Colin T. Reid

Between Priceless and Worthless: Challenges in Using Market Mechanisms for Conserving Biodiversity

There is growing interest in the use of market mechanisms, such as offsetting and payments for ecosystem services, to further the conservation of biodiversity. The specific needs of biodiversity mean that this approach faces significant challenges in terms of defining the units that can be the subject of the economic or market devices, of ensuring that such mechanisms do deliver conservation gains and of establishing appropriate governance arrangements. There are also ethical concerns that a market approach entails a commodification of nature which sacrifices some of the very elements which make nature valuable to us. The market-based schemes currently being operated and devised should be studied carefully to see how successfully these challenges can be met.

Unstable Boundaries on a Cliffed Coast: Geomorphology and British Laws

Abstract Coastal erosion is a problem around much of the coast of Great Britain. This paper uses the example of Birling Gap in East Sussex to highlight a variety of problems associated with property boundaries on eroding cliffed coasts. The legal foreshore definitions (generally owned by the Crown) from English and Scots laws are compared with the use of tidal data from the nearest reliable tide gauge at Newhaven. With a Microsoft Excel spreadsheet model and shore profiling, these data are used to identify the extent of private property in the coastal environment at Birling Gap under both Scots and English law. The paper highlights that under both definitions, a small parcel of “land” exists at the base of the cliffs that is owned by the adjacent cliff top landowner. Therefore, the foreshores as defined in (Scots and English) law on the mainland of Great Britain do not fully enclose the envelope of coastal processes. Under Scots and English law, the foreshore is defined on the basis of tidal heights, irrespective of the mobility of the substrate that the foreshore boundary is drawn on. The cliff morphology at Birling Gap strongly suggests control by marine erosion; however, the tidal data from Newhaven suggest otherwise when compared with the shore profiles. A number of reasons are identified to explain a substantial difference in the height of the beach at Birling Gap and the observed tidal heights at Newhaven, including the distance from the tide gauge, the damping effects of tide gauges, and the morphology of the beach. We conclude that, under British property laws, a small area of the upper beach (which regularly changes in shape and size) is owned by the adjacent landowner and is technically under their control despite being regularly inundated by the tides.

Brexit and the future of UK environmental law

The United Kingdom’s decision to leave the European Union will have major consequences for environmental law. EU law is integrated into the UK’s laws in many ways that will be difficult to disentangle and a continuity of laws provision seems desirable in order to avoid gaps in the law appearing. The effect of devolution within the UK is that most environmental matters will in future be the responsibility of the devolved administrations. The UK’s freedom of action will continue to be constrained by obligations in international law, including those establishing a new relationship with the EU. Environmental law in the UK has changed greatly during the four decades of its membership in the EU and most of the innovations introduced through the EU are likely to be retained, although there may be a wish to restore more discretion over the outcomes to be achieved as opposed to having strict obligations to satisfy targets and standards. In structural terms the biggest changes are likely to be the loss of the stability provided by the slow processes of making and changing EU law and the loss of means to call to account the UK government (and devolved governments in Scotland, Northern Ireland and Wales) over their performance in meeting their environmental commitments.

Brexit and the devolution dynamics

Brexit will mean the return of powers from Brussels not just to London but to a devolved United Kingdom, with environmental matters primarily a responsibility of the devolved administrations. This will require careful attention to how and where law can be made. The devolved authorities could go their own way on many issues but the need to comply with international obligations will provide a continuing constraint, and a source of tension since all aspects of international relations remain in the hands of the UK authorities. There are strong reasons for continuing cooperation and coordination across the UK, and with the EU, but mechanisms to achieve this must be found. Differing ambitions for the post-Brexit position may have consequences for devolution itself, with the Scottish Government calling for powers in some non-devolved areas currently dominated by EU law to be passed away from London and for a stronger role in international affairs.

Climate Law in the United Kingdom

There is no single legislative source for the United Kingdom’s legal response to climate change. Initial measures to tax large energy users, enable participation in the European Union Emissions Trading Scheme and encourage renewable electricity generation have subsequently been joined by the Climate Change Acts operating at UK and Scottish levels. These Acts set demanding targets for reductions in greenhouse gas emissions and break new and uncertain legal ground in making these legally binding on Ministers. The targets are supported by detailed reporting mechanisms, to Parliament and the public, that are intended to be the main route to enforcement and by provisions enabling many detailed changes to the law to allow progress towards the targets. The separate legislation in Scotland highlights the difficulties that dealing with pervasive issues, especially those with an European Union and international dimension, pose for by sub-national governments with distinct political ambitions but limited jurisdiction.

Environmental Governance in the United Kingdom

The very end of last century saw significant constitutional change in the United Kingdom (UK) through the establishment of a system of devolved government. This has created new legislative and governmental bodies in Scotland, Wales and Northern Ireland enjoying significant powers. Prior to this change, the UK had been governed by a single Parliament and Government since the modern State was established. The devolved authorities are also subject to limitations on their powers in that they cannot lawfully act in a way that is incompatible with European Union (EU) law or with rights under the European Convention on Human Rights. Transparency and public participation have been growing in significance, accelerated by European initiatives on issues such as environmental information and environmental impact assessment, whilst the arrival of the internet has transformed the way in which public consultations can be carried out and information published. Keywords:environmental governance; European Union (EU) law; Public participation; United Kingdom (UK)

Education for sustainable development and the professional curriculum

Studies of education for sustainable development have tended to overlook the significance of professional accreditation requirements in determining the curriculum in many disciplines. A study of the accreditation criteria for the many professionally recognised degrees at one university reveals a range of levels of engagement with sustainability issues and of responses to these by teaching staff. The legal professions are mostly among those which pay least attention to issues beyond narrow technical competence.

Employing Property Rights for Nature Conservation

From some perspectives, to speak about property in the context of the conservation of nature is to succumb to a fundamentally flawed view of the world and humans’ place in it. The natural world is not to be viewed as “property” at all: “We abuse land because we regard it as a commodity belonging to us” rather than as “a community to which we belong”.1 Yet the reality is that the modern world and its legal systems do recognise property rights in land and in many elements of biodiversity. The deference paid by the law to such rights, giving them priority over other interests, can be an obstacle to initiatives seeking to enhance conservation. Yet there is also growing interest in exploring how property rights might be used as a means of securing change which will benefit biodiversity. This paper explores how property rights relate to the natural environment and how they obstruct or might facilitate effective conservation measures. The biodiversity on which our survival depends has been degraded by centuries of human activities. Property rights might be part of the problem, but may also be part of the solution. After critically exploring some of the views that would reject any role for property at all, the potential for property to pay more heed to nature is assessed. The extent of traditional property rights in nature is examined, drawing out both the difficulties this can pose for conservation and the ways in which such rights can be used to support this goal. The potential for property to be used as the basis for new mechanisms supporting and enhancing conservation is then analysed. Such new mechanisms offer potential but also challenges, not only at the technical level but also in terms of the overall coherence and governance of the enterprise of reversing the destruction of biodiversity which has marked human development for centuries.

Towards a Biodiversity Law: The Changing Nature of Wildlife Law in Scotland

Attitudes towards nature have changed greatly in the last 60 years. Wildlife laws that contribute effectively to conserving biodiversity will look very different from the laws that were developed when wildlife was viewed simply as a resource to be exploited or when a few species or places were first granted legal protection. The purpose of this article is to examine the attributes that laws supporting biodiversity should possess and to explore how the law has evolved to develop these by examining how the laws in one country, Scotland, have changed since the conservation of nature first came to be accepted as a desirable objective deserving legislative support. The early conservation measures simply prohibited specific forms of direct harm to a few selected species. Then the protective measures were extended in their range and a new dimension added by the recognition of the need to look after habitat as well as to prevent direct harm. In turn the habitat measures too have been extended, becoming stronger and responding to the appreciation that maintaining habitat in good health demands active conservation measures rather than just passive prevention of harmful activities. Now there is further emphasis on the