci Med 30(10) Desai BH (1992) Threats to the world eco-system: a role for the social scientists. Soc Sci Med 35(4) Desai BH (2013a) Greenhouse gas mitigation. Environ Pol Law 43(4–5) Desai BH (May 2013b) Environment & development: making sense of predicament of the developing countries. World Focus 1–8 Desai BH (2016) Seizing India’s moment in the sun. The Tribune, 03 March 2016, p 11. Available at: http://www.tribuneindia.com/news/comment/seizing-india-s-moment-in-the-sun/203786. html Desai BH et al (2011) Implementation of Convention on Biological Diversity: a retrospective analysis in the Hindu Kush-Himalayan Counties. ICIMOD, Kathmandu Editorial: “Growing cities: on Urban Governance”. The Hindu (18 May 2018). Available at: http:// www.thehindu.com/opinion/editorial/growing-cities/article23918410.ece?homepage¼true Emergency plan in force as air quality dips to ‘severe’. The Hindu, 08 November 2017. Available at: http://www.thehindu.com/news/cities/Delhi/emergency-plan-in-force-as-air-quality-dips-tosevere/article20000675.ece Express News Service (2017) No vehicles inside Connaught Place for three months starting February. Available at: http://indianexpress.com/article/cities/delhi/no-vehicles-inside-con naught-place-for-three-months-starting-february-traffic-4461120/ Fiorino DJ. Sustainable cities and governance: what are the connections? Center for Environmental Policy, Working Paper 2, American University. Available at: https://pdfs.semanticscholar.org/ 7bb7/9e828580a61a041b7ce6dbb36687682c9b75.pdf Flavin C, Lenssen N (June 1994) Powering the future: blueprint for a sustainable electricity industry. World Watch Paper 119 French HF (1990) Cleaning the air: a global agenda. World Watch Report 84 Gandhi M (1908) Hind Swaraj. Available at: https://www.mkgandhi.org/ebks/hind_swaraj.pdf Gude VG (2017) Desalination and water reuse to address global water scarcity. Rev Environ Sci Biotechnol (16):591–609. Available at: https://link.springer.com/content/pdf/10.1007/s11157017-9449-7.pdf India Today (2018) 100th and final slot of ‘Smart City’ goes to Shillong. Available at: https://www. indiatoday.in/education-today/gk-current-affairs/story/shillong-100th-smart-city-awards1269110-2018-06-25 Indira Gandhi’s Speech at the Stockholm Conference in 1972. Available at: http:// lasulawsenvironmental.blogspot.in/2012/07/indira-gandhis-speech-at-stockholm.html IpsitaPati (2017) Saving Aravallis: desert inches towards Delhi, Gurgaon as urbanisation hits buffer zone. Hindustan Times. Available at: https://www.hindustantimes.com/gurugram/savingaravallis-desert-inches-towards-delhi-gurugram-as-urbanisation-hits-buffer-zone/story7Pb9ZdSmV1u7qv7YnS56HI.html

Sustainable Cities in India: A Governance Challenge

53

Janaagraha Centre for Citizenship and Democracy (March 2018) 5th edition of Janaagraha’s Annual Survey of India’s City-Systems (ASICS) 2017 reveals improvement in City-Systems but at a very slow pace. PRESS RELEASE 14 March 2018, New Delhi. Available at: http:// janaagraha.org/asics/report/press/ASICS-2017-Press-Release-Jaipur.pdf Jha B (2017) NGT construction ban: DTCP issues notices to 118 developers in Gurgaon. Times of India. Available at: https://timesofindia.indiatimes.com/city/gurgaon/ngt-construction-bandtcp-issues-notices-to-118-developers-in-gurgaon/articleshow/61596094.cms Lowe MD (1991) Shaping cities: the environmental and human dimensions. World Watch Report 105 Mahdavinejada MMA (2011) Public participation for sustainable urban planning in case of Iran. Procedia Eng 21. Available at: https://ac.els-cdn.com/S1877705811048661/1-s2.0S1877705811048661-main.pdf?_tid¼3905d129-ddbb-4004-bc3b-479e6b97b04b& acdnat¼1523094911_21a870306ca5ae6242f9aef79db57f6a McGranahan G, Martine G (2012) Urbanization and development policy lessons from the BRICS experience. IIED Discussion Paper. International Institute for Environment and Development, London. Available at: http://pubs.iied.org/pdfs/10622IIED.pdf Meadows DH et al (1972) The limits to growth; a report for the Club of Rome’s project on the predicament of mankind. Universe Books, New York Miklian J et al (2014) A tale of new cities: the future of urban planning in the developing world. Harv Int Rev 35(4):13. Available at: https://www.jstor.org/stable/43650233 Mohan R, Dasgupta S (2004) Urban development in India in the twenty first century: policies for accelerating urban growth. Working Paper no. 231. Stanford Centre for International Development, p 2. Available at: https://globalpoverty.stanford.edu/sites/default/files/publications/ 231wp.pdf Monzon A (2015) Smart cities concept and challenges bases for the assessment of smart city projects. Transport Research Centre, Universidad Politécnica of Madrid. Available at: http:// ieeexplore.ieee.org/stamp/stamp.jsp?arnumber¼7297938 O’Meara M (1999) Reinventing cities for people and planet. World Watch Paper 147 Poplak R (Feb 15, 2018) What’s actually behind Cape Town’s water crisis. Available at: https:// www.theatlantic.com/international/archive/2018/02/cape-town-water-crisis/553076/ Press Information Bureau, Government of India. Cabinet approves MoU between India and Israel on National Campaign for Water Conservation in India. Available at: http://pib.nic.in/newsite/ PrintRelease.aspx?relid¼166960 Puri A (2014) What are smart cities? The Hindu. Available at: http://www.thehindu.com/features/ homes-and-gardens/green-living/what-are-smart-cities/article6321332.ece Ravi S et al (2016) Building smart cities in India: Allahabad, Ajmer, and Visakhapatnam. Brooking Institution, p 4. Available at: https://www.brookings.edu/wp-content/uploads/2016/08/metro_ 20160818_indiasmartcitiesreport.pdf Roy S (2016) The Smart City paradigm in India: issues and challenges of sustainability and inclusiveness. Soc Sci 44(5/6):33 Shaw A (2018) Chapter II: towards sustainable cities in India. In: Mukherjee J (ed) Sustainable urbanization in India, exploring urban change in South Asia. Available at: https://www.springer. com/cda/content/document/cda.../9789811049316-c2.pdf? Sudhira HS, Ramachandra TV, Jagadish KS (2003) Urban sprawl pattern recognition and modeling using GIS. Paper presented at Map India – 2003, New Delhi. January 28–31, 2003 Sustainable Development Knowledge Platform. Target and indicators for Sustainable Development Goal 11. Available at: https://sustainabledevelopment.un.org/sdg11 Sustainable Development Solution Network (2016) Getting started with the SDGs in cities: a guide for stakeholders. Available at: http://unsdsn.org/wp-content/uploads/2016/07/9.1.8.-CitiesSDG-Guide.pdf The Framework Agreement on the establishment of the International Solar Alliance, adopted at Marakkesh (15 November 2016), finalized on 27 May 2017, entered into force on 06 December 2017 and formally registered with the Secretariat of the United Nations on 09 February 2018;

54

B. H. Desai et al.

see the Framework Agreement as well as the Certificate of Registration (29 March 2018) from the Office of the Legal Counsel of the United Nations. Available at: https://treaties.un.org/doc/ Publication/UNTS/No%20Volume/54949/Part/I-54949-08000002804ed824.pdf and http:// isolaralliance.org/docs/COR-Reg-54949-Sr-68303.pdf UN General Assembly resolution A/RES/29/3327: “Establishment of the United Nations Habitat and Human Settlements Foundation”. Available at: http://www.un-documents.net/a29r3327. htm UN HABITAT. City Prosperity Initiative. Available at: https://unhabitat.org/urban-initiatives/initia tives-programmes/city-prosperity-initiative/ UN HABITAT: For a better Urban Future. History, mandate & role in the UN system. Available at: https://unhabitat.org/history-mandate-role-in-the-un-system/ United Nations. World urbanization prospects: the 2018 revision. Available at: https://esa.un.org/ unpd/wup/Publications/Files/WUP2018-KeyFacts.pdf Vakil CN, Roy K (1965) Growth of cities and their role in the development of India. Civilisations 15(3):326. Available at: http://www.jstor.org/stable/41230889 Wang X, Salat S, Painter D (2018) Urban Sustainability Framework (USF): first edition (English). World Bank Group, Washington, DC WHO (2016) WHO releases country estimates on air pollution exposure and health impact. Available at: http://www.who.int/mediacentre/news/releases/2016/air-pollution-estimates/en/ Woods E (2018) From connected street lights to smart cities. Available at: https://www.forbes.com/ sites/pikeresearch/2018/04/06/smart-cities/#3f95441b13c8 World Bank (2013) Urbanization beyond municipal boundaries: nurturing metropolitan economies and connecting peri-urban areas in India. World Bank, Washington, DC, p 1 World Bank (November 15, 2017) Resilient cities. Available at: http://www.worldbank.org/en/ topic/urbandevelopment/brief/resilient-cities-program World Bank (2018) Global platform for sustainable cities. Urban sustainability framework, 1st edn. Washington, DC World Bank. Sustainable development. Available at: http://www.worldbank.org/en/topic/ sustainabledevelopment/overview#3

Sustainable Management of Urban Soils: The New Zealand Approach David Grinlinton

1 Introduction Over the last three decades, ‘sustainability’ has become an internationally accepted normative principle of environmental and natural resource management. Applying the principle to soil management and protection has often been seen as a lower priority than addressing concerns around water and marine resources and climate change. Since 1991, under the Resource Management Act (RMA) 1991, New Zealand has had an integrated environmental and natural resource management regime with the core purpose to ‘promote the sustainable management of natural and physical resources’. The definition of ‘sustainable management’ in the Act includes considerations of intergenerational equity, environmental protection and ecological integrity. Addressing soil conservation, protection and management are very much a part of this system. As in many other countries, New Zealand is experiencing increasing urbanisation and consequent shortages of housing and land for urban development. This has resulted in progressive relaxation of constraints on the expansion of urban areas into what were previously peri-urban and rural zones. An increasing preference for smallholder and ‘hobby farm’ developments in rural areas near cities and greater development of coastal and mountain vacation developments is also evident. The percentage of urban land in New Zealand is still relatively small. Nevertheless, urban spread often intrudes into areas comprising high-quality soils and areas of fragile ecology. A number of recent government law and policy initiatives address

D. Grinlinton (*) Faculty of Law, The University of Auckland, Auckland, New Zealand e-mail: [email protected] © Springer Nature Switzerland AG 2019 H. Ginzky et al. (eds.), International Yearbook of Soil Law and Policy 2018, International Yearbook of Soil Law and Policy, https://doi.org/10.1007/978-3-030-00758-4_3

55

56

D. Grinlinton

both urban growth and soil protection. Some measures may prove beneficial to soil protection and conservation, while others may have a negative impact. This chapter will examine the New Zealand approach to the sustainable management of soils and in particular urban soils. It will also examine other measures that have an impact on sustainable soils in the urban context and various strengths and shortcomings of the current regime. The New Zealand approach may be instructive for addressing similar problems in other jurisdictions.

2 The Soil Problem in New Zealand Geologically, New Zealand is a relatively young country born of active tectonic processes in the subduction zone where the Pacific plate is forced beneath the Indo-Australian plate. Along with faulting and folding, glacial scouring and volcanic activity, this process has created a physically diverse country of high mountains, swiftly flowing rivers, heavily indented coastal topography and very mixed geology.1 Add to this a relatively high rainfall, a reduction of natural vegetation cover from 80% pre-human settlement to less than 25% today,2 intensive agricultural development3 and pockets of intensive industrial development, and you have a number of soil problems such as the following4: • • • • • •

erosion, including surface, mass movement, fluvial and stream bank erosion; loss of carbon and organic matter; compaction and loss of soil structure; nutrient depletion; soil acidification; and chemical contamination from industry and agriculture.

Soil erosion has long been a major problem in New Zealand because of extensive deforestation in the early period of settlement as land was cleared for agriculture.5 Around 50% of New Zealand’s land area is affected by ‘moderate’ erosion, 10% by

1 MfE & SNZ (2015), pp. 20–21. Almost 75% of New Zealand is covered by easily eroded sedimentary rock and soils, and the country has a relatively high annual rainfall of between 600 and 1500 mm, with in excess of 5000 mm in the mountain ranges: ibid, pp. 49–50. For a full description of the composition and state of New Zealand’s soils, see MfE (2007), ch 9 ‘Land’, Table 9.4, p. 231. 2 MfE & SNZ (2015), p. 105. Only 26% of natural forest cover remains, with a further 7.5% covered by planted production forest: ibid, pp. 79–80. 3 Exotic grassland (pasture) and horticulture now comprises almost 42% of New Zealand’s land area: MfE & SNZ (2015), pp. 79–80. 4 MfE & SNZ (2018), pp. 7–11; MfE & SNZ (2015), pp. 20–21; MfE (2007), ch 9 ‘Land’. 5 See MfE & SNZ (2018), pp. 75–78. For a concise summary of the problem of soil and coastal erosion in New Zealand, see Memon and Perkins (2000), pp. 148–149, and 152.

Sustainable Management of Urban Soils: The New Zealand Approach

57

‘severe to extreme’ erosion6 and 3% at further risk of ‘severe erosion’.7 Soil erosion costs the country more than $NZ150 million each year through loss of soil and nutrients.8 The problem is compounded in some mixed use and forestry areas by a reduced level of new forestry plantings and felling of commercial forests without re-planting.9 A recent government report noted that 192 million tonnes of soil are being lost to erosion every year with 44% of that coming from pasture or exotic grasslands. This rate of loss contributes 1.7% to global sediment loss from a country comprising only 0.2% of the planet’s total land area.10 Loss of carbon and organic matter and nutrient depletion are further consequences of land-use practices in New Zealand. Intensive cropping, monoculture practices and a rapid increase in vineyard plantings have exacerbated soil quality problems.11 Some pastoral uses, while depleting certain nutrients and organic matter, have also resulted in high levels of artificially added nutrient levels and altered acidity levels because of the use of fertilisers to increase productivity. Intensive dairy farming has led to excessive leaching of nitrogen and phosphorous into groundwater and rivers.12 Compaction and loss of soil structure are further problems emanating from intensive agricultural and pastoral farming practices. Compaction is caused by farm animals, vehicle traffic and cultivation methods and results in lowered macroporosity, which adversely affects growth and production.13 Contaminated sites are in both rural and urban areas and include timber treatment sites where arsenic was used, contaminated sheep dip sites, petroleum industry sites, gasworks and bio-solids (including sewage and other industrial and domestic waste).14 One early estimate put the number of contaminated sites at between 7000 and 8000, with 1500 deemed to be at high risk to human health or to the environment.15 Currently, there are no national standards establishing maximum levels of contaminants in soil, although there is a National Environmental Standard

New Zealand Government, Te Ara, Encyclopaedia of New Zealand, ‘Soil Erosion and Conservation’, p. 1, at https://teara.govt.nz/en/soil-erosion-and-conservation/page-1. See also MfE (2007), ch 9 ‘Land’. 7 MfE & SNZ (2015), p. 82, states that in the North Island alone 840,000 ha is at risk of severe erosion, and that is 3.1% of New Zealand’s land area, and over 7% of the North Island. 8 MfE (2007), pp. 213–214. 9 MfE & SNZ (2018), pp. 49–50; MfE (2007), pp. 236, and 241–245. 10 MfE & SNZ (2018), p. 76. 11 MfE & SNZ (2018), pp. 79–82; MfE (2007), p. 228. 12 MfE & SNZ (2018), pp. 51–54, 79–82; MfE & SNZ (2015), pp. 63–67, and 77–78; and MfE (2007), pp. 237–239. See also Dearsley (2015), Bollen (2015) and Drummond (2006). 13 MfE & SNZ (2018), p. 80; MfE & SNZ (2015), p. 84; MfE (2007), p. 239. 14 MfE & SNZ (2018), pp. 67–69. 15 MfE (2007), p. 248. 6

58

D. Grinlinton

to guide the assessment and management by local authorities of contaminants in soil that might affect human health.16 While urban settlements cover less than 1% of New Zealand’s land area,17 very often these towns and cities are situated on or are adjacent to high-quality soils and environments of high ecological value.18 New Zealand’s most versatile and highquality productive soils comprise only 5.5% of the total land area.19 Between 1996 and 2012, the total size of urban areas increased by 10%, with most growth occurring in Auckland.20 Thus, such rapid growth of urban areas is having an impact on highquality soils that is disproportionate to the actual land areas lost.21

3 A Brief History of Soil Protection Measures in New Zealand The importance of preservation and proper management of soils was recognised very early in New Zealand. For example, the Preamble to the New Zealand Forests Act 1874 stated: Whereas it is expedient to make provision for preserving the soil and climate by tree planting, for providing timber for future industrial purposes, for subjecting some portion of the native forests to skilled management and proper control, and for these purposes to constitute State Forests [emphasis added].

Although enacted primarily for state development of commercial forestry, the measure did contribute to reversing the rate of soil erosion in areas that had suffered loss of forest cover since human settlement. Unfortunately, plantation forests using non-native exotic species have caused other problems, including high water demands resulting in downstream loss of vegetation cover and increased susceptibility to soil erosion and leaching. Other early measures included the Public Reserves Act 1854 and the Auckland Reserves Act 1858, which facilitated the use of Crown land for soil and water protection purposes.22 Such measures often focused on specific land, water and vegetation issues in an isolated way. Many of the soil

16

Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011 (NZ). 17 MfE & SNZ (2015), pp. 79–80. 18 MfE & SNZ (2015), p. 78. 19 MPI (2015), p. 4. 20 MfE & SNZ (2018), p. 58. 21 Approximately 86% of New Zealander’s live in urban areas, with 73% in urban areas having a population of over 30,000 people: MfE & SNZ (2018), pp. 7–11 and 57–59. See also MPI (2015), pp. 4–5, Rutledge et al. (2010) and Mackay et al. (2011) est pp. 69–70. 22 See also the Public Reserves Act 1881, Land Acts of 1877, 1885, 1924 and 1948, State Forests Acts of 1885, 1908, and Forests Act of 1921 and 1949.

Sustainable Management of Urban Soils: The New Zealand Approach

59

issues in New Zealand were closely interrelated to water use and management, and this was reflected in legislation. In 1941, a ‘new era’23 of integrated soil and water conservation began with the passage of the Soil Conservation and Rivers Control Act. The Act established catchment boards with management responsibilities aligned to natural catchment areas to better reflect the natural processes relating to water and soil. In 1967, the Water and Soil Conservation Act took a more integrated approach by removing common law rights to water and vesting control of water ‘in its natural state’ in the Crown. A government agency—the National Water and Soil Conservation Authority—was established to oversee water management matters.24 Takings, diversion and discharges into water required permits from local water boards.25 The Crown also became bound to obtain consents in respect of major works, such as the establishment of hydroelectric power stations on rivers.26 However, the system was of limited success in controlling soil degradation as its main focus was on the use of water rather than protection of soils. Any positive effect in reducing soil erosion or degradation was largely a consequence of better management of water uses to prevent erosion or deposition of water-borne contamination. Town planning legislation provided some controls for preventing soil degradation and erosion,27 but such measures were of limited effect in view of a top-heavy bureaucracy, artificial divisions of responsibility for land and water use, and a pro-development ethos.28 This Act was repealed by, and its functions incorporated into, the RMA.29 One important feature of the prior water and soil management system was that it was based primarily on major water catchment areas or regions, and this has been continued under the RMA. Clearly, the overall control by one body of any particular catchment region is likely to result in efficiencies and more co-ordinated and consistent decision-making to better manage water bodies and soils.

23

Baumgart and Howitt (1979), p. 68. Water and Soil Conservation Act 1967 (NZ), s 14. 25 Water and Soil Conservation Act 1967, s 21. See Glenmark Homestead Ltd v North Canterbury Catchment Board [1978] 1 NZLR 407. See also Palmer (1984), pp. 856–893. 26 Water and Soil Conservation Act 1967, s 4. See also Keam v NWSCA (1979) 7 NZTPA 11, and Palmer (1984), p. 867. 27 Such as the Town and Country Planning Acts of 1953 and 1977. 28 See Baumgart and Howitt (1979), pp. 68–70; Palmer (1984), pp. 830–845. 29 RMA, Schedule 6. See also s 354(1)(b) (Crown’s right to control use of water in its natural state retained). 24

60

D. Grinlinton

4 Reform of Environmental Law and Policy Since 1984 Over the last three decades, New Zealand has followed a more integrated policy and regulatory approach reflecting the complexity of environmental interactions in the broader context of land, air and water use with policy and decision-making guided by principles of sustainability.30 This has included reform of the following: • • • • •

administrative structures, policy making and planning, legislation and regulation, processes of participation and decision-making, and operational implementation, including environmental monitoring, impact assessment and enforcement of actions and responsibilities.

4.1 4.1.1

Administrative and Legal Reforms 1984–1991 Administrative Governance Reforms

The management of water and soil has long been regarded as a matter of national importance to central government, and the operational management of such resources has been the province of regional and local government. A number of fundamental administrative reforms took place from the mid-1980s in parallel with environmental legislative reforms.31 These included the following: • election in 1984 of a new government with a strong mandate to implement environmental law reform (although legislative reform did not occur until 1986)32; • establishment in 1986 of a Ministry for the Environment (MFE) to co-ordinate and implement government environmental policy, to manage law reforms and to fill an educative and oversight role for environmental management33; • creation in 1986 of an Office of the Parliamentary Commissioner for the Environment (or ‘Environmental Ombudsman’) to provide independent parliamentary oversight and audit of environmental management in the country34;

30

See Salmon and Grinlinton (2018), at ch 2, para [2.10], ch 4 and ch 11, paras [11.1]-[11.2]. Bosselmann et al. (2013), ch 2. 32 See Palmer (2013), pp. 420–433. The Environment Act 1986, which established a Ministry for the Environment and a Parliamentary Commissioner for the Environment, was the first of a number of environmental legislative reforms. 33 Environment Act 1986 (NZ), Part 2, esp s 31 (Functions of Ministry). 34 Environment Act 1986 (NZ), Part 1, esp s 16 (Functions of Commissioner). 31

Sustainable Management of Urban Soils: The New Zealand Approach

61

• establishment in 1987 of a Department of Conservation to manage and be an advocate for conservation of New Zealand’s extensive ‘conservation estate’35; and • comprehensive local government reform, including the rationalisation and restructuring of regional government and municipal authorities. Regional Councils were given primary responsibility for water management and regional-scale land-use planning—including regional soil management; on the other hand, ‘territorial authorities’ (municipal and city councils)36 were responsible for local land-use planning—including urban soil management responsibilities.37

4.1.2

Reform of Environmental Legislation

In the late 1980s and early 1990s, the government, through the newly created Ministry for the Environment, proceeded to develop and implement a range of new policies and legislation. It is important to understand these reforms in order to appreciate the impact of the new measures on sustainable soil conservation and protection. The most significant law reform was the introduction of the RMA in 1991. Strongly influenced by the 1987 Brundtland Report, the RMA became the ‘umbrella’ environmental legislation intended to provide a policy and planning framework for the sustainable management of land, air and water (including the coastal marine area). The sustainable management of soils in both rural and urban contexts is included within the ambit of the legislation.38

Conservation Act 1987, ss 5–6. The ‘conservation estate’ comprises approximately 30% of New Zealand’s total land area and includes reserves, parks, most of the coastline, and other publicly owned land. 36 RMA, s 2(1) and Local Government Act 2002, s 5(1) (definition of ‘territorial authorities’). 37 See Local Government Amendment Act 1989, and Palmer (2012) at ch 23 (History and Theory of Local Authorities), especially at [23.2], [23.4], [23.5] and Appendix 1. 38 ‘Soil’ is included in the statutory definition of ‘natural and physical resources’ to which the core ‘sustainable management’ principle applies: RMA, s 2(1) (definitions). ‘Safeguarding the lifesupporting capacity of . . . soil. . .’ is also specifically included as a fundamental requirement of ‘sustainable management’ in RMA, s 5(2)(a). See also ss 30(1)(c)(i) (Regional councils responsibility to ‘control . . . the use of land for the purpose of . . . soil conservation’; and s 31(1)(b) and (2) (Territorial authorities’ responsibilities to control the effects of the use and development of land, including subdivision of land). 35

62

4.2

D. Grinlinton

The Resource Management Act 1991: A Blueprint for Sustainable Environmental Management?

At the time of its enactment, the RMA attempted to integrate into one statute the law relating to the management of land, air and water, replacing over 50 other acts dealing with those matters. The Act recognises the balance required between environmental objectives, social and cultural objectives and economic objectives but also allows stronger protections to be put in place for important environments and ecological values through flexible policy and planning instruments. The Act has been amended many times, with the most significant changes occurring in 200939 and 2017.40 One objective of the 2009 amendment was to reduce frivolous and vexatious objections in the planning and consent process and opposition to development motivated primarily by trade competition. Various procedural changes were made to speed up the process of policy and plan preparation and resource consent decision-making. Controversial changes included restricting broad public participation in the preparation of policy and planning instruments and in resource consent hearings in circumstances where decision-makers considered that there would be no significant environmental impact of a proposed activity.41 The 2017 amendments introduced further streamlining of planning and consent processes, including ‘fast track’ processes for planning instruments and consent applications.42 Criticisms of these measures include the reduced opportunities for public involvement and scrutiny in planning and consent application processes and less transparency of decision-making for projects that are fast-tracked in the ‘national interest’.43 Despite these many amendments, the fundamental structure and principles of the RMA—such as the ‘sustainable management’ purpose discussed below—have remained relatively intact.

4.2.1

The Purpose and Principles of the RMA

The central purpose of the RMA is ‘ . . . the sustainable management of natural and physical resources’.44 The definition of sustainable management is contained in section 5(2):

39

Resource Management (Simplifying and Streamlining) Act 2009 (NZ). Resource Legislation Amendment Act 2017 (NZ). Other amendments included those enacted in 2003, 2004, and 2005. 41 See Grinlinton (2009), pp. 65–67; von Dadelszen (2010), pp. 105–107. 42 See MfE (2018). 43 For critique of the Resource Management Amendment Act 2017, see Berry et al. (2017), pp. 9–16. See also Palmer (2016), Williams (2018) and Palmer (2018), Part B. 44 RMA, s 5(1). 40

Sustainable Management of Urban Soils: The New Zealand Approach

63

(2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while— (a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.

The correct interpretation of this definition has been controversial. On a literal reading, the management purpose in the first part of the definition (providing for the well-being etc. of people and communities) appears to be qualified by the ecological considerations contained in s 5(2)(a)–(c). The courts have nevertheless preferred a more neutral ‘overall broad judgement’ approach incorporating a consideration of all the elements in s 5 in the exercise of policy making, planning and consent-granting functions.45 Following the Supreme Court decision in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, that approach is now subject to any ‘environmental bottom lines’ that have effectively been created through formal central or local government policies and plans created under the Act.46 The RMA includes a number of other supplementary matters to guide policy and decision-makers. Many of these have direct relevance to water and soil conservation. For example, certain matters set out in s 6, RMA, must be recognized and provided for by policy makers and those exercising powers and functions under the Act. These include preservation of the coastal environment; wetlands, lakes and rivers, and their margins; outstanding landscapes; and indigenous flora and fauna. Matters in s 7, RMA, to which particular regard must be had by decision-makers include the efficient use and development of natural and physical resources, the intrinsic values of ecosystems, and the maintenance and enhancement of environmental quality. Section 8, RMA, requires that the principles of the Treaty of Waitangi—arguably New Zealand’s founding constitutional document47—be taken into account by decision-makers.48

45

New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC) at 86; North Shore City Council v Auckland Regional Council [1997] NZRMA 59 (EnvC) at 93–94 (the Environment Court uses the words ‘overall broad judgment’ at 194). 46 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593, esp at para [132]. See also the analysis of this decision in Salmon and Grinlinton (2018), at para [4.3.1]. 47 See generally Palmer (2008). 48 Article Two of the English version of the Treaty guarantees Maori ‘the full exclusive and undisturbed possession of their lands and estates forests fisheries and other properties’: for the full text of both versions, see DoJ (1989), pp. 4–6. Whether sovereignty in its fullest sense was, in fact, ceded to the Crown is the subject of continuing debate.

64

D. Grinlinton

Collectively, these supplementary sections provide guidance in achieving the main purpose of sustainable management in s 5 but are subsidiary to it.49 The matters of national importance will not necessarily prevail where there are overriding reasons for endorsing the development as constituting sustainable management in terms of s 5.50 On the other hand, development may be refused where some of the matters could be compromised. In King Salmon, for example, an aquaculture development was denied consent because of its possible adverse effects in a coastal area that had been identified as having outstanding natural character, features and landscapes.51

4.2.2

The Policy, Planning and Decision-Making Structure Under the RMA

The RMA creates a vertically and horizontally integrated structure for environmental management, including central government policies, regional government polices and planning instruments, and territorial (city/municipal) level planning instruments.52 Vertical integration is achieved through the requirement that lower-level plans and policies must ‘give effect to’ higher-level policies and plans.53 Horizontal (or lateral) integration is attained by the requirement to consult with neighbouring councils, central government agencies, some NGOs and other interest groups when preparing such instruments.54 Each level of government has differing but sometimes overlapping resource management responsibilities. The central government, through the Minister for the Environment, has responsibility for determining higher-level environmental policies, developing law reform proposals and auditing the effectiveness of the system generally. The Minister of Conservation has specific responsibilities for the management of conservation of land and the coastal marine area. Regional councils have primary responsibility for managing water use and discharges into water, and uses of land that have regional significance—including soil conservation and erosion control

49

Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [25]–[30]. 50 For example, New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (construction of an export wharf of greater national importance than protection of the coastal environment in that location). 51 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593. 52 For a recent description of this vertically and horizontally integrated framework see: Grinlinton (2016a), pp. 433–434. 53 RMA, ss s 67(2), (3), 75(3). 54 RMA, ss 61(2)(b), 66(2)(d) and 67(4) (regional councils); and ss 74(2) and 75(4) (territorial authorities). See also RMA, Schedule 1, cll 3-3C (consultation) and Part 4 (collaborative planning process).

Sustainable Management of Urban Soils: The New Zealand Approach

65

measures.55 Territorial authorities have primary responsibility for land use and subdivision, and air and water discharges of localised significance—including soil quality at the local level.56 A 2017 amendment to the RMA has placed a specific obligation on local authorities to ‘ensure development capacity in relation to housing and business land’.57 These provisions, along with the National Policy Statement on Urban Development Capacity 2016 (discussed below), require the local government to relax the urban/rural boundary to not only accommodate actual urban growth but also provide an excess level of appropriately zoned land of up to 20% of projected demand to allow the competitive market to operate.58 People wishing to undertake activities with environmental effects are required to apply for ‘resource consents’ from local authorities.59 Often a number of different resource consents may be required for a particular activity. For example, a land subdivision may require a range of land-use permits, water-use permits and discharge permits. Where applications are publicly notified, the original intention of the legislature was that objections and submissions could be made by any person without the need to have standing. However, the vast majority of applications bypass such ‘open participation’ as they are not publically notified.60 As already mentioned, amendments in 2009 and in 2017 have further restricted the circumstances where applications must be publicly notified, thus further reducing the opportunities for open public participation and objection. Appeals may be brought to the Environment Court by any party, with further appeals to the ordinary courts on points of law.61

5 The RMA and Sustainable Soil Management Under the RMA, soil management can be achieved through a variety of mechanisms. Firstly, there are the general provisions and guiding criteria for planning and decision-making in the Act itself. Secondly, the central government can put in place higher-level national policy statements and national environmental standards that operate to guide lower-level planning and decision-making of regional and territorial authorities. Finally, the contents of policies and plans with rules guide

55

RMA, s 30(1)(c)(i). RMA, s 31(1)(b) and (2). 57 RMA, s 30(1)(ba) (Regional councils), and s 31(1)(aa) (Territorial authorities). 58 NPS-UDC (2016), p. 13 (PC 1). 59 ‘Resource consents’ include land use consents, subdivision consents, water permits, coastal permits and discharge permits under the RMA: ss 2, 87. 60 RMA, ss 95, and 95A-95G. Less than 5% of resource consent applications are notified, so ‘open participation’ is to some extent a misnomer. 61 RMA, ss 299, 301. 56

66

D. Grinlinton

the decision-making on the granting (or declining) of consents in specific development applications and the conditions that may apply if granted. The latter category resembles traditional town planning mechanisms, but with a more integrated approach that allows consideration by decision-makers of the ‘cocktail’ of effects that any development may have on the ongoing ecological sustainability of land, air and water resources.62

5.1

General Provisions Under the RMA

In addition to Part 2, Purpose and Principles, in the RMA described above, Part 3 of the Act contains a number of enforceable ‘duties and restrictions’. Section 9 prevents the use of land in a way that contravenes a national environmental standard, or any rule in a regional or district plan, unless the use is expressly allowed by a resource consent or under some other provision of the Act. Even more onerous are the prohibitions in ss 12 on coastal activities, 14 on water use and 15 covering discharges of contaminants into water, onto land or into the atmosphere. Such prohibitions would apply to any land use that would result in consequential breaches of those sections. These duties and restrictions are normally addressed in local authority planning instruments with certain activities either allowed as of right, prohibited, or made the subject of a discretionary consenting regime. Section 17(1) of the RMA also provides a general duty to ‘avoid, remedy, or mitigate any adverse effect on the environment’ of activities, whether specifically permitted or not. While s 17(2) provides that this general duty is not of itself enforceable against any person, s 17(3) provides that ‘abatement notices’ issued by a regional council or territorial authority or ‘enforcement orders’ issued by the Environment Court can require a person to do something or to stop doing something that contravenes the general duty in s 17(1).63 While it may appear peculiar that legal liability may arise for the adverse effects of activities that have been authorised, both statutory provisions64 and common law authority65 recognise that planning consent 62

See RMA, ss 102, 103 & 269, which provide respectively for joint hearings by two or more consent authorities, combined hearings of two or more applications, and hearing matters together in the Environment Court. 63 Failure to comply with those orders constitutes an offence under the Act leading to the possibility of imprisonment or heavy fines. The RMA provides very strong enforcement mechanisms, including imprisonment for up to 2 years, fines up to $NZ300,000 for individuals and $600,000 for corporations, strict liability and vicarious corporate liability. Examples of prosecutions that have resulted imprisonment include Franklin District Council v McCollum (District Court, CRN 3057005960, 14 February 1994), R v Borrett [2004] NZRMA 248 (CA), and R v Conway [2005] NZRMA 274 (CA). 64 For example, RMA, s 23(1) provides that ‘Compliance with this Act does not remove the need to comply with all other applicable Acts, regulations, bylaws, and rules of law’. 65 For example, in Varnier v Vector Energy Ltd [2004] NZRMA 193 at [28], the Court confirmed that acquisition of a resource consent under the RMA ‘. . . is not intended to remove the common

Sustainable Management of Urban Soils: The New Zealand Approach

67

alone does not insulate the consent holder from liability in tort or for breach of some other statutory provision. Thus, it would seem that s 17, RMA, implies an obligation on the part of a consent holder to exercise the consent in a way that does not result in any ‘adverse effect on the environment’ unless such an effect is unavoidable. The general duty under s 17 may well be called into aid where an activity creates an adverse effect on soils.

5.2

Central Government Policy and Guidance

For the most part, central government policy making, rules and guidance are provided through national policy statements and national environmental standards under the RMA.

5.2.1

National Policy Statements and National Environmental Standards

While there are no national policy statements (NPSs) under the RMA specifically on soil conservation, the recent National Policy Statement on Urban Development Capacity 2016 (NPS-UDC) has potential to negatively impact urban soil quality. This measure was prompted by the acute housing shortages being experienced in Auckland and some other fast-developing centers in New Zealand. Median section prices in Auckland have increased by 350% from 1990 to 2016,66 leading to a progressive reduction in levels of home ownership.67 The reasons for this are complex and include natural geographical limitations of the Auckland isthmus being located on a strip of land between two oceans, shortages of available and appropriately zoned land, rapid population increases through immigration and settlement patterns, taxation and fiscal drivers, and speculative investment from within New Zealand and from overseas investors.68 The previous national-led government took the view that a key solution to the problem was to increase the availability of development land and infrastructure to meet demand. The NPS-UDC was promulgated as subordinate legislation to address what it regarded as ‘matters of national significance’, i.e.69:

law right to claim in nuisance or negligence in relation to effects arising from the implementation of the consent . . .’. 66 Smith Hon (2016). 67 Households renting rather than owning their homes in New Zealand increased from around 25% in 1991 to 33% in 2015 nationally, with even higher levels in Auckland: SNZ (2015a, b), pp. 5 and 19. 68 See NZPC (2012), pp. 1–9 for a useful overview of the causes. 69 NPS-UDC (2016), p. 9. For a detailed analysis of the NPS-UDC, see Grinlinton (2016b), p. 205.

68

D. Grinlinton

a) urban environments and the need to enable such environments to develop and change; and b) providing sufficient development capacity to meet the needs of people and communities and future generations in urban environments. The NPS-UDC requires local authorities to undertake and put in place policies and plans to ensure that urban growth is understood and that sufficient development land is made available in the short-term (