New Approaches to Conservation Law
AbstractThere 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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