Combating Biodiversity Loss: An Analysis of Compensatory Measures under the Habitats Directive
| Author | Niamh O'Sullivan |
| Position | BCL (Law and German), University College Cork, LLM, Trinity College Dublin |
| Pages | 33-54 |
COMBATING BIODIVERSITY
Loss:
AN
ANALYSIS
OF
COMPENSATORY
MEASURES
UNDER
THE
NIAMH
O'SULLIVAN*
Introduction
The
term
biodiversity
refers
to
the
richness
and
variety
of
life
on
Earth.'
Although
climate
change has
somewhat
overshadowed
other
environmental
concerns, the
issue
of
biodiversity
loss
has
been
receiving
increased
attention
in
recent
years. In
recognition
of
the
enormity
of
this
problem,
in
2001
the Heads
of
State
and
Government
of
the
European
Union
(EU)
pledged
to
halt
biodiversity
loss
by
2010.
2 One
of
the ways
in
which this
ambitious
goal
was
sought
to
be
achieved
was
through
better
implementation
and
enforcement
of
Community legislation
governing
the
protection
of
habitats
and
species.
on
the
conservation
of
natural
habitats
and
wild
fauna
and
flora
("the
Directive"),
3
is
one
such
law.
It
establishes
an
ecological
network -"Natura
2000"-
which
provides strict
protection
for
species
and
natural
habitat
types. Nature
2000
consists
of
"Special
Protected
Areas"
(SPA)
and
"Special Areas
of
Conservation"
(SAC)
and
is
intended
to enable
the
habitats included
in
the
network
to
be
maintained
or
restored
at "a
favourable
conservation
status
in
their
natural
range".
4
Any
proposed
development
likely
to
have
a
significant
effect
on any
area
of
this
network
must
be
subject
to
a
complex authorisation process
set
out
in
Article
6(3)
*
BCL
(Law
and
German),
University
College
Cork,
LLM,
Trinity
College
Dublin.
1
A
more exact
definition
is
provided
in
Article
2
of
the
which
defines
biological
diversity
as
"the
variability
among living
organisms from
all
sources
including,
inter
alia,
terrestrial,
marine and
other
aquatic
ecosystems
and the
ecological
complexes
of
which
they
are
part;
this includes diversity
within
species,
between
species
and
of
ecosystems."
United
Nations
(CBD),
Rio
de
Janeiro,
5
June
1992, 1760
UNTS
143,
31
ILM
818.
2
Presidency
Conclusions,
Gbteburg
European
Council,
15
and
16
June
2001.
Data/docs/pressData/en/ec/00200-rl.enl.pdf>
(visited
25
January
2010).
In
2002 a
similar
target
was
also
set
under
the
to
which
the EU
is
a party.
3
Council
of
21
May
1992
on the
conservation
of
natural habitats
and
wild
fauna
and
flora
(the
OJ
L206/7,
10
June
1992.
4
note
2,
Article
3(1).
©
2010
Niamh
O'Sullivan
and
Dublin
University
Law
Society
Trinity
College
Law
Review
and
(4)
of
the
5
Within
this
authorisation
process,
certain
plans
or
projects
which
are
likely
to
adversely affect
protected
areas
may
be
permitted
once
adequate
"compensatory measures"
are
taken
to
offset
any
negative
impacts caused by the
development.
This
article
examines
what
is
required
by
EC
conservation
law
on
compensatory
measures
and
gauges
whether
the
rules
in
place
at
present
are
sufficient
for
the
protection
of
biodiversity
in
Europe.
A
brief
overview
will
be
given
outlining
the
importance
and
the
current
status
of
biodiversity.
The
concept
of
compensatory
measures
will
also
be
discussed,
and
will
be
considered
in
four
parts:
the legal
basis
for
such
measures;
the
requirements
for
granting
of
compensation;
an
analysis
of
the
judgments
of
the
European
Court
of
Justice
(ECJ)
and
the
Opinions
of
the
Commission;
and
the
approach
of
the
Irish
Courts
in
relation
to
compensatory
measures.
Overview
Biodiversity
is
vitally important
to
humans
as
it
provides
us
with
a
number
of
invaluable
services,
including
medicine,
fuel,
purification
of
water
and
air
and
prevention
of
soil
erosion.
6
Besides
its
practical,
emotional
and
aesthetic value
to
humans,
there
is
also
much
support
for
the
intrinsic
value
of
nature.
Currently,
however,
biodiversity
loss
is
occurring
at
an
alarming
rate.
Recent
estimates indicate
that
extinction
rates
are
100
to
1000
times
greater
than
background
rates
that
were
typical
over
the
Earth's
lifespan.
7
The
primary
cause
of
this
rapid
loss
of
biodiversity
is
the
destruction
and
fragmentation
of
habitat,
which
is
most
often the
result
of
human activity
such
as
development, logging
and
agriculture.
In
Europe,
in
particular,
anthropogenic
pressure
has
been
the cause
of
more
habitat
fragmentation
than
any
other continent
in
the
world.
8
While
the
protective provisions
of
the
attempt
to
address
this problem,
this
task
is
not
without
difficulty.
Frequently,
the
5
It
should
be
noted
that
pursuant
to
Article
7
of
the
those provisions
apply
to
areas
classified
as
SPAs
under Article
4(1)
and
(2)
of
Council Directive 79/404/EEC
of
6
April
1979
on the
conservation
of
wild birds
OJ
L103/1,
25
April
1979.
6
World Resources Institute,
Millennium
Ecosystem
Assessment,
Ecosystems
and
Human
Well-being:
Biodiversity
synthesis
(World Resources Institute,
2005).
7
Ibid.,
Figure
1.
According
to
International
Union
for the
Conservation
of
Nature
(IUCN)
Red
List
a
minimum
of
16,928
species
are
presently threatened
with
extinction.
8
Commission
of
the
European Communities,
Communication
from
the
Commission:
Halting
the
Loss
of
Biodiversity
by
2010
-
and
beyond.
Sustaining
Ecosystem
Services
for
Human
Well-Being.
COM (2006) 216
final,
CEC,
Brussels
(2006),
at
para.
3.1.
[Vol. 13
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