Introduction to ‘Groundwater and Climate Change: Multi-level Law and Policy Perspectives’

Groundwater use has been growing throughout the world in recent decades, notably in India (United Nations, 2015). This poses a challenge that is widely recognized, yet with few exceptions the regulation of groundwater remains dated and too often focused on use rather than protection. Protection measures, where they exist, are generally conceived at the level of individual landowners, and not at the wider scale of the aquifer (Cullet, 2014). The shortcomings of the existing regulatory regime have become more and more apparent, in particular in warm and dry areas, where increasing groundwater use is associated with falling water tables (Dellapenna, 2013). Climate change, through its impacts on the water cycle, has made the situation much worse, and this will likely only deteriorate with time. Without effective action, prospects for a turnaround are dim (Taylor et al., 2013).

From a regulatory perspective, the most salient problem is that international legal instruments governing climate change do not focus much on groundwater, or water in general. This results in limited scope to link climate change policy with the regulation of groundwater, while the bias towards regulating use has often relegated the broader environmental dimensions to the back seat. In light of the limited pledges made by countries in the Paris Agreement (2015), increasing water use in general, and growing reliance on groundwater for agriculture and drinking water, it is imperative to forge more specific links between groundwater regulation and climate change governance.

This special issue undertakes a scholarly assessment of the state of the art of law and policy perspectives on groundwater and climate change at the international, regional and national levels. It arises from papers presented at workshops organized within a partnership project between the Law, Environment and Development Centre of SOAS, University of London, and the National Law University Delhi under the auspices of the UK-India Education and Research Initiative. This initiative sought to consider the impacts of climate change on groundwater, and to analyze and suggest corresponding improvements in the law and policy framework (SOAS, n.d.).¹

The partnership between SOAS and National Law University Delhi was thus set up in part to address the specificities of India’s situation and to better understand how groundwater and climate change regulation can be linked by studying the situation in other countries and at the international level. India is the largest user of groundwater in the world. Groundwater is the primary source of water for its domestic and agricultural uses (Planning Commission, 2012). The extremely rapid rise in groundwater use in many Indian states has led to a growing groundwater crisis that they must address. The existing regulatory framework has not adapted to the challenges and fails to address any environmental concerns (Cullet, 2014). On climate change, India has adopted a policy framework that makes the link with water, but no legislation has followed up to make the link operational (Government of India, 2009).

At the same time, the challenges faced by India are relevant for many other regions of the world. It is thus crucial to examine the limited ways in which the link has been made and analyze how further progress can be made.

The subject matter of this special issue has been widely debated with regard to each of its main two components. The climate change regime has been the object of intense attention, first at the international level and progressively in most countries of the world (Carlarne, Gray, & Tarasofsky, 2016). Groundwater regulation has been the subject of increasing attention in the law and policy literature (Eckstein, 2017). Bringing these two domains together is what makes this special issue unique. It builds on existing scholarship in climate change by fostering a more direct engagement with water, and groundwater specifically. It similarly builds on existing scholarship on groundwater, which is often focused on issues of property rights when considered by lawyers and looked at from the perspective of a local resource by social scientists. In neither case does it give consideration to a global dimension.

The link between the two has been acknowledged to some extent, and there is growing interest in studying the impacts of climate change on (ground)water (Conway, 2013; Garner, 2016; Green, 2016). Similarly, in water and environmental law and policy, increasing attention has been given to the study of climate change and groundwater legal and policy frameworks, but generally separately. This special issue contributes to filling this knowledge gap by drawing on contributions from leading experts in the field of environmental and water law and policy who have been involved in climate change and/or groundwater research.

The articles gathered here address the legal frameworks governing groundwater and climate change. They consider how one domain deals with the other, at a country level, regionally, or globally.

The first two papers focus on India, a very large country. Cullet, Bhullar and Koonan (2017) note that the regime applied to groundwater in India contributes to the exclusion of the landless, while allowing individuals and companies with land and money to exploit the resource. According to them, the situation could be improved both for the people and the resource by integrating social equity and human rights dimensions in groundwater regulation. To do so would encourage the linking of climate change and groundwater. Similarly, viewing groundwater through the lens of climate change would give the opportunity to introduce measures of protection and conservation.

Birkenholtz (2017) questions the efficiency of drip irrigation technology in alleviating pressure on groundwater resources and adapting to climate change. In the state of Rajasthan in India, drip irrigation is being promoted to reduce groundwater abstraction and intensify agriculture, while no regulatory framework governs the use of groundwater. Farmers are extending the area under cultivation. The result is increased pressure on the over-exploited groundwater, which is also threatened by climate change. Birkenholtz concludes that promoting the adoption of drip irrigation technology in the absence of any rules governing groundwater, and with no consideration of ecological or social resilience, leads in the long term to further groundwater mining.¹

Kidd (2017) looks at the case of South Africa, where groundwater is likely to be affected by climate change and other threats, such as acid mine drainage, pervasive water pollution and planned hydraulic fracturing. He sees the existing legal provisions as capable of addressing these risks. However, the low level of their implementation is often alarming. There is an important gap in the data required for appropriate decisions to be taken under the existing National Water Act that needs to be filled (see also Esterhuyse, Redelinghuys, & Kemp, 2016).

In his article, Ohdedar (2017) compares the recent law reforms in British Columbia and England with regard to water and groundwater. Both jurisdictions have taken steps to address the challenges of a changing climate. British Columbia enacted the 2014 Water Sustainability Act and introduced licensing for groundwater users and the payment of a fee except for domestic wells, while maintaining allocation based on the old system of first in time, first in right. England has adopted reforms to its legislation based on the EU Water Framework Directive, and introduced a number of innovations. In both cases, the legal framework requires a responsive regulator who can and will tackle issues of energy and fracking, which can exacerbate groundwater depletion and degradation.

McIntyre (2017) demonstrates how groundwater in the EU has received protection from the EU Habitats Directive. The Court of Justice has adopted a very strict interpretation of the maintenance of the ‘integrity’ of protected ecosystems, requiring precautionary assessment of groundwater’s role. Its jurisprudence has involved robust protection of the key ecological characteristics and features of such sites, and offers an additional opportunity to protect groundwater and help sustain ecosystems and their services. The approach represents an informal step towards the integration of climate change adaptation measures into existing regulatory frameworks.

Kuper, Amichi and Mayaux (2017) observe the situation in North Africa, with a focus on Algeria and Morocco, where agricultural intensification has increased the pressure on groundwater. They conclude that currently states are unlikely to move to more sustainable policies to address either climate change adaptation or groundwater use. The authors have identified three conditions for the application of new governance schemes: obtaining wide legitimacy among the farmers and the rural areas; redirection of existing public investments; and engagement of a strong and active civil society pushing for more environmental policies.

The last two articles deal with the legal frameworks of climate change and groundwater at the global level. Gupta and Conti (2017) address the international climate change regime and global groundwater laws and show how they have developed independently. They observe other contradictions, such as differences in framing problems, in key norms and in processes. They provide recommendations to enhance the linkages between the two systems, such as close collaboration of institutions at the global level, and the integration of water in IPCC reports.

Finally, Stephan (2017) further considers both the international legal regime of climate change and transboundary aquifers. She investigates how the global climate change regime deals with groundwater, and similarly how international groundwater law addresses climate change. She concludes that water, and thus groundwater, receives more attention under the climate change framework than it appears because of due consideration being given to elements relying heavily on water, such as ecosystems and food production. These elements all fall under the adaptation regime. Cooperation on a transboundary aquifer for an adaptation plan following its specific process is fully in accordance with the international legal regime of transboundary aquifers.

Overall, the articles in this special issue show that climate change and groundwater have continued to be considered, and eventually regulated, separately, with little consideration of one by the other, whether at the national or the global level. This is so despite the strong physical link between groundwater and climate change. For example, groundwater can be affected deleteriously by climate change, but it also can act as a buffer against that change. Yet the present focus on regulating use does not take either effect into account. A better consideration of climate change with require more attention to environmental principles as well as a strong regulator for proper implementation, and a good knowledge of the resource. The climate change regimes, following international developments, have focused more on emissions. The Paris Agreement (2015) has opened a new approach by giving a strong position to adaptation, under which many water concerns fall. We hope that the implementation of this regime, to be further defined in a forthcoming Conference of the Parties, will lead to groundwater being given a much more visible place in recognition of its crucial role in climate change adaptation and mitigation in both the short and long term.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. The phenomenon of farmers using ‘saved’ water to extend their irrigated area has been noted elsewhere, including in developed economies such as California (e.g., Frederiksen & Allen, 2011).