An Cliquet

Biodiversity offsetting and restoration under the European Union Habitats Directive : balancing between no net loss and deathbed conservation?

Biodiversity offsets have emerged as one of the most prominent policy approaches to align economic development with nature protection across many jurisdictions, including the European Union. Given the increased level of scrutiny that needs to be applied when authorizing economic developments near protected Natura 2000 sites, the incorporation of onsite biodiversity offsets in project design has grown increasingly popular in some member states, such as the Netherlands and Belgium. Under this approach, the negative effects of developments are outbalanced by restoration programs that are functionally linked to the infrastructure projects. However, although taking into consideration that the positive effects of onsite restoration measures leads to more leeway for harmful project development, the EU Court of Justice has recently dismissed the latter approaches for going against the preventative underpinnings of the EU Habitats Directive. Also, the expected beneficial outcomes of the restoration efforts are uncertain and thus cannot be relied upon in an ecological assessment under Article 6(3) of the Habitats Directive. Although biodiversity offsets can still be relied upon whenever application is being made of the derogation clause under Article 6(4) of the Habitats Directive, they cannot be used as mitigation under the generic decision-making process for plans and programs liable to adversely affect Natura 2000 sites. We outline the main arguments pro and contra the stance of the EU Court of Justice with regards to the exact delineation between mitigation and compensation. The analysis is also framed in the ongoing debate on the effectiveness of the EU nature directives. Although ostensibly rigid, it is argued that the recent case-law developments are in line with the main principles underpinning biodiversity offsetting. Opening the door for biodiversity offsetting under the Habitats Directive will certainly not reverse the predicament of the EUs biodiversity. A reinforcement of the preventative approach is instrumental to avert a further biodiversity loss within the European Union, even if it will lead to additional permit refusals for unsustainable project developments.

International and European Law on Protected Areas and Climate Change: Need for Adaptation or Implementation?

The protection and management of protected areas must be adapted to the effects of climate change. An important question is if the law on protected areas is capable of dealing with the required changes. In general, both international nature conventions and European Union nature conservation law do not contain any specific provisions on climate change and protected areas. Attention has been paid to this link in non-binding decisions and policy documents. In order to adapt the law to increased dynamics from climate change, more flexibility is needed. This flexibility should not be understood as “legal” flexibility, in the sense of the weakening nature conservation provisions. Scientific uncertainties on the effects of climate change might conflict with the need for legal certainties. In order to adapt to the effects of climate change, the two crucial elements are the strengthening of core protected areas and connectivity between the core areas. At the international level, both elements can be found in non-binding documents. International law enables the required adaptation; however, it often lacks concrete obligations. A stronger legal framework can be found at the level of the European Union. The Birds and Habitats Directives contain sufficient tools to deal with the effects of climate change. The Directives have been insufficiently implemented so far. Especially the central goals of reaching a favorable conservation status and connectivity measures need to be addressed much more in the future.

The habitats directive in its EU environmental law context: European nature's best hope?

The article explains the shortcomings of the Habitats Directive, regarding Invasive Alien Species. It sheds light on recent developments in that regard and make proposals as to how to possibly fill the gaps.