Climate Adaptation Act – Everything can, little must

The Federal Climate Adaptation Act (KAnG), which came into force on 1 July 2024, for the first time provides a legal framework for climate adaptation at the federal government, federal state and municipal levels. The Act calls on the federal states to develop their own climate adaptation strategies and to ensure that municipalities develop their own climate adaptation plans. In return, the federal government has pledged to further develop and revise its own climate adaptation strategy, adopted in 2008, and to underpin it with measurable targets. The KAnG Act thus makes municipal adaptation plans the central instrument for climate adaptation, while giving the federal states a considerable amount of freedom in formulating their requirements for developing plans.

A legal framework for climate adaptation is an important step in the right direction, as all municipalities in Germany are struggling with the consequences of climate change. Individual regional catastrophic events such as heavy rainfall, floods, heatwaves and droughts, all of which have become increasingly frequent in recent years, do not adequately sum up the situation. The Climate Impact and Risk Analysis 2021 for Germany has identified more than 100 impacts of climate change in Germany, some of which interact with each other and vary from region to region. The complexity of the individual impacts requires an analytical and strategic approach in order to prepare the municipalities. The focus of the KAnG Act – the creation of a conceptually and technically sound basis – is therefore essential for developing and implementing targeted measures that address the concerns of individual municipalities. 

In terms of content, the KAnG Act requires the federal states to formulate their requirements for municipal plans in such a way that they are based on a climate risk analysis or a comparable basis for decision-making (Section 12(3) KAnG). This is an ambitious and fundamentally sensible goal, as there are major regional differences in the extent to which areas are impacted, and plans that are comparable in terms of their technical content also create a mutually compatible basis. This could also set regional processes in motion, as extreme events do not stop at local authority or district boundaries.

The KAnG Act also supports the long-term development of cooperation structures. The intention is that points of contact and synergies should be found not only between municipalities, but also within municipal administrations. Relevant municipal plans – such as heat action plans, heavy rain and flood hazard maps and open space concepts – are to be taken into account and corresponding gaps in climate adaptation closed (Section 12(6) KAnG). 

So will all municipalities be developing climate adaptation plans in the next few years? It is up to the federal states to decide whether every single municipality has to take action. According to Section 12(1), they determine which public bodies are responsible for drawing up municipal climate adaptation plans. The federal states can also stipulate that local authorities below a certain size – again at the discretion of the federal states – do not have to draw up plans if there is instead a district-wide plan that also takes into account the responsibilities of the member local authorities. It is conceivable that only administrative rural districts and larger cities would have to take action. This would be of particular benefit to small municipalities that do not have sufficient human and financial resources. Cross-district plans would ensure that plans are available more quickly across the wider area, that the concerns and needs of each municipality are taken into account, and that the implementation of measures coordinated in the municipalities and joint administrative districts can begin at about the same time. 

There are no deadlines for federal states to set their own requirements. It is to be hoped that the federal states, together with their municipalities, will find solutions that will bring about rapid progress in the urgently needed adaptation to climate change, while at the same time taking into account the difficult personnel situation and the general overburdening of the municipalities. On the other hand, a coordinated and not too divergent approach by the federal states would also be welcome in order to prepare all municipalities and their inhabitants equally well for climate change.

The considerable leeway given to the federal states in terms of the time and content of their requirements for municipalities allows them to take account of the municipalities’ respective administrative, climatic and topographical characteristics. However, it also raises many questions for municipalities about possible scenarios for which there are currently no satisfactory answers.

It is still unclear how municipalities will finance their new responsibilities. If the federal states use their climate adaptation laws to oblige municipalities to draw up plans, they must also finance this new responsibility in accordance with the so-called “connectivity principle” under federal state constitutional law. However, the 2021 coalition agreement between the ruling parties at the federal government level provides for joint financing of climate adaptation by the federal government and the federal states, as well as sufficient funding for the federal states, which means that an agreement still needs to be reached here. The Association of German Cities has long been calling for climate adaptation to be defined as a joint task in the Basic Law. This would allow direct co-financing by the federal government.

The future of the DAS funding programme (“Promotion of Measures for Adapting to the Consequences of Climate Change”) is also currently in question. Through this programme, which expires in 2024, the federal government has so far financed the development and implementation of municipal climate adaptation plans as well as personnel for municipal climate adaptation management. However, funding can only be provided where there are no legal obligations. Nevertheless, as the requirements for the funded plans go beyond the requirements of the KAnG Act, a continuation of the funding would, in principle, be possible and desirable from the municipalities’ point of view. 

There is one point where the KAnG Act has a direct impact on the municipalities: with the introduction of the consideration obligation (Section 8) for public bodies, municipalities (and other stakeholders) will be obliged to take climate adaptation issues into account in their planning and decision-making from next year. This instrument has already been used in North-Rhine Westphalia since 2021. NRW recommends the use of a climate adaptation check developed by Difu for municipalities in all municipal planning and decision-making processes. The amendment to the Federal Building Code planned for the autumn, with new options for specifying climate adaptation measures, will further strengthen the issue.

The climate adaptation plans envisaged for the whole of Germany and the requirement to take them into account under the Federal Climate Adaptation Act, the federal government’s forthcoming preventative federal climate adaptation strategy and the amendment to the Federal Building Code will mark a major step forward in climate adaptation in Germany. They highlight the need but also the opportunities for action, which now need to be further developed. The ball is in the court of the federal states in particular, whose requirements will largely determine the responsibilities and time horizon for developing municipal plans. A rapid, coordinated approach by the federal states is more than desirable, so that the climate adaptation plans can be implemented as a matter of urgency.