Mitigation and Compensation under EU Nature Conservation Law in the Flemish Region: Beyond the Deadlock for Development Projects?

Schoukens, Hendrik; Cliquet, An

doi:10.18352/ulr.278

Cited by 6 publications

(6 citation statements)

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“…Pursuant to the ECJ's ruling, on-site restoration measures can obviously still serve as compensation when application is made of the derogation clause contained by Article 6(4). A similar view had already been upheld by the European Commission in its guidance documents (EC 2007(EC /2012) and could be detected in earlier national practices in this respect (Schoukens and Cliquet 2014).…”

Section: Wider Relevancementioning

confidence: 57%

“…For the limited number of project developments that did not proceed in a Natura 2000 context, mostly poor compliance and economic complications were to blame (DEFRA 2012). In other member states, a similar picture emerges (Schoukens and Cliquet 2014). In general, poor compliance with the procedural and substantive requirements set out by Articles 6(3) and 6(4) of the Habitats Directive throughout spatial decision-making procedures, limited access to court in environmental cases, and fait accompli-scenarios are still seen as major obstacles to an effective application of the Habitats Directive on the ground in many member states (Milieu Ltd. et al 2009).…”

Section: Toward a Real Or Imaginary Deadlock?mentioning

confidence: 99%

“…Although at first, national courts proved to be quite reluctant to scrutinize planning decisions in the light of the procedural and substantive requirements set forth by the EU nature directives, recent case law developments showcase a greater willingness to apply a rigid standard of review in this respect (Zijlmans and Woldendorp 2014). Judges are now prepared to stop projects whenever an inadequate assessment has been carried out or an incorrect application of the rules on strict species protection has taken place (Verschuuren 2010, Schoukens andCliquet 2014).…”

Section: Toward a Real Or Imaginary Deadlock?mentioning

confidence: 99%

“…For instance, in 2011, the Flemish government issued a planning permit for the construction of a road bypass in the province of Limburg (Noordzuidverbinding), which would cut through a Natura 2000 site. Because the creation of a nature corridor zone, aimed at offsetting the encroachment of the nearby Natura 2000 sites, had been included in the project design, the project was eventually authorized without the need to apply the derogation clause of Article 6(4) of the Habitats Directive (Schoukens and Cliquet 2014). The Flemish government also authorized a 1000 hectares extension of the Port of Antwerp in 2012 by taking into consideration the positive effects of a massive nature development plan linked to the harbor extension, aimed at the restoration of the to-be-affected Natura 2000 sites (Schoukens and Woldendorp 2014).…”

Section: Restoration Measures As Mitigation To Better Reconcile Economentioning

confidence: 99%

“…Schoukens and Cliquet 2014). In addition, the European Commission, when asked to deliver an opinion on the acceptability of a request for the application of the derogation clause contained by Article 6(4), has only in one instance delivered a negative opinion (Sharpston 2013).…”

Section: Mitigation Hierarchy: Restoration Actions As a Last Resort Omentioning

confidence: 99%

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

Schoukens¹,

Cliquet²

2016

E&S

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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.

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Section: Wider Relevancementioning

confidence: 57%

Section: Toward a Real Or Imaginary Deadlock?mentioning

confidence: 99%