Compensatory Provisions for Biodiversity Loss in the European

Union: A Way to Work Towards Restoration Legislation or Paddling

Backwards?

University of Exeter

Xander A. Mol

Word Count: 17041

Acknowledgement

Miss Bethan Eveleigh University of Exeter, UK

For guidance and support in the English language, structuring and lay-out

Mrs Maša Kovič Dine University of Ljubljana, SLO

For organising the Second Conference on Challenges of International Environmental Law in Ljubljana, Slovenia and for providing invaluable readings and information

Mr Arnold van Kreveld Erasmus University Rotterdam, NL

For the provision of an insight into offsetting in The Netherlands and other valuable information

Prof Robert Lee University of Exeter, UK

For the provision of professional and invaluable guidance and advise In writing this thesis

Mr Hendrik Schoukens University of Ghent, BE

For the provision of support, information, guidance and advise during and after the Second Conference on Challenges of International Environmental Law in Ljubljana, Slovenia

Mr Rolf Mol Erasmus University Rotterdam, NL

For the provision of support and information, especially in the area of corporate social responsibility

I

Abstract

Whilst modern Europe is a culturally diverse continent, we are losing species at an

unprecedented rate. This dissertation analyses the current European environmental regime by

assessing the current legislation, bearing in mind the current state of the natural environment of the

European Union and the fact that the world is on the brink of a sixth mass extinction. However, this

time it is human beings who are to blame. It is concluded that the current European regime,

although aiming at no net loss of biodiversity, is falling short on improving the conservation status of

endangered species. This dissertation will assess whether aiming for biodiversity restoration is

realistic in the short term.

It is concluded that such an aim, although necessary to make a difference, is nearly

impossible to implement in the short term because of political and financial barriers. In a European

culture in which economics and trade are put before the environment, environmental policy makers

find themselves in an awkward position. On the one hand, ambitious aims and strict policies are

needed in order to change the trend and to avoid the sixth mass extinction. On the other hand, the

political environment of the EU is currently experiencing a conservative wave of political parties that

are placing economics before the environment; these parties are sceptical towards the existence of

an EU environmental policy to begin with.

Offsetting is considered as having the potential to bring economists and environmental

conservationists together if used strategically. It has the potential to free policy-makers from being

trapped between a rock and a hard place, yet it is likely to cause more harm than good; offsetting as

a tool is a loose cannon. This is due to the commercial appeal of offsetting and the simplicity to make

offsetting financially attractive at the cost of the environment by cutting budgets on, for example,

long-term management of newly created habitats. American legislation is given as a good-practice

example, even though the country is a sleeping giant that is in the process of slowly waking up when

it comes to environmental policies.

It is demonstrated that through case-law, the EU is showing willingness to interpret

directives such as the Birds Directive and the Habitat Directive so that it encompasses as many

obligations as possible without robbing the words of the legislation from its meaning. It is concluded

that the wording does not allow for further interpretation towards a restoration obligation and that

a revision of the directives is needed if the EU wishes to impose such an obligation. However, such a

revision is likely to receive a lot of resistance. Perhaps such resistance is justified, as a further

obligation towards restoration of the habitats and species will put an enormous financial burden on

member states. As the EU is still recovering from the financial crisis it is possible that introducing

such legislation could have detrimental consequences for European unity.

This dissertation argues that investment in environmental awareness is needed on an EU-

wide level. The more that European citizens step away from the perception that the natural world is

made for humans to exploit, the closer the enforceability of stricter environmental legislation will

be. The no net loss regime is already a major step in the right direction and rushing through an even

more ambitious environmental regime may cause the European Union to self-destruct.

II

Table of Contents

Abstract ........................................................................................................................................ I

Introduction ................................................................................................................................ 1

1 - Biodiversity – Why Bother with Strict Legislation? .................................................................... 4

1.1 Facing the Next Wave of Mass Extinction ............................................................................. 4

1.2 The Hare and the Tortoise ..................................................................................................... 5

2 - Offsetting – The Popular Way to Dodge the Environmental Bullet ............................................ 8

2.1 Current Legislation ....................................................................................................................... 8

2.2 Continuously Gaining Popularity ............................................................................................... 10

2.3 Methods of the Commission to Monitor the Effectiveness of Compensatory Provisions in

Relation to Article 6(4) of the Habitats Directive ............................................................................ 11

3 - The European Court of Justice: Monitoring and Enforcing ....................................................... 13

3.1 Effective in Decided Cases? ........................................................................................................ 13

3.2 Room for Error: What is the Situation on a Local level? ........................................................... 16

3.3 The Environmental Liability Directive – Best Practice? ............................................................ 18

3.4 Impact Neutrality – An Eye for an Eye ....................................................................................... 21

4 – Habitat Banking and Offsetting: Ambitious Aims, Little Result ............................................... 24

4.1 Habitat Banking – Apples and Oranges ..................................................................................... 24

4.3 “You Must Be the Change You Wish to See in the World” – Mahatma Ghandi ...................... 26

5 – Commercial Offsetting – The Good, the Bad, the Ugly ............................................................ 28

6 – Towards Restoration with Offsetting as a Tool? ..................................................................... 34

6.1 To Maintain or to Restore? ........................................................................................................ 34

6.2 Towards Ecological Restoration. ................................................................................................ 35

6.3 Offsetting: A Way to ‘Polder’ and Find a Way to Satisfy the Politicians, Economics and

Environmentalists for the Time Being? ........................................................................................... 41

7 – Conclusion ............................................................................................................................ 43

8 – Annexes ............................................................................................................................... 50

9 – Sources ................................................................................................................................ 51

1

Introduction

“Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social,

economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity

and its components – Conscious also of the importance of biological diversity for evolution and for

maintaining life sustaining systems of the biosphere” 1

European legislation introduced to minimise or prevent the loss of biodiversity, such as the

Birds Directive, the Habitats Directive and more recently, the Environmental Liability Directive, have

been subject to fierce criticism and resistance2. Most criticism is rooted in the camp of the

economists, rather than the environmentalists, or conservationists. Economists have experienced

the current legislation - and particularly the application of the Habitats Directive - as too rigid.

According to this criticism the legislation does not leave enough room for any discretion.

The conservative two-step test that has been applied to determine whether there is a

violation of article 6(3) of the Habitats Directive, has not been received well. In the application of this

test, the Court would look at whether a planned action of a Member State has a significant residual

adverse biodiversity impact on the habitat in question. If the Commission of the European Union

(hereafter the Commission) concludes that there is such an impact, this would automatically be

considered deterioration of the habitat. It would then follow that there is a violation of the directive.

Through a relatively low number of cases, the Commission moved away from the conservative

approach, the conservative approach succeeded by a more progressive approach in which additional

aspects are taken into account in order to decide whether there is a violation3. Born out of the

criticism and problems around the conservative approach and rigid application of the Habitats

Directive, are compensatory measures that allow for a project to avoid a violation of environmental

law by putting in place measures to achieve “no net loss”. Compensatory provisions are referred to

1 United Nations Convention on Biological Diversity (1992); Preamble, paragraph 1

2 Council Directive 2009/147/EC of 30 November 2009 on the Conservation of Wild Birds [2009] OJ L 20/7;

Council Directive 92/42/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wilde Fauna and Flora [1992] OJ L 206; Council Directive 2004/35/EC of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage [2004] L 143/56 3 Hendrik Schoukens, De Queeste naar de Heilige Graal van de Duurzame Gebiedsontwikkeling: (Not) Taking No

for an Answer? (Rechtsleer, TROS, Edition 74), pp. 7-11

2

as biodiversity offsetting, or “measurable conservation outcomes resulting from actions designed to

compensate for significant residual adverse biodiversity impacts arising from project development”4.

Compensating for the loss of biodiversity by offsetting has become the popular solution. This

dissertation will look into whether this is good news for the environmentalists or whether this could

be nothing more than a placebo, rather than a panacea for biodiversity.

In the first chapter of this dissertation, the objectives of the directives are explained, as well

as why we need legislation to minimise the loss of biodiversity. Statistics and timelines will be used

by way of illustration and to emphasise the short time span the EU has in the biological and in the

legal sense. The chapter will explore the why, and if, there is a need for strictly applied

environmental legislation with few exceptions.

In the second chapter the concept of offsetting and related legislation will be explained and

the popularity of the concept of offsetting illustrated. The applicable no net loss principle will be

introduced. The question in this chapter is whether offsetting is a non-solution or the panacea for

the protection of biodiversity.

In the third chapter case law will be analysed, as well as the way the Court of Justice of the

European Union (CJEU) assesses these cases and how this assessment is changing over time. The

main question to be answered here is whether the voice of the economists is overpowering the

voice of the environmentalist or whether the right balance has been found. This chapter will use

examples of the application of compensatory provisions in the Netherlands as an illustration.

Chapter four will show that offsetting is often far from achieving the no net loss principle

and in most cases not very effective at all. Case law illustrations will be used.

Chapter five will analysed the commercial attractiveness of offsetting. It will illustrate the

commercial appeal by looking at examples from the Netherlands and the United Kingdom and in

particular the planning of the HS2 railway. How do companies implement offsetting into their

4 Kerry ten Kate and Amrei von Hase, ‘Biodiversity Offsets & Conservation Banking: A Tool for West Africa?’

(Business and Biodiversity Offsets Programme (BBOP)) <http://www.ecosystemmarketplace.com/documents/acrobat/katoomba_xv/october_7_2009/[1]BBOP%20Slides%20for%20Ghana%20Katoomba%206-10-09.pdf> accessed 20 June 2014

3

corporate social responsibility schemes and how do they ensure ecological quality? Is this popularity

a positive trend from a conservationist approach? Can habitat banking do any harm?

Chapter six will analyse whether, if applied properly, offsetting can in fact be an important

tool that can be used to work towards effective legislation that is aiming for restoration of

biodiversity and ecological areas. It will show what the idea of restoration legislation involves and

what needs to be done. The main question in this chapter is whether aiming for restoration can be

viable in the short term and whether such legislation should be implemented with offsetting as its

major tool.

A conclusion will follow.

4

1 - Biodiversity – Why Bother with Strict Legislation?

1.1 Facing the Next Wave of Mass Extinction

In order to move forward and make progression in environmental legislation, it is important to

be aware of the ethos that lies behind the legislation and the problems it is trying to tackle.

Currently, it is safe to say that the world is experiencing a wave of extinction. Such a wave of

biodiversity loss has happened five times before in world history, of which one is well-known as

involving the extinction of the dinosaurs. Although a sixth wave of extinction has not officially

started, we are well on our way towards one. What is most shocking is that it is the popular opinion

that the current wave of extinction cannot be added to the list of extinctions caused by a major

geological event. The unpleasant truth is that the current loss in biodiversity we are experiencing is

the first wave that is inflicted upon the earth by human kind and which has been caused by

industrialisation5.

The speed in which we are losing some species is staggering. The loss of biodiversity has, due to

rapid changes in ecosystems, caused a decline of an incomparable scale in human history6. Since the

1950s the EU has lost half of its wetlands and the majority of its high value farmlands7. The effect on

species has been absolutely devastating. In the United Kingdom for example, there has been a

decline of eighty percent in farmland birds since the 1960s. Additionally, a decline of seventy-six

percent of butterflies has been observed in the United Kingdom since the 1970s8.

The factors that lie at the basis of these developments are intensification of agriculture and

forestry and over-exploitation caused by the constant increase of human food demands, as well as

the demand for other resources such as fresh water, timber, fibre and fuel. According to Fogleman,

“the spread of urban areas, the growth of transport infrastructure, the spread of invasive species,

pollution and climate change” also increasingly form threats to biodiversity9.

5 Hendrik Schoukens, ‘Ecological Restoration As a New Policy Tool Within the European Union: Going Beyond

the Status Quo?’ (International Environmental Law: Contemporary Concerns and Challenges in 2014, Ljubljana, June 2014), pp 3-4; Annex 1 6 United Nations Millenium Ecosystem Assessment (MA) (2001); ‘What are the Findings of the MA?’

<http://www.maweb.org/en/About.aspx> accessed 18/06/2014 7 Valerie Fogleman, Halting the Loss of Biodiversity in the European Union: An Achievable Goal? KLRI Journal of

Law and Legislation, Volume 2 (2012), page 102 8 Royal Commission on Environmental Pollution, Demographic Change and the Environment 51 (29

th Report,

CM 8001, February 2011), paragraph 3.58 9 Valerie Fogleman, Halting the Loss of Biodiversity in the European Union: An Achievable Goal? KLRI Journal of

Law and Legislation, Volume 2 (2012), page 103, 104

5

It has been argued that climate change will be beneficial for one animal and problematic for the

other and that this will ultimately balance out. However, recent study has shown that, for example,

out of 122 species of birds that have been observed, only 25% were benefiting from the changes and

an astonishing 75% were damaged by these developments10.

Fragmentation of ecologically diverse areas has had a major effect and 30% of terrestrial EU is

now considered as highly or moderately fragmented.

It is these worrying developments that European environmental legislation is trying to battle.

Taking into account the aforementioned statistics and facts, it is not difficult to understand why

ambitious targets have been set, both now and in the past.

Purely based on the sheer rate of the current decline in biodiversity, it is safe to say that the

current environmental law policies of the European Union find itself in an awkward position where it

falls short in its attempt to change the trend of decline and is considered too strict from an economic

point of view. Can the EU even afford to accept offsetting aiming at a no net loss in an

environmental situation in which legislation ideally aims towards a restoration of biodiversity? Can

offsetting be the glue that brings economists and environmentalists together? Can it be a tool to

work towards restoration of biodiversity?

1.2 The Hare and the Tortoise

The European Union has a highly developed set of environmental legislation, both on a member

state level and on a European Union level11. Despite the fact that the EU is ahead in terms of

environmental policies and the reductions of emissions in relation to sleeping giants such as the

United States, China and Russia, where legislation is either scarce or non-existent, the legal response

can still be compared to a turtle racing a hare. The hare represents the rate of biodiversity loss,

subject to constant new threats, such as climate change, and showing no sign of slowing down.

Strictly applied legislation with ambitious aims that demand rigorous action is needed to catch up

with the hare; something that is slowly being realised in the EU, and which therefore represents the

tortoise. The introduction of legislation has resulted in, for example, strategies aimed at reducing

CO2 emissions, one of the most serious new threats to biodiversity, by 40% by 2030. This aim is

10

European Environment agency, The European Environment, State of the Outlook 2010, (Biodiversity 10-11, 2010) 11

Elizabeth Burleson, ‘Climate and Energy Decision Making’ (International Environmental Law: Contemporary Concerns and Challenges in 2014, Ljubljana, June 2014), Presentation notes

6

amazing compared to the 30% reduction aim of the US and a simple CO2 cap that is not supposed to

be exceeded introduced in China12.

Although the EU may have a head-start in climate change mitigation in relation to the US and

China, it is a misconception to think that things are turning for the better in Europe when it comes to

nature and biodiversity. According to recent figures of the EEA, 40 to 70% of European’s protected

species find themselves in an unfavourable conservation status. These numbers emphasise the need

to question whether compensatory provisions such as offsetting have a place in an effective

European policy from an environmental point of view.13

The reason why environmental legislation is generally not as developed or as highly prioritised

as, for example, legislation dealing with commerce, can be brought back to human history. Sticking

to Europe and European cultures, during the first half of the twentieth century, religion was still of

great influence in policy making and with it came a whole different perception of nature in

comparison to the perception that Europeans commonly have today. In the early modern days of

Europe, what we perceive as the natural world, to them was the creation of God. Following the

Christian creationist philosophy, it was commonly thought that life forms on earth were “organised

hierarchically in a chain of being, and human beings had been granted dominion over the Earth and

her creatures”14. The created world, and thus the natural world, was seen as having the sole function

of providing the things humans need to survive. The scientific research which forms the foundation

of the industrial revolution that is largely to blame for the environmental issues we have to deal with

today was seen as “justified as a means of giving reverence to God by seeking a better

understanding of God’s creation and aimed at extracting useful knowledge to enhance man’s ability

to take advantage of the properties inherent in the created natural world: properties that God had

intended for man to discover and put to use”15.

It is only since the second half of the twentieth century that European culture started to shift

towards a perception in which humans have a responsibility towards the natural world, but even

today the old Christian perception in which we can exploit natural resources in whichever way we

please is engraved in European cultures. For this reason, environmental legislation is still secondary

12

Elizabeth Burleson, ‘Climate and Energy Decision Making’ (International Environmental Law: Contemporary Concerns and Challenges in 2014, Ljubljana, June 2014), Presentation notes 13

Hendrik Schouken, ‘Ecological Restoration As a New Policy Tool Within the European Union: Going Beyond the Status Quo?’ (International Environmental Law: Contemporary Concerns and Challenges in 2014, Ljubljana, June 2014), page 7; Annex 2 14

Ileana Porras, Appropriating Nature: Commerce, Property, and the Commodification of Nature in the Law of Nations [2014] Leiden Journal of International Law, page 3 15

Ibid.

7

to economic policies in most cases and in most parts of the world, perhaps, with the exception of

Bolivia, the only country that has a “biocentric” approach to protect nature16. Can offsetting build a

bridge?

16

Susana Borràs, ‘Biocentric Approach to Protect Nature: The Bolivian Regulations on Mother Earth and Living Well’ (International Environmental Law: Contemporary Concerns and Challenges in 2014, GV Založba, Ljubljana 2014 1

st Edition) page 139

8

2 - Offsetting – The Popular Way to Dodge the Environmental Bullet

2.1 Current Legislation

Although there were some regulations for, for example, hazardous materials before the

1970s, it was in this decade when the evolution of Environmental law in European legislation took

off17. The UN Stockholm Conference acted as one of the primary catalysts for an revision, expansion

and improvement of the European environmental policy18. Water, waste and air pollution were the

first issues to be tackled and in 1979 the Directive on the Conservation of Wild Birds (Birds Directive)

was introduced in its original shape; the first directive that concerned the preservation of

biodiversity19. The Birds Directive protects the habitats of listed birds and imposes the duty to create

special protection zones for the conservation of wild birds. A list of birds enjoying special

conservation measures is included20. Compensatory measures with an aim to have no net loss in

numbers and biodiversity have been applied in relation to this directive.

The Habitats Directive

The Habitats Directive was introduced in 1992 as an addition to the Birds Directive and

concerns the preservation and protection of ecological habitats of certain species that are flagged

for concern, implementing legislation and creating habitats following the Natura 2000 objectives,

which will be covered later in this dissertation21. Compensatory provisions have been included in

article 6, an article that has caused a lot of academic and political stir22. Article 6 of the Habitats

Directive is often used in combination with article 4 of the Birds Directive, which establishes special

conservation measures for birds mentioned in annex 123. Article 6 of the Habitats Directive

introduces exceptions in which a loss of biodiversity can be considered lawful, even when there

would be a bird listed in annex 1 of the Birds Directive present at the site in question24.

17

Council Directive 75/442/EEC of 15 July 1975 on Waste, [1975] OJ L 194, page 39 18

United Nations Conference on the Human Environment (Stockholm, 1972) 19

Council Directive 2009/147/EC of 30 November 2009 on the Conservation of Wild Birds [2009] OJ L 20/7 20

Ibid. 21

Council Directive 92/42/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wilde Fauna and Flora [1992] OJ L 206 22

Council Directive 92/42/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wilde Fauna and Flora [1992] OJ L 206, article 6 23

Council Directive 2009/147/EC of 30 November 2009 on the Conservation of Wild Birds [2009] OJ L 20/7, Article 4 and Annex 1 24

Council Directive 92/42/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wilde Fauna and Flora [1992] OJ L 206, article 6; Council Directive 2009/147/EC of 30 November 2009 on the Conservation of Wild Birds [2009] OJ L 20/7, Annex 1

9

There is much disagreement about how to interpret article 6, and specifically the sentence “not

adversely affect the integrity of the site” which can be found in article 6(3)25. The Habitats Directive

aims to maintain European natural habitats and wild animals and plants that are of European

interest yet it has been used to avoid liability for the loss of biodiversity.

Article 6(4) states that “If, in spite of a negative assessment of the implications for the site

and in the absence of alternative solutions, a plan or project must nevertheless be carried out for

imperative reasons of overriding public interest, including those of a social or economic nature, the

Member State shall take all compensatory measures necessary to ensure that the overall coherence

of Natura 2000 is protected. It shall inform the Commission of the compensatory measures

adopted”26.

Liability under this paragraph has been avoided in the most inventive and creative ways,

which only shows the kind of challenges the Commission faces in finding an Environmental policy

that will receive good reception.

The creation of new areas of nature, also known as offsetting, has provided a way of going

ahead with a project that affects a habitat without violating article 6 in attempting to compensate

the loss of an eco-system by creating an eco-system of equal or higher biological value elsewhere.

The Environmental Liability Directive

The Environmental Liability Directive (ELD) established a liability regime that aims at the

prevention and remediation of environmental damage in the European Union27. The regime contains

three types of enforcement; (i) it creates, in the event of an imminent threat of, or actual

environmental damage, a duty on competent authorities to act, (ii) a power authorising competent

authorities to act (iii) and a duty on operators who caused the imminent threat of, or an actual

damage to notify the competent authority of the damage to prevent or remediate it28.

Following article 6 of the ELD, the regime “requires an operator to carry out all practicable

steps to immediate control, contain, remove or otherwise manage the contaminants that have

25

Hendrik Schoukens, De Queeste naar de Heilige Graal van de Duurzame Gebiedsontwikkeling: (Not) Taking No for an Answer? (Rechtsleer, TROS, Edition 74), page 6 26

Council Directive 92/42/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wilde Fauna and Flora [1992] OJ L 206, article 6, paragraph 4 27

Council Directive 2004/35/EC of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage [2004] L 143/56 28

Valerie Fogleman, Enforcing the Environmental Liability Directive: Duties, Powers and Self-Executing Provisions, [2006] 4 Env Liability

10

caused environmental damage as well as other aspects of the damage”29. It is the duty to remediate

that is interesting as the creation of new habitats with as a goal to have no net loss in habitats is

considered a way to remediate. These measures are very similar to offsetting, in relation to the

Habitats Directive. This can be concluded from Annex ll of the directive which states that

compensatory remediation is “the provision of improvements and other measures to water and

protected species or natural habitats at the damaged site or an alternative site to compensate for

the loss of the resource or services rendered by it from the time of the damage to remediation to its

baseline condition”30.

Natura 2000

Natura 2000 is regarded as the backbone of EU nature and biodiversity policy31. Natura

2000 creates an EU wide network of nature protection areas established under the 1992 Habitats

Directive. Its aim is to assure long-term survival of those species and those habitats that are most

threatened and most valuable to Europe. Under Natura 2000, Special Areas of Conservation (SAC)

are created and designated by Member States under the Habitats Directive and Special Protection

Areas (SPA) under the Birds Directive. The emphasis in protection under Natura 2000 is to ensure

that future management of the designated land is sustainable, both in an ecological and an

economical way.

This dissertation will mainly focus on the former mentioned legislation and question

whether the current policies make Europe move towards the environmental aims set by the 2020

strategies and the 2030 CO2 strategies or whether the hare will get away from the turtle32.

2.2 Continuously Gaining Popularity

Since the introduction of the Birds Directive and the Habitats Directive an attitude of

compensation has been developed in which it is deemed necessary to provide an equivalent of what

is lost. Following McGillivray, this is best to be termed as the “ecological impact neutrality

29

Valerie Fogleman, Enforcing the Environmental Liability Directive: Duties, Powers and Self-Executing Provisions, [2006] 4 Env Liability, page 133 30

Council Directive 2004/35/EC of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage [2004] L 143/56, Annex ll, Valerie Fogleman, Enforcing the Environmental Liability Directive: Duties, Powers and Self-Executing Provisions, [2006] 4 Env Liability, page 133 31

European Commission, ‘Natura 2000 Network’ <http://ec.europa.eu/environment/nature/natura2000/index_en.htm> Accessed 29/06/2014 32 Commission, “Communication from the Commission, Europe 2020, A Strategy for Smart Sustainable and

Inclusive Growth” COM (2010) 2020 final

11

approach”. The whole concept of compensation for the loss of biodiversity or natural habitats in

general, was introduced by the Habitats Directive and ever since has been applied wider and wider.

At first glance, the fact that compensatory provisions for the loss of biodiversity are

becoming more and more mainstream and the idea of impact neutrality, or no net loss, is getting

well-established can be considered to be a step in the right direction. However, there are a lot of

different perceptions about how to compensate and how to monitor the effectiveness of

compensatory provisions. It is difficult to assess the success of compensatory provisions and the task

to monitor the assessors is not the easiest. Additionally, it is costly to compensate for biodiversity

loss, and wherever there is money involved, there will be attempts to save money. It therefore

doesn’t go without saying that the motivations behind compensatory provisions are based on

anything other than the option that is financially most appealing, rather than the option that will

show the best ecological results, compensatory wise.

2.3 Methods of the Commission to Monitor the Effectiveness of Compensatory Provisions in

Relation to Article 6(4) of the Habitats Directive

The Commission has given out twenty opinions on the effectiveness of compensatory

provisions in relation to article 6(4) of the Habitats Directive between 1992 and 201333. This is a

rather low number and considering the vague wording of the Habitats Directive, there has been

confusion over how to assess and how to plan compensatory provisions to comply with article 6 of

the Habitats Directive. The Commission found that “Member States are struggling with the

development of appropriate assessments as required under Article 6 (3) (…). Assessments of the

effects of projects are frequently vague and too general. The Commission is concerned by the way

biodiversity matters and nature aspects are addressed. Given that the evaluation of impacts

determines what needs to be compensated, both in quantity and in quality, this issue becomes

crucial34.

Within the published Commission’s opinions, as the only indicator of the Commission’s

interpretation of article 6(3) the status quo invites avoidance of liability and saving on costs at the

expense of the environment. Additionally, those with good environmental intentions have a lack of

33

European Commission ‘Management of Natura 2000 Sites: Guidance: <http://ec.europa.eu/environment/nature/natura2000/management/opinion_en.htm> accessed 29/06/2014 34

European Commission, “Implementation of Article 6($), First Subparagraph of Council Directive 92/43/EEC During the Period 2004-2005”, Summary Report [2008]

12

guidance to decide what form of compensation will be best and have to rely on the eighteen cases

that have been brought in front of the Commission.

13

3 - The European Court of Justice: Monitoring and Enforcing

3.1 Effective in Decided Cases?

The Commission has not given a lot of guidelines and thoughts on how to interpret the

Habitats Directive. The only type of source that can be used as guidance by a Member State are

previous decisions made by the Commission.

This section will explore the cases in which the Commission has revealed their thoughts on

compensatory provisions and assessed the forms of policies it is hinting towards. In the second part

of chapter three, the current enforcement of the Bird Directive and the Habitat Directive by the

Commission is assessed and analysed.

In one of the earlier cases, the Leybucht case, Germany aimed to improve the flood defences

by enforcing dykes along one of the last large salt water bays on the Lower Saxony Coast35. The bay

was both a nesting and feeding area for migratory and non-migratory aquatic birds alike. The salt-

water bay was subject to a special protection scheme at a national level by a German regulation on

the Land of Lower Saxony. On a European level, the wetland or salt-water bay was considered a

habitat of international importance under the Convention of Ramsar36.

On ornithological grounds, the salt-water bay was defined as a wetland and a breeding

ground for both migratory and non-migratory birds which means that the area falls within the scope

of the Birds Directive37.

The Commission stated that, although the enforcement of flood defences would fall within

reasons of overriding public interest, the depositing of dredging material in fragile areas of the

Rysumer Nacken violated article 4 of the Birds Directive as there were viable alternatives. It stated

that the depositing activities in the wetland in question were not absolutely necessary to strengthen

the dykes and simply strengthening and raising the height of the dyke without dredging would have

been sufficient.

35

Case C-57/89 Commission v Germany [1991] ECR I-883 36

Convention on Wetlands (Ramsar, 1971) 37

Case C-355/90 Commission v Spain [1993] ECR I-4221; Case C-3/96 Commission v Netherlands [1999] Env LR 147

14

It is clear that the Commission, in relation to the Birds Directive emphasised the principle of

proportionality here. Exceptional overriding circumstances are limited to what is necessary to

guarantee the safety of the public. Therefore, the Commission regarded the dredging as being

unlawful38.

The Commission decided in this case that the German compensatory provisions were

probably insufficient for the birds affected. However, the Commission did not give any more

guidelines in this case, which appears to be the general picture in later cases as well.

McGillivray stated four central arguments in criticising the Commission’s approach to cases

involving biodiversity loss and compensatory provisions for biodiversity loss in his PowerPoint

presentation dated 01/01/2013; “(i) Ecological compensation is undervalued and in fact rarely

commented on in any detail, (ii) the Commission is poorly placed to assess the adequacy of

ecological compensation or to hold Member States to account, (iii) The process for issuing positive

opinions is opaque and fails in practice to meet key criteria and (iv) the compensation duty is

unclear, leading to uncertainty and optionality”39.

In Peene Valley, one of the earliest opinions on article 6(4) of the Habitats Directive, a

planned intersection for a motorway in Germany would affect the migration of species in the Peene

valley and would create disturbances to other habitat types that were important for species listed in

the Birds Directive and the Habitats Directive40. The Commission held that compensatory measures

were necessary and that those measures needed to be “sufficient”. It then continued by stating the

German compensatory plans and added that measures need to be taken to retain potential oil run-

offs, ensuring that the area is protected in case of an accident.

All a country has to do when it is planning to build a motorway through an ecologically

significant area that falls within the Birds Directive and the Habitats Directive, following this opinion,

is to look at the measures Germany came up with. Additionally, it has to ensure the protection of the

area in case of an accident that involves oil. Otherwise the Commission leaves compensatory

provisions to the discretion of the Member State in this opinion.

38

Case C-57/89 Commission v Germany [1991] ECR I-883 39

Donald McGillivray ‘Compensatory Measures Under Article 6(4) of the Habitats Directive: No Net Loss for Natura 2000?’ <http://www.omgevingsrecht.be/sites/default/files/habtitat1213122012/20121212-08.pdf> accessed at 29/06/2014 40

Commission, “Commission Opinion on the Intersection of the Peene Valley (Germany) by the Planned A20 Motorway Pursuant to Article 6(4) of Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora” (1996) No L 6/14

15

In the most recently published opinion on the Deepening of the Main River in Germany, the

Commission held that the expected impacts of the project on the coherence of Natura 2000

network, which is specifically mentioned in Article 6(4) of the Habitats Directive, must be

compensated and the habitat type 6510 (Lowland hay meadows) will be compensated in a

proportion of 1:7 and habitat type 91E0 (Alluvial forests with Alnus Glutinosa and Fraximus Excelsior)

will be compensated in the ratio of 1:441.

This shows that even though the Commission added case specific compensation ratios it has

not given any general guidelines for Member States to follow. Therefore, compensatory provisions

remain subject to case-individual interpretations and the discretion of the Member States in case of

a lack of clarification of the Commission.

According to McGillivray this often results in an underestimation of the impacts of a project

and an overestimation of the positive effects of compensatory provisions. De facto compensatory

provisions often provide poor comparable ecological functionality, and economic considerations are

often improperly or unduly taken into account in comparison to environmental considerations42.

The opinions are often proponent bias and subject to political pressure from Member States

in favour of the proponent of the project to be assessed. This has been the case in Peen Valley,

Trebel and Recknitz, Muhlenberger Loch, Rotterdam, Bothnia and Granadilla Port43.

Although Member States can take into account previous opinions of the Commission in case

they are planning to do something of a similar nature, the Commission does not regard its opinion as

a licence for similar projects44. This means that there is no ongoing case management or any form of

case precedence built by the Commission. The Commission can therefore easily decide in a new case

with identical case facts to a case on which it had given an opinion earlier, to give a completely

different opinion on how to compensate for the loss at hand.

41

Commission, “Commission Opinion of 05/04/2013 on the Conservation of Natural Habitats and of Wild fauna and Flora (Habitats Directive), Concerting the Deepening and Widening of the Ship Fairway of the Rive Main at the Sections Wipfeld, Garstadt and Schweinfurt (Bavaria, Germany)” (2013) 1871 Final 42

Donald McGillivray ‘Compensatory Measures Under Article 6(4) of the Habitats Directive: No Net Loss for Natura 2000?’ <http://www.omgevingsrecht.be/sites/default/files/habtitat1213122012/20121212-08.pdf> accessed at 29/06/2014 43

Ibid. 44

Donald McGillivray, Compensating Biodiversity Loss: The EU Commission’s Approach to Compensation Under Article 6 of the Habitats Directive, (Journal of Environmental Law 24:3, Oxford University Press (2012), Page 446

16

This does mean that the interpretation of the Habitats Directive is extremely flexible and can

be changed in case of new data on the loss of biodiversity or improved awareness or international

ultra-European Union commitments.

The flexibility and the fact there is no case precedence leaves a lot of space for mistakes or

controversial decisions and opinions of the Commission and causes problems on a regional Member

State level.

3.2 Room for Error: What is the Situation on a Local level?

The fact that the Commission leaves a lot of space for interpretation and gives a minimum

amount of guidance through case legislation means that on a regional and local Member State level,

policies and methods applied seriously compromise the quality of compensatory provisions taken for

the loss of biodiversity. Arnold van Kreveld, consultant and lecturer at the Erasmus University in

Utrecht, and expert in environmental law and biodiversity loss, provided a good overview of issues

on a Dutch regional level in an interview conducted for this dissertation45. In my interview with Mr

van Kreveld, I asked him about his thoughts on offsetting and the positive and negative experiences

he has with commercial and non-commercial compensatory measures in The Netherlands. He said

that in the current situation Dutch compensatory measures are often insufficient in terms of de facto

impact on the biodiversity. Methods chosen are often resulting in a bad execution of compensatory

measures. In the Netherlands, city councils do not like to invest in different city councils, and neither

do provinces like to invest in different provinces46. The result is that locations are not chosen purely

on the basis of their ornithological characteristics but because of their location within political

boundaries47.

Van Kreveld added that from his experiences, he had noticed an issue in the Netherlands

with the management after compensatory measures have been taken in the form of offsetting. In

Europe, the ongoing management after the creation of a new habitat is often overlooked. For the

environment, this means that the compensation is effectively only temporary. He added that the

current European regime allows, although there are strict requirement for compensatory provisions,

allows for a major gap between the legislation and how this legislation is applied. In the Netherlands,

45

Email from Arnold van Kreveld to author (18 August 2014), See Annex 3 46

Ibid. 47

Email from Arnold van Kreveld to author (18 August 2014), See Annex 3

17

knowledge and expertise are lacking when it comes to assessing the best way to compensate

because of deliberate limitations in such expertise by, for example, discontinuing forest enforcement

units (“veldpolitie”). Another trick used in the Netherlands is to change the panel of experts

frequently when assessing a project so that there will not be any attachment to the specific project

and to avoid such experts to protest once the ongoing management has been cancelled because of

budget cuts48.

The interview with Mr van Kreveld shows the lack of control the EU has over what is

happening in practice on a regional level. Governments that disagree with the strict policies will

attempt to find loopholes to save money and this is exactly what is going on in the Netherlands at

the moment.

In the United States, ongoing management is being arranged as part of the compensation

demands before the execution of a project – a legal structure Europe could perhaps learn from. In

Chapter five of this dissertation more attention will be given to the American system of wetland

banking49.

Enforcement issues as illustrated here can be fixed by improved guidelines and improved

monitoring by the European Union. The guidance of the case law mentioned is minimal and a lack of

expertise has been shown in some cases. Question can be raised about the competence of the

Commission in enforcing the Habitats Directive and the Birds Directive. However, there will always

be parties involved that want to cut corners because they disagree or because they want to save

money in this area. This will be a major struggle in raising the bar in terms of the aims of the

European environmental policies.

The case law discussed in part 3.1 all relates to the Habitats Directive and the Birds Directive.

The issues arising out of the lack of guidance of the Commission also apply to the enforcement of the

Environmental Liability Directive to an extent. However, the ELD does not follow the Birds or

Habitats Directives entirely and created some interesting guidelines to the enforcement of the

directive. Should the Birds Directive and the Habitats Directive be revised so that it follows the

enforcement methods of the ELD?

48

Email from Arnold van Kreveld to author (21 August 2014), See Annex 4 49

Ibid.

18

3.3 The Environmental Liability Directive – Best Practice?

The Environmental Liability Directive (ELD) introduces a new regime in European

environmental legislation. It has been stated in this essay that the ELD establishes three kinds of

enforcement provisions: (i) a duty to act for competent authorities in case of an imminent threat of

actual environmental damage; (ii) it established a power for those competent authorities to act; and

(iii) it establishes a duty to act for those operators that caused the imminent threat or actual damage

to the environment50.

Turning to this enforcement scheme, the ELD states exceptions in which case there wouldn’t

be any liability in case of armed conflict, an act of god, if there is already a liability under marine and

nuclear conventions and the Convention on Civil Liability for Damage Caused during Carriage of

Dangerous Goods by Road, Rail and Inland Navigation Vessels, or activities of which the main

purpose is to serve national defence or international security or to prevent natural disaster51.

Considering the confusion around the enforcement of the Birds Directive and the Habitats Directive,

this can be considered a good start.

The ELD cuts out the Commission as an authority completely and allows Member States to

designate competent authorities which means that the issues around the Commission’s case law are

avoided52.

Most interestingly, however, is the liability to compensatory for damages, in which offsetting is one

of the methods to compensate under the ELD. The drafters of the ELD found inspiration in the IPPC

Directive and have intentionally included a similar definition of the ‘operator’53. Essentially this

means that individuals, companies, organisations and other private and public entities can all be

liable under the ELD. It includes not only the person or body that carries out an occupational activity,

50

Valerie Fogleman, Enforcing the Environmental Liability Directive: Duties, Powers and Self-Executing Provisions, [2006] 4 Env Liability 51

Council Directive 2004/35/EC of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage [2004] L 143/56, article 4(1), (4), (5) and (6); United Nations Convention of 10 October 1989 on Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels (Geneva, 1989) 52

Council Directive 2004/35/EC of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage [2004] L 143/56 , Article 11 53

Council Directive 2008/1/EC of 15 January 2008 Concerning Integrated Pollution Prevention and Control [2008] L 24/9, article 2(12)

19

but also those who hold a permit or authorisation54. The ELD then distinguishes two different types

of operators; “An operator of an ‘occupational activity’ that is carried out under EC legislation listed

in Annex lll of the ELD is strictly liable for measures to prevent or remedy damage to land, water and

protected species and natural habitats and operators of an occupational activity that is not carried

out under legislation that is listed in Annex lll is liable for measures to prevent or remedy damage to

a protected species or natural habitat ‘whenever the operator has been at fault or negligent’”55.

Focussing on remedial measures, there are three compensatory measures the operator

could be obliged to take. The operator needs to take all “practicable steps to immediately control,

contain, remove or otherwise manage’ the contaminants that have caused environmental damage

as well as other aspects of the damage’ in order to prevent further unnecessary harm 56 .

Furthermore, the operator will have to notify ‘without delay’ the competent authority about caused

environmental damage57. After the two initial steps the competent authority can order remedial

measures to be carried out by the operator or to carry out remedial measures itself under article

6(2)58.

The kind of remedial measures to be adopted is decided and determined by the competent

authority under article 7, in conjunction with annex ll of the ELD59. Annex ll gives guidelines in a

common framework for the competent authority to follow in selecting the appropriate measures

with the aim to ensure the remedying of the environmental damage that has been done60.

Offsetting has found its place in annex ll, section 1. Section 1 (c) states that “’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”61. Section 1(d) is very interesting as it states that “’Interim losses’ means losses which result

from the fact that the damaged natural resources and/or services are not able to perform their

54

Valerie Fogleman, Enforcing the Environmental Liability Directive: Duties, Powers and Self-Executing Provisions, [2006] 4 Env Liability, page 131 55

Valerie Fogleman, Enforcing the Environmental Liability Directive: Duties, Powers and Self-Executing Provisions, [2006] 4 Env Liability. 56

Council Directive 2004/35/EC of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage [2004] L 143/56, article 6(1)(a) 57

Council Directive 2004/35/EC of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage [2004] L 143/56, article 6(1) 58

Council Directive 2004/35/EC of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage [2004] L 143/56, article 6(2) 59

Council Directive 2004/35/EC of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage [2004] L 143/56, article 7 60

Council Directive 2004/35/EC of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage [2004] L 143/56, Annex ll 61

Ibid, section 1(c)

20

ecological functions or provide services to other natural resources or the public until the primary or

complementary measures have taken effect”. It adds that this “does not consist of financial

compensation to members of the public”62. As the ELD takes into account interim losses, it can be

concluded that that the ELD takes into account natural regeneration and that this may take a lot of

time. In order to compensate for the regeneration time, compensatory measures need to be put in

place, in addition to complementary measures, which include offsetting63.

The addition of compensatory measures for interim loss has been inspired by US legislation.

In the US, interim losses are taken into account in the Oil Pollution Act 1990 (OPA 90), which was

enacted after the famous Exxon Valdez oil spill64. The OPA 90 ensures restoration of “injured natural

resources”65. Those who are held liable under the OPA 90 are responsible for “returning natural

resources to their “pre-spill” condition; and recovering compensation for interim losses of natural

resources and services through restoration, rehabilitation replacement, or acquisition”66. It can be

considered as logical that an act concerning oil spills includes liability for compensation of interim

damages as it has been proven in big oil spills in history that habitats affected will recover naturally

after a certain period of time covering multiple decades. The largest oil spill in US history, the Exxon

Valdez incident, which has been available to be studied for twenty-four years, shows how a habitat

can recover over time. Although there are still two species that are officially listed as ‘not recovered’,

there is clear evidence of improvements without human interference67. It has to be stressed,

however, that the interim compensations are vital to the recovery and human interference is

needed.

The fact that the ELD provides more details in relation to complementary remediation and

compensatory remediation, which includes offsetting, is very welcome as the case law related to the

Habitats Directive and the Birds Directive are lacking in guidance. Although annex ll does not directly

apply to the Habitats and the Birds Directive, at least it shows that ideally offsetting must have as its

aim to work towards the baseline condition of the habitat. Alternatively if this is deemed unrealistic,

it aims towards the impact baseline. Some types of habitat will take a long time to recover and this

62

Ibid. section 1(d) 63

Ibid. section 1.1.2 and 1.1.3 64

Bode & Grenier, LLP, ‘Oil Pollution Act/ ILTA’ <http://www.bode.com/CommercialLitigation/OilPollutionActILTA.html> accessed 12/08/2014 65

Bode & Grenier, LLP, ‘Oil Pollution Act/ ILTA’ <http://www.bode.com/CommercialLitigation/OilPollutionActILTA.html> accessed 12/08/2014 66

Bode & Grenier, LLP, ‘Oil Pollution Act/ ILTA’ <http://www.bode.com/CommercialLitigation/OilPollutionActILTA.html> accessed 12/08/2014 67

Oceana, ‘Exxon Valdez and Long-term Recovery After a Spill’ <http://oceana.org/en/our-work/climate-energy/offshore-drilling/learn-act/exxon-valdez-and-long-term-recovery-after-a-spill> as accessed on 12/08/2014

21

needs to be taken into account in assessing the effectiveness of any form of remediation. In this

area, the EU can look at the United States of America and in particular the Oil Pollution Act 1990.

3.4 Impact Neutrality – An Eye for an Eye

Ideally, compensatory provisions are provided to such an extent that any loss in habitat is

compensated fully. This would mean that the idea of ‘an eye for an eye’ or “no net loss” would apply

to the legal obligations under European law. This dissertation has argued that the current monitoring

of the European Commission is far from effective and prone to fierce academic criticism. In a world

where the state of the environment is dire and climate change increasingly visible, it is to be

assessed whether it is possible to effectively move towards a no net loss legislation in which the

environment de facto does not suffer any loss. With an increasing popularity of habitat banking, it is

also to be assessed whether trade in environmental habitats in order to meet legal quotas and

standards is not just attractive on assessment but also effective on the basis of ornithological

criteria. The de facto effectiveness of compensatory measures for the environment forms the main

focus in this part of the dissertation.

The ethos under which natural resources may only be interfered with if functional

equivalents are provided can only be described as a positive and above all necessary development.

The first evidence of the rising of this legal ethos of impact neutrality can be found in article 6 of the

1992 Habitats Directive and the Natura 2000 network aims68. It is to be noted that the initial step in

European legislation is always to prevent and avoid the loss of habitat. If such loss cannot be

avoided, compensatory measures are taken; this is where complications arise.

According to McGillivray, although compensatory measures have been part of the law since

Leybucht in 1991 and are well-established, it is unclear what the obligation exactly entails. The

interpretations of the European Commission do not give much guidance either69. This section will

use McGillivray’s article called “Compensating Biodivesity Loss: The EU Commission’s Approach to

Compensation under Article 6 of the Habitats Directive” as its main source70.

68

Directive 92/42/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wilde Fauna and Flora [1992] OJ L 206, Article 5; European Commission ‘Management of Natura 2000 Sites: Guidance: <http://ec.europa.eu/environment/nature/natura2000/management/opinion_en.htm> accessed 29/06/2014 69

Case C-57/89 Commission v Germany [1991] ECR I-883 (‘Leybucht’) 70

Donald McGillivray, Compensating Biodiversity Loss: The EU Commission’s Approach to Compensation Under Article 6 of the Habitats Directive, Journal of Environmental Law 24:3 Oxford University Press (2012)

22

Nolkaemper described the first opinions of the European Commission as ‘only a soft glance

at the adequacy of compensation’ in 199571. In the assessment of the opinions of the European

Commission given between then and 2013, it can be concluded that there are still many question

marks around the assessment methods of the European Commission and that the technicalities of

compensatory measures are left for the Member States to assess. Those technicalities will not be

discussed in this dissertation as it is very complex, especially in an ecological context. This complexity

is no secret as is shown in the Summary Report of the European Commission in 2008, which states

that “Member States are struggling with the development of appropriate assessments as required

under Article 6(3) (…) The assessments of the effects of projects are frequently vague and too

general. The Commission is concerned by the way biodiversity matters and aspects of nature are

addressed. Given that the evaluation of impacts determines what needs to be compensated, both in

quantity and in quality, this issue becomes crucial”72.

Instead, the focus of this section is on the kind of legislation that should be in place in order

to allow technical and complex research within a certain time frame and to allow steps to be taken

to ensure no net loss. Can this balance be found?

In order to assess this, one has to compare the Environmental Liability Directive with the

Habitat Directive. Unlike the Habitat Directive, the ELD is looking ahead and partly aims at the

prevention of harm to the environment. However, contrastingly, it does not impose an obligation to

evaluate deliberatively in the way the Habitat Directive imposes such an obligation73. The aim to

prevent harm to the environment is distinct from the ‘best environmental harm reduction strategy

based on reasonable efforts’; this has been applied in relation to the Habitats Directive. It introduces

the ‘ecological impact neutral’ approach74.

The ecological impact neutral approach, or no net loss approach is very strict in its

application as it introduces a legal obligation to ensure that there is no loss in biodiversity, rather

than just a policy aspiration to achieve this. Such policy aspirations have failed time and time around

71

A. Nolkaemper, ‘Habitats Conservation in EC Law – From Nature Sanctuaries to Ecological Networks’ (2004) 5 YrB Eur Env L 215, 248-250. 72

Commission, ‘Directorate General Environment, Implementation of Article 6(4), First Subparagraph, of Council Directive 92/43/EEC During the Period 2004-2006: Summary Report’ (2008) 73

Donald McGillivray, Compensating Biodiversity Loss: The EU Commission’s Approach to Compensation Under Article 6 of the Habitats Directive, Journal of Environmental Law 24:3 Oxford University Press (2012), Page 422 74

Donald McGillivray, Compensating Biodiversity Loss: The EU Commission’s Approach to Compensation Under Article 6 of the Habitats Directive, Journal of Environmental Law 24:3 Oxford University Press (2012), Page 423

23

the globe, including Europe. For example, the EU adopted a Biodiversity Action Plan in 2006, which

aimed at halting the loss of biodiversity in 2010. The EU failed to reach this target in 201075.

It is one thing to set aims, but the European Union needs to find a way to reach them

through its legislation and the enforcement of that legislation. With a lack of expertise, monitoring

and facing enormous complexities, habitat banking seems a dangerous business. Should it actually

be avoided at all costs? Or does it have a place the EU’s ambitions?

75

European Commission Nature and Biodiversity Newsletter, ‘Natura 2000’ (Number 29, December 2010)

24

4 – Habitat Banking and Offsetting: Ambitious Aims, Little Result

In a scenario where the loss of a habitat cannot be prevented, compensatory measures need

to be taken. In this dissertation, the concepts habitat banking and offsetting have been introduced

and explained. It is noted that there are some concerns and issues around monitoring compensatory

measures and about what criteria are used to determine whether such compensatory measures are

successful and effective. In this context, successfulness and effectiveness is measured by ecological

functionality on the grounds of ornithological reasoning.

The ecological quality of compensatory measures depends on a number of factors: (i) who

assesses and monitors the quality of the measures; (ii) who has a voice in the decision-making during

the application of compensatory measures in a specific situation; (iii) the law that puts the rules in

place to ensure its aims; (iv) ecological expertise available; and (v) the tradability of the habitat.

4.1 Habitat Banking – Apples and Oranges

One of the primary necessities to allow trade is to have a currency. In the case of habitats

the most straight-forward currency would be acres of land. It is therefore unsurprising that in

practice this is the currency used. The main issue that arises is that it is impossible to trade one acre

of land for an identical acre of land elsewhere. Therefore, it is unavoidable that when someone is

involved in habitat banking, he is trading and comparing apples with oranges76. As demonstrated in R

v SS for the Environment, even if you find a similar piece of land, the ecological value is not the same

as it is not guaranteed that the species in question will use the newly created land after their original

habitat is destroyed77. ‘The difficulty of measuring and comparing the equivalency of debits in

impacted areas with credits in proposed offsets or existing banks is one of the most difficult

challenges to establishing habitat banking systems. It is also a complex subject that is rapidly

developing”78. Ensuring that the acres of land are equal in value and function is almost always

lacking79.

76

Donald McGillivray, Compensating Biodiversity Loss: The EU Commission’s Approach to Compensation Under Article 6 of the Habitats Directive, Journal of Environmental Law 24:3 Oxford University Press (2012), page 426 77

R v SS for the Environment, ex parte RSPB [1997] QB 206 78

Donald McGillivray, Compensating Biodiversity Loss: The EU Commission’s Approach to Compensation Under Article 6 of the Habitats Directive, Journal of Environmental Law 24:3 Oxford University Press (2012), page 426 79

J.B. Ruhl and James Salzman, The Effect of Wetland Mitigation Banking on People (National Wetlands Newsletter Volume 28, Environmental Law Institute, 2006)

25

This rapid development is mainly caused by the attractiveness of habitat banking from an

economic point of view. It is appealing for developers to choose for this option as it allows

development on a desired location for economic gain. It is for this reason that strict and clear

legislation, along with guidance provided in soft law instruments, need to be in place. A study

analysing banking in the nineties showed that although the decrease of wetland slowed down, the

EU was not even close to its no net loss aim80.

Later reports confirmed that habitat banking has been effective when it purely comes down

to acreage. A 2004 American report showed that ‘67% of projects met permit conditions, but only

17% could be considered adequate functional replacements for the impacted wetlands’81. This

clearly illustrates a cause for concern when it comes to the effectiveness of habitat banking in

safeguarding biodiversity. It has to be noted that these numbers are subject to the time it can take

for a new piece of land to become a functional habitat for the species in question82.

As mentioned, habitat banking can thank its attractiveness from an economic view for its

popularity. It is therefore unsurprising that McGillivray argues that ‘compensation in practice favours

the proponents by underestimating impacts and overestimating the positive effects of

compensatory measures’83.

4.2 “The superior man seeks what is right: the inferior one, what is profitable” – Confucius

The voice of the environment is traditionally overshadowed by the voice of industry.

Industry is financially more attractive due to economic incentives, therefore blinding decision-

makers from the ecological impact of their decisions. Consequently, assessments on ecological

impact tend to underestimate the impacts and overestimate the effectiveness of compensatory

measures84.

As there is no European body for the assessment of environmental impact, it is practically

impossible to commit an unbiased inquiry into the ecological impacts of a project. Looking at the

80

National Research Council, Compensating for Wetland Losses under the Clean Water Act (Natl Acad Press 2001) 2 81

R Ambrose and S Lee, Guidance Document for Compensatory Mitigation Projects Permitted Under Clean Water Act Section 401 by the Los Angeles Regional Quality Control Board (UCLA 2004) 82

Donald McGillivray, Compensating Biodiversity Loss: The EU Commission’s Approach to Compensation Under Article 6 of the Habitats Directive, Journal of Environmental Law 24:3 Oxford University Press (2012), page 427 83

Donald McGillivray, Compensating Biodiversity Loss: The EU Commission’s Approach to Compensation Under Article 6 of the Habitats Directive, Journal of Environmental Law 24:3 Oxford University Press (2012), page 428 84

Donald McGillivray, Compensating Biodiversity Loss: The EU Commission’s Approach to Compensation Under Article 6 of the Habitats Directive, Journal of Environmental Law 24:3 Oxford University Press (2012), page 428

26

United States, similar issues are observed. As Fox and Nino-Murcia stated in relation to habitat-

banking:

“Biological surveys completed to support a banking agreement recognized more ecological

value that previous environmental impact surveys conducted for the purposes of mitigating

development. Impact assessment may underestimate ecological consequences, thereby reducing

mitigation requirements, whereas a prospective conservation bank may inflate ecological values to

optimise numbers of credits awarded. Ultimately, when the mitigation seeker is matched to a credit

seller, there is likely to be a net-loss of ecological value”85.

The solution to biased assessments and over- and undervaluation of impacts lies in the

hands of European legislation makers. In order for an assessment to be unaffected by secondary

interests, an unbiased body would need to be established. So far, the European Commission has

shown that it is not the right body to take that role as it lacks expertise. Additionally, legislation will

need to balance out habitat ration of gain and loss. It will have to ensure that de facto compensatory

measures will ensure a one to one ratio. De facto, in this case, means that it takes into account

functionality and degrees of ineffectiveness of newly created habitats.

It is thus of no surprise that McGillivray proposes that “economic considerations may

improperly or unduly be taken into account”86. This issue is exemplified by Commission v Spain, in

which Spain attempted to justify its failure to designate a habitat under the Birds Directive on the

basis of economic factors. Spain’s argument was rejected by the Commission, stating that economic

factors cannot be the justification of a country’s failure to designate a habitat under the Birds

Directive87.

4.3 “You Must Be the Change You Wish to See in the World” – Mahatma Ghandi

The current legislation is lacking in monitoring and enforcement, which results in a culture in

which compensatory measures are taken on the wrong grounds. They are too often taken with an

economic ethos, rather than a conservationist mind. With the current trend in climate change in

mind and the no net loss aims of the European Union, it is clear that the Habitat Directive and Birds

Directive need to follow the Environmental Liability Directive in its enforcement methods for a start.

85

J Fox and A Nino-Murcia, ‘Status of Species Conservation Banking in the United States’ (2005) Conservation Biology 996, 1005 86

Donald McGillivray, Compensating Biodiversity Loss: The EU Commission’s Approach to Compensation Under Article 6 of the Habitats Directive, Journal of Environmental Law 24:3 Oxford University Press (2012), page 430 87

Case C-355/90 Commission v Spain [1993] ECR I-4221

27

Although Europe’s environmental policies are highly advanced in comparison to Asia or

North-America, it is time to take another step and ensure a de facto one to one ratio in

compensatory measures and habitat loss. The main issue with taking such steps is that

compensating habitat loss is costly. Compensatory measures should always be a secondary solution,

so strict enforcement will lead to avoidance of mandatory compensatory measures. Is striving

towards no-net loss of biodiversity missing the true problem? With the staggering loss in biodiversity

that is being observed, aiming for no net loss seems insufficient.

The recent rapid disappearance of species is evidence of the no net loss regime being

ineffective in triggering a recovery of European wildlife and nature. How capable is the current

regime to embrace a habitat-gaining policy? Can offsetting and habitat-creating have a central place

in such a policy?

The next chapter will assess and analyse how the European Union can follow the path to

biological recovery. The reintroduction of wolves and other species in member states shows that the

will is there88. Legislation must follow this will to work toward restoration. How big are the economic

and political hurdles, and how much time does the EU have to conquer them?

88

The Independent, ‘French Farmers Lose the Battle to Keep Wolves from their Door’ (2010) < http://www.independent.co.uk/environment/nature/french-farmers-lose-the-battle-to-keep-wolves-from-their-door-2044821.html> as accessed 26/08/2014

28

5 – Commercial Offsetting – The Good, the Bad, the Ugly

“Companies should not have a singular view of profitability. There needs to be a balance between

commerce and social responsibility... The companies that are authentic about it will wind up as the

companies that make more money”89 – Howard D. Schultz.

5.1 The Rise in Popularity – A Look at Offsetting in Britain

In a society where corporate social responsibility is regarded with increasing importance,

both from a client’s perspective as from a corporate perspective, it is perhaps unsurprising that

compensatory measures for habitat loss are more often implemented on a commercial level. In

Chapter 4, the concept of habitat banking has been introduced and its downsides have been

mentioned. It has been argued that habitat banking and offsetting are often favourable from a

commercial point of view and that the impact assessments are often more favourable for the

financial side of the story, rather than the de facto environmental recovery that is to be realised with

the measures in question.

This chapter will look at the application of compensatory measures in the United Kingdom

by looking at some cases and projects and the decisions that have been made with regards to

compensating the loss of natural habitats.

A recent major project in the United Kingdom is the planned construction of a high speed

railway between London and Birmingham. This project is commonly known as “HS2”90. The HS2

project, as a contemporary European infrastructure project should, seeks no net loss in

biodiversity91. In the Environmental Statement, Volume 5, the results of the environmental impacts

assessment can be found, including the baselines for different species that are affected along the

planned route the High Speed train will take. The HS2 project also functions well as an example of

aspects that are taken into consideration to determine the best way to asses and investigate the

impact of a project. According to one of the publications of the UK parliament on HS2, the metrics

used to determine the baseline and the impact on the environment had been altered from the

metrics used by the Department for Environment, Food and Rural Affairs (DEFRA). DEFRA uses a

89

Howard D. Schultz, Founder of the Starbucks Corporation, <http://www.brainyquote.com/quotes/keywords/commerce.html> as accessed 13/08/2014 90

Parliament Publications, ‘HS2 and the Environment – Environment Audit Committee Contents -Biodiversity Offsetting’ <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmenvaud/1076/107606.html> as accessed 13/08/2014 91

HS2 Ltd. Environmental Statement, Volume 5, Ecology Technical Note – Methodology for Demonstrating No Net Loss in Biodiversity (November 2013), para 5.1.2 Back

29

standard metric system that functions well for low level of biodiversity loss and for local projects,

rather than major linear projects such as the HS2.

Specifically, the following changes were made in the HS2 metric, in comparison with DEFRA’s

standard metrics: (i) the additions of an “additional ‘very high’ weighting, under habitat

distinctiveness, for existing habitats to take account of those “habitats of principal importance (…0

which cannot be adequately re-created if lost”; (ii) “ensuring that all existing habitats rated as ‘low

distinctiveness’ automatically score ‘poor’ condition, recognising that “condition has negligible effect

on the overall value of those habitats which are intrinsically of low distinctiveness”; and (iii)

incorporating additional weightings, for both lost and gained habitats, to reflect links to ecological

networks and recognising “the landscape-scale of the project and its impacts””92.

The adjustments made in the scheme show firstly, that a lot of thought is going into the

correct way of biodiversity impact assessment with a lot of parties with different concerns involved.

Secondly, it shows how offsetting is implemented when it is determined that a habitat is of a low

distinctiveness and can thus be recreated elsewhere when the project goes ahead and causes a loss.

5.2 How Social and How Responsible is Commercial and Corporate Offsetting?

Applying commercial free market thinking to the environment clashes with the idea that

nature is of intrinsic value. Ironically, it is in line with the old Christian perception of nature being

created for exploitation, as trading in compensation for environmental loss is ironically exploiting the

repairs needed for the loss of habitat by human beings. In doing so it seems that the well-being of

the environment in the long term is hardly ever a primary concern93. It is therefore questionable

whether pushing for commercial offsetting can ever help developing a European environmental

policy that aims for biodiversity restoration – in fact pushing for the free-market philosophy could

even seriously harm the environment in the long run.

In HS2, the habitats affected by the project were categorised on grounds of their

uniqueness. The more unique the less likely offsetting will be the compensatory measure used to

reach the no net loss aim. The idea of HS2 is to create a fast rail connection between London and

Birmingham. In order to achieve this, the line needs to be as straight as possible as any deviation will

add to the travel time. All land that lies in on what has been determined as the ideal route can be

92

Parliament Publications, ‘HS2 and the Environment – Environment Audit Committee Contents -Biodiversity Offsetting’ <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmenvaud/1076/107606.html> as accessed 13/08/2014 93

Email from Arnold van Kreveld to author (18 August 2014), See Annex 3

30

considered of great economic value for this project. This illustrates the effect of commercial

offsetting. It takes habitats in economically highly valued areas and created land in those areas that

are not very significant in economic terms. HS2 shows the good, the bad and the ugly. From a

conservationist point of view, the fact that a tailored model is used to determine the environmental

compensation that is appropriate to use to work to the no net loss aim can be considered as good.

The fact that the railway will follow the planned route and only minor deviation will be permitted on

environmental grounds can be considered bad and the general legal issue that arises out of this real-

life example, that in international and in national law, there is a heavy commitment to commerce

which appears to stand in the way of good environmental policies, could be considered as ugly.

Another interesting remark of Van Kreveld is a long-term issue that arises from politics.

Offsets are often to be considered a “new source of investment in nature”. The risk of this is that a

change in government can come with budget cuts on environment. This issue is quite relevant today

as Europe is experiencing a right-winged conservative wave amongst Member State governments,

who are generally cutting budgets in an attempt to recover from the recent euro-crisis and are often

more concerned about economics and commerce, rather than the environment94.

In HS2 goodwill is being shown and the assessment applied takes into account uniqueness of the

habitats affected, which is good. Although a strategy for ongoing management of newly created

habitats appears to be lacking, HS2 appears not to be as money-driven as some commercial

offsetting. What happens if your motivation to offset is purely based on finance?

5.3 Offsetting for Profit

This chapter started with a quote from the CEO and founder of Starbucks in which Schultz

claims that essentially taking corporate social responsibility (CSR) is good for business and those

companies that have an elaborate CSR programme in which they genuinely believe and which they

follow, will be the most successful.

In modern society, the citizens of the EU are increasingly aware of climate change and the

need to implement measures to protect the environment. Consequently, companies put their CSR

commitments in their shop windows to improve their reputation, however hollow these may be. It

shows goodwill and can result in more custom and more profit. Additionally, with the necessary

environmental legislation in place, the gaining of licenses to operate will depend on the CSR

commitments of the company.

94

Email from Arnold van Kreveld to author (18 August 2014), See Annex 3.

31

Any company that needs land for their business, for whatever industry, will need permission

from competent authorities. A spokesman of British Petroleum stated that “Whatever we do –

whether it is something initiated at the local or corporate level – will impact our reputation in some

way. Reputation is definitely related to strategic issues. The whole perception of what we are and

how we do things is related to the success of the company. That’s the business we are in. We have

to have access to exploration areas, access to people and access to markets. Reputation is a key

issue”95. British Petroleum’s reputation suffered severely after the Deepwater Horizon oil spill and it

is therefore unsurprising that the years after the incident, British Petroleum’s PR team ensured the

public was made aware of the company’s adequate response, the large sum of money it has spent

on the clean-up, that the company funds scientific research on the impact of the spill and that is it

spending an additional large sum of money on wildlife rescue and the restoration of habitats96.

With social media and a changing perception in Western society favouring the protection of

the environment, it is essential for companies that are dealing in an industry that affects habitats to

offset for “maintaining the social license to operate”97. Essentially, it is important that stakeholders

or anyone concerned about or involved in the company’s dealings will not engage in negative

publicity or encourage NGOs such as, for example, Greenpeace, to engage in negative publicity. A

recent example of the power of social media and negative publicity on the internet by, in this case,

Greenpeace is the NGOs publicity attack on Lego. In this case Greenpeace targeted Lego because its

Shell-branded toys indirectly promote the dealings of Shell in the Antarctic, which has the potential

to severely affect unique and fragile habitats98.

The trend to stricter environmental legislation and increasingly ambitious environmental

aims in the EU creates a side-effect. Companies want to work themselves through the regulatory

formalities as quick as possible in order to facilitate future business and maximise the amount of

projects the company gets assigned. In order to achieve this, a company is stimulated to engage in

voluntary offsetting to show goodwill. If regulators see that a company takes the necessary actions

95

Kerry ten Kate, Josh Bishop and Ricardo Bayon, Biodiversity Offsets – Views, Experience, and the /Business Case, United States Environmental Protection Agency Report <http://www.epa.gov/owow/wetlands/pdf/Biodiversity_Offsets_Report.pdf> accessed 14/08/2014, page 38 96

The Guardian, ‘BP’s PR Campaighn Fails to Clean Up Reputation After Gulf Oil Spill’ <http://www.theguardian.com/environment/blog/2011/apr/14/bp-pr-campaign-gulf-oil-spill> as accessed 14/08/2014 97

Kerry ten Kate, Josh Bishop and Ricardo Bayon, Biodiversity Offsets – Views, Experience, and the /Business Case, United States Environmental Protection Agency Report <http://www.epa.gov/owow/wetlands/pdf/Biodiversity_Offsets_Report.pdf> accessed 14/08/2014, page 39 98

The Guardian, ‘Greenpeace Urges Lego to End Shell Partnership’ <http://www.theguardian.com/environment/2014/jul/01/greenpeace-lego-shell-partnership-toys-oil-arctic> as accessed 14/08/2014

32

to compensate their environmental impact and more, the company will get the necessary permits a

lot faster99.

The benefits of walking the extra mile when it comes to offsetting do not stop there. The

financial industry pays a lot more attention to environmental issues when making financing

decisions. A large number of private financial institutions have agreed to the Equator Principles

(EPs). The EPS is a risk management framework that is designed to determine environmental and

social risks and is drafted to create a minimum standard of due diligence in project decision-

making100. Additionally, institutes such as the World Bank, the IFC and export credit agencies all

include strict assessment on the environmental impacts of projects before they grant any

financing101. Showing the willingness to take compensatory measures as a company that go beyond

obligatory standards can potentially save time, legal costs as it will shorten the assessment time for

getting the loan needed.

This chapter illustrates why offsetting is a popular way to compensate for biodiversity loss

and habitat loss in both the private and the public sector. Offsetting owes its popularity in the public

sector to practical reasons. For example, at a location where a high speed rail is planned and

desirable, it provides a way to go ahead and mostly stick to the economically most viable route while

fulfilling all environmental obligations in a way that allows aiming for no net loss. The “social-licence

to operate” mentioned in Ten Kate’s article, also applies to public sector projects such as this as

those in power can use a no net loss aim in their window-shop to convince the sceptics that a major

project such as HS2 is being executed in a responsible way. Some aspects of politics and commerce

are very similar this way.

The British government is taking the compensatory measures very seriously and appear to

use an impact assessment that is tailored for the shape of the project (thin and stretched) which

appears to be positive developments from a conservationist point of view. However, it has to be

stressed that impact assessment is still a major issue and the reason why there is such a huge gap

between the measurements of no net loss in habitats in acres and the measurements of no net loss

based on ornithological aspects to determine functionality of habitats. The fact that uniqueness of

99

Kerry ten Kate, Josh Bishop and Ricardo Bayon, Biodiversity Offsets – Views, Experience, and the /Business Case, United States Environmental Protection Agency Report <http://www.epa.gov/owow/wetlands/pdf/Biodiversity_Offsets_Report.pdf> accessed 14/08/2014, page 39, 100

Equator Principles, ‘About the Equator Principles’ <http://www.equator-principles.com/index.php/about-ep/about-ep> as accessed 14/08/2014 101

Kerry ten Kate, Josh Bishop and Ricardo Bayon, Biodiversity Offsets – Views, Experience, and the /Business Case, United States Environmental Protection Agency Report <http://www.epa.gov/owow/wetlands/pdf/Biodiversity_Offsets_Report.pdf> accessed 14/08/2014, page 40,

33

habitat is taken into account in HS2 shows that to an extent, this has been incorporated or, at least,

it has been noted in finding the best way to assess the impact.

Showing the will to engage in offsetting beyond legal obligations or generally showing good-

will as a company in terms of minimising impact on the environment can bring numerous benefits to

a company, including financial and economic ones. It appears that large companies that are active in

an industry and impact habitats, such as BP in the oil industry, seem to be aware of this and are

showing in their statements that they are fulfilling the compensatory obligations. Whereas national

governments will concern themselves about de facto no net loss, it appears that the motivations

behind offsetting in the private sector are often still money-driven. Old Christian perceptions are still

showing in some statements in which offsetting is used to create an environmentally friendly mask

with which to hide behind.

European legislators and policy-makers can take advantage of the money-driven popularity

of offsetting as long as the right guidance is provided to assess the impact of projects. As long as the

assessment involves a look at the de facto impact of offsets it can be used as a tool to achieve no net

loss or perhaps even go beyond a no net loss target and aim for biodiversity restoration.

The next chapter will look into the possibilities to successfully implement legislation that

aims for biodiversity restoration. Looking at the rate at which the world and Europe are losing

species, it seems a necessity to explore such a legal development.

34

6 – Towards Restoration with Offsetting as a Tool?

6.1 To Maintain or to Restore?

This part of the dissertation will look into the concept of ecological restoration and will

attempt to analyse how such an approach can be incorporated in the European environmental law.

In the introduction of this dissertation, some figures illustrated the need to protect biodiversity and

to show the rapid rate of extinction, globally and in the EU. For palaeontologists, a mass extinction is

an extinction in which seventy-five percent of all species are lost within a geologically short

interval102. As mentioned in the introduction and shown in annex 1, there are five specific points in

the history of the planet that are categorised as mass extinctions.

An extensive comparison between the five historical mass extinctions and the current

biodiversity loss is needed in order to place the current biodiversity loss in perspective. The world is

currently experiencing an above average rate of extinction. In fact, the current extinction rate is

about 1000 to 10.000 times higher than the expected rate of extinction. Some biologists suggest that

this fast rate of extinction is to be blamed on one singles species; the human103.

In order for the current situation to be categorised as the sixth global mass extinction over

three quarters of all species have to become extinct. This is not the case yet, but we are well on our

way towards such numbers. As annex 2 shows, at least 42% of European species are known to find

themselves in an unfavourable conservation status. This means that the count of these species is

below the quota objectives. This number can actually be as high as 70%, however if all species of

which the conservation status is uncertain are added. It is thus no wonder that environmental law

aims and intentions are getting more and more ambitious.

In this chapter it is proposed that the environmental aims are not high enough and that the

EU should in fact aim to restore habitats and to improve biodiversity. This is not the current policy as

the Habitat Directive, the Birds Directive and the environmental liability directive are all aimed at

maintaining the status quo.

102

Hendrik Schoukens, ‘Ecological Restoration as a New Policy Tool Within the European Union: Going Beyond the Status Quo?’ (International Environmental Law: Contemporary Concerns an Challenges in 2014, Ljubljana, June 2014) page 344 103

Ibid.

35

6.2 Towards Ecological Restoration.

Is the current European environmental legislation policy capable of dealing with more

ambitious legal aims that have as their objectives ecological restorations? The sceptical voices are

loud. In order to explore whether the current legislation can be mended to restoration aims, a close

look at the recent French Hamster Case will follow104. In this case, the Commission argued that

France did not fulfil its obligations under article 12 of the Habitats Directive as it did not put in place

sufficient conservation measures to protect the Cricetus Cricetus (European Hamster). This case is

interesting as France was able to show that the number of European hamsters had not declined in

the Alsace, the French region in question. This shows that maintaining the status quo was deemed to

be unable to meet the obligations of the Habitats Directive according to Court of Justice.

The French Hamster case shows a shift towards a legal aim for restoration, rather than

conservation of species. Article 12(1) of the Habitat Directive states that; “Member States shall take

the requisite measures to establish a system of strict protection for the animal species listed in

Annex IV (a) in their natural range, prohibiting: (i) all forms of deliberate capture of killing of

specimens of these species in the wild; (ii) deliberate disturbance of these species, particularly

during the period of breeding, rearing, hibernation and migration; (iii) deliberate destruction or

taking of eggs from the wild; (iv) deterioration or destruction of breeding sites or nesting places”. It

is clear that the wording of this article was not initially aimed at ecological restoration at all, but

rather at conservation. The Court of Justice will have to show which path the EU will be going down.

The French Hamster case both gave answers and created more questions105.

In 2009, two years before the French Hamster case, the European Commission published a

comprehensive health check on the conservation status of EU habitats and species target by the

Habitats Directive106. In the reporting period of five years, between 2001 and 2006, only seventeen

percent of the protected habitats and species and eleven percent of key ecosystems are at a

favourable conservation state. As mentioned, the Commission also emphasised some aspects that

104

Case C-383/09 Commission v France [2011] CJ 105

Hendrik Schoukens, ‘Ecological Restoration as a New Policy Tool Within the European Union: Going Beyond the Status Quo?’ (International Environmental Law: Contemporary Concerns an Challenges in 2014, Ljubljana, June 2014), page 356 106

Commission, ‘Report from the Commission to the Council and the European Parliament Composite – Report on the Conservation Status of Habitat Types and Species as Required Under Article 17 of the Habitats Directive’ COM (2009) 358 final

36

call for optimism related to the reintroduction of large species such as wolves and the Eurasian

lynx107.

The definition of ecological restoration the EU follows is following the definition of the

International Primer on Ecological Restoration of the Society for Ecological Restoration (SER). They

define it as “the process of assisting the recovery of an ecosystem that has been degraded, damaged

or destroyed”108. The definition of ecological restoration deviates quite severely from the literal

phrasing of the Habitats Directive as it involves not only activities aimed at returning an ecosystem

to its pre-disturbance conditions as much as possible, but also to the rehabilitation and other

activities focusing on the recovery of biodiversity, ecosystem functioning, or other indicators of

ecological health.

The European Union has set some very ambitious targets to be aimed in their environmental

policy. One can conclude that on a European supranational level, the political will to implement

ecological restoration is present. In the EU 2020 strategy, some of the targets of the 1992

Biodiversity Convention have been taken over and include; (i) “to halt the deterioration in the status

of all species and habitats covered by EU nature legislation and achieve a significant measurable

improvement in their status”; (ii) “by 2020, ecosystems and their services are maintained and

enhanced by establishing green infrastructure and restoring at least fifteen percent of degraded

ecosystems”, a clear reference to ecological restoration109.

The Natura 2000 network can be regarded as a beginning of a restorative environmental

policy, as its aim to create a linked overarching European ecosystem is based the idea that

biodiversity loss is partly due to fragmentation. Creating such a network therefore restores this

fragmentation and improves the ecosystem patchworks.

107

The Independent, ‘French Farmers Lose the Battle to Keep Wolves from their Door’ (2010) <http://www.independent.co.uk/environment/nature/french-farmers-lose-the-battle-to-keep-wolves-from-their-door-2044821.html> as accessed 26/08/2014 108

Hendrik Schoukens, ‘Ecological Restoration as a New Policy Tool Within the European Union: Going Beyond the Status Quo?’ (International Environmental Law: Contemporary Concerns an Challenges in 2014, Ljubljana, June 2014), Page 345 109

Hendrik Schoukens, ‘Ecological Restoration as a New Policy Tool Within the European Union: Going Beyond the Status Quo?’ (International Environmental Law: Contemporary Concerns an Challenges in 2014, Ljubljana, June 2014), page 346

37

The interpretation of the wording of the Habitat Directive to prevent harm, rather than

restoration was confirmed by the Court of Justice in Carretta Carretta case110. In this case the Court

held that Greece was acting in violation of the Habitats Directive as it did not establish a sufficient

legal framework for the protection of sea turtles and for not taking concrete action for the

protection of beaches on the island of Zakynthos. This case demonstrated that the Court of Justice is

prepared to act as a monitoring body, looking at the de facto effectiveness of policies of a Member

State to protect a certain species. In this case, the Court emphasised and underlined the

preventative nature of the Habitats Directive, taking distance from a restorative approach.

How then, does the Carretta Carretta case compare with the French Hamster case? Although

the Carretta Carretta case takes distance from a restorative approach, it can still form the

foundation for a case-to-case build-up that will end with a restorative approach in place. The French

Hamster case can be seen as evidence of the building of such a case-based road to restoration. So

how far can the interpretation of article 12(1), which is worded in a rather explicit conservatory way,

be stretched? This is where the judgment gets interesting, and specifically the opinion of the rather

progressive thinking Advocate-General Kokott.

The case-facts were perfect for the Court of Justice to give a detailed and clear account on

its stance on stretching the interpretation of article 12 of the Habitats Directive. The number of

European hamster is decreasing rapidly and in France specifically, there was only one population left

in the Alsace region. Due to populations being cut off by monotonous corn agriculture and

infrastructure, inbred hamsters were a threat and consequently vulnerable due to a limited gene

pool.

So did France have an “active duty to recover a threatened Annex IV species”111? The

European Commission stated that France failed to adequately implement conservation and

protection measures to be able to avoid a further decline of the European hamster in the Alsace

region, which at the time of the judgment counted a mere two-hundred. The Commission effectively

stated that, if preventing further loss by conservation is not effective enough, restoration could

potentially be mandatory in order to comply with article 12.

110

Case C-103/00 Commission v Greece [2002] ECR I-001147 111

Hendrik Schoukens, ‘Ecological Restoration as a New Policy Tool Within the European Union: Going Beyond the Status Quo?’ (International Environmental Law: Contemporary Concerns an Challenges in 2014, Ljubljana, June 2014), page 350

38

Looking at the exact wording of article 12, the Commission clearly went beyond a literal

interpretation, and France took the opportunity to counter the European Commission’s arguments.

Naturally, France argued that “the European Commission demanded measures which go much

further than preventative measures included in article 12(1) of the Habitats Directive”112.

Advocate-General Kokott’s opinion in the French Hamster case can be regarded as being of

global importance as there are very few cases that explicitly consider ecological restoration. Kokott

argues that in this case “the protection of breeding sites and resting places of the European hamster

by virtue of Article 12(1)(d) of the Habitats Directive presupposes the presence of coherent and

coordinated preventative measures that also include the habitats surrounding the European

hamster’s burrows”113. According to her, the focus should be on the safeguarding and the

continuous ecological functionality of the European Hamster. Therefore, if only protecting the

burrows of the hamsters would put the hamsters at risk and more action is needed, there is a

violation of the Habitats Directive.

The problem with article 12 of the Habitats Directive is the wording. It is understandable and

perhaps even right for the French to put some serious question marks behind the reasoning of the

European Commission in the French Hamster case. Taken literally, article 12(1) does not leave any

space for a pro-active restoration obligation. Kokott’s words are showing a willingness to interpret

the Habitats Directive in a teleological way in order to make the legislation function in such a way

that it will work as a tool to achieve the 2020 strategy objectives.

Following the 25th guidance document of the Commission it stated that “important or

appropriate for a species, [certain measures] might not be required under the provisions of the

Directive depending on the annex in which as species is listed in. In relation to the species protection

section, it is important that proactive management measures (such as restoration of

habitats/populations, improvement of habitats are not an obligation under Article 12, even though

they might well be under article 6”114. Can the Commission justify making such a huge leap towards

restoration or is France simply right?

112

Hendrik Schoukens, ‘Ecological Restoration as a New Policy Tool Within the European Union: Going Beyond the Status Quo?’ (International Environmental Law: Contemporary Concerns an Challenges in 2014, Ljubljana, June 2014) page 350 113

Case C-383/09 Commission v France [2011] CJ para 39 114

Hendrik Schoukens, ‘Ecological Restoration as a New Policy Tool Within the European Union: Going Beyond the Status Quo?’ (International Environmental Law: Contemporary Concerns an Challenges in 2014, Ljubljana, June 2014), page 351

39

Essentially, the Commission is simply looking for a way to make the 1992 legislation fit the

current EU environmental policies by finding a way to incorporate restoration obligations despite the

wording. From a conservationist perspective, it is very welcome that Kokott makes such an effort to

attempt to include a pro-active obligation in article 12 of the Habitats Directive. The Advocate-

General defended her reasoning by stating that “whilst prohibitions are, in general of a defensive

nature, they can also help to restore or improve habitats in so far as they enable positive natural

developments to take place”115. Essentially, the advocate-general argues that by prohibiting certain

activities, the land in question has a chance to recover and therefore it can be argued that there is a

restorative aspect to the wording of the Habitats Directive.

However, that is not the end of Kokott’s statement however. She pushed for an obligation

that could reach beyond actual habitats, but contrastingly stated that “France was not required to

take restoration measures in areas that are currently not occupied by the European hamster”. She

did state that it is favourable for the conservation status of the hamsters, to take restoration

measures outside of their territories, but that this is beyond the obligations of article 12116.

You can only stretch a rubber band to a certain extent, and the wording of the Habitats

Directive are interpreted in a progressive way by Kokott. It is submitted that any further obligations

outside of the territory of the animal in question cannot be construed on the basis of article 12. New

legislation would have to be put in place.

Does this mean that if preventative conservation obligations are not sufficient to save a

species such as the European hamster, we will have to accept they will slowly become extinct? This

seems to be in contrast with the EU’s aims and simply unacceptable for the welfare of the planet,

taking into account the statistics mentioned in this dissertation. To an extent, the Hamster case does

indeed place an obligation for a Member State to actively support a species that is on the brink of

extinction. However, these obligations can only exist in relation to those areas that are at that point,

part of the territory of the species. This means that if the count is very low, this will only be a very

small area and thus it will be very hard to support them and to ensure they do not become extinct.

However, a Member State cannot limit its protection to just the breeding sites and resting places. It

has to take into account the surrounding areas as well whenever vital parts of the species’ habitat

still remain at risk of serious degradation.

115

Case C-383/09 Commission v France [2011] CJ, Opinion Advocate-General Kokott para 45 116

Case C-383/09 Commission v France [2011] CJ, Opinion Advocate-General Kokott, para 50

40

So where is the line drawn? It is not exactly clear but legal limitations seem to arise between

the obligation to recover an endangered Annex IV-species and wide scale restoration measures that

go beyond the actual breeding sites and resting places of the threatened species117.

From a conservationist perspective, Kokott’s stance is a large improvement. However, the

wording of the Habitat Directive seems to limit the restorative obligation to such an extent that

article 12 ends up to be somewhere in the awkward middle. Yet it is necessary to demand from

Member States large scale restoration schemes in certain cases, the Habitat directive simply does

not allow this in its wording.

There are many factors that need to be taken into account when implementing strict

obligations into environmental law, which makes it very complicated to require additional

restoration measures. These factors are (i) political on a European level, (ii) political on a Member

State level, (iii) financial, (iv) environmental, (v) practical and (vi) idealistic.

The conservation of a species is generally extremely expensive, especially with the creation

of new habitats by either offsetting or simply expanding current habitat; this creates a serious

financial burden upon a member state. This is part of the reason that environmental law and a

restoration obligation are politically sensitive issues. In the current climate of European scepticism,

finding support from the European citizens and with Member State governments is nearly

impossible.

As an illustration of how hard it is to sell stricter environmental law with more extensive

protection of species, an examination of the current position of the UK government will follow. Of

course, the UK is the most EU-sceptical Member State, but similar voices can be heard in the

Netherlands, Belgium, France and other major EU-countries. Looking at Boris Johnson, mayor of

London and member of the Conservative party, there is a promotion amongst the Conservative

government of a reformed EU where environmental and social legislation is completely left to the

Member States118. With fairly loud voices like this, stretching across different Member States, it is

difficult to find a moment in which the time is right for more intensive environmental obligations.

117

Hendrik Schoukens, ‘Ecological Restoration as a New Policy Tool Within the European Union: Going Beyond the Status Quo?’ (International Environmental Law: Contemporary Concerns an Challenges in 2014, Ljubljana, June 2014), page 355 118

The Guardian, ‘Boris Johnson’s EU Reform List for Cameron to Stop him Voting for Exit’ <http://www.theguardian.com/politics/2014/aug/06/boris-johnson-david-cameron-eu-reform-list-stop-vote-exit> accessed 20/08/2014

41

With a fragile European economy that has just found its way out of a major crisis, asking member

states to back legislation that will cause a major financial burden seems risky. It is therefore unlikely

that in the current state of the EU, a rigorous revision of the Habitats Directive or the introduction of

a new directive will be pushed through.

As pointed out, from an environmental point of view, there is a limited time frame and if the

EU wants to take its 2020 aims seriously, a strict environmental policy is needed. If the EU wants to

save Annex IV species, it will need to acts as one and remember that extinct is utterly irreversable.

Can we afford to act slowly because of political and economic reasons?

It is submitted that the French Hamster case illustrates the gap between politics and

economy on one side, and idealism and the threat to biodiversity on the other. Are there any ways

to play with on the middle of the pitch? Are there any tools that can be used to improve the

conservation and work towards restoration without upsetting the sceptics and making the EU

instable, both financially, and politically? Could the EU realistically push for a net-gain policy, instead

of a no net loss policy when it comes to offsetting?

6.3 Offsetting: A Way to ‘Polder’ and Find a Way to Satisfy the Politicians, Economics and

Environmentalists for the Time Being?

In this dissertation, it has been argued that in most cases, offsetting does not result in a

desirable conservation of biodiversity, let alone restoration. The issues lie in complex impact

assessments and the lack of expertise to conduct them. It has been argued that offsetting is

particularly popular with economists and with politicians as it allows them to go ahead with a

planned project that affects a habitat without violating the Birds Directive or the Habitats Directive.

Additionally, due to the minimal guidance of the Commission, a biased assessment can be conducted

to minimise the financial burden.

Bearing in mind Natura 2000 and the importance of a linked network of habitats, offsetting

can be used to enlarge this network, which will benefit large mammals like the European lynx, bears,

wolves amongst other listed species. It has been argued that making environmental legislation

stricter is a sensitive subject and if the EU is not careful, it has the potential to blow up the whole

42

union by aggravating the euro-sceptics. However, using a popular concept like offsetting as the glue

that sticks the economists to the conservationists may be a good short-term solution.

Looking at the current rate of biodiversity loss, there is no time to wait for a better political

climate and instead of amending the Habitats- and Birds Directives to enable them to be interpreted

according to the 2020 strategy aims. It is submitted that through Commission guidelines, offsetting

can be regulated so that it can contribute to the recovery of certain species.

For example, by stating that for inland species, it could be argued that whenever possible,

the new habitat should be linked to the Natura 2000 network in order to work towards a net gain in

biodiversity. Additionally, whereas currently it is considered to be a great success if there is no net

loss in ornithological value, the aim could be to gain such value in offsets when comparing the newly

created land with the original land.

It can be argued that any additional compensatory burdens are unrealistic in practice, but if

the European Union wants to reverse the current trend and be true to its own aims, additional

burdens are unavoidable. It can be concluded for the French Hamster case that the Commission is

looking for the very edges of its interpretative options in order to increase the conservatory

obligations of Member States. The Commission still has a lot of option to increase the effectiveness

of compensatory and preventative measures.

Perhaps the Commission is not the right body to be assessing environmental cases. It has

been argued by McGillivray, Schoukens and others that it appears that the Commission is lacking

expertise. In fact, it is very difficult to determine what kind of measures will work towards the 2020

aims. In my opinion, perhaps a newly founded body that could be named the ‘European Commission

for Environmental Affairs (ECEA)’ could form a solution. This Commission should be comprised of the

finest experts in biology, economics, conservation and politics.

43

7 – Conclusion

In the introduction of this dissertation some key questions were asked; (i) why there is a

need for legislation to minimise biodiversity loss; (ii) whether compensatory measures, and in

particular offsetting, are non-solutions or the panacea for the protection of biodiversity; (iii)

whether, in assessing compensatory measures and enforcing the Habitats Directive and Birds

Directive, the voice of the economist of louder than the voice of the conservationist; (iv) What

makes offsetting such an attractive compensatory measures from an economic and financial point of

view; and (v) whether compensatory measures such as offsetting could be used to work towards a

European environmental policy that aims for restoration of biodiversity.

7.1 Disappearing Species and Economists with Megaphones

The answer to the worrying environmental developments is not very straight-forward. In this

dissertation, the urgency of putting the right measures in place has been illustrated by facts and

figures that show the world is facing the sixth wave of mass extinction and the first wave of mass

extinction that has been caused by a single species; the human. Based on the facts and figures in

chapter one, it is argued that even though Europe has a very well-established legal body that forms

the environmental policy, in particular, the Habitat Directive and the Birds Directive. In order to turn

this trend of biodiversity loss in the EU, the aim must be to restore and not only to conserve those

habitats that Europe still has. Environmental law all over the world is secondary to economic policies

and policies concerning commerce.

In Europe and culturally related countries, part of the reason why this is the case is the

European culture from the early years of industrialisation to the mid-twentieth century. During that

period (and before), The Christian faith was of much more influence to politics and policies than

today and following the Christian creationist philosophy, the natural world was created by God for

humans to survive on and exploit. The discoveries of the early industrial era that allowed large-scale

extraction of natural resources was seen as discoveries allowed by God and a way in which God

intended to help human kind in using the natural environment for its survival. There is very little, or

no space in this philosophy for any protectionist views. In fact, it was a common perception that it

would be impossible to harm the natural world for humans as they were only using the natural

environment in the way God intended in the first place.

Although this perception is not as dominant as it used to be, there is still a large number of

people in Europe that live by the old Christian values and beliefs, and the creationist perception is

44

still of influence in policy-making and politics today. The trend is positive, yet the increasing

awareness of environmental impact of companies and individuals is way too slow to effectively

reverse the biodiversity loss into a biodiversity gain.

The political environment in Europe is currently far from ideal for expanding Europe’s

competences and introducing stricter legislation. The recent euro-crisis has resulted in a wave of

scepticism towards the EU and the UK to consider stepping out of the EU entirely. Within the

founding fathers of the EU such as The Netherlands, Belgium and France, there is an increasingly

loud voices against the European Union. The EU is often considered “opaque, technocratic and

distant from its citizens”119. The fact that EU citizens are badly informed about the EU, and have a

minimal sense of a European identity was the foundation for the scepticism that has been fuelled by

the recent economic crisis.

Introducing environmental legislation that will bring a heavy financial burden on Member

States seems most unwelcome and will not be received well by those governments of Member

States that place themselves in the conservative right winged part of the political spectrum.

7.2 The Potential of Compensatory Measures and the Current Shortcomings

In chapter 2, the current legislation that forms the backbone of the European environmental

policy has been described and issues around its application have been analysed. The rising popularity

to compensate elsewhere for the biodiversity loss in an economically desired area can be linked to

an increasing corporate awareness of the environmental impacts of industry. It has been argued in

this dissertation that the monitoring of the quality of compensatory is severely lacking. The

Commission’s opinions that ought to function as indicators of the Commission’s interpretation of

article 6(3) invite to avoid liability and save costs at the expense of the environment.

Chapter 3 shows that those with the intention to help the environment in the best possible

way will face serious difficulties in finding out what the best method of compensation would be, as

they have to rely on a relatively small number of cases in which there is no precedence. If the

Commission decides to state the opposite of what the Commission stated in previous cases, it is

possible for them to do so. This causes great insecurity and incoherence when it comes to impact

assessments and quality of compensation.

On the other side of the scale, you have those governments that are sceptical towards the

European environmental policies and who do not mind searching for ways to avoid costs by finding

119

J Snell, European Constitution Settlement: an Ever Closer Union [2008] EL Rev Page 619

45

the weaknesses of the law. As demonstrated, in terms of enforcement, one has not to search for

long to find some weaknesses. Van Kreveld illustrated this well. The Netherlands has a conservative

coalition that is not keen to enforce environmental legislation. In fact, recently the VVD

(Conservative Party of the Netherlands) proposed to hunt seagulls because they cause a nuisance.

Seagulls are protected under the Birds Directive, so this is an illustration of the attitude in Dutch

politics towards the Birds Directive or the European Environmental Legislation in general120.

The movement to a no net loss regime in the EU is however pushing through, which is a very

welcome development. It is important that the EU keeps pushing its aims as hard as it realistically

can without setting the bar to the impossible. For just that reason only, the enforcement scheme of

the ELD is a major progression in comparison to the Habitat Directive and the Birds Directive.

Additionally, it sets out different types of compensatory measures and which measures

should be taken first. Additionally, it includes a lot of guidance for local authorities in enforcing the

ELD in annex ll, which was lacking in the Habitat and Birds Directive. It is unsurprising that inspiration

has been found in the American legislation and in particular, the OPA 90, as the taking into account

of interim losses was already introduced by the OPA 90 in 1990, which is even before the Habitat

Directive came into force. From the American experiences with oil spills in particular, it can be

concluded that the environment can recover without the interference of humans to an extent over a

long period of time. However, in my opinion this is irrelevant in shaping and moulding the future

European environmental policy as Chapter one has shown the severe lack of time and need to work

toward an active restoration scheme.

The divide between complementary remediation and compensatory remediation is a very

welcome addition as it shows the EU’s commitment to reach the base-line, or to reach the no net

loss objective in compensatory provisions.

It is submitted that because of the complexity of the technicalities of compensatory

measures – especially in the ecological context –enforcing such measures and ensuring their

effectiveness is currently nearly impossible. Investment in research is therefore essential to be able

to work towards a biodiversity restoration policy in the EU that is viable and workable.

7.3 Making Money with Offsetting and the Free Market Approach

In Chapter 5, it has been argued that offsetting is a popular compensatory measure because

of its commercial appeal. Offsetting has the potential to make nature tradable and because trade

120

NOS, ‘VVD Verklaart Meeuw de Oorlog’ <http://nos.nl/artikel/688719-vvd-verklaart-meeuw-de-oorlog.html> accessed on 21/08/2014

46

and commerce are often regarded as the cornerstones of society, this will be viewed as a great

potential by many.

Corporate social responsibility (CSR) is constantly regarded to be of increased importance by

companies and with it compensatory measures for biodiversity loss; this is in many ways a positive

development. However, it is common that in assessing and deciding the kind of compensation and

the impact of a company’s activities, it is often the financially attractive option rather than the

option that is objectively the best for the environment.

Looking at HS2, it appears that the UK government is trying to put in place compensatory

measures for the loss of biodiversity and habitat as a result of the construction of a high speed

railway with the best intentions as it has tailored the assessment criteria to the project and it takes

into account uniqueness of habitat. Additionally the UK government followed the no net loss regime

of the ELD, in an attempt to comply with all new European legislation on the environment. In the UK,

HS2 gets a lot of media attention and is not popular with everyone. This means that, to show good-

will, it is likely that the compensatory provisions will be of a high standard to show that the

government is taking responsibility.

It has to be noted, however, that there is a pressure to keep costs low, as with almost all

projects, and with the lack of guidelines for the Habitat and Birds Directive, cutting corners in

management after the creation of offsets happens frequently. Such management is not mentioned

in the communications about HS2 and they don’t come with compensatory plans as standard.

Additionally, if such management is taken into account, the arrangements will still be subject to

changes in government and potential future budget cuts that can jeopardise the quality of the new

habitats in the future.

Applying free market thinking does not always improve the quality of the subject matter.

Good examples are the postal services in the Netherlands and the railways in the United Kingdom,

which both dropped in service quality after privatisation. It is highly questionable whether free

market thinking will have a positive effect on the environment and on the quality of compensatory

measures. In fact, there might be such a gap between compensatory measures in square feet and

effective habitats that are functional on the basis of ornithological standards that it could be

dangerous and form nothing more than a smoke screen to cover the dire state of the environment.

Additionally, regarding offsetting as a new way of investment carries the risk of a lack of

long-term management and negative decisions from the central government after the introduction

of new policies by a newly elected government. In a Europe with a rapidly shifting political

47

environment, in which many decisions that negatively affect the environment are made more

frequently in order to recover from the crisis and to improve the economy. This is specifically

relevant today,

In analysing what the effects are, if offsetting is approached purely on commercial grounds

with the intention to make a profit, it appears that this is a dangerous business. In effect, companies

will be measuring their compensation success in acres, rather than in de facto working habitats. With

the lack of expertise we currently have in creating new habitats, commercial offsetting should be

restricted to those types of environment we know we can recreate effectively. If commercial

offsetting is expanded to more unique habitats this will almost certainly cause serious biodiversity

loss when done on a large scale.

It is submitted that his needs to be thought of and a policy needs to be made in order to

prevent giant commercial oil companies to dive into the fracking business – especially on the North

Pole – claiming that they have their CSR in place and their offsetting sorted while the irreplaceable

habitats are systematically destroyed.

7.4 We Want More Hamsters

The ELD introduced a no net loss aim for compensatory measures – a major step forward.

Nevertheless, considering the numbers and facts mentioned in chapter one of this dissertation, is it

not better for the EU to go even further and aim for biodiversity restoration? It is questionable

whether such a restoration policy cannot currently escape out of the category of dreams and

hypotheses, or whether the EU can slowly start working towards this in the current political and

economic climate.

The need to act rapidly and make dreams come true is apparent. It has been argued in

chapter 6 that we are heading straight towards the next mass extinction. Despite of the necessity to

act as fast as possible and to raise the bar when it comes to conservation objectives, there are many

concerns to take into account to ensure the environmental policy of the EU will not self-destruct.

The French Hamster case illustrates the split between the limitations in the wording of the

directives, the aspirations of the EU and the political and economic restraints the EU has to deal

with. The Cricetus Cricetus is in dire need of help to escape from extinction and it is fairly clear that

Advocate-General Kokott is trying to take a progressive stance and interpret the Habitat Directive in

such a way that it gives an obligation beyond conservation of the current habitat but faces the limits

of the wording. There is proof of a slow case-to-case build-up to a restoration obligation but I believe

that the next step will need a revision of the Directive, however European policy makers may face a

48

brick wall called politics. The political block the EU is experiencing has been discussed in chapter 6

and politicians are generally only becoming more sceptical towards the EU environmental policies.

Some even go as far a wanting to take steps back, for example, the UK government.

7.5 The Way Forward – What Could the Role of Offsetting be?

In this dissertation, both the advantages of incorporating offsetting and the disadvantages of

incorporating offsetting have been identified. It is safe to conclude that offsetting is a dangerous

game and that legislation and enforcement have to be executed with the utmost care.

The best feature of offsetting is that the awkward split European legislators are dealing with

could be improved by offsetting as it brings environmentalists and economists closer together.

Additionally, if we have the knowledge to create new habitats that prove to be functional on the

long term, this can only be considered positive.

Commercial offsetting seems very dangerous as, in public relations, reputation and finances

will always weigh more than de facto long term effectiveness of the newly created habitats. It is up

to legislators to create legislation that stimulates the enthusiasm to offset and to ensure that not

only it will remain attractive from a corporate point of view, but will also create habitats of a high

and sustainable character.

To an extent US legislation can be taken as an example, where the creation and the

management are funded and arranged before the project in question goes ahead. However, this

doesn’t take into account the uniqueness of habitats and the lack of knowledge we have about

them.

In the short-term, the EU will have to invest in research on habitats so that our knowledge of

habitats will grow and therefore the creation of effective sustainable habitats will be more of a

surety; additionally the scale of offsetting will have to be enlarged. If the aim is to restore

biodiversity, compensation will have to surpass a one to one scale.

Additionally, the enforcement and monitoring will have to vastly improve in comparison to

the status quo. In my opinion, the Commission is lacking in expertise and case precedence is needed

in order to control the measures that are taken on a national Member State level.

Most importantly, offsetting should always be the last option, especially when existing

habitats cannot possibly be maintained for reasons that are compatible with the current Habitats

Directive.

49

It is only under these strict conditions that offsetting can have a place in the recovery of biodiversity

in the EU, and the avoidance of lapsing into the sixth mass extinction.

50

8 – Annexes

Annex 1.

Source: Hendrik Schouken, Ecological Restoration As a New Policy Tool Within the European Union: Going Beyond the Status Quo? (2014), Powerpoint Presentation, Second Contemporary Challenges of International Environmental Law Conference Day 1, Ljubljana, Slovenia Annex 2

Source: Hendrik Schouken, Ecological Restoration As a New Policy Tool Within the European Union: Going Beyond the Status Quo? (2014), Powerpoint Presentation, Second Contemporary Challenges of International Environmental Law Conference Day 1, Ljubljana, Slovenia Annex 3

51

From: Arnold van Kreveld To: author 18 August 2014, 07:01 Beste Xander,

Allereerst, doe de groeten aan jouw vader. Ik hoop dat het hem goed gaat en hij wat heeft gehad aan

colleges.

Hoewel ik geen expert op het gebied van biodiversity offsetting kan ik er wel iets over zeggen:

1) Natuurwaarden zijn niet per definitie makkelijk te compenseren. Daarvoor weten we nog steeds

onvoldoende van de natuur en van wat veel soorten nodig hebben.

2) Risico is verder – en dat zie je bij natuurcompensatie in NL – dat deze niet goed wordt uitgevoerd.

Bijv. door allerlei restricties in de methodiek: het moet in de regio gebeuren, gemeentes/provincies

investeren niet graag in een andere gemeente/provincie, dus kiezen niet altijd de beste optie of stokt

de uitvoering, etc.

3) Onder offsetting wordt soms alleen de aanleg van nieuwe natuur ontstaan. Maar vaak is er

vervolgens beheer nodig om de nieuwe natuurwaarden te behouden. Als dat niet is geregeld is de

compensatie tijdelijk.

4) In de VS is ervaring met wetland banking. Voor zover ik weet moet een project daar van tevoren de

compensatie (aanleg + beheer) regelen. Dat wordt uitgevoerd door deskundigen die met financiering

vanuit verschillende projecten een grotere schaal kunnen bereiken.

5) Risico op de langere termijn is verder dat offsetting wordt gezien als nieuwe bron voor financiering

van natuur en er vervolgens op natuur wordt bezuinigd.

6) Iets verder doorgaand op punt 5 kom je in een filosofische discussie over natuur en economie: is

natuur een intrinsieke waarde die we als maatschappij moeten beschermen (= progressieve waarde)

of is natuur een verhandelbaar goed (= consequentie van volledig doorvoeren vrije markt). Offsetting

kan de discussie nog verder richting vrije markt duwen en daar schuilen veel gevaren in. Dit punt zou

je m.i. wel moeten noemen, maar is eigenlijk onderwerp voor een filosofische dissertatie.

Ik zie wel de voordelen van offsetting: 1) verminderen spanning economie – ecologie, 2) er kan mooie

natuur voor terugkomen, 3) etc.

Concluderend: ik ben niet tegen offsetting, maar alleen onder strikte voorwaarden:

- vooraf geregeld

- niet alleen aanleg, maar ook beheer regelen > liefst zo weinig mogelijk noodzaak tot beheer, want

dat vergroot kwetsbaarheid op langere termijn

- voldoende schaal, zodat nieuwe populaties ‘viable’ zijn

- via professionele organisatie

- goede monitoring om te zien of het werkt

52

- alleen voor soorten waarvoor offsetting ook daadwerkelijk werkt: van sommige soorten is precies

bekend wat je moet doen om ze ergens te krijgen en te houden, van andere totaal niet.

Het is allemaal een beetje kort door de bocht, maar hopelijk is het te volgen en kan je hier iets mee.

Graag ontvang ik t.z.t. jouw dissertatie (of een samenvatting).

Veel succes!

Arnold

Annex 4

From: Arnold van Kreveld To: Author 21 August 2014, 08:58

Nog een opmerking over strenge eisen. Dat is helaas vaak een schijnveiligheid. Ik heb in ieder geval in NL het gevoel dat de kloof tussen regelgeving en praktijk groeit door onvoldoende handhaving. Kennis en prioriteit op dit dossier ontbreken door het bewust afbreken van o.a. veldpolitie en deskundige teams binnen de voormalige AID (nu nVWA): deskundige mensen worden gerouleerd zogenaamd om het gevaar op ‘corruptie’ e.d. te voorkomen. M.i. – en ik zeg dit na hier onderzoek naar te hebben gedaan - vooral om te zorgen dat mensen niet verbonden raken met een dossier en gaan protesteren als de handhaving wordt afgebroken. Succes met de afronding! Arnold

i

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