Archive for the ‘Law’ Category

New books on the shelves

Friday, September 23rd, 2011

Several new books on the topic of market-based instruments for nature conservation were recently published (or will soon be). Expect so see reviews here soon.

The first book is by Royal Gardner, a law specialist, who has worked on wetland mitigation in the USA. Entitled Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics the book provides an in-depth look into the inner workings of the wetland mitigation “industry” and especially its governance. You can take a look on Amazon.

The second book is by Ece Ozdemioglu of the British consultancy EFTEC. It will provide guidance on ecological equivalency methods that can be applied to biodiversity offsets and payment for ecosystem service schemes. Here is what her personal page on the EFTEC website says:

Her next book (with Josh Lipton and David Chapman, forthcoming in 2011 by Springer) will be on the use of resource equivalency (including economic valuation) methods for assessing environmental damage and liability and selecting the appropriate compensation measures. This will help implement European Directives of Habitats, Wild Birds and Environmental Liability as well as input to new policy instruments like biodiversity offsetting, payments for ecosystem services and habitat banking.

According to Open Trolley, the expected publication date is September 29th, with the title “Equivalency Methods for Environmental Liability in the European Union: Assessing Damage and Compensation Under the Environmental Liability Directive”. Most of the contents probably reflect EFTEC’s work as part of the EU funded REMEDE project which provides lots of interesting insights.

If you haven’t read it yet, you can still have a look at Carroll, Fox and Bayon’s book on conservation and biodiversity banking published by EarthScan.

The biodiversity planning toolkit

Tuesday, November 30th, 2010

The British Association of Local Government Ecologists (ALGE) has put on-line a very interesting tool for anyone interested in environmental issues related to planning in the UK. The biodiversity planning toolkit provides user-friendly information on several important points including:

  • Fundamental Considerations
  • Law / Policy / Practice, including primary legislation and statutory regulaions
  • Types of Development
  • Designations, key species, habitats and components of geodiversity
  • Forward Planning
  • The most interesting offer of the toolkit is the interactive landscape which lets the user navigate the different issues listed above in an attractive setting which is pretty much self-explanatory. The interactive landscape is very useful as a first introduction to the British planning regime and environmental regulations as well as all the key components of biodiversity, ecosystems and landscapes that are under consideration.

    Well done!

    Biodiversity offsets as landscape management policies

    Saturday, November 27th, 2010

    As Barbara Bedford already stated, in her 1996 paper on wetland mitigation in the USA, that as the number of exchanges of one ecosystem for another increases, offsets change from a regulatory action aimed at achieving no-net-loss to a landscape management policy.

    This implies strategic thinking that goes beyond project per project assessments of like-for-like replacement of lost habitats and functions. Cumulative effects must be taken into account in allowing and offsetting impacts and both zoning (= planning) and nature conservation laws must therefore accommodate future projects and future offsets.

    This is made easier by the fact that the growing focus on nature conservation outside protected areas has pushed nature conservation objectives deeper into zoning laws (e.g. Natura 2000 in Europe).

    Habitat banking policies are particularly adapted to this requirement, in that they can be established before impacts as part of zoning plans. In Europe, the German Eingriffsregelung policy is a good example of this where municipalities must plan areas for offsetting future urban development included in their zoning and urban planning.

    In France, the recent launch of zoning requirements concerning ecological connectivities (known as Trames Verte et Bleue) has raised the question of using offset actions to enhance or restore ecological connectivities. This can be interpreted either as:

  • using offset requirements to compensate for the State’s incapacity to meet its legal obligations regarding nature conservation
  • a useful coordination of publicly and privately funded actions in favour of biodiversity
  • You might find the first interpretation scandalous or be proud of the second but what would the wildlife say?

    When threatening an ecosystem becomes a business

    Saturday, October 30th, 2010

    In 2007, B. Kelsey Jacka, Carolyn Kouskya and Katharine R. E. Simsa published in the Proceedings of the National Academy of Sciences of the U.S.A. a paper on the design of policies of payment for ecosystem service.

    The generally accepted definition of PES was given by Sven Wunder of CIFOR:

    A payment for environmental services scheme is:
    1. a voluntary transaction in which
    2. a well defined environmental service (ES), or a form of land use likely to secure that service,
    3. is bought by at least one ES buyer
    4. from a minimum of one ES provider,
    5. if and only if the provider continues to supply that service (conditionality)

    Jacka, Kouskya and Simsa frame the role of PES in terms of internalizing environmental externalities. The classic argument goes like this:

  • The type, quality, and quantity of services provided by an ecosystem are affected by the resource use decisions of individuals and communities
  • when the benefits of an ecosystem service flow primarily to others, such as with water purification or climate stabilization, public interests and the interests of the resource manager may be misaligned
  • This basic logic may explain much of the decline of important ecosystem services as a result of human pressures
  • Recently, ‘‘payments for ecosystem services’’ (PES) has emerged as a policy solution for realigning the private and social benefits that result from decisions related to the environment.
  • They argue that a PES policy can be evaluated against three objectives: environmental effectiveness, cost effectiveness and equity. They then go on to explore how different elements of context (environmental context, socio-economic context, political context and context dynamics) can affect the outcome of a PES scheme in relation to these objectives. Among these, the following are of particular relevance.

    The greater the heterogeneity in costs (essentially opportunity costs) for those providing ecosystem services, the greater the potential for PES to deliver.
    This is the basis for using PES to alleviate poverty as the rural poor typically have the lowest opportunity costs (they often have little capital to invest in alternative land-uses). The political legitimacy of PES was born of its potential role in alleviating rural poverty. However, targeting the rural poor involves high transaction costs (with the risk of intermediaries getting involved to their own benefit) and could result in patchy environmental outcomes. To achieve, environmental effectiveness and cost-effectiveness, PES naturally tend to favour large-scale operations with large land-holders. This is a trend that leads to big business capturing the benefits of what was initially aimed at fighting poverty while preserving ecosystems. This is an important point made by Romain Pirard, Raphaël Billé and Thomas Sembrés in their recent paper on PES.

    PES can encourage innovation to lower the costs of ES provision. With this in mind, it is better to give recipients freedom to select which methods to use to achieve the environmental goals (hence the importance of selecting appropriate proxys). Pirard and his colleagues also argue that PES should aim to stimulate innovations in management practices but not for improving cost-efficiency. Rather, they argue that PES should aim to make sustainable, ES-compatible, use of ecosystems economically viable without PES support! This is because by design, PES are dependant on external payers, who generally cannot project their involvement in the long term. Such a change in goals amounts to making PES financing tools for classic rural development initiatives. They call this “asset-building” PES, in contrast to “use-restricting” PES.

    Pirard and his colleagues suggest changing Wunder’s defintion to:

    1. a voluntary transaction in order
    2. to preserve or enhance at least one well-defined environmental service, between
    3. at least one provider,
    4. who clearly cannot be subject to the polluter pays principle
    5. and at least one buyer
    6. who offers a payment over a limited period
    7. as a means for investment in locally productive and sustainable activities.

    PES can generate ransom seeking behaviour whereby land-owners can argue for increasing opportunity costs in order to increase PES payments. This point is also raised by Pirard and his colleagues who are particularly critical of corporations who hold concessions to exploit natural resources on public lands (for example for forestry) and raise the stakes for PES. Shouldn’t sustainable management be included in the concession contract? This issue questions the compatibility of PES with the more general polluter-pay principle: The very fact of threatening an ecosystem will become a business.

    Ransom-seeking behaviour poses serious risks not only to PES through the inevitable rise in opportunity costs it will drive but also to the polluter-pay principle where it is currently applied.

    BBOP : British Biodiversity Offsetting Prospects?

    Saturday, October 23rd, 2010

    Biodiversty offsets are being debated in the United Kingdom as a useful tool for stopping biodiversity loss (the so called no-net-loss target). Rob Calvert, a policy intern at the British Ecological Society (BES), recently contributed to the debate through an article in the Bulletin of the BES, which also brought professional ecologists on board. The bulletin is only available to subscribers so here is a short summary and review.

    Mr. Calvert explains how the goal of offsets is to achieve no-net-loss through “measurable conservation outcomes resulting from actions designed to compensate for significant residual adverse biodiversity impacts arising from development plans or projects after appropriate prevention and mitigation measures have been taken”. This is the definition by BBOP (Business and Biodiversity Offsets Program*). After giving foreign examples of offset policies, he details the advantages of pooling offsets from different impacts in order to obtain additional biodiversity gains through larger areas or interconnections.

    He then goes on to list the concerns raised by the prospect of biodiversity offsets

  • Restoration is not always possible
  • Determining “biodiversity value” for assessing “like for like” will always involve subjective elements as biological and ecological knowledge is incomplete
  • Metapopulation dynamics and genetic diversity are unlikely to be considered, yet they are essential to long-term persistence
  • Offsets located far from impacts has ethical implications as they deprive local populations of green space
  • Concerning the policy itself, Mr. Calvert refers to a scoping study by DEFRA that mentions the following key difficulties:

  • High transaction costs must be expected (probably for agreeing on ecological equivalence, and finding land for offsets)
  • Stakeholders must be provided with clear rules and objectives that are legally, institutionaly and financially secure
  • There are of course exciting opportunities in developing an offset policy in the UK. These include

  • Restoring or enhancing areas of man-made biodiversity that are currently degraded as a very cost-effective way to favour biodiversity
  • Conserving biodiversity outside protected or designated sites
  • Incorporating conservation objectives into spatial planning processes
  • Improving the ecological connections between protected hot-spots of biodiversity by locating offsets strategically in the degraded suburban and agricultural matrix
  • According to Mr. Calvert, British legislation and policy tools are already adapted to the setting up of offset schemes, with

  • Relatively good data and maps on the distribution of biodiversity
  • Spatial planning laws and procedures
  • Offsets are already required for impacts on Natura 2000 sites
  • Among the many fora in which offsets are being discussed, Mr. Calvert mentions those of the Natural Capital Initiative towards no net loss.

    *: BBOP recently put on-line a report on policy options for setting up offset schemes (pdf here).

    Welcome to BISE

    Monday, September 27th, 2010

    The European Union’s new web portal on biodiversity was put on-line last week. BISE (Biodiversity Information System for Europe) aims to make information on the distribution and status of biodiversity more accessible, together with information on relevant EU and national legistlation. Good luck!

    Is there a place for a binding “duty of care” for biodiversity conservation?

    Thursday, February 18th, 2010

    A recent article by G. Earl, A. Curtis and C. Allan in the journal Environmental Management discusses the feasibility of imposing a duty of care for biodiversity to land owners and land managers. They explore the specific case of Australia but many of their ideas resonate with the broader issue of developing an appropriate policy mix for conserving biodiversity outside protected areas. The authors argue that as an established legal principle, “duty of care” (rather than the looser moral obligation of “stewardship”) can relatively easily be applied to biodiversity. A government report published in 2001 also addressed this issue and the authors make an important contribution in proposing guidelines for actually implementing a duty of care policy.

    Picture of a Eucalyptus woodland by ButterflyHunter (http://www.flickr.com/photos/7719574@N06/1375259579/)

    One of the key points discussed in the article is that of setting clear goals for biodiversity: “desired outcomes” that must be set at the catchment or landscape level (or whichever administrative or management unit is appropriate). Establishing such goals would be a requirement for a duty of care policy but would of course be very useful to a whole suite of existing policies (including those based on the evaluation of impacts on biodiversity).

    The authors also argue that this desired outcome should probably be based on the maintenance of the ecosystem or landscape level processes that underpin biodiversity (as well as ecosystem services that are important to humans). However, they recognise that many of these are little known or hard to measure and that appropriate indicators might often rest in identifiable biodiversity components (species presence or abundance, habitat acreage…).

    The framework conforms with much of the current dialogue concerning biodiversity conservation across landscapes, in seeking to articulate quantifiable and ‘‘biophysically meaningful’’ desired outcomes for biodiversity that incorporate measures of size, configuration and connectivity of habitats, as well as vegetation condition measures that collectively act as surrogates for ecological processes.

    This dialogue is very much at the centre of any policy aimed at stopping biodiversity loss or improving its status, be it stewardship, duty of care, offset schemes or top-down command-and-control rules and regulations.

    What’s the French for ecosystem services?

    Tuesday, October 6th, 2009

    In April 2009, the French government’s strategic analysis centre (Centre d’Analyse Stratégique) published a major report on economic valuation of biodiversity and ecosystem services, with a specific emphasis on the French legal and socio-economic context. The report, led by Bernard Chevassus-au-Louis, is available here in pdf (in French).

    The report demonstrates the French state’s embrace of the ecosystem service concept, which was still unfamiliar in the country before the Millennium Ecosystem Assessment’s report of 2005 (which has not yet been translated to French). In fact, the transposition of the EU directive 2004/35/CE on Environmental Liability into French law provides – in 2008! – the first legal mention of the ecosystem service concept in France (L.161-1, I of the Code de l’Environnement).

    The report mainly discusses options for incorporating ecosystems and biodiversity into public policies using their economic value for cost-benefit analyses. In this respect, the conclusions are rather unsurprising. In fact, the most interesting part of the report is a nicely written introduction to the place of biodiversity and ecosystem services in French law, (probably) written by Gilles Martin (Chapitre III – L’approche juridique, page 68).

    Environmental liability in Europe: From monetary damages to like-for-like compensation

    The chapter details how the recent EU directive on environmental liability has changed how impacts on biodiversity and ecosystems (“nature”) are considered under French law by bringing back to the fore the concept of compensation (offsetting).

    It argues that the dominant practice in France and Europe was to repair impacts through damage payments with both moral and (later) ecological damages being recognized ; in addition to classical punitive damages that do not aim to repair losses but to maintain public order (e.g. fines for killing protected species). The Environmental Liability directive explicitly excludes monetary damage payments and requires like-for-like compensation, under a three step framework:

    Remedying of environmental damage, in relation to water or protected species or natural habitats, is achieved through the restoration of the environment to its baseline condition by way of primary, complementary and compensatory remediation, where:

    (a) “Primary” remediation is any remedial measure which returns the damaged natural resources and/or impaired services to, or towards, baseline condition;

    (b) “Complementary” remediation is any remedial measure taken in relation to natural resources and/or services to compensate for the fact that primary remediation does not result in fully restoring the damaged natural resources and/or services;

    (c) “Compensatory” remediation is any action taken to compensate for interim losses of natural resources and/or services that occur from the date of damage occurring until primary remediation has achieved its full effect;

    (d) “interim losses” means losses which result from the fact that the damaged natural resources and/or services are not able to perform their ecological functions or provide services to other natural resources or to the public until the primary or complementary measures have taken effect. It does not consist of financial compensation to members of the public.

    Where primary remediation does not result in the restoration of the environment to its baseline condition, then complementary remediation will be undertaken. In addition, compensatory remediation will be undertaken to compensate for the interim losses.

    These three steps – avoidance, reduction and compensation – are those were deemed central to any offsetting scheme by BBOP.

    Establishing ecological equivalence: Trading apples and oranges

    Before the shift brought about by the Environmental Liability directive, different methods were available for calculating damages:

  • Some components of biodiversity such as game species have established monetary values and can be used to calculate damages if the number of individuals lost is known.
  • Damages could be based on the cumulative cost incurred in the prior management of the impacted resource (ecosystems or populations).
  • The cost of restoring the resource to its previous state is another alternative for calculating damages.
  • These methods are unavailable to like-for-like compensation. Biological or ecological criteria are required for comparing impacts on resources and restoration effects (or compensation gains). Thus, as other government or NGO reports before it (for example the IUCN’s seminal report on business and biodiversity), the French government’s report recognizes the central issue of assessing ecological equivalence.

    Conservation banking in France

    The report also mentions the recent creation, in 2008, of the “Biodiversité” subsidiary of the Caisse des Dépôts et Consignations (CDC), a French public bank which mainly funds infrastructure and public housing schemes. In biodiversity related compensation schemes, CDC-Biodiversité positions itself as a third party actor that can facilitate links between developers from whom compensation is required, land-owners who can provide land for compensation schemes, environmental organisations who can restore and manage ecosystems to actually provide the compensation and the public authorities who oversee the whole process. I will later post a more complete introduction to CDC-Biodiversité‘s role in the development of conservation banking in France. Stay tuned!