The Privatisation of Biodiversity?: New approaches to nature conservation law

Early this decade, governments made commitments at UN, EU and national levels to halt biodiversity loss by 2010. It is universally accepted that these targets are not being met. There are many factors behind the continuing degradation of our natural environment, but it is clear that the present legal mechanisms designed to protect biodiversity are not being effective.

Nature conservation law in the UK has developed dramatically in the past thirty years, yet continues to use a fairly limited range of legal mechanisms to achieve its objectives. The aim of this project is to examine the potential for using other mechanisms to make the law more effective and efficient. Such specific measures can only ever be part of the story in tackling the deep-rooted economic, social and other drivers that threaten biodiversity, but there is scope to achieve more through utilising a wider range of legal devices. This project aims to build on the Principal Investigator's deep understanding of the current British law to identify other regulatory mechanisms that could be employed to further the aims of conservation and to examine in detail the potential for and obstacles to their adoption here. Such examination involves challenging some commonly held attitudes towards the natural environment, involving what can be seen as a 'privatisation' of conservation or the conversion of nature into an economic good akin to other goods given recognition within existing legal frameworks.

Historically, wild creatures had no legal recognition at all (either in their own right or as anyone's property) and no-one had any standing to protect them. The present law rests largely on designating particular sites or species of value and then controlling activities that cause direct harm to them, through the use of criminal prohibitions and of agreements reached between public bodies and the occupiers of the land affected, supported by the operation of existing permit or approval systems. In other countries different devices are used. These include conservation easements (where private agreements to conserve habitat are given enduring legal effect), conservation banking (where development in one place is off-set by the developer providing for conservation elsewhere), tradable development rights (where a certain amount of development of a habitat is permitted and the right to undertake this allocated among occupiers who can then trade amongst themselves to alter their share of development or conservation) and various means of allowing the landowner to recover from those benefitting the value of the ecosystem services provided by undeveloped land (including water storage and purification, flood protection, leisure opportunities and amenity).

At the practical level, assessing the potential of such devices in the British context requires an examination of how they might be fitted into the legal frameworks that apply here, not just in terms of conservation rules but also the fundamental structures of property law etc., and whether they are suitable for British conditions, where the goal is not protecting large areas of pristine prairies or forests but supporting biodiversity in a richly varied, densely packed and heavily managed environment created by human intervention over many centuries. Conceptually, accepting some of these mechanisms requires a major rethinking of the enterprise of biodiversity conservation, from a task that is primarily to be directed by the state to one that is a shared undertaking.

More fundamentally, a different set of values is engaged when biodiversity is viewed not as something outside the commercial arena but brought within it through the recognition of valuations, tradable rights and offsetting arrangements. The implications of this 'commoditisation' of nature will be explored in contrast to views of nature as a 'common heritage'and the radical arguments of "Earth Jurisprudence" proponents such as Berry and Cullinan.

The latest report from the Joint Nature Conservation Committee shows a deterioration in 21% and no change in 27% of Biodiversity Indicators used to assess the health of the UK's biodiversity (UK Biodiversity Indicators in Your Pocket 2010). Dissatisfaction with the present position has been expressed by such varied bodies as the Environmental Audit Committee of the House of Commons (Halting Biodiversity Loss, 13th Report of 2007-08) and the Game and Wildlife Conservation Trust (Restoring the Balance: managing wildlife in a busy landscape, 2010). The range of legal mechanisms that can be used affects all aspects of land use and management and a wide range of public bodies, and there is a strong appetite to consider innovative approaches to conservation, e.g. Sutherland et al., The Identification of Priority Policy Options for UK Nature Conservation (2010) 47 J. Applied Ecology 955. Although some initial work has been done on biodiversity offsets (Treweek: Scoping study for the design and use of biodiversity offsets in an English context (Defra, April 2009)), as yet there has been no broad and rigorous examination of such alternative mechanisms and their viability within the UK's legal systems.

The approach to biodiversity conservation is of concern to many parties, who can be divided into four main categories:
- policy-makers: Policy makers and legislators in central and devolved Governments and Parliaments (conservation matters are at least mostly devolved under all the devolution arrangements) have to find ways of delivering on their promises to conserve biodiversity whilst maintaining public support and preserving the viability of rural land uses. Since the current techniques are failing, and the current economic climate limits the likelihood of substantial conservation efforts by the public sector, new approaches must be considered, but should be introduced only after a thorough examination of how they might operate within the specific British context.
- public bodies with responsibility for conservation: Under recent legislation, all public bodies have a duty to have regard to (England & Wales) or to further (Scotland & Northern Ireland) the conservation of biodiversity in the exercise of their functions, but a number of bodies have more specific responsibilities, notably Scottish Natural Heritage, the Countryside Council for Wales, Natural England and Northern Ireland Environment Agency. The range of legal mechanisms available to achieve biodiversity goals is of central importance to them.
- land managers and developers: Whether land is used for agriculture, forestry, traditional estate purposes including shooting or is being considered for development, conservation law now imposes considerable constraints on how occupiers can use their land. There is great interest in the potential for new mechanisms to satisfy the policy goal of greater protection for wildlife (which may in itself be contested) whilst presenting more flexibility in how this is achieved and a reduction (or at least no increase) in direct regulation.
- conservation interests: Individuals and NGOs dedicated to biodiversity wish to see strong and effective legal rules securing the protection and enhancement of our biodiversity and giving it priority against other interests. They wish both to promote innovation that enhances conservation and to make use of opportunities presented by new mechanisms that enable them to play a more direct and active role in securing conservation goal. At the same time, there are risks in moving away from the current regulatory system and new mechanisms will be supported only if there is confidence that they not do not represent a weakening of conservation.

For all these stakeholders, a thorough analysis of the range of techniques that might be used, their strengths, weaknesses and 'fit' with existing law is important