The Privatisation of Biodiversity? - New Approaches to Nature Conservation Law

Dr. Walters NsohUniversity of Dundee

Background State of biodiversity loss Current approach and role of the state in

conservation Development of alternatives to “command-and-

control” in environmental contexts “Nudging” mechanisms

Environmental taxes Reporting and disclosure duties Eco-labelling

Trading and offset schemes Greenhouse gases and carbon

New Approaches Conservation covenants/burdens Payment for ecosystem services Biodiversity offsetting

Recognise value of biodiversity in a way that allows it to be traded or paid for private sector becomes involved in paying

and deciding what to pay for

Conservation Covenants Enduring restrictions on the use of land to

serve a conservation purpose binding on successors in title enforceable without any need for

neighbouring land Law Commission consultation paper Potential

set own prioritiesmechanism for payments from private sectormechanism for PES and offsetting

Payment for Ecosystem Services- What are these?

Provisioning services food, fibre, fuel, fresh

water Regulating services

climate regulation, air quality, purification of water, flood and erosion control, pest regulation

Cultural services recreation, aesthetic

and spiritual benefits Supporting services

soil formation, nutrient cycling

Immense cost to replace these

PES Schemes Provide a vehicle for the beneficiaries to

pay the providers incentive to ensure services are maintained or

restoredsaves vast cost of replacement

Need to identify:What is being paid forWho is entitled to receive paymentWho should be paying

Biodiversity Offsetting

Allow development that causes some harm in one place to go ahead so long as compensating benefits provided

somewhere else Ensure no net loss to biodiversity (at least) Allows flexibility to enable development Private sector pays for conservation

polluter pays

Green Paper

DEFRA: Biodiversity Offsetting in EnglandSeptember 2013Responses due by 7 November

“The Government does not want to delay the introduction of biodiversity offsetting … plans to set out [detailed proposals] by the end of 2013.”

Experience

Scottish Borders – windfarmsover £600,000 contribution from developersalmost 500 hectares of habitat created or

enhanced since 2006 co-ordinated by planning authority using

planning systemSee http://www.scotland.gov.uk/Resource/ 0042/00426294.pdf

Challenges of Market Approach Definition of units/services to be

sold/tradednon-fungible; lack of data; priorities

Effectivenesspractical results – coherence, timing and

scaleneeds of a working market

Governance Ethical issues

Non-fungible

≠

Baseline data

Lack of basic data

- especially for less glamorous species

Local and global prioritiesOne is globally commonOne is endangeredWhich is widely seen as the priority?

Public sentiment

Public sentiment

Public sentiment

Coherence

Must join up action in lots of locations to achieve results

Migration routes of individual cuckoos. British Trust for Ornithology

Coherence Migration routes of individual woodcock:From Game & Wildlife Conservation Trust

Timing

Habitat takes time to mature so as to deliver benefits “Credit” given before delivery?

Scale New habitat not so rich, so need more

Dynamic environments

Changing coastlines

Climate Change

St Andrews 2050?

DEFRA Proposals & Questions

Mandatory? Optional? Site-by-site or overall impact?

analogy of infrastructure levy

Planning guidance or legislation?

Metrics

Pilot study has simple matrix Habitat lost:

area; quality of habitat; distinctiveness of habitat (three point scales)

Offset provided:same factors, with discounts for: risk, time, location

Not for “irreplaceable” habitats

Exchangeability

Like-for-like or substitution?potential to allow “trading up”

Locationecological value of larger areas impact on residents

Note emphasis on well-being in 2020 Challenge for Scotland’s Biodiversity

Security

Quality of assessments Mechanism to ensure offset continues to

be providedconservation covenants

Fall-back provision financial guarantee, public trust fund,

insurance pool

Additionality

Ensure that offset is genuinely additionalvital to ensure no net loss (or actual gain)

Issues:existing conservation sitesbiobanksextending life of current fixed-term benefits

(e.g. agri-environment schemes)

Ethical Concerns Positive? biodiversity becomes part of the economic

system which dominates society does not get overlooked as decisions are being

made

Negative? transforms biodiversity from common heritage to

commodity fundamentally misconceived view of our

relationship with nature

The way forward? Private sector and market approaches

have potential for biodiversity Major challenges in designing effective

and enduring frameworks Cannot simply carry over schemes from

other contexts Likely to be a supplement to direct

regulation, not replacement for it

What difference for sites? Policy balance favours conservation

Should not be undermined by offset Policy balance favours development

Offset offers something in place of what would otherwise simply be lost

Policy balance uncertainHow far will availability of offset tip the

balance? Genuine concern for nature or “licence to

trash”?

Acknowledgements

AHRC Project: The Privatisation of Biodiversity?Principal Investigator: Professor Colin Reid

Pictures from BTO, GWCT, Clip Art, Anne Reid and Colin Reid