Biodiversity offsetting and restoration under the European Union Habitats Directive: balancing between no net loss and deathbed conservation?

Abstract

ABSTRACT. Biodiversity offsets have emerged as one of the most prominent policy approaches to align economic development with nature protection across many jurisdictions, including the European Union. Given the increased level of scrutiny that needs to be applied when authorizing economic developments near protected Natura 2000 sites, the incorporation of onsite biodiversity offsets in project design has grown increasingly popular in some member states, such as the Netherlands and Belgium. Under this approach, the negative effects of developments are outbalanced by restoration programs that are functionally linked to the infrastructure projects. However, although taking into consideration that the positive effects of onsite restoration measures leads to more leeway for harmful project development, the EU Court of Justice has recently dismissed the latter approaches for going against the preventative underpinnings of the EU Habitats Directive. Also, the expected beneficial outcomes of the restoration efforts are uncertain and thus cannot be relied upon in an ecological assessment under Article 6(3) of the Habitats Directive. Although biodiversity offsets can still be relied upon whenever application is being made of the derogation clause under Article 6(4) of the Habitats Directive, they cannot be used as mitigation under the generic decision-making process for plans and programs liable to adversely affect Natura 2000 sites. We outline the main arguments pro and contra the stance of the EU Court of Justice with regards to the exact delineation between mitigation and compensation. The analysis is also framed in the ongoing debate on the effectiveness of the EU nature directives. Although ostensibly rigid, it is argued that the recent case-law developments are in line with the main principles underpinning biodiversity offsetting. Opening the door for biodiversity offsetting under the Habitats Directive will certainly not reverse the predicament of the EU's biodiversity. A reinforcement of the preventative approach is instrumental to avert a further biodiversity loss within the European Union, even if it will lead to additional permit refusals for unsustainable project developments.

Untapped capacity for resilience in environmental law

“…A bit more complexly, using the kind of administrative reform capacity described above, US federal agencies implementing the Clean Water Act and Endangered Species Act established impact mitigation programs built on the premise that developers could compensate for destroying resources in 1 location by restoring or enhancing similar resources in another location, with no overall net impact to ecosystems as a whole (16). In the European Union a similar approach exists, requiring development mitigation in the same designated protected area to protect similar habitats (17). In most such programs, the government entity in charge makes the mitigation decision at the time it issues development permits on the assumption that ecosystems will respond in predictable ways that the government can evaluate at the "front end" of decision making (7).…”

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“…2). This change in how the mitigation hierarchy is perceived also reduces the significance of uncertainties inherent in local rehabilitation due to time delays or difficulties with the restoration of a significantly damaged habitat (Schoukens & Cliquet 2016). Additional action for NNL itself is shifted forward in time, allowing more immediate monitoring and verification of offset gains.…”

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“…A chemically altered environment may be practically impossible to restore. The EU court of justice has recently stated restoration uncertainty as reason why local restoration action cannot be relied upon when expected environmental damage is evaluated in Natura 2000 areas (Schoukens & Cliquet 2016).…”