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Colin T Reid and Walters Nsoh

A range of legal tools is increasingly being used for the conservation of biodiversity. These tools include conservation covenants, biodiversity offsets and payment for ecosystem services. There are benefits to these approaches, but also challenges to be met if these mechanisms are to be applied successfully.

Among the challenges is the fact that these schemes generate new relationships between land, people and the environment, especially wildlife. This requires consideration of the basic position of ownership of wild flora and fauna, the extent of the property rights of landowners and others with interests in the land, and of how far the state is justified in restricting, and even taking over, these rights for conservation purposes. The restriction of property rights for environmental purposes has already given rise to litigation under the European Convention on Human Rights, and as ideas of long-term stewardship in land or new rights in relation to ecosystem services develop, there are questions over the nature and extent of the rights being recognized. Moreover, there are concerns over the acceptability of an approach that converts nature from a ‘common heritage’ to a bundle of property rights. Mechanisms that confer rights on nature add a further dimension to the discussion. Using examples from the United Kingdom and other jurisdictions, this article attempts to highlight the different ways in which rights can be viewed in the context of developments in conservation law and the need to appreciate the consequences from different perspectives.

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Colin T. Reid and Walters Nsoh

This content is available to you

Colin T. Reid and Walters Nsoh

Globally we are failing to halt the loss of biodiversity while at the same time coming to realise the many ways in which the natural world provides us with a range of very valuable ecosystem services. Traditional laws of property have given little recognition to nature and we have largely resorted to ‘command and control’ techniques when trying to regulate our impact on biodiversity (e.g. designating protected sites and species). Across environmental regulation, however, there is growing interest in and use of other, market-based techniques, such as trading and offset schemes, as a means of addressing environmental problems. Such an approach might be applied in relation to biodiversity as well. There are, however, challenges in doing so and some critics would argue that this would amount to an unacceptable commodification of nature. The remaining chapters of this book examine pervasive issues affecting the use of a market-based approach for biodiversity conservation, explore the key legal mechanisms that might be employed, consider the challenges in designing effective and efficient schemes and reflect on some of the ethical debates on their use.
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Colin T. Reid and Walters Nsoh

There are a number of pervasive design challenges to be faced if there is to be more widespread use of market-based instruments for biodiversity which are effective, efficient and accepted as legitimate. One key issue is the uncertainty in the practical effectiveness of the steps taken to (re-)create or enhance habitats, which are vital for many schemes. Moreover, in contrast to areas such as greenhouse gases where trading mechanisms are already in use, biodiversity is essentially non-fungible, site specific and requires long-term and coherent action to achieve results. There are also difficulties in determining the value to be given to elements of nature, in assessing their equivalence and in ensuring that recognition is given only for actions which provide benefits for nature that are truly additional to ‘business as usual.’ The proper operation of schemes will further require recognition of a range of property rights, some of them likely to be novel. Effective monitoring of what is being achieved and enforcement of long-term undertakings are also essential. In adopting market-based approaches, attention must be paid to transaction costs and asymmetries of information, which will affect how the market operates. Further questions concern the overall governance of schemes where public goals are pursued through an accumulation of private deals. In considering such challenges, it must be remembered that these are not unique to the new approach being considered. At present there are choices on such issues embedded in the existing approaches and legal structures. These structures are not value-free and already require an element of comparative valuation in determining which species and habitats are to be given special legal protection.
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Colin T. Reid and Walters Nsoh

Payment for ecosystem services (PES) involves payments made in exchange for the management of land to maintain or enhance the range of services that it provides to the public at large or to more specific beneficiaries. The aim is to provide a financial incentive for continued service provision, saving beneficiaries the vast cost of replacing them. The legal arrangements for a PES scheme can take the form of transactions made on a voluntary basis, but some may also involve mandatory elements. Existing schemes around the world offer examples of how important design issues can be dealt with. Essential starting points in such schemes include matching those who benefit from a service with those who provide it and providing a means of valuing the service(s) to be paid for. Buyers of services must be able to identify who is eligible to receive payments, a task that is not always straightforward where there is a lack of certainty over the property rights which provide control over land management. Other design issues include drafting contracts that assure the parties that obligations will be met in the short, medium and long terms and establishing mechanisms for the overall governance of the schemes to ensure that they are widely seen as having legitimacy, especially when private arrangements are used to pursue public goals. Besides the technical challenges there is also the question of which landowners should be supported by such schemes: those who currently provide the most services, or those whose lands offer the greatest potential for enhancement, or every landowner who provides ecosystem services. Moreover, there is a need to address the issue of those who do not contribute but continue to receive benefits, especially given the public goods character of biodiversity services.
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Colin T. Reid and Walters Nsoh

Biodiversity offsetting involves allowing development causing biodiversity loss to proceed in one place so long as biodiversity gains are achieved elsewhere to ensure no net loss of biodiversity. In designing such schemes, attention has to be paid to the major challenges of identifying and valuing what constitutes a biodiversity gain and ensuring that it can and will be delivered, despite the practical difficulties and uncertainties shown by ecological practice. The arrangements for an offset can involve several parties who must be assured that each will comply with their obligations, requiring a network of legal relationships involving legal, financial and operational responsibilities. Schemes in operation in various jurisdictions offer examples of how such issues can be tackled, as well as demonstrating bio-banking schemes, whereby those seeking to provide a biodiversity gain to offset some harmful activity can do so by contributing to an existing conservation programme, which can benefit by being financed by this source of income.
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Colin T. Reid and Walters Nsoh

Conservation covenants (or easements) involve landowners agreeing that the use of their land will be restricted in some way so as to further conservation. Such agreements are binding not just on the original party but on future landowners as well, potentially in perpetuity. Covenants can act as a conservation device in their own right or as a means of giving legal shape to the obligations underlying arrangements for the payment for ecosystem services or biodiversity offsetting. Such schemes operate as a matter of private law, and design issues to be addressed include how such agreements can be enforced; the duration of such covenants; the extent to which they can be modified or terminated (by the parties alone, through the involvement of a public body or subject to some form of external scrutiny); and how best to draft such agreements to cope with our increasingly dynamic environment. Lessons can be learnt from current proposals in England and experience in the United States, where the shape of easements is affected by the desire to attract charitable status and hence tax relief.
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Colin T. Reid and Walters Nsoh

The details of the tax system will have impacts (often unintentional) on activities which affect biodiversity. Using the British system as an example, the ways in which different taxes and reliefs produce a range of incentives and disincentives for benefitting biodiversity are explored, together with the potential for these to be more consciously utilised. Further issues include the use of hypothecated taxes to benefit biodiversity and the need to consider measures affecting the distribution of tax revenues where conservation measures differentially affect different regions within a state by restricting the scope for developing the commercial activities on which revenue generation is based.
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Colin T. Reid and Walters Nsoh

Beyond the mechanisms discussed in detail earlier in the book (payment for ecosystem services, biodiversity offsetting, conservation covenants/easements and taxation), an essentially market-based approach to biodiversity can be adopted through other means. Development can be controlled by means of tradable development permits, based on meeting conservation objectives set for larger areas rather than relying on detailed site-specific controls. The laws on water rights in several jurisdictions and hunting and fishing quotas also present market-based approaches to regulating activities which have a major effect on biodiversity. Adverse effects on biodiversity can also be balanced by the collection of impact fees which are dedicated to actions taken to benefit biodiversity.
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Colin T. Reid and Walters Nsoh

There are substantial ethical objections to a market-based approach to biodiversity. The Land Ethic, Deep Ecology and Wild Law all call (in different ways) for humans to see themselves as part of the natural world, not as its masters who are free to buy, sell or destroy it. To the extent that schemes rely on the creation of habitats to balance losses which are being permitted to occur, there are concerns that these are inherently different from authentic habitats, and that returning land to its ‘wild’ state can destroy valuable human heritage. There are also concerns that some matters are inherently unsuited to a market-based approach and that there needs to be an appreciation that the application of such thinking alters our perception of relationships between parties and with the things being traded. It must be recognised, though, that existing legal approaches also embody choices which are relevant here and far from uncontestable.