Wildlife Conservation and Protected Areas: Politics, Procedure, and the Performance of Failure Under the EU Birds and Habitats Directives

Click to increase image sizeClick to decrease image size Notes1 Simon Lyster, International Wildlife Law (1985), at 67–74.2 The Directives still receive fairly sympathetic treatment in major texts. See e.g., J. Holder & M. Lee, Environmental Protection, Law, and Policy: Text and Materials (2nd ed. 2007) at 627–669; and the reappraisal of Lyster's assessment at various points in M. Bowman, P. Davies, & C. Redgwell, Lyster's International Wildlife Law (2nd ed., 2010). Although, as a recent essay perceptively notes, when you look at the fine print: "The Habitats directive … stipulates a procedure for balancing species and habitat protection on one hand and potentially harmful human activities on the other. (But) the directive does not address how nature and human activities have to be balanced, where the deliberation should take place, whether it should be embedded in (existing mechanisms for) spatial planning or not, or which kind of rules and policies should be employed in the implementation. It only stipulates that valuable habitats require delineation and protection in EU member states, and that this protection needs to have consequences for human use [i.e. it ought to provoke an informed discussion whenever human use threatens to alter these high-quality habitats] {emphasis added and references omitted}." R. Beunen, K. Van Assche, & M. Duineveld, Performing Failure in Conservation Policy: The Implementation of European Directives in the Netherlands, 31 Land Use Pol'y 283 (2013).3 The Habitats Directive: A Developer's Obstacle Course? (G. Jones, ed., 2012), hereinafter cited as The Habitats Directive (2012). A consolidated text of the Directive and its annexes is appended to the book at 253–318.4 For a situation in which the semblance of implementation appears to be absent, see G. Kütting, Nature Conservation Law in Context: The Limited Influence of European Union and Greek Designations on the Future of Cavo Sidero, Crete, 15 J. Int'l Wildlife L. & Pol'y 60–79 (2012). It is important to note that EU Directives are implemented at the discretion of member states and in accordance with the domestic policies of each state. In those states, then, where there is no substantial body of well-established and well-observed rules and regulations governing land use planning and decision making, and especially governing the impacts of land development on habitats and species, implementation of the Directives is bound to be to some degree laggard. It is a hallmark of the literature on the Directives that it deals for the most part with member states where the implementation deficit is relatively modest, such as the Netherlands, Britain, Germany, and France. This is, of course, useful, but a poor guide to the outcomes implementation produces in, say, Greece, Italy, and even Ireland. See the sources cited in note 14, infra.5 Council of Europe, 1979. Convention on the Conservation of European Wildlife and Natural Heritage. Bern, Switzerland. European Treaty Series, No. 104. Available online at: http://conventions.coe.int/Treaty/EN/ Treaties/Html/104.htm (accessed 30 July 2013).6 The Bern Convention, its history and its relevance to the Birds and Habitats Directives are the subject of G. Jones, The Bern Convention and the Origins of the Habitats Directive, in The Habitats Directive (2012), supra note 3, at 1–23.7 C. Mackenzie, A Comparison of the Habitats Directive with the 1992 Convention on Biological Diversity, id. at 25–41.8 Elisa Morgera, CBD COP-10: Towards Post-2010 Implementation, 40 Envtl. Pol'y & L. 281–288 (2010); Elisa Morgera & Elsa Tsioumani, Convention on Biological Diversity, 22 Y.B. Int'l Envtl. L. 263–332 (2011); T. Swanson & B. Groom, Regulating Global Biodiversity: What is the Problem? Working Paper 31, Fondazione Eni Enrico Mattei (Milan, 2012).9 Flemish Environmental Law Association (Vlaamse Vereniging voor Omgevingsrecht), 20 Years of (the) Habitats Directive: European Wildlife's Best Hope? International Conference, Antwerp, 12–13 December 2012. Papers online at http://www.omgevingsrecht.be/event/international-conference-antwerp-12-13-december-2012 (accessed 30 July 2013).10 In the case of Britain, for example, see U.K., Department of Environment, Food and Rural Affairs, Report of the Habitats and Wild Birds Directives Implementation Review (London, March 2012), available online from https://www.gov.uk/government/publications/ report-of-the-habitats-and-wild-birds-directives-implementation-review (accessed 30 July 2013).11 S. Bryan, Contested Boundaries, Contested Places: The Natura 2000 Network in Ireland, 28 J. Rural Stud. 80–94 (2012).12 R. Beunen, W. van der Knaap, & G. Biesbroek, Implementation and Integration of EU Environmental Directives: Experiences from The Netherlands, 19 Envtl. Pol'y Governance 57–69 (2009); S. Tromans, The Meaning of 'Any Plan or Project' under Article 6(3), in The Habitats Directive (2012), supra note 3, at 91–101.13 J. Fairbrass & A. Jordan, European Union Environmental Policy and the U.K. Government: A Passive Observer or a Strategic Manager? 10 Envtl. Pol. 1–21 (2001); J. Fairbrass & A. Jordan, Protecting Biodiversity in the European Union: National Barriers and European Opportunities? 8 J. Eur. Pub. Pol'y 499–518 (2001).14 In the 13 chapters that make up The Habitats Directive (2012) the disappointment is most palpable in Rebecca Clutten & Isabella Tafur, "Are Imperative Reasons Imperiling the Habitats Directive? An Assessment of Article 6(4) and the IROPI Exception," in The Habitats Directive (2012), supra note 3 at 167–182. But see also L. Ledoux et al., Implementing EU Biodiversity Policy: UK Experiences, 17 Land Use Pol'y 257–268 (2000); P. Alphandéry & A. Fortier, Can a Territorial Policy Be Based on Science Alone? The System for Creating the Natura 2000 Network in France, 41 Sociologia Ruralis 311–328 (2001); S. Stoll-Kleemann, Opposition to the Designation of Protected Areas in Germany, 44 J. Envtl. Plan. Mgmt. 109–128 (2001); J. Prazan, T. Ratinger, & V. Krumalova, The Evolution of Nature Conservation Policy in the Czech Republic: Challenges of Europeanisation in the White Carpathians Protected Landscape Area, 22 Land Use Pol'y 235-243 (2005); T. Fidelis & D. Sumares, Nature Conservation and Urban Development Control in the Portuguese Planning System: A New Impetus Against Old Praxis? 18 Eur. Env't 298–311 (2008); B. Laffan & J. O'Mahony, 'Bringing Politics Back In:' Domestic Conflict and the Negotiated Implementation of EU Nature Conservation Legislation in Ireland, 10 J. Envtl. Pol'y Plan. 175–197 (2008); E. Apostolopoulou & J. Pantis, Conceptual Gaps in the National Strategy for the Implementation of the Natura 2000 Policy in Greece, 142 Biol. Consv'n 221-237 (2009); E. Waage & K. Benediktsson, Performing Expertise: Landscape, Governmentality and Conservation Planning in Iceland, 12 J. Envtl. Pol'y Plan. 1–22 (2009); F. Ferranti, R. Beunen, & M. Speranza, Natura 2000 Network: A Comparison of the Italian and Dutch Implementation Experiences, 12 J. Envtl. Pol'y Plan. 293–314 (2010); M. Grodzinska-Jurczak & J. Cent, Expansion of Nature Conservation Areas: Problems with Natura 2000 Implementation in Poland, 47 Envtl. Mgmt. 11–27 (2011); R. Morris, The Application of the Habitats Directive in the UK: Compliance or Gold Plating? 28 Land Use Pol'y 361–369 (2011).15 Beunen, Van Assche, & Duineveld (2013), supra note 2.16 A term used in Hart District Council v Secretary of State for Communities and Local Government, Luckmore Ltd. & Barratt Homes Ltd [2008] EWHC (England and Wales High Court) 1204 (Admin); [2008] P & CR 16; [2009] JPL 365.17 It is widely accepted that in recent decades and certainly since the EU Directives were adopted conditions for wildlife in Europe in the aggregate have not improved. The European Environment Agency portal into data on this topic is online at http://www.eea.europa.eu/themes/biodiversity/where-we-stand/where-does-europe-stand-in-2010 (accessed 30 July 2013).18 Ferranti, Beunen, & Speranza (2010), supra note 14.19 Beunen, Van Assche, & Duineveld (2013), supra note 2, at 280.20 This thesis emerges from several strands of work on Europeanization and domestic political change and is masterfully applied to compliance with the Birds and Habitats Directives in Ireland in Laffan & O'Mahony (2008), supra note 14.21 The sense that beneath all the twists and turns of litigation, court decisions, administrative adaptations, and interest group strategizing swirling around the Directives there lies a basic set of questions about power over land use, which are enduring and may have no clear resolution emerges very clearly from the account of proposals for British port development in Morris (2011), supra note 14. Raoul Beunen and his colleagues are equally clear that in the Netherlands the preoccupation with procedural compliance has not led to substantive success for wildlife values. They point out that in the beginning compliance was treated as a mere formality, "because the Dutch conservation model was considered to be the model for the European directives." Beunen, Van Assche, & Duineveld (2013), supra note 2, at 283. This changed "after a small environmental NGO, Das en Boom, successfully used the Habitats directive to challenge in court the development of a new business park in Heerlen. Their legal victory stirred a lot of media attention. According to Das en Boom, the permitting process was incomplete since the impact studies required by the Habitats directive were not conducted. The judges agreed. After a string of court cases, many actors became aware of the potential impact of the Birds and Habitats directives. In the following years, more developments and activities were challenged [including] the extension of the A73 highway, the fishing rights for cockles in the Wadden Sea and the enlargement of the Port of Rotterdam." Id. [citations omitted]. The victories conservationists seemed to be winning in court proved short-lived, however. "The other [developer] parties became more successful … after they learned that more substantial impact studies could be used to win a case and that in local coalitions, strong arguments could be formed to present a proposed project as an overriding public benefit. In other words, it slowly dawned on both conservationists and economic actors that the procedural side of the legal argument was much more important than the [substantive] side, and that both [substantive] and procedural sides could be manipulated to a certain extent. Furthermore, … conservation organizations realized that procedural battles over small sites and animals were eroding long-standing public support for nature conservation. They noticed that their role in policy making and planning was less and less accepted by other actors and by the general public, and that even their right to exist was questioned regularly." Id. at 284 [citations omitted].22 The conference, known as the first Kingsland Conference in honor of the late Christopher Kingsland Q.C., an eminent barrister and leading member of the environmental bar in Britain, was held at King's College, London, in March, 2011.23 The Habitats Directive (2012), supra note 3 at xii.24 The table of cases runs to nine pages in id, at xxiii–xxxi, and includes decisions from courts in Canada, the European Union judiciary, Hong Kong, India, Ireland, the Netherlands, the United Kingdom, the United States, and the International Court of Justice. The bulk of the decisions directly germane to the Directives that are considered in detail are from European and British courts.25 The clearest account of how European jurisprudence on the Directives has evolved in relation to the mandate to protect species appears in Charles George & David Graham, "After Morge, Where Are We Now?: The Meaning of 'Disturbance' in the Habitats Directive," id. at 43–74.26 Denis Edwards, "Judicial Review, the Precautionary Principle and the Protection of Habitats: Do We Have a System of Administrative Law Yet?" in id. at 209–233.27 R (Morge) v Hampshire County Council [2009] EWHC 2940 (Admin); [2010] EWCA Civ 608; [2011] UKSC 2.28 There is, of course, an argument to be made that courts' concerns, especially at the higher levels of the judiciary, for settled institutional expectations, are very necessary and proper. This is the argument made in Andrew Waite, "The Principle of Equilibrium in Environmental Law: The Example of the Habitats Directive," in The Habitats Directive (2012), supra note 3 at 235–251. It leads Waite to the conclusion that environmental protection laws, such as the Directives, will only succeed if they can "accommodate proportionate economic growth." Id. at 250. In contrast, the other contributors to the book prioritize wildlife protection over regard for settled economic and institutional expectations, and their view of the success of the Directives is much more subdued, even negative.29 This is the major concern of George & Graham, supra note 25.30 Id. at 58–62 and 66–70.31 "The main effect of the ruling [in Morge] has been to weaken the UK's system of protection for EPS [European protected species] by removing the obligations upon [local] planning authorities to satisfy themselves before granting permission that a protected species would either not be disturbed, or that its disturbance would be lawfully licensed; and by authorizing them to dispense with imposing a condition that the proposed activities be licensed before work can commence. … It has [thus] removed what was previously a useful [local] mechanism for preventing harm to … EPS, and has left only the criminal law [ostensibly but not effectively enforced by Natural England] to safeguard protected species from development." Id. at 73–74.32 Again, this was most certainly not the case when the Directives were first adopted. In The Habitats Directive (2012), supra note 3, the organization of the chapters makes it difficult to bring all the key ambiguities into focus quickly. It is much easier to do this, however, in the maritime context, where implementation of the various provisions remains minimal and, therefore, very much a work in progress. See the quick review across the board of the key relevant ambiguities in Richard Cadell, "The Maritime Dimensions of the Habitats Directive: Past Challenges and Future Opportunities," in id. at 183–207.33 The Habitats Directive (2012), supra note 3.34 Rebecca Clutten & Isabella Tafur, "Are Imperative Reasons Imperiling the Habitats Directive? An Assessment of Article 6(4) and the IROPI Exception," in id. at 167–182.35 Case C-57/89 Commission v Germany [1991] ECR I-883.36 Case C-355/90 Commission v Spain [1993] ECR I-4221.37 Colin Reid, Nature Conservation Law (3rd ed., 2009), at 5.2.7.38 Council Directive 79/409/EEC; O.J. Eur. Comm. (L 103) (25 Apr. 1979) 1.39 Lyster (1985), supra note 1 at 68.40 Council Directive 92/43/EEC; O.J. Eur. Comm. (L 206) (22 Jul. 1992) 7.41 Reid (2009), supra note 37.42 Clutten & Tafur, supra note 34 at 171.43 Id. at 172.44 Id. at 173. The strict interpretation dictum stems from Case C-304/05 Commission v. Italian Republic [2007] ECR I-7495.45 Clutten & Tafur, supra note 34 at 173–175.46 A. Nollkaemper, Habitat Protection in European Community Law: Evolving Conceptions of a Balance of Interests, 9 J. Envtl. L. 271 (1997); L. Krämer, Commission's Opinions under Article 6(4), 21 J. Envtl. L. 59 (2009).47 Clutten & Tafur, supra note 34 at 176.48 Id. at 179.49 The Sweetman litigation stems from the grant of permission by the Irish Planning Board in 2008 for a road project, the Galway outer city bypass. Part of the project would by all accounts destroy about 1.5 hectares of limestone pavement to be protected in a proposed (candidate) addition to the Lough Corrib Special Area of Conservation. The case figures prominently in Gregory Jones, "Adverse Effects on the Integrity of a European Site: Some Unanswered Questions," in The Habitats Directive (2012), supra note 3, 151 at 158–166. The still "unpublished" decision from April 2013 can be read at http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do? uri=CELEX:62011CJ0258:EN:HTML or http://www.bailii.org/eu/cases/EUECJ/2013/C25811.html (both accessed 12 September 2013). For brief helpful commentary, see http://ukhumanrightsblog.com/2013/04/11/habitats-the-cjeus-judgment-in-sweetman/ (accessed 12 September 2013) and http://www.lexology.com/library/detail.aspx?g=5391bdbe-3e42-43e6-970b-33ce1d6fdea8 (accessed 12 September 2013).50 Peter Scott, "Appropriate Assessment: A Paper Tiger," in The Habitats Directive (2012), supra note 3, 103–117.51 For the international and European background and history, see Philippe Sands, Principles of International Environmental Law 799–825 (2nd ed., 2003).52 Edwards, supra note 26 at 232.53 Id.54 Id. at 231.55 Id. at 212.56 Id. at 211–212.57 Id. at 217. See also Elizabeth Fisher, Is the Precautionary Principle Justiciable? 13 J. Envtl. L. 315 (2001); Richard Clayton, Judicial Deference and "Democratic Dialogue": The Legitimacy of Judicial Intervention under the Human Rights Act 1998, 2004 Pub. L. 33; T.R.S. Allan, Human Rights and Judicial Review: A Critique of Due Deference, 65 Cambridge L.J. 671 (2006).58 This accords with experience in the United States with procedural and substantive review under environmental impact assessment. See Daniel Mandelker, Thoughts on NEPA at 40, 39 Envtl. L. Rep. 10,640 (2009); Daniel Mandelker, The National Environmental Policy Act: A Review of Its Experience and Problems, 32 J. L. Pol'y 293 (2010).59 As Edwards notes, the provisions of the Habitats Directive are implemented in the context of European treaty law. Article 191(2) of the Treaty on the Functioning of the EU (TFEU) premises EU environmental policy on the need to provide a high level of protection for the environment, based in part on the precautionary principle and preventive action. These prescriptions, Edwards argues, ought to be binding on domestic courts, in which case they might facilitate substantive review. "Although Article 191(2) probably does not have direct effect, it is a prescriptive provision of the TFEU and, as such, is [binding on domestic courts]. … This follows from Article 4(3) of the Treaty on European Union (TEU) (ex Article 10 of the EC Treaty). Further, the new provision in Article 19(1) of the TEU, requiring Member States to provide 'remedies sufficient to ensure effective legal protection in the fields covered by Union law,' arguably bolsters the established case under Article 4(3) TEU concerning the duties of domestic courts to ensure the full effectiveness of EU law even where EU law rules do not have direct effect [citations omitted]." Edwards, supra note 26 at 223–224.60 Paul Stookes, "The Habitats Directive: Nature and Law," in The Habitats Directive (2012), supra note 3 at 149–150. Precisely similar concerns lie behind Bradley Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 Colum. L. Rev. 903 (2002). Other disturbing aspects of enforcement are noted by Clutten and Tafur in their discussion of IROPI: "[I]n relation to all the cases in which IROPI has been justified, … compensatory measures will be put in place … [But] there is nothing in Article 6(4), or in the Commission guidance of 2007 [about how to implement the Article] which requires the Commission to ensure that compensatory measures are actually taken. The Commission does not take action against Member States if they fail to implement the compensatory measures to which they have committed, even if a favorable opinion is given by the Commission on the basis of those measures being taken [citation omitted]." Clutten & Tafur, supra note 34 at 181.61 Waite, supra note 28 at 248–250.62 Defra, Report of the Habitats and Wild Birds Directives Implementation Review (London, March 2012), supra note 10.63 Waite, supra note 28 at 250.64 See text accompanying note 39, supra.

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