Compensatory measures under art. 6 (4) of the Habitats Directive: no net loss for Natura 2000?

Transcription

1 Compensatory measures under art. 6 (4) of the Habitats Directive: no net loss for Natura 2000? Donald McGillivray, Kent Law School [from , Sussex Law School, d.mcgillivray@sussex.ac.uk]

2 "She is nothing so fair as she hath been reported"

3 Haseldorfer Marsch measure Elbe Airbus site expansion Hahnöfersand measure nothing so compensatory as hath been envisaged?

4 Outline 1. Critique of Commission practice under Art 6(4) second para. Compensating Biodiversity Loss: The EU Commission s Approach to Compensation under Article 6 of the Habitats Directive (2012) J. Env. Law What does the compensation obligation entail? 3. Looking forward: what could it entail?

5 Central arguments Ecological compensation is undervalued in decision-making In fact, rarely commented on in any detail The Commission is poorly placed to assess the adequacy of ecological compensation or to hold Member States to account The process for issuing positive opinions is opaque and fails in practice to meet key criteria The compensation duty is unclear, leading to uncertainty and optionality

6 Habitats Directive Art 6(4) 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. Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.

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8 2012 JEL paper: data set 15 opinions of the European Commission publicly issued up to 31 July 2011 under Article 6(4) paragraph 2 of the Habitats Directive. 3 further opinions issued since Opinions available at 0/management/opinion_en.htm

9 Practical Challenges and Biases Compensation in practice may be criticised as: - poor on providing comparable ecological functionality (1) - favouring proponents by underestimating impacts and overestimating positive effects (2) - poorly monitored and audited and of limited enforceability (3) - prone to economic considerations being improperly or unduly be taken into account (4)

10 The Opinions Date of Site or Project by which Opinio Opinion commonly n referred Nature of Development Conservation Interest Affected / Compensation Issue 1995 Peene Valley A20 motorway Unspecified ; also bird habitat 1995 Trebel and Recknitz Valley A20 motorway Raised bogs; mires and fens; bog woodland 2000 Mühlenberger Loch, Hamburg Aircraft factory Extensive bird habitat; inc one priority 2003 Trupbach (Siegen), North Rhine-Westfalia Industrial and commercial development Never arose for decision Haniel Colliery extension Bog woodland and residual alluvial forest 2003 Rotterdam Port expansion Dunes and coastal habitat 2003 Bothnia Railway Various La Breña II, Andalucia Dam construction Particular impact on Iberian lynx habitat 2004 TGV East, France High speed rail Effect of inland salt and other meadows

11 2005 Karlsruhe / Baden-Baden Airport expansion Nardus grassland; non-priority habitats Granadilla, Tenerife, Spain Port construction Effect on grey dunes and on caretta caretta Lübeck-Blankensee airport Airport extension Transition bog and old oak forest habitats Schleswig-Holstein A20 motorway Impact on various priority types. construction 2010 Hesse A49 motorway extension c 5ha lost; significant but limited damage Győr, Hungary Economic development 2012 Münchhausen, Wetter and Lahntal B 252/B 62, bypass 2012 Schiersteiner Brücke Motorway enlargement 2012 River Elbe River widening / deepening 150ha lost in particular on 2 habitat types & 2 species of Community interest Alluvial forests; other Especially alluvial forests Estuaries; Oenanthe conioides

12 Functionality Compensation approved even though not finalised (let alone functionally effective) (3 cases) Query whether opinions can be conditional No consistency about assessment of Natura 2000 coherence Remediation measures were started in 2001, but have not yet been completed. It is actually not clear if remediation measures will ever be completed, and if they are, which form they will take and which results they will have (Mühlenberger Loch)

13 Proponent bias The process of seeking an opinion is inherently proponent biased Not worst-case precaution (as professed) With hindsight, the prognosis of the success of the Hahnöfersand measure seems to have been incredibly optimistic: instead of providing living space for 1,000 Northern Shoveler, the numbers actually observed has been closer to 50 Outright political pressure Peene Valley, Trebel and Recknitz, Mühlenberger Loch, Rotterdam, Bothnia, Granadilla Port

14 Monitoring and enforceability Deference to member state monitoring Adaptation is often provided for, but unclear if ever enforced (Mühlenberger) The Commission does not see opinions as licences and appears to have little or no enthusiasm for ongoing case management.

15 Economic influence Most time taken up with IROPI issues and liaison with other Directorates General Mühlenberger Loch nationally, split the authorisation of the development from the decisions regarding compensation. whereas the expansion of the Airbus site was completed successfully and the first aircraft... were rolling off the conveyor belt by July 2007, the remediation for the fillingin of 171 ha of tidal mudflats protected under German and European law is to date nowhere near completion.

16 Transparency No duty to publicise opinions, or that opinions are being sought, and very thin analyses Some cases remain controversial after the Commission has issued its opinion, leading to legal challenges See eg Case T-168/02 IFAW Internationaler Tierschutz- Fonds GmbH v Commission [2004] ECR II-4135, appealed as Case C-64/05 Sweden v Commission [2007] ECR I-11389; Case T-362/08, IFAW Internationaler Tierschutz-Fonds GmbH v Commission, Court of Justice, 13 January 2011 (nyr) (regarding Mühlenberger Loch) reversed in part in Case C-135/11 P, IFAW Internationaler Tierschutz-Fonds ggmbh v Commission, 21 June 2012 see also Tenerife (referral to European Ombudsman)

17 Conclusion only a soft glance at the adequacy of compensation (Nollkaemper, 1997), because of: the uncertainties involved the undeveloped state of restoration ecology lack of experience How much has changed? The opinions cast doubt across each of the four criteria used as tests. And the opinions, and their follow up, fail, spectacularly in my view, on transparency.

18 Immediate (broader) concern If the Commission cannot demonstrate, through its published opinions, that it is itself faithful, in letter and spirit, to all aspects of the compensation obligation, its leverage over the Member States in relation to the wider range of cases where the compensation obligation applies, and across the Habitats Directive regime as a whole, is diminished. Is there any effective enforcement of 6(4) first para?

19 Improvement? River Elbe (2012) The opinion is subject to the following conditions: The compensatory and the additional measures will be financed, timely implemented and monitored as described in the documents submitted to the Commission by the German authorities. Detailed reports on the implementation and monitoring of these measures will be made available to the broad public via internet as committed by the German authorities and submitted to the Commission on a biannual basis. The first report is due in the end of Concerning Oenanthe conioides the monitoring will be at least 12 years according to the agreed time intervals starting after the implementation of the measures and will continue until a viable plant population is established. The results of the accompanying monitoring programme regarding Natura 2000 sites will be taken into account in that it may, if need be, lead to appropriate rectification of the project design or to additional compensation and/or mitigation measures. The Annex of this opinion forms an integral part of the opinion.

20 Compensation: legal issues What is the required degree of confidence in the compensatory measures? no reasonable scientific doubt (Waddenzee)? requisite degree of confidence? A sliding scale of confidence? (Commission Guidance 2007/2012) What is the relationship between compensation and overall coherence On whom does the compensation obligation fall? Member State (cf Art. 6(3)). Implications for decisionmaking?

21 Negative effects of lack of leadership Able Marine, ongoing inquiry in England regarding major renewables development with impact on N2000 requiring compensation. Argued by the project proponent that: The fact that the compensation measures [cited by McGillivray] had not even been finalised by the time they came before the Commission suggests that they cannot have been finalised at the time they were being considered by the competent authorities in the relevant Member State. Without finalisation of the details, it is difficult to see how those Member States could have had concluded that there was no reasonable scientific doubt that the compensation proposals would work. This serves to strengthen the applicant s argument that the [Waddenzee] test... is not the correct one. [emphasis added]

22 Case 258/11 Sweetman v An Bord Pleanala

23 Case 258/11 Sweetman v An Bord Pleanala, 22 Nov 2012, AG Sharpston [64] The legislation recognises... that there may be exceptional circumstances in which damage to or destruction of a protected natural habitat may be necessary, but, in allowing such damage or destruction to proceed, it insists that there be full compensation for the environmental consequences [I leave open the general question as to how to identify what are appropriate compensatory measures in any given case.] The status quo, or as close to the status quo as it is possible to achieve in all the circumstances, is thus maintained.

24 So... Aim for the objective Recognise intrinsic difficulties (Commission Guidance, 2012, para ) Follow guidance (?). Use best efforts and techniques Cross fingers...

25 Looking Forward Effectiveness of Article 6(4) depends on Article 6(3) screening operating properly Evidence that Art. 6(3) allows evasion of Art. 6(4) (European Commission 2008; Backes et al 2006) Will we see greater resort to Article 6(4), both paras? Preference of UK Government, for example Should compensation be embedded as a more general principle or objective of the Directive? Tension between compensation and the main aim of the Directive being to promote the maintenance of biodiversity (preamble)

26 Greater resort to Article 6(4)? Existing guidance says that projects should only go ahead under article 6(4) in exceptional circumstances or as a last resort (30 cases in UK in ). This may be misunderstood to mean that use of article 6(4) is discouraged. The Government therefore wishes to clarify the language so competent authorities and developers give serious consideration to the use of article 6(4) when it is appropriate to do so. UK, Department for Environment, Food and Rural Affairs (2012)

27 Thank you.