Environmental Law

29/06/2021

Setting Up Carbon Offset Farming in the EU: Identifying Benefits and Risks

The Intergovernmental Panel on Climate Change (IPCC) has estimated that the international community has until 2030 to cut human-caused carbon dioxide (CO2) emissions in half to maintain a 50% chance of avoiding the worst effects of climate change. By 2050 CO2 emissions will need to reach ‘net zero’ – where emissions are in balance with removals – to meet this challenge. The urgency is clear: States, organizations and business will need to use every tool at their disposal to achieve these ambitious emission reduction goals. At the EU level climate action is at the heart of the European Green Deal – an package of measures. This includes importantly  the European Climate Law that was this week adopted by the Council to enshrine the 2050 climate-neutrality objective into EU law and a 2030 Climate Target Plan to further reduce net greenhouse gas emissions by at least 55% by 2030. Just like the Paris Agreement (Article 6 of the Paris Agreement explicitly recognizes the possibility for international cooperation through the transfer of emission reductions) and national policies, the EU Climate action framework is an transitional path towards climate net neutrality rather than a response to calls in climate science for a more radical transformation. This means that a lot of the current debate revolves around ‘negative emissions’ and ‘carbon offsets’ as a tools for speedy action to avert dangerous climate change.

Carbon offset credits are used to bring a net climate benefit from one entity to another, and the theory goes that as GHGs enter the global atmosphere, it does not matter where exactly they are reduced. These carbon offset projects could also produce so called co-benefits such as social and environmental benefits; improved air or water quality and biodiversity. An offset project needs to be adopted, implemented, monitored and verified to determine the quantity of emission reductions it has generated. Carbon offset credits can be produced by wide range of national and international projects that reduce GHG emissions or increase carbon sequestration. These carbon offset projects can include agriculture. For example, the agricultural sector can enhance the capability of its land to be used as a sink, so that CO₂ from the atmosphere is naturally removed and stored in the soil or in above-ground biomass. While the contribution of agriculture to the GDP is relatively small (approximately 1.1% of the EU’s GDP), its direct contribution to EU GHG emissions is high, approximately 15% , but is also indirectly responsible for significant additional emissions. Agricultural emissions include those resulting from the growing of crops, the rearing of livestock and the management of soil to maximise production.

The agricultural sector has however long escaped environmental regulation, especially regarding agricultural emissions. Only as of 2021, agricultural GHG emissions have to be balanced under Regulation 2018/841/EU on Emissions from Land Use and Forestry (LULUCF Regulation). However, emissions from livestock are for example not included. Last week, The European Parliament and EU governments agreed on a reform of the Common Agricultural Policy (CAP). One of the biggest challenges is the alignment of the CAP with the Green Deal, the Farm to Fork strategy and  Biodiversity strategy. The problem remains that the CAP is not a climate instrument and there is no GHG-MRV connected to CAP funded projects. This was also the outcome of a recent report of the Court of Auditors : during the 2014-2020 period, the Commission attributed over a quarter of the Common Agricultural Policy (CAP)’s budget to mitigate and adapt to climate change. It was found that the €100 billion of CAP funds attributed to climate action had little impact on agricultural emissions, which have not changed significantly since 2010. In the new reform for the period 2023-2027  sealed this week a compromise was reached that 25% of the direct payments should be dedicated to eco-schemes that shift farmers toward environmentally friendly methods. However, it is not clear how these eco-schemes are defined and they depend on implementation by member states. The compromise has therefore been received with fierce criticism from the EEB and other NGOs for having too many loopholes and potential for ‘greenwashing’ EU farm policy.

Meanwhile, the Farm to Fork Strategy establishes that a new EU Carbon Farming Initiative will be launched in 2021, in order to reward climate-friendly farming practices, via the Common Agricultural Policy (CAP) or through other public or private initiatives linked to carbon markets. Carbon farming refers to the management of carbon pools, flows and GHG fluxes at farm level, with the purpose of mitigating climate change. This involves the management of both land and livestock, all pools of carbon in soils, materials and vegetation plus fluxes of CO2 and CH4, as well as N2O. It includes carbon removal from the atmosphere, avoided GHG emissions and emission reductions from ongoing agricultural practices. The Strategy establishes that the Commission will develop a regulatory framework for carbon credits but this is currently in its infancy and one of the questions is if and how market based approaches like carbon offsets or emission trading can and will be deployed.

Market-based approaches to climate change such as carbon offsets have also raised concerns and criticism.  Several studies have identified serious credibility issues with some carbon offset credits due to lacking ‘environmental integrity’. For example, studies of the two largest offset programs – the Clean Development Mechanism (CDM) and Joint Implementation (JI), both administered by the United Nations under the Kyoto Protocol – established  that the majority of their offset credits may not represent valid GHG reductions. It is not easy to measure and ascertain the quality of carbon offset credits. There are several conditions that must be met for the GHG reductions or removals to be real and effective: Carbon offset credits must be additional, meaning they would not have occurred in the absence of a market for offset credits. They should be accurate and overestimated (measurable), not be doubly accounted for and they should be permanent. Effects of CO2 emissions are very long- lasting, and once a GHG reduction or removal is reversed it obviously loses its offset function. Lastly, they should not be the cause for social inequality or other environmental harms.

To oversee that the quality is reached offset programs have been developed, usually by independent non-governmental organization. These programs develop standards that set criteria for the quality of carbon offset credits; third-party verifiers review if these standards are met, and there is a registry for transfer. Assessing the abovementioned quality criteria is however ambiguous and complex, and it is here where much of the debate is being played out, and where science and law meet. Article 6 of the Paris Agreement states that double counting will be avoided through ‘robust’ accounting methods. Nevertheless, the EU has phased out participation in CDM projects under the EU ETS, and  Participants in the EU ETS could only use international credits from CDM and JI towards fulfilling part of their obligations under the EU ETS until 2020. The EU ETS, currently, does not include agricultural emissions nor has it used the potential to acquire allowances from offsets in agriculture, either via avoided emissions or increased sequestration.   This is different in other carbon markets, such as those in California, Canada and Australia. Even though most of these offset programs have not yet generated huge volumes of offsets it is clear from the above that their relevance will become more prominent – as was also recently announced by the Biden Administration.

Looking forward to this, the EU already has already a rich experience with monitoring, reporting and verification (MRV) under the EU ETS on which it can built  for carbon offset projects. It can also learn from the successes and failures of existing protocols of agricultural offsets to identify design elements that can create or reduce barriers to effective mechanisms. For example, the EU can gain from Australian experiences with its extensive methodologies on a range of carbon farming methods since 2011. See our earlier blogpost here and here.   California and the provinces of Alberta and Quebec in Canada also offer interesting case studies: all offer the agriculture sector opportunities to sell offset credits and protocols for this are adopted (e.g. for dairy digesters). The programs in these different jurisdictions vary in (economic) design, functioning and compliance – making them interesting to study and compare. Fascinating as well, California’s program is linked with Quebec’s program since 2014 (and briefly to Ontario’s program in 2018) meaning that offsets and allowances can be traded across jurisdictions.   In two follow-up blogposts we will zoom in on the experiences with the offset carbon markets for agricultural emissions in California and Canada with a focus on the identified challenges above.

This research is made possible through funding from the Netherlands Research Council NWO under grant number 406.18.RB.004.

18/05/2021

Towards EU carbon farming legislation: what is the role of the ETS?

This is the first in a series of blogposts on a new project which we, at Tilburg Law School, have embarked on.[1] The projects starts from the recognition that the Paris Climate Agreement goals can only be achieved when greenhouse gas emissions from agriculture and land use are reduced and the sequestration capacity of these sectors is fully utilized. In most countries around the world, including in the EU, the heart of climate change mitigation policy consists of some form of carbon pricing mechanism. It seems inevitable that agricultural activities have to be included in carbon pricing mechanisms, such as the EU Emissions Trading Scheme (ETS). So far, however, policy makers have been reluctant to do so, partly because of the lack of political will, and partly because of the difficulty of measuring emissions and emission reductions at farm level.  With the improvement of measuring technologies and carbon accounting methods, however, the possibility to also regulate agriculture under the EU emissions trading scheme has become within reach.

This project aims to develop a regulatory framework that allows agricultural greenhouse gas emissions to be included in the EU ETS and to be aligned with the Common Agricultural Policy (CAP). This will be achieved through an ex post assessment of novel regulatory approaches in Alberta, California, China, and Australia and through an ex-ante assessment of inclusion of agricultural emissions under the EU ETS, either indirectly, through allowing on farm offsets, or directly, through requiring farmers to surrender allowances. Various models of inclusion of agriculture in the EU ETS will be developed and tested under a traditional ex-ante assessment methodology consisting of focus groups and stakeholder interviews.

The project runs from 2020 until 2023, so our proposals can be included in the first discussions for the post 2030 trading phase. An earlier adoption is not very likely, since inclusion of the agricultural sector in the EU ETS will have a big impact on the system. Changing the rules of the game in the middle of the current trading phase, which runs from 2020 until 2030, is not entirely impossible, but also not advisable due to the disruption of the carbon market it may cause. The European Commission, however, is stepping up its efforts to reduce agricultural GHG emissions through its European Green Deal Policy, which includes a proposal for a European Climate Law and a Farm to Fork Strategy.

The 2020 proposal for a European Climate Law introduces an ambitious overall target for the EU’s mitigation policy as it requires the Member States to have emissions and removals of greenhouse gases balanced at the level of the EU at the latest by 2050, and to pursue a new 2030 target of 50 to 55% emission reductions compared to 1990. Although the AFOLU sector is not specifically mentioned in the European Climate Law, it is impossible to achieve such targets without a drastic reduction of emissions from this sector. It comes as no surprise, therefore, that the EU 2030 Climate Target Plan, presented in September 2020, does pay ample attention both to agriculture and to land use, land use change and forestry (LULUCF). The 2030 Climate Target Plan states that new measures are being considered for the 2030-2050 period, including an expansion of the LULUCF Regulation to also cover non-CO₂ emissions from agriculture. The European Commission does not mention the option to integrate agricultural emissions into the EU ETS. Instead,

‘(o)vertime, the Commission clearly sees merit in the creation of an Agriculture, Forestry and Land Use sector with its own specific policy framework covering all emissions and removals of these sectors and to become the first sector to deliver net zero greenhouse gas emissions. Subsequently, this sector would generate carbon removals to balance remaining emissions in other sectors induced by a robust carbon removal certification system.’ ^[2]

Similarly, in the 2020 Farm to Fork Strategy, the European Commission is hinting at a new EU carbon farming initiative:

‘An example of a new green business model is carbon sequestration by farmers and foresters. Farming practices that remove CO₂ from the atmosphere contribute to the climate neutrality objective and should be rewarded, either via the common agricultural policy (CAP) or other public or private initiatives (carbon market). A new EU carbon farming initiative under the Climate Pact will promote this new business model, which provides farmers with a new source of income and helps other sectors to decarbonise the food chain. As announced in the Circular Economy Action Plan (CEAP), the Commission will develop a regulatory framework for certifying carbon removals based on robust and transparent carbon accounting to monitor and verify the authenticity of carbon removals.’^[3]

So far, most attention is focused on using the CAP to promote carbon farming. In April 2021, the European Commission published a Technical Guidance Handbook on this. There are, however, a couple of disadvantages connected to the CAP, most of which are caused by the fact that the CAP has not been designed as a climate change instrument. I discussed this in an earlier blogpost. It is important, therefore, to also look into climate change instruments to see whether these can be used to promote carbon farming.

One of the “other public initiatives” for a carbon market mentioned in the Farm to Fork Strategy might very well be integration of agricultural emissions in the EU ETS. In the remainder of this blogpost, I will have a first brief look at what carbon farming as part of the EU ETS might look like.

Two models of integration: direct inclusion in the ETS or through offsets

In the EU, the ETS has gradually expanded to require GHG emitting activities to surrender allowances for the amount of GHGs emitted. Directly requiring farmers to surrender allowances for their emissions under an ETS has not been proposed much and is not a requirement in any of the emissions trading systems around the world. The direct inclusion of farming in an ETS is considered problematic because of the difficulty of measuring emissions and emission reductions at the farm level because of the variety of factors involved (such as the diet of individual animals, tillage intensity, soil composition, weather systems of individual regions, the way in which fertilizer is applied, etc.). In addition, most farms also remove CO₂ through sequestration in soils and vegetation. For a small number of farming activities, however, direct inclusion in the ETS seems possible, especially for large scale livestock keeping within closed buildings, such as piggeries. Methane emissions can easily be monitored here, technologies to capture the methane and convert it into biogas exist, thus allowing farmers to choose between  buying allowances or investing in such technologies. With the improvement of measuring technologies and carbon accounting methods, however, the possibility to also regulate more forms of agriculture with high GHG emissions may become within grasp.

Most countries that have an ETS, have included agricultural emissions as offsets. This is true for most newly created emissions trading schemes, for example Alberta (2012), California (2014), and China (2018) (Ontario had it, but there, the ETS was revoked in 2018). All of these schemes allow regulated industries to acquire allowances from offsets in agriculture, either avoided emissions or increased sequestration. The latter incentivizes farmers to farm carbon in addition to crops as was also suggested as a policy option for the EU by the Agricultural Markets Task Force. The Canadian province of Alberta, for example, allows farmers to register and implement such projects as conservation  cropping, agriculture nitrous oxide emission reduction, changed beef  feed, methane reducing dairy production and biogas production from manure. The offsets generated under these projects can then be sold by the farmers to Alberta’s industrial emitters that have not met their provincially mandated reduction obligation.

The country with the longest experience in financing farmers for their avoided emissions and increased sequestration is Australia with its Carbon Farming Initiative (2011). Although this formally is not part of an emissions trading system as here the government acquires the offsets rather than regulated industries, the legal rules governing the Australian system are very similar to those in an ETS and can be used as a source of inspiration for a modified EU ETS that includes agricultural emissions. A positive evaluation of the Australian scheme shows that the EU, indeed, can rely on the Australian experiences with its extensive methodologies on a range of carbon farming methods. See our earlier blogpost here and here. These include for example soil carbon sequestration, beef cattle herd management, and beef cattle feed methods. The evaluation does show, though, that the drafting of many rules and regulations is needed, such as rules that require farmers to establish a baseline level of soil carbon, and to monitor, report and verify the amount of CO₂ sequestered in the projects allowed under the ETS offsets regime, as well as rules on commitment periods.

Relationship to other policy instruments

In the EU, as of 2021, agricultural GHG emissions will be regulated under Regulation 2018/841/EU on Emissions from Land Use and Forestry (LULUCF Regulation). It requires emissions and removals in land use and forestry sectors, including agricultural land use for arable crops and grassland, to be balanced. This will require some sequestration efforts due to losses occurring under conventional agricultural practices, but this can also be achieved in for instance the forestry sector. Furthermore, emissions from livestock are not included. Integration of agricultural emissions into the EU ETS, either directly or through offsets, will have to be aligned with the LULUCF Regulation.

Alignment with the EU’s Common Agriculture Policy (CAP) will also be necessary. The CAP currently  encourages farmers to apply climate-friendly practices and techniques. Both the cross-compliance mechanism, the direct payments and the subsidies for rural development relate partly to taking climate measures. It has generally been accepted in literature, however, that current EU climate and agriculture policies are largely insufficient. A much stronger focus of the CAP on climate change is advocated, for instance in this recent study published by the European Commission.

Several individual countries have introduced or are considering the introduction of domestic carbon taxes or even a meat tax aimed at further reducing GHG emissions, beyond the requirements of current EU instruments.  These domestic instruments should also be taken into account when designing a new pricing mechanism for agricultural emissions.

Impact on food security

Research by the World Bank shows that mitigation policies using a global carbon price which does not account for food production implications, will hurt crop and livestock production. To avoid such negative impacts, carbon pricing policies should be developed thoughtfully, and aim for adaptation and food production co-benefits. As discussed in an earlier blogpost, increased resilience and reduced emissions can sometimes go hand-in-hand. It is evident, however, that changes in consumption will be necessary as well. The difficulty of reducing emissions from free roaming cattle and the sheer amount of land needed to grow animal fodder for a world population of around 10 billion in 2050 necessitate dietary changes with households moving away from meat and towards plant based food and seasonal produce, reduced overconsumption of food and reduced food waste. In a great recent article in the new journal Nature Food, Rockström et al. argue that recent modelling analysis suggests ‘that it is biophysically possible to feed 10 billion people a healthy diet within planetary boundaries, and in ways that leave at least 50% of natural ecosystems intact’ as long as there is a global shifting towards healthy diets, increased productivity while transitioning to regenerative production practices, and reduced food waste and loss by 50%. Any regulatory approach towards reducing GHG emissions from agriculture has to contribute to this bigger aim to achieve a global food transition.

These are some of the legal and governance issues that need to be dealt with in the development of a regulatory framework to address greenhouse gas emissions from agriculture. For a full overview of all issues that need to be considered by law and policy makers, the FAO just published this comprehensive legislative study ‘Agriculture and climate change. Law and governance in support of climate smart agriculture and international climate change goals’. In our project, we will be focusing on the EU ETS as a vehicle for reducing agricultural GHG emissions. We will keep you updated here!

12/10/2019

Allowing the legal hunting of strictly protected wolves to avoid their illegal killing?

On 10 October 2019 the Court of Justice of the European Union issued a preliminary ruling of importance for the application of the species protection provisions of the Habitats Directive – the principal piece of EU nature conservation law – in Case C-674/17. The underlying case involves the hunting of wolves (Canis lupus) in Finland, the legality of which had been contested by an NGO in the Finnish courts. (This is the EU Court’s second case on the hunting of wolves in Finland, following Case C-342/05, decided in 2007.) The Finnish judge asked the Court of Justice of the EU to clarify certain issues regarding the compatibility of the wolf hunt with the Habitats Directive.

The Finnish court’s questions concerned the scope and interpretation of Article 16(1), which provides the basis on which member state authorities may derogate from the prohibitions in Article 12, and in particular the interpretation of the mystifying derogation ground described in Article 16(1)(e). Wolves in the southern half of Finland, and in most other parts of the EU, have the status of strictly protected species. So do many other species, listed in Annex IV of the Habitats Directive. Article 12 of the Directive requires member states to prohibit the deliberate killing of animals belonging to these species, and various other harmful activities. According to Article 16(1), member state authorities may make or grant exceptions from the strict protection required by Article 12 when three conditions are met: (1) the action concerned (e.g, the hunting of a number of wolves) is for one of the purposes listed in Article 16(1); (2) there is no other satisfactory means of achieving the purpose involved; and (3) the action will not jeopardize the achievement or maintenance of a ‘favourable conservation status’ of the population concerned. The full text of Article 16(1) is as follows:

Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15 (a) and (b):
(a) in the interest of protecting wild fauna and flora and conserving natural habitats;
(b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;
(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;
(d) for the purpose of research and education, of repopulating and re-introducing these species and for the breedings operations necessary for these purposes, including the artificial propagation of plants;
(e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.

Of course, to appreciate the significance of the EU Court’s ruling for the application of the Habitats Directive to wolves and other strictly protected species it is best to read it carefully yourself. Below, however, I share some preliminary thoughts that occurred to me when reading it.

(1) The objective(s) of any Article 16(1)(e) derogation must be clearly identified

The Court now expressly affirms this position, which already seemed to follow from the text of Article 16(1) – after all, how could a member state demonstrate the absence of satisfactory alternatives (a condition applicable to all derogation grounds in Article 16) if it isn’t clear what purpose the derogation serves?

(2) Article 16(1)(e) is not a catch-all provision, but a last resort. Derogations can only be made for purposes not addressed in Article 16(1)(a)-(d)

This concerns a big interpretive question. According to a restrictive interpretation, which the Court now appears to affirm in its ruling, Article 16(1)(e) only covers purposes which are not yet covered by grounds (a)-(d). For instance, killing large carnivores to prevent damage to livestock, pets or other property would not be covered by ground (e) because it is already provided under (b). Furthermore, to claim that 16(1)(e) can be used to prevent minor livestock damage could be seen as inappropriately circumventing the limitation of 16(1)(b) to prevention of “serious” damage to livestock or other property. Following the Court’s restrictive interpretation, Article 16(1)(e) could thus only be used to allow derogations serving private interests other than damage prevention. This covers recreational hunting. (Incidentally, the Court’s case law on the Birds Directive’s equivalent derogation clause has so far precisely only condoned its use for recreational purposes!) According to an alternative, more liberal interpretation (which the Court now seems to say is incorrect), Article 16(1)(e) is a catch-all provision which can justify derogations for basically any objective which member states deem appropriate. (This is the approach taken in Bern Convention guidance on the Convention’s equivalent derogation clause.) According to this reading, preventing minor property damage through an Article 16(1)(e) derogation, to revisit this example, would not be viewed as an invalid circumvention of the requirements of 16(1)(b), for the reason that 16(1)(e) sets out a number of additional requirements or safeguards. In other words, if this second interpretation would have been correct, then in terms of the objectives that may be pursued by Article 16(1)(e) derogations, almost anything goes – thus including increasing tolerance, reducing poaching, protecting dogs from wolves, and so on. The AG Opinion opted for this second, liberal reading, but the Court takes a different view.

(3) ‘Tolerance hunting’ can in theory be based on Article 16(1)(e), but only under very strict conditions which will be hard to meet in practice

A central question in this case was to what degree Article 16(1)(e) can serve as a basis for wolf hunting the purpose of which is to increase tolerance amongst the local human population and therewith reduce illegal killing of wolves. The Court holds that such ‘tolerance hunting’ which has as a purpose the maintenance or improvement of the conservation status of the wolf population involved, can in theory be based on Article 16(1)(e). (One could argue that Article 16(1)(a) already provides a basis to do so, but the Court clearly takes a different position.) The ruling does confirm, however, that the conditions under which a derogation to allow such hunting can be based on Article 16(1)(e) are so strict that they will be difficult to meet in practice.

(4) Evidence is required that the derogation is a suitable means for achieving the objective(s)

Once a suitable objective is identified, the member state planning to issue an Article 16(1)(e) derogation must base this derogation on evidence that the proposed action (e.g. killing a number of wolves) is a suitable means for achieving the objective in the first place. Applied to the present case, according to the Court, the competent member state authority needs to support, on the basis of rigorous scientific data, the hypothesis that the hunting for population management purposes would reduce illegal hunting to such an extent that it would have a net positive effect on the conservation of the wolf population. (Applied to the present underlying Finnish dispute, the Court observes that apparently in that case, hunting for management purposes led to the killing of 13 or 14 more wolves than would have been killed as a result of poaching, and drily concludes that these data appear to suggest that the derogation permits in question are not capable of achieving their objective of combating poaching in the interests of protecting the species – but it is ultimately up to the national judge to determine this.)

(5) Evidence is required that there is no other suitable means of achieving the objective(s)

This is, of course, a well-established condition appearing in Article 16(1) itself, the importance of which has been stressed by the Court on various occasions, and which indeed appears a key legal bottleneck with regard to authorizing wolf hunting on the basis of Article 16(1). The Court highlights the need for convincing evidence, based on scientific information, showing why the sole means of achieving the objectives relied upon in support of the derogation permits was to allow the hunting of a particular number of wolves. All other possible options must have been envisaged and rejected, and the reasons why clearly stated. This is fully consistent with earlier Court jurisprudence. The Court also stresses that the mere existence of illegal hunting and problems encountered in curbing such illegal hunting cannot release a member state of the obligation which it has in the first place of controlling activities that are illegal under the Habitats Directive.

(6) Strict interpretation of Article 16(1)(e)’s specific requirements

The requirements that are specific to Article 16(1)(e) are to be interpreted restrictively, again in accordance with broader Court jurisprudence. We are talking here about the string of conditions from “strictly supervised conditions” through “selective basis” to “limited numbers”.

(7) FCS at various levels. There is scope for approaches at transboundary population level amongst EU member states, but unclear under what conditions

The Court also addresses the big question at what level(s) conservation status is to be assessed and a FCS achieved. Although it does so in a manner that leaves some questions unanswered, it does provide further clarity and, in particular, clarifies that there is scope, in principle, to look at conservation status at the level of transboundary populations shared by various EU member states. And most wolf populations in Europe are shared between two or more countries. According to the Court, in principle, conservation status and the impact of derogations thereon must be assessed (1) on the scale of the territory of the member state involved, or, (2) in member states straddling more than one biogeographical region, the scale of the biogeographical region in question within the member state, or, (3) when the natural range of the species requires it and as far as possible, on a transboundary level. According to the ruling, there is no scope for focusing on the transboundary population insofar as that population extends into non-EU member states (Finland-Russia, Sweden-Norway). What the conditions are precisely for focusing on the transboundary population level is left unclear in the ruling. In this regard, the Opinion of the AG expressly also did “not prejudge whether or not a Member State can establish that the population in question is at a favourable conservation status, where its natural range straddles the territory of several Member States, by proving that it is at that status at the level of the transboundary area concerned,” with a footnote stating that the 2008 LCIE carnivore guidelines (endorsed by the European Commission) “advocate such an approach and highlight the importance of cooperation between States for the purpose of managing populations of large carnivores.” In addition to the preceding considerations, the ruling asserts that it is generally necessary, when applying Article 16(1), to assess a derogation’s impact also at the level of the local population of the species involved – inter alia in light of the cumulative effect of various derogations on the conservation status at national or transboundary level. The Court also asserts that attention must be paid to the dynamics and social stability of the population involved.

(8) A role for management plans

In connection with the requirement that derogations may not adversely affect conservation status, the Court highlights the role that can be played in this regard by management plans and by the determination of maximum numbers of animals that can be killed without adversely affecting conservation status.

(9) Precautionary principle

In cases of uncertainty, the precautionary principle must be applied. In particular, when, after assessing the best available scientific information, uncertainty remains regarding the question whether a prospective derogation would or would not be harmful to the maintenance or recovery of a population of a threatened species in a favourable conservation status, the member state involved must refrain from issuing the derogation.

(10) Derogations when conservation status is unfavourable

The Court reiterates its ruling in the first Finnish wolf case, in that a derogation may exceptionally be permissible when conservation status is not (yet) favourable, if the derogation’s effect is neutral in terms of the species’ conservation status. The ruling stresses the exceptional nature of such derogations, and that the precautionary principle must be applied in case of uncertainty.

Summing up:

The Court expressly confirms that the hunting of wolves (including ‘tolerance hunting’) can in principle be based on Article 16(1)(e), but makes clear at the same time that the conditions to be met are very restrictive. This is also of relevance for other large carnivores and other strictly protected species listed in Annex IV of the Habitats Directive.

There is scope, in principle, for assessing the impact of a prospective derogation on conservation status at the level of a transboundary population as far as EU member states are involved, although the conditions under which this may be done remain unclear. The assessment must also consider the impact on the population at a local level.

Regarding the controversial Finnish wolf hunting that led to this ruling by the EU Court, whereas it is formally up to the national judge in the underlying Finnish case to determine this, the EU Court leaves little doubt that the wolf hunting under scrutiny falls severely short of meeting the various conditions.

Further reading:

The text of the judgment is available here.

A more elaborate analysis of the legality of wolf hunting under European law is forthcoming in the following article:
A. Trouwborst & F.M. Fleurke, ‘Killing wolves legally – exploring the scope for lethal wolf management under European nature conservation law’, Journal of International Wildlife Law and Policy (in press)

02/05/2019

Restoration of protected lakes under climate change: what legal measures are needed to help biodiversity adapt to the changing climate? The case of Lake IJssel, Netherlands

Throughout the world, lakes are facing deterioration due to intensive economic use. Climate change is exacerbating this situation. The only way forward is through implementing massive ecosystem restoration and connectivity policies, adjusted water management, and policies aimed at assisted colonization of endangered species. Current international and EU law do not explicitly require such policies to be developed and implemented, at least not in a legally binding way. In order to discover the legal prerequisites that facilitate the adoption and implementation of climate change adaptation measures for lakes, it would be good to have a look at some of the current best practices. One interesting example of such best practices is Lake IJssel (IJsselmeer) in the Netherlands, a protected lake under the Ramsar Convention and the EU’s Natura 2000 framework. In this blogpost, I will have a closer look at the adaptation policies in place for this lake with the aim to discover the legal conditions that have to be met for the adaptation policy to be effective. This case study is part of a bigger paper on this topic that was presented at an international conference at the University of Tehran on 14 April 2019, available here.

The creation of Lake IJssel

Lake IJssel (IJsselmeer) only became an inland fresh water lake in 1932, when the former Southern Sea (Zuiderzee) was closed off from the North Sea through the construction of a dam, called the Closure Dam (Afsluitdijk).^[1] Originally, this was a sea arm, part of the estuary of the IJssel and Vecht rivers consisting mainly of marshes and shallow salt and brackish tidal waters. The sea arm was closed off from the North Sea in order to end regular floods that were occurring in the area and to create new agricultural lands to improve food security. After the construction of the dam, parts of the new lake area were reclaimed and converted into land. This land was not only used for agriculture, but also for new cities in order to reduce population pressures in the nearby Amsterdam urban area. The remaining water area became a series of interconnected inland lakes, all of which are now protected areas under both the Ramsar Convention and the EU Wild Birds and Habitats Directives.^[2] Lake IJssel also became the Netherlands’ most important fresh water reservoir for drinking water and agricultural irrigation. It is the biggest fresh water area in northwestern Europe.

Lake IJssel’s poor conservation status exacerbated by climate change

Many of the species and habitat types for which this lake has been designated under the EU Wild Birds and Habitats Directives are not in a favourable conservation status, as required by these important EU biodiversity instruments.^[3] There are several reasons for this. First, and foremost, the transition from this area from a coastal marshland area into an artificial fresh water lake had severe consequences for the naturally occurring ecosystems. A new natural equilibrium has not been reached yet. The water of the lake has excessive quantities of sediments and is increasingly low on nutrients and marshes are disappearing. Over-fishing and increasing pressure by recreation, combined with active human manipulation of water levels to allow for intensive farming and urbanization have turned the lake basically into a big tub with muddy, empty water. The number of fish and other water organisms have declined tremendously, as has the number of birds. Climate change is exacerbating this already poor situation through:^[4] increasing water temperatures (leading to reduced oxygen levels and increased harmful algae blooms), increasing intrusion of alien invasive species (such as the quagga mussel, which affects natural algae and native mussel populations, as well as power and water treatment infrastructure), increasing peaks both in low water levels caused by droughts and high water levels caused by increased precipitation and increased river water run-off, bigger impact of several chemicals, such as phosphates from agricultural run-off in case of high water situations, and chloride from upstream salt mines in France in case of low water levels in summer, bigger impacts from recreation due to longer recreation seasons, increased flood risks due to accelerated sea level rise, which will make it increasingly difficult to flow off river water into the (higher) North Sea.

Legal requirement to restore the degraded Lake IJssel

Lake IJssel was designated as a wetland of international importance under the Ramsar Convention in 2002 and as protected area under the EU Wild Birds and Habitats Directives’ Natura 2000 network in 2010. The EU Directives contain much stricter legal obligations than the Ramsar Convention and have much more legal force through the fact that EU legislation is directly binding under domestic law of the EU Member States and through an enforcement mechanism through the Court of Justice of the EU. As a consequence, the Ramsar Convention has lost much of its relevance for those areas that have also been designated under the EU’s Natura 2000 network (which is the case for all Ramsar sites in the Netherlands).^[5]

For areas designated under the EU Wild Birds and Habitats Directives, conservation goals need to be set, aimed at the specific habitat types and species for which these areas have been designated. As most of the habitat types and species for which the Lake IJssel has been designated under the Natura 2000 network are not in a favourable conservation status, many conservation goals aim at increased populations or at increased acreage for certain habitat types. The latter can only be achieved through restoration, hence restoration is a legal requirement for Lake IJssel. In order to comply with this requirement, the management plans for the lake have adopted a wide range of restoration actions, some of which focus on the climate change related measures discussed in this paper (ecosystem restoration and connectivity, adjusted management, assisted colonization). These will be discussed below. It should be noted that the management plans for Lake IJssel do not just focus on nature conservation, but on all relevant environmental issues. A range of legal frameworks apply to the lake, partly stemming from the EU, such as on water quality and flood management, partly from domestic level, such as on polluted water soils and spatial planning. Furthermore, all of these plans are part of a broader development policy for the Lake IJssel area, called ‘Agenda Lake IJssel area 2050’, covering not just nature conservation, but also water safety, (drinking) water supply, water quality, fisheries, sustainable energy, infrastructure and transport, sand  extraction, landscape conservation, culture, recreation and tourism.^[6]

Restoration plans for Lake IJssel

The first phase of the plans, which runs from 2017 until 2023, primarily aims at stopping the decline in quality and quantity of habitat types and species. To achieve that, the current plan has five main goals: improvement of marshes on the edges of the lake for breeding reed birds, creation of new sandy breeding areas for water birds that breed on sandy beaches, improvement of availability of food for birds, improvement and enlargement of certain habitat types, and more space and tranquility for birds.^[7]

Most, if not all of these goals align with the climate change related adaptation measures that are generally considered important, such as restoration and connectivity, and adjusted management. It is remarkable, though, that climate change is not mentioned a lot in the various documents detailing the restoration requirements for Lake IJssel. I assume that this is because of the already poor conservation status that requires urgent action even without climate change.

The following table lists some of the restoration measures that contribute to climate change adaptation for the lake (despite the fact that they were not specifically proposed with that focus).^[8]

Assisted colonization is not specifically addressed in the management plans. Yet, to some extend, this measure is relevant, although not connected to climate change. In the 1980s the Eurasian otter became extinct in the Netherlands, mostly due to water pollution in the previous decades. The species, however, was reintroduced and now is back in a viable population in the Lake IJssel area. Furthermore, some of the restoration measures do aim to facilitate the natural relocation of species that were not present in the area before. The latter is particularly true for the white tailed eagle that has colonized the area and has been breeding here since 2006. The artificial fish migration river mentioned above helps salmon and other migratory fish to recolonize the lake and the rivers feeding the river. The assisted relocation of soil disturbing fish species from another part of the area to the lake is considered with the aim to improve the quality of the water soil.

Enabling factors for the restoration plans for Lake IJssel

In this section, I will deal with some important enabling factors that determine the success of the plans sketched above: the available financial budget, the role of the various authorities and other stakeholders involved, and the the role of the general public.

Financial budget: The measures discussed above, go at a cost. It is, therefore, important to adopt a multi annual budget. Otherwise, the risk exists that the plans are not executed, or that implementation stops mid-way. In the restoration plans for the Lake IJssel, implementation costs for each of the measures proposed has been included. The estimated budget consists of two elements: costs for construction or establishment of the restoration measures (once off costs), and costs for the first ten years of maintenance of the restoration measures. The total amount of once off implementation costs is between 630 and 1,060 million euro plus between 41 and 89 million euro for maintenance costs for the first ten years.^[9]

The role of the various authorities and other stakeholders involved: The governance structure of Netherlands can be characterized as a decentralized unitary state. This means that central government involves the provinces, municipalities and water districts in the formulation and execution of its policies.^[10] Hence, consensus building is considered to be of vital importance and the Netherlands has a long tradition of always looking for consensus among all those involved. This tradition dates back to early coastal defense and land reclamation activities around 1200, so even predating the establishment of the Dutch State: such activities were only possible with the collaboration of everyone, and, thus through balancing everyone’s interests. This has led to the enactment of laws that have a subtle, and somewhat complex, system of joint decision-making on such topics as water management, nature conservation, and spatial planning. As a consequence, many government bodies are involved in the implementation of the restoration plans for Lake IJssel, as follows. Central government is responsible for coastal and flood defenses that are of national importance (i.e., all coastal defense systems and flood defense systems of the main rivers), as well as for complying with EU-law requirements (vis-à-vis the European Commission). Provincial governments are responsible for nature conservation, and for coordinating water management and spatial planning. Water district boards are responsible for water management (in a broad sense, including water related nature conservation), and municipal governments are responsible for local spatial planning. As the Lake IJssel area is located within four provinces, has 32 municipalities and six water districts, and since five central government ministries are involved in the broader development plans of the area, intensive collaboration among all of these actors is in order. Such collaboration is coordinated by the Minister of Infrastructure and Water. Also involved in this process are non-governmental stakeholders, such as (agri-) businesses and environmental NGOs. Environmental NGOs actually play an important role, as several NGOs own property within the protected areas.

The role of the general public: Local residents, businesses and NGOs are also involved through the regular administrative procedures that need to be followed with all government decision-making (at all levels) and that require effective public participation and access to justice. Hence, there are public hearings and other forms of public participation, and all interested parties have the right to go to court. Thanks to the intensive collaborative decision-making processes aimed at reaching consensus (as sketched above), there, generally, is broad support for the plans once they are adopted. Nevertheless, every administrative decision that is taken to implement the restoration plans, can end up in court. Often, court cases focus on the question whether a certain decision is in compliance with EU law, for example with the EU Wild Birds and Habitats Directives.

Assessment of the Lake IJssel restoration plans

The restoration measures included in the first management plan for Lake IJssel are important first steps to bring the ecological quality of the lake back to an acceptable level. Species and habitat types that are in a favourable conservation status are much more resilient to climate change than species and habitat types that are in a poor condition. The measures aimed at increased connectivity, such as the creation of a fish migration river and of new islands in the lake for the sake of nature are spectacular and have fascinating results even within the first few years after these measures were taken. It is also clear, however, that much more is needed to make the area completely resilient to climate change. Especially those measures aimed at restricting harmful human activities still need to be taken. So far, only some preliminary measures aimed at regulating commercial fishing and recreation were adopted. More restrictions, especially for commercial fishing are considered necessary, which requires redistribution of existing fish permits and closing of certain parts of the lake for fishing. More drastic limitations on shipping and agriculture will follow from restoring natural water levels. Creating more connections with the sea, between the various parts of the lake area, and with the rivers feeding the lake, would also greatly enhance the resilience of the area, but is considered to be risky from a water safety perspective. The current approach of setting small steps towards a gradual more natural ecosystem seems effective for now, but we have to wait and see whether this approach will still work when tough decisions need to be taken that are costly and will have clear negative economic side effects.

09/10/2018

Urgenda Climate Change Judgment Survives Appeal in the Netherlands

Today, the Court of Appeal in the Dutch city of The Hague rendered its judgment in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Court of Appeal today rejected all objections by the State in firm and straightforward language. The Court of Appeal stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention on Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Court of Appeal, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the CO₂ concentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Court of Appeal briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44).

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs,^[1] courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers. On the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved, thus avoiding interference with policy-making.

In remarkably clear language, the Court of Appeal rejected all other objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Court of Appeal invokes the precautionary principle. The Court of Appeal stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have a proactive and effective climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Court of Appeal argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more, as within the EU climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Court of Appeal considered it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Court of Appeal simply rejects this by referring to the special position of the Netherlands as a rich, developed state that has gained much of its wealth through extensive use of fossil fuels. Quite humourful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Court of Appeal!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Court of Appeal simply referred to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Court of Appeal does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

We will engineer ourselves out of the problems 

The State argued that its policy goals partly rely on climate engineering (“negative emissions technologies”) through which CO₂ can later be removed from the atmosphere. The Court, however, is not willing to take these future technologies into account: “the option to remove CO₂ from the atmosphere with certain technologies in the future is highly uncertain [..] (and) the climate scenarios based on such technologies are not very realistic considering the current state of affairs”(No. 49).

Today the Dutch Court of Appeal followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

[1] Here, Dutch law goes beyond what is required by the European Convention on Human Rights as under case law by the European Court of Human Rights (ECtHR) environmental NGOs cannot invoke human rights in an attempt to defend the environment as a general interest. According to the ECtHR, NGOs are only allowed to represent the individual interests of their members in case their members are potential victims of human right infringements. See extensively Jonathan Verschuuren, Contribution of the case law of the European Court of Human Rights to sustainable development in Europe, in: W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Edward Elgar 2015) 363, at 371-372.

13/06/2017

Enhancing Soil Carbon Sequestration and Adaptation in Europe’s Agricultural Sector: Towards a New Approach under CAP and ETS

Soils contain large quantities of carbon, mainly made up of decomposing plant materials and microbes. The Earth’s soils contain around 2500 Gt of carbon, four times more than vegetation.^[1] Through soil degradation, much of natural soil carbon stocks has been lost. It has been estimated that the carbon sink capacity of the world’s agricultural and degraded soils is 50 to 60% of the historical carbon loss of 42 to 78 Gt of carbon.^[2] With around 40% of the world’s surface being used for agriculture, it is suggested that these agricultural lands may be used as an important sink for atmospheric carbon.^[3] Soil erosion control and soil restoration has an estimated carbon sequestration capacity of between 5 and 15% of global emissions.^[4] After peaking, a new equilibrium will be reached and the sequestration potential goes down. It should also be noted that the carbon stored in soils can be easily emitted again with deep tillage and significant soil disturbance.^[5]

(Photo: Flickr user Kai C. Schwarzer)

Increasing soil carbon sequestration has a very interesting positive impact on climate change adaptation. Measures aimed at soil carbon sequestration increases the ability of soils to hold moisture and to better withstand wind and water erosion, enriches ecosystem biodiversity, helps cropping systems to better withstand droughts and floods, increases fertility for crops through restoring healthy soil microbial communities, and increases livestock efficiency (sustainable intensification).^[6] Other potential positive side-effects of practices aimed at soil carbon sequestration are various environmental benefits, such as avoided use of chemical fertilizers and pesticides and improved biodiversity and wildlife.^[7]

Examples of soil carbon sequestration practices relevant for Europe are the application of conventional or organic no-till and conservation tillage systems, the use of periodic green fallows, winter cover crops and crop rotations that utilize semi-perennial crops, rotational grazing, decreased grassland management intensity, perennial cropping, nutrient management consisting of compost (crop residue addition) and organic manure, and judicious use of irrigation water.

Research shows that strong top-down policies that are linked with, and fed by, bottom-up initiatives, are needed to achieve the required level of adaptation in the agricultural sector.^[8] Holistic strategies have to be adopted that go beyond technical approaches aimed at stimulating autonomous farm-level risk reduction. So far, the EU did not focus much attention on agriculture in its climate change adaptation policy. The EU’s Adaptation Strategy refers to the Common Agricultural Policy (CAP) in which adaptation measures have been integrated to a limited extent.^[9] An assessment of the soil carbon related adaptation potential of the current CAP, however, shows that this potential is limited. Soil carbon projects can receive funding both under the green direct payments, and under the rural development policy. Whether such projects are actually carried out with CAP funding depends entirely on initiatives by farmers (for green direct payments), or by Member States (for the rural development policy). Unfortunately, there are not many indications that Member States radically focus their Rural Development Programmes (RDP) on climate change, perhaps with the exception of Ireland. The CAP also has several inherent constraints as far as soil carbon sequestration and associated adaptation are concerned, mostly due to the fact that CAP is not linked to the EU climate policy but serves as a separate instrument with a much wider policy goal than combatting climate change. The accounting rules, for example, do not require farm level quantification of the amount of carbon sequestered linked to the payment, so it cannot be assessed whether and in how far an increase in soil carbon levels is real, additional and verifiable. Integrating the CAP more into the EU’s climate policy requires rules to be set in place to assure a reliable measuring of the carbon sequestered. Payments, to give another example, are based on the amount of hectares per year of measures under the RDP, not on the amount of CO₂ sequestered. This is a consequence of the provision that payments can only cover additional costs and income forgone resulting from the commitments made.^[10] Such indirect payments, therefore, do not stimulate farmers to sequester as much carbon as possible. A third example of the CAP’s shortcomings with regard to soil carbon sequestration is that projects financed under the CAP are characterized by a relatively short lifespan, 1-5 years for green direct payments, and 5-7 years for projects under a RDP. Under a climate policy, such a lifespan is almost futile, as combatting climate change requires measures that cover decades, if not the entire 21^st century. That is why in Australia, carbon sequestration projects are required to run for twenty five or even a hundred years (see blog posts on Australia’s carbon farming legislation part 1 and part 2).

Towards an alternative approach: agriculture in the EU ETS

The conclusion that the current EU policy is completely inadequate to stimulate large scale soil carbon sequestration on agricultural land seems inevitable, also when taking into account the broader climate change mitigation policy. The recently presented proposal for a European Regulation on the inclusion of greenhouse gas emissions and removals from land use and forestry into the EU’s 2030 climate framework (LULUCF Regulation) is a good first, yet inadequate, step towards including agriculture’s emissions and sequestration potential into the EU’s climate policy (see for broader assessment of the climate policy instruments, the paper). That is why an alternative approach needs to be developed. A further stimulus to the adoption of soil carbon projects that currently is not being discussed but that needs to be investigated at European level soon is the inclusion of agriculture in the EU ETS through allowing regulated industries to buy offsets from the agricultural sector, following the examples set by California, Alberta, Australia, and more recently also China.^[11] These states show that it is possible to stimulate soil carbon sequestration (and other climate smart agriculture practices and technologies) through the ETS, provided an elaborate regulatory regime has been put in place to ensure integrity. When in place, sectors covered by the ETS will be allowed to finance sequestration projects on farm land, thus paying farmers for their efforts.

The recent report of the Agricultural Markets Task Force, a European Commission expert group, also proposes to incentivise to farm carbon in addition to crops. The Task force, however, proposes to do this through redirecting funds under the CAP after 2020. It is debatable, though, whether this will be a successful strategy given the inherent shortcomings mentioned above. Some of the current constraints can perhaps be repaired, such as the short commitment period, or the provision that payments can only cover additional costs and income forgone. It is highly unlikely, though, that the CAP budget will be big enough to cover an EU wide adoption of carbon farming practices. An evaluation of the Australian carbon farming legislation indicated that government funds will never suffice to roll out an incentive mechanism across all farms in the country and that private funds need to come in, either through a carbon tax or an ETS.^[12] The latter seems very suitable for the EU with its well-developed ETS that, hopefully, will pick up speed again after the structural reform takes effect in the fourth trading phase, which runs from 2021 until 2030. Regulation aimed at establishing a finance flow from large industrial emitters to the farming sector, with its capacity to sequester large quantities of carbon on farm land, seems a promising alternative, which is completely in line with the polluter pays principle as laid down in Article 191(2) of the Treaty on the Functioning of the EU.

[1] Daniel Kane, Carbon Sequestration Potential on Agricultural Lands: a Review of current Science and Available Practices (Breakthrough Strategies & Solutions, Takoma Park, Md 2015).

[2] Emanuele Lugato et al., ‘Potential carbon sequestration of European arable soils estimated by modelling a comprehensive set of management practices’, (2015) 20 Global Change Biology 3557.

[3] Pete Smith, ‘Agricultural Greenhouse Gas Mitigation Potential Globally, in Europe and in the UK: What Have We Learnt in the last 20 Years?’ (2012) 18 Global Change Biology 35.

[4] M.G. Rivera-Ferre et al., Re-framing the Climate Change Debate in the Livestock Sector: Mitigation and Adaptation Options, (2016) 7 WIREs Climate Change 869.

[5] Ibid.

[6] P. Smith et al., ‘Agriculture, Forestry and Other Land Use (AFOLU)’ in: O. Edenhofer et al. (eds.), Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015), 811, 846 and 847; J.R. Porter et al., ‘Food security and food production systems’ in: C.B. Field et al. (eds.), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015), 485, 515 and 518.

[7] Annette Freibauer et al., ‘Carbon Sequestration in the Agricultural Soils of Europe’ (2004) 122 Geoderma 1.

[8] L. Bizikova et al., Climate Change Adaptation Planning in Agriculture: Processes, Experiences and Lessons Learned from Early Adapters, (2014) 19 Mitigation and Adaptation Strategies for Global Change 411.

[9] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Strategy on Adaptation to Climate Change, COM (2013) 0216 final, 8.

[10] Art. 28(6) Regulation (EU) No 1305/2013.

[11] Jonathan Verschuuren, Towards a Regulatory Design for Reducing Emissions from Agriculture: Lessons from Australia’s Carbon Farming Initiative, (2017) 7:1 Climate Law 1; Dong Sun et al., Carbon Markets in China: Development and Challenges, (2016) 52:6 Emerging Markets Finance and Trade 1361.

[12] Verschuuren 2017.

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 This blog is a summary of a paper accepted for presentation at the 3rd European Climate Change Adaptation Conference ‘Our Climate Ready Future’, Glasgow, 5th-9th June 2017 (ECCA2017). My project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

07/08/2016

The evolving potential of the (non-) compliance mechanisms of the Bern Convention on European Wildlife Conservation

1. Effectiveness of non-compliance mechanisms: EU nature protection laws topdog – Bern Convention underdog?

In discussions on the protection of wild animals in Europe the Bern Convention’s^[1] (non-) compliance mechanisms^[2] are easily overlooked and overshadowed by those of the European Union. We all know, right, that the EU is praised for its elevated (non-) compliance mechanisms.^[3]

The enforcement powers of the Standing Committee, the body entrusted with the task of monitoring the application of the Bern Convention, exercises its power in an innovate way, in particular through the case-file procedure. In the European Union, the European Commission takes up a similar role via the infringement procedure.^[4]

Tag cloud of activities of the Bern Convention’s Standing Committee (source: http://www.coe.int/en/web/bern-convention/institutions)

The enforcement powers of the Standing Committee, if one looks at the final result that can be obtained, are rather underwhelming. The Standing Committee cannot do much more than issue, as the appellation suggests, non-binding recommendations, only able to facilitate, rather than coerce Member States into compliance. In daily practice, however, the procedure stands out in several respects. These recommendations are more flexible than judgments are, not focusing on assessing whether legal provisions were violated, but formulating practical, tailor-made measures to address specific conservation concerns on site. In stark contrast to the EU,^[5] the complainant is allowed a generous degree of participation throughout the procedure.^[6] The Standing Committee treats the complainant/NGO and the Contracting Party on a more equal footing: both parties are encouraged to respond to each other’s arguments prior to the Standing Committee’s decision whether to take further measures or not. The procedure is also transparent, key documents of the non-compliance procedure are publicly available.^[7] Another advantage is that the Standing Committee has extensive powers of investigation.^[8]

2. Two protection pillars of which possible violation triggers non-compliance mechanisms

International, European and national wildlife laws’ basic structure is identical in the sense that these laws contain species protection provisions, protecting the animal wherever it goes (e.g. hunting prohibitions), and habitat protection provisions, protecting the areas where these animals live. The Bern Convention is not much different on this point. Once these key provisions^[9] of the Bern Convention are (presumed to be) violated non-compliance mechanisms become increasingly relevant, unless a contracting party can successfully rely on an exception ground.^[10]

3. The Bern Convention’s non-compliance mechanisms

The compliance tools in the Bern Convention are what one expects to find: the Contracting Parties are obliged to report on their compliance with the Convention. The Convention also provides for a, commonly encountered in MEAs, dispute settlement procedure, allowing contracting parties to designate an arbitrator to settle disputes that arise between them.^[11] Rarely applied in practice, Contracting Parties are hesitant to bring each other before an arbitrator.

Interestingly, the most significant compliance tools are not explicitly provided for in the Convention.^[12] There is no explicit provision for a compliance-focused procedure within the Bern Convention. The Contracting Parties, through a bold interpretation of existing Convention provisions,^[13] determined that these provisions provided a sufficient basis for the development of the case-file procedure.^[14]

3.1 Case-file procedure

The whole idea behind the case-file procedure is to encourage Contracting Parties to address concrete conservation problems at particular sites and the means by which to do so. Any party may refer a complaint to the Standing Committee in respect of a Contracting Party’s failure to comply with its obligations under the Bern Convention. The Secretariat, after seeking further information from the parties concerned, decides whether there are grounds for placing the complaint as a ‘file’ on the agenda of the next meeting of the Standing Committee. A threshold to determine this is to decide whether the complaint is sufficiently serious to merit international attention, considering procedures that may already be pending at the (inter) national level as well as the seriousness of the breach. If the Standing Committee chooses to open a file it may adopt specific recommendations designed to bring the state into compliance with its obligations or authorize an on-the-spot appraisal to seek further information. The Standing Committee has a broad mandate to make recommendations to individual parties and these recommendations may be site or activity specific, such as the removal of buildings on a nesting beach or rerouting a road likely to impact on a critical habitat.^[15]

The Balkan Lynx Case-file demonstrates how the non-binding case-file procedure succeeds in having significant impacts in practice. The Balkan lynx, the smallest and most threatened native Eurasian lynx subpopulation,^[16] consists of about 27-54 independent individuals, mostly distributed along Albania and Macedonia. The only reproductive area left is in Macedonia, in the Mavrovo National Park.  An NGO, Eco-vest, filed a complaint in 2013 because of the government’s plan to build 22 hydropower plants on the territory of the park, 2 of which are large-scale.^[17] One of the large-scale plants, Boskov Most Hydro Power Plant (HPP), would be built in prime lynx habitat.^[18] The complainant argued that the environmental assessment was insufficient to judge the impact of the project on in particular the lynx.^[19] 2011^[20] and 2012^[21] Bern Convention recommendations already requested Macedonia to assess the impacts of the dams on the lynx population and take measures to maintain the ecological characteristics of the site, further strengthening the argument. The lynx is protected under Appendix III of the Convention, meaning that killing is not prohibited but that the species – at least – must be protected from danger. As the Balkan lynx is, in accordance with the IUCN red list categorization, critically endangered the project is in clear breach of the Bern Convention’s species protection provisions. The Standing Committee found it unwise to put any additional stress on the lynx and issued a tailor-made recommendation requiring that a comprehensive environmental assessment would be carried out before the project could go ahead; that in application of the precautionary principle all construction projects had to be suspended as long as the overall impact had not been fully assessed and that the World Bank (WB) and the European Bank for Reconstruction and Development (EBRD) should immediately suspend financing.^[22] As a result, the EBRD^[23] as well as the WB^[24] suspended financing.

Balkan Lynx (Photo: Jörg Pukownik)

Over the years, the Standing Committee identified a shortcoming in the case-file procedure: it can only be started by a complaint that presumes that a Contracting Party failed to comply with Convention provisions. Because failing to honor international obligations is a serious matter, most governments refuse to admit they breached international law, making it more difficult to find effective solutions. Over the years, the Standing Committee felt increasingly reluctant to open new case-files, trying to avoid the common perception that opening a case-file means there is a presumption of breach. To circumvent this perception the Standing Committee sometimes decided to not open a case-file but investigate the matter more informally, focusing on the adoption of recommendations to improve wildlife protection in practice.^[25] In 2015, so this procedure is fresh meat, the mediation procedure was formalized under the Bern Convention.

3.2. Mediation procedure

The Standing Committee formalized the mediation procedure to avoid ‘lost opportunities’, that is cases where Contracting Parties did not necessarily breach the Convention, but where intervention would be useful to achieve the Convention’s aims. The mediation procedure is meant to foster dialogue between the complainant and the government and find practical solutions, without blaming a Contracting Party.^[26]

The mediation procedure is kicked off, by a Standing Committee decision, mostly after submission of a complaint that did not have enough gravitas to justify the opening of a case-file. The mediation procedure is subject to agreement of the Contracting Party involved. An expert is appointed, a so-called ‘honest broker’ who acts as a mediator.^[27] All parties join a mediation visit and in the best case scenario a mediation agreement is drafted. The first mediation file, opened in 2015, ended up in a mediation agreement between a complaining Lithuanian NGO, Association Rudamina Community, which argued that the building of an overhead powerline in Lithuania would affect wild species such as high-flying birds and the European pond turtle, and the Lithuanian government.^[28]

4. Conclusion

1. Not everything is what it seems

There are arguments to challenge the perception that binding instruments are preferable over non-binding instruments. Although the Bern Convention recommendations are not binding, these are flexible in their application, and, strengthened by the Standing Committee’s ability to gather information from the site in question, allow the Standing Committee to make practical, site-specific recommendations, rather than simply relying on desk studies/reports.

2.  Investors do not want to be associated with breaches of International Environmental Law

All investors in the discussed cases took international environmental law seriously. Both the WB and the EBRD backed out of the Macedonian HPP because these large-scale dams violated the Bern Convention. Large-scale projects are often at least co-financed by institutions that care about their reputation and are not insensitive, not even to, non-binding recommendations.

In short, although the Bern Convention’s added value is most apparent beyond the EU, it arguably plays, because of its practical approach, a distinct role within EU Member States as well.

5. Outstanding questions raised at the conference^[29]

–      Are these two cases really indicative of the power of non-binding instruments or just outliners? A comprehensive answer to this question requires an investigation on what happened/is happening on the ground in the, as of 1 February 2016, 161 Bern Convention (possible) case-files;^[30]

–      How do the EU and Bern Convention’s non-compliance mechanisms interrelate? My intuition is that the Bern Convention offers adequate relief in cases where a no-nonsense practical solution (answer to the question: ‘what do we actually have to do to improve conservation?’) to address conservation concerns on the ground and the means by which they might do so is sought. Member States that are not tempted to act on the basis of a, non-binding, reminder only might be in need of the European Union’s more coercive non-compliance treatment.

[1] This Convention, for those unfamiliar with it, is an international wildlife treaty that was adopted within the Council of Europe in 1979. The Convention attracted broad participation, with 51 parties, among which all EU Member States, most members of the Council of Europe (Russia being a notable exception) and a few African countries. For those more familiar with European law, the Bern Convention served as an inspiration for the 1992 Habitats Directive. Key provisions on species protection and habitat protection in the Bern Convention have been, along the same lines, copy-pasted into the Habitats Directive.

[2] I have drawn largely from F. Fleurke’s and A. Trouwborst’s analysis of the EU and Bern Convention’s enforcement mechanisms and Karen N. Scott’s analysis of the Bern Convention’s non-compliance mechanisms (F. Fleurke and A. Trouwborst, ‘European Regional Approaches to the Transboundary Conservation of Biodiversity: The Bern Convention and the EU Birds and Habitats Directives’, in L.J. Kotzé and T. Marauhn (eds.), Transboundary governance of Biodiversity, Brill/Nijhoff, 2014, 128-162; Karen N. Scott, ‘Non-compliance Procedures and the Implementation of Commitments under Wildlife Treaties’, in M.J. Bowman, P.G.G. Davies and E.J. Goodwin (eds.), Research Handbook on Biodiversity and Law, Edward Elgar, 2016, 425-428).

[3] Besides the legal protection offered by the European Court of Justice (CJEU), which has no equivalent in most MEAs, it is, under certain conditions, possible to directly or indirectly invoke EU law and legal instruments (such as Reg./Dir.) before national courts. The same is true for international law, such as the Bern Convention, but only in monist countries, where international law is accepted as a part of the national legal order. Another distinguishing feature of the EU (non-) compliance mechanisms is its preliminary reference procedure. If national courts have questions on the validity or interpretation of EU law they can refer these questions to the CJEU, which via a ruling, provides clarity on EU law, enhancing compliance. The Bern Convention, or most MEAs for that matter, do not have such a system.

[4] The Commission’s enforcement activities are usually triggered by a citizen’s complaint, often NGOs, reasoning that the nature protection directives have been badly applied. The Commission is happy to receive these complaints but requires the complainant to stay out of discussions on whether to look into the case and whether to take the case to the CJEU. The Commission only informs the complainant of the result of the negotiation between the Commission and the Member State. These negotiations are confidential: letters of formal notice or reasoned opinions are not made publicly available. The Commission’s enforcement powers are weakened by its lack of investigative and fact-checking powers. The Commission has no inspectors who could check the application of the nature directives within a Member State. (L. KRÄMER, ‘EU Enforcement of Environmental Laws: From Great Principles to Daily Practice – Improving Citizen Involvement’.)

[5] Ibid.

[6] Scott (n2) at 427.

[7] For the case-file documents in the Balkan Lynx and Lithuanian Powerline Project case (discussed under 3.1 and 3.2), see http://www.coe.int/en/web/bern-convention/-/35th-standing-committee-meeting (both discussed at the Bern Convention’s 35^th Standing Committee Meeting, 1-4 December 2015).

[8] Scott (n2) at 246.

[9] The Convention requires the protection of all wildlife species at a level that corresponds to ecological requirements. Parties can also cater for economic needs but in case of conflict between ecological and economic considerations, priority is given to the former. Some animals are on Appendix II, making them strictly protected species. It is for those animals prohibited to be killed, disturbed, damaged etc. These species benefit from a protective shield of armor. Other wild animals are enlisted on Appendix III and do not benefit from the prohibition to be killed or captured. Populations of the latter animals have to be kept out of danger. The Convention also requires parties, in pretty generic terms, to ensure habitat conservation (art. 4). This provision has been further developed through the designation of Areas of Special Conservation Interest under the Emerald Network. In the European Union, the Natura 2000 sites are their contribution to the Emerald Network. (See Fleurke & Trouwborst (n2).)

[10] A topical example concerns the border fences that have been erected throughout Europe to control migrant streams. Although these fences might hinder wildlife, Contracting Parties might, and possibly successfully, argue that this is necessary to maintain public safety, a possible exception ground.

[11] Bern Convention, Article 18(2).

[12] Scott (n2) at 426.

[13] That is the combined reading of Article 18(1) that provides that the Standing Committee endeavors to facilitate the settlement of difficulties and Article 14 that mandates the Standing Committee to make recommendations and arrange meetings.

[14] Scott (n2) at 426.

[15] Ibid. at 425.

[16] This population is morphologically and genetically very distinct from other Eurasian lynx populations in Europe and thus a separate subspecies (a distinct phylogenetic lineage of the Eurasian lynx) to be regarded as a conservation unit. (Bern Convention, T-PVS/Files (2015) 41, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), Observers’ report following the on-the-spot appraisal, Report by Mr, Andràs Demeter, advisor, 35^th Meeting, Strasbourg, 1-4 December 2015, 18.)

[17] Boskov Most HPP, mainly funded by the EBRD and Lukovo Pole HPP, mainly funded by the WB.

[18] Bern Convention, T-PVS/Files (2015) 36, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), On-the-spot appraisal, Report by Mr. Pierre Galland.

[19] Bern Convention, T-PVS/Files (2015) 41, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), Report by the Complainant Eko-svest; Also see Observers’ report (n16) at 22; On-the-spot appraisal report (n18) at 11.

[20] Recommendation No. 157 (2011) of the Standing Committee on the status of candidate Emerald sites and guidelines on the criteria for nomination.

[21] Recommendation No. 162 (2012) of the Standing Committee on the conservation of large carnivore populations in Europe requesting special conservation action.

[22] Recommendation No. 184 (2015) on the planned hydropower plants on the territory of the Mavrovo National Park (“The former Yugoslav republic of Macedonia”).

[23] E.g. news item on the Environmental Justice Atlas website confirms the EBRD decided to suspend funding for Boskov Most HPP until the results of the new environmental assessment are made available.

[24] E.g. joint press release by CEE Bankwatch Network, EuroNatur and Riverwatch confirmed that the WB withdrew funding for Lukovo Pole HPP.

[25] Bern Convention, T-PVS (2011) 14, Standing Committee, 31^st meeting, Improving the Case-File System of the Bern Convention, document prepared by the Directorate of Culture and Cultural and Natural Heritage, 5-6.

[26] Ibid. at 6.

[27] Ibid. at 6.

[28]  Certain elements of the case pushed for mediation: the complaining NGO touched upon consequences the project would have on bird and animal life but data on species occurrence and the linkage to the conservation status of the species in the region is limited. Also, both the project investor, Nordic Investment Alliance, provided that its sustainability requirements were not breached and the Lithuanian Nature Fond argued the project did not violate environmental laws. Parties signed a Mediation Agreement consisting of 16 bullet points, amongst which practical recommendations: parties for instance agreed to adopt a monitoring plan for the species that are protected under the Bern Convention as well as installing flight diverters to make power lines visible to bird species. (Bern Convention, T-PVS/Files (2015) 51, Standing Committee, 20 October 2015, Mediation Procedure in the frame of complaint number 2013/5: presumed impact of a construction of overhead power lines (OHL) in an environmentally sensitive area in the Lithuanian-Polish borderland, Report of the visit, Document prepared by Mr Michael Usher, p. 14 for the Mediation Agreement.)

[29] I4th Annual Colloquium of the IUCN Academy of Environmental Law, at which this research was presented.

[30] For an overview of the (possible) files under the Bern Convention as of 1 February 2016 see:  Bern Convention, T-PVS/Inf (2016) 2, Standing Committee, 36^th Meeting, Register of Bern Convention Complaints, 1 February 2016.

 — x —

This post comes down to the written script of a recent conference presentation.  The purpose of the presentation was to lay a foundation that could serve as a basis for discussions (read: this is work in progress) on the value of the Bern Convention non-compliance mechanisms compared to the EU non-compliance mechanisms (J. DUBRULLE, 2016. Not a paper tiger, but a wily lynx: the evolving potential of the (non-) compliance mechanisms of the Bern Convention on European Wildlife Conservation, 14th Annual Colloquium of the International Union for the Conservation of Nature (IUCN) Academy of Environmental Law, Oslo (Norway), 23 June 2016). With many thanks to Arie Trouwborst and Floor Fleurke for not only giving me the idea to investigate this but also helping me out, more than one could reasonably expect, on the general outline/direction of this presentation. Credit is due to Melissa Lewis, for her valuable comments, too. Her excellent understanding of how international environmental law works in practice refined my thinking.

12/03/2016

New predator sniffs out the Netherlands: golden jackal adds another chapter to its mysterious range expansion

In February 2016, Dutch researchers discovered unique footage captured by some of the automatic wildlife cameras – ‘camera traps’ – they had installed in the woods to study deer behaviour. Experts abroad confirmed the initial hunch that the animal in the pictures is a golden jackal (Canis aureus). Golden jackals are canids that howl like wolves but are as omnivorous as foxes, and in size are in between the latter two. The golden jackal is sometimes called the European coyote – and the coyote itself sometimes dubbed the American jackal. The ‘Dutch’ jackal was caught on camera in the extensive woodlands of the Veluwe area, which is part of the European Union’s protected area network Natura 2000.

Photo by Miha Krofel.

Whereas it cannot be ruled out entirely that the jackal was released by humans or escaped from captivity, there is nothing to indicate this. The assumption, therefore, is that the animal walked into the country by itself. Indeed, the sighting concerned – however spectacular – it did not come as a complete surprise. Biologists have been documenting an impressive expansion of the golden jackal’s range in the last few decades, northward and westward from its traditional distribution in the southeast of Europe. The drivers of this expansion are not yet fully understood. Jackals have already been spotted as far north as the Baltic states and even Finland, as far west as Switzerland, and as far northwest as Denmark. Different sightings in the west of Germany in 2015 suggested it was a matter of time before the first jackal would be spotted in the low countries as well.

The recent camera trap images constitute the first confirmed record of a golden jackal in the Netherlands ever. Although it cannot be ruled out that jackals inhabited the Netherlands (very) long ago, there is no evidence to indicate they did. This makes the jackal’s visit different from the lone wolf (Canis lupus) that made a brief but exciting trip through the Netherlands last year. As discussed in a previous blog, wolves were part of the native fauna of the Netherlands until they were exterminated in the 19^th century. The expected colonization of the Dutch countryside by wolves is therefore a proper comeback.

Given that the Netherlands constitute apparent terra incognita for golden jackals, the question arises how the species’ arrival should be appraised, and what government policy regarding the species would be most appropriate. This question has been faced in quite a few countries where jackals turned up beyond the species’ known historic range in recent years. In particular the question whether such animals are to be considered as an ‘alien species’ – whether invasive or not – has been a source of confusion. Such confusion is unnecessary. Widely accepted definitions agreed under international legal instruments (e.g., Convention on Biological Diversity, Bern Convention on the Conservation of European Wildlife and Natural Habitats) make it quite clear that the term ‘alien species’ only encompasses creatures originating from introductions outside their regular range by man. Jackals that have arrived on their own feet should thus not be regarded as such, and are not subject to international commitments concerning the control or eradication of invasive alien species.

The legal status of the golden jackal in the national legislation of the many countries where jackals have been recorded varies considerably. However, current international legal obligations limit the freedom of countries to decide how they wish to deal with golden jackals, including recently arriving ones. In general terms, the Bern Convention requires European states to keep jackal populations out of danger. Moreover, in EU member states like the Netherlands, the Habitats Directive imposes distinct limitations on national policy and management options regarding the golden jackal, including in scenarios where jackals are spreading to areas without historic records of their presence. The species is listed as a ‘species of Community interest’ in Annex V of the Directive. As the jackals venture across the EU, the corresponding legal regime travels along with them. For EU member states, this entails that any killing of golden jackals must be compatible with the maintenance or achievement of a favourable conservation status. To ensure this, the species must be systematically monitored. National policies preventing golden jackals from settling down and aiming for the species’ eradication are incompatible with obligations under EU law.

 Meanwhile, we can take comfort from the notion that our camera-trapped jackal is probably still out there somewhere, trotting along, sniffing for edibles and eventually a mate to settle down with, and blissfully unaware of the legal issues it is raising.

– – – x – – –

For more detailed discussion of the golden jackal’s European range expansion and the associated legal issues, see:

A. Trouwborst, M. Krofel & J.D.C. Linnell. 2015. Legal Implications of Range Expansions in a Terrestrial Carnivore: The Case of the Golden Jackal (Canis aureus) in Europe. 24 Biodiversity and Conservation 2593-2610

21/12/2015

The EU Regulation of Genetically Modified Organisms in 2015: at the Crossroad of History

The EU authorization of genetically modified organisms (GMOs) is the most strange and controversial area in the whole EU law system: the scientists are seriously distrusted by the general public, the authorization procedure is ‘unreasonably’ paralyzed or delayed, and the authorized GM products are banned by Member States without legitimate reason. But this is not the case in any other field of innovative technology or environmental law, and cannot be explained simply by precautionary principle or political pressure. This conundrum has puzzled the EU policy makers and lawyers for many years, and 2015 is a crucial year of fundamental reform. With the introduction of the opt-out clause, Member States now have freedom to ban GMOs without recourse to scientific evidence. Such a move may also cause negative effects concerning the EU internal market law and its obligations under the WTO law. We are now standing at the crossroad of history.

GMO is defined as “an organism, with the exception of human beings, in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural recombination”.^[1] The commercial application of GM technology in the agricultural sector can introduce many desirable traits into one single crop, thus has huge economic, health and environmental benefits. At the same time, people are also concerned about its potential environmental and health risks, as well as some ethical and socio-economic issues. Under the current EU law, both GM crops and foods/feeds must go through the authorization procedure before marketing. This involves two stages of decision-making: a scientific assessment about their safety and a political vote about their overall acceptability. However, in the past voting, because Member States were deeply divided in their opinions, there were hardly any qualified majority reached in the authorization procedure. In the end, it is always the Commission makes the decisions, which are based on the scientific reports of the European Food Safety Authority (EFSA) and usually grant the authorizations. This fact (purely science-based decisions, at least on the surface) triggers many Member States’ objections and the Council’s reactions. As a result, the authorization of GM food/feed is seriously delayed, and the authorization of GM crops is totally paralyzed, which are in violation of the EU law. But the Commission could not do anything about it because the Member States’ ‘illegal’ actions were backed by the Council.^[2]

After many years’ tough negotiations and some small legal revisions, in March 2015 a fundamental legal reform called ‘opt-out clause’ was agreed by all Member States and enacted by the Commission.^[3] According to this new legislation, on the issue of GMO cultivation, Member States pro- and anti-GMO are finally unleashed from the political disputes and formally part with each other. For anti-GMO countries, they can now ban GM crops even after authorization without any need of scientific evidence. This can be done either by a blanket withdrawal from all the future authorizations (without need of giving any reason) before 3 October 2015, or (after that date) by quoting some ‘compelling’ socio-economic reasons listed in the legislation in individual case. As a result, 17 out of the 28 Member States have totally opted out on all their territories in this way,^[4] while 3 kingdoms of the UK (Scotland, Wales and Northern Ireland, leaving only England to be willing to cultivate GMO) and the French-speaking Wallonia region of Belgium also declared to be GMO-free.^[5] For pro-GMO countries, it is expected that the paralysis in the GMO authorization can be unblocked so that more GM crops can be authorized and cultivated.

However, this move also brings about legal uncertainties and new challenges. First, it is hard to say the opt-out clause is conform to the EU internal market law. It is rather to say that it is an exception to the principle of free movement of goods based upon all Member States’ political endorsement.^[6] Some Member States and MEPs also would like to opt out for GM food/feed, but such requests were firmly rejected by the European Parliament’s Environmental Committee on the grounds of protecting the EU internal market. This shows that the EU policy makers are very aware that the political exception to the internal market rule cannot be too wide. Second, the opt-out clause is also against the EU’s obligations under the WTO law, especially after the famous US-EU Biotech case in 2006. There is no way to defend in this respect, people just hope the EU will not be sued by the Unites States (and other GMO-producing countries) for two practical reasons: (1) more GM crops will be cultivated in pro-GMO countries, which will hopefully make up for their losses; (2) the import of GM crops is relatively a small part of business (compared to GM products). Third, whether the principle of proportionality is applicable in the scenario of GMOs is also a big issue. It is uncertain at this moment whether Member States’ blanket ban of GM crops (without even giving reasons) would be challenged in the EU courts. Last, the increased cultivation in pro-GMO countries and the total ban in anti-GMO states will expose the sensitive issue of cross-border coordination and the potential liability arising out of GMO ‘contamination’.

In sum, the whole EU GMO regulatory framework stands at the crossroad of history and is facing new possibilities and challenges. Instead of one unified procedure, now the EU regulation of GMOs is running on double trajectories. In the coming few years we will witness how this new approach addresses the needs and pressures from inside and outside EU.

[1] Article 2(2), Directive 2001/18/EC.

[2] It is illegal because these Member States do not have scientific evidence to support a prohibition or restriction to the free movement of an authorized goods in the EU internal market.

[3] Directive (EU) 2015/412.

[4] These Member States include: Austria, Bulgaria, Croatia, Cyprus, Denmark, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland and Slovennia.

[5] Reuters.com by Barbara Lewis, ‘Majority of EU Nations Seek Opt-Out from Growing GM Crops’, 2015.10.04, available online at: http://www.reuters.com/article/2015/10/04/us-eu-gmo-opt-out-idUSKCN0RY0M320151004#xu0BYp9saiqghPUK.97 (last visited on 2015.11.08).

[6] The Commission indicates that the legal basis of opt-out clause could be Article 2 TFEU, which is a new provision introduced by the Lisbon Treaty. The third sentence of Article 2 (2) TFEU reads: “the Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence”.

08/09/2015

Legal Efforts to Achieve Optimal Transboundary Population Level Management for European Large Carnivores

Europe experiences a large carnivore comeback: the European Union hosts 12,000 grey wolves (Canis lupus), 17,000 brown bears (Ursus arctos) and 10,000 Eurasian lynx (Lynx lynx). Most of these populations (8/10 wolf populations; 8/10 for bear; 10/11 for lynx) do not live within the boundaries of one country and are shared by two or more countries.[1] It is widely accepted that conservation planning for these species should be adjusted to the biological unit of each population, rather than to international frontiers. As EU Member States provide different levels of protection for large carnivores legal fragmentation arises.[2] It becomes then increasingly difficult, taking population sink effects [3] into account, to maintain viable large carnivore populations without a neighbour’s help.

Detailed criteria for optimal transboundary population level management (TPLM) are set out in the Guidelines for Population Level Management Plans for Large Carnivores (Carnivore Guidelines).[4][5] I analyse the role of the applicable international legal framework as regards the implementation of TPLM. Key instruments are the Bern Convention on European Wildlife Conservation and the EU Habitats Directive. For two sets of large carnivore populations, the Alpine and Carpathian ones, additional legal instruments are in place, that is the Alpine and Carpathian Conventions with their Protocols on biodiversity.

The first criterion of the Carnivore Guidelines requires a shift of focus from the management of transboundary populations at the national level to the population level. The drafters of the Bern Convention and the Habitats Directive focused obligations principally at the national level. Gradually measures were taken under both instruments to overcome this potential shortcoming by respectively adopting Recommendations (Bern Convention) and guidance (Habitats Directive) calling for TPLM. These instruments are not legally binding and therefore uncertainty remains whether population management must be carried out at the population level/and or at the national level.[6] Achieving management at the population level is further complicated by the scope of the Bern Convention and the Habitats Directive. Their scope coincides with the country’s border of the Contracting Parties, respectively Member States. In other words, these countries commit each individually to only protect large carnivores present within their own borders. In contrast, the Alpine Convention and the Carpathian Convention require large carnivore management to be conducted at the population level, through a combination of legally binding provisions and non-binding guidance and the fact that the scope of these mountain regimes coincides with the biological unit (that is the Alpine and Carpathian mountain ranges), which coincides approximately with the contours of the large carnivore populations concerned. By way of explanation, the Contracting Parties of the Alpine and Carpathian Convention commit collectively to protect large carnivores wherever present throughout the mountain range, going beyond strict adherence to country borders.

A second criterion requires the operationalization of TPLM through the development of management plans at the population level. The commitments to draw up TPLM plans enshrined in the Bern Convention’s Recommendations are not legally binding. Whereas the Habitats Directive guidance requires TPLM plans to be drawn up this obligation is not binding either. It cannot be considered an obligation of result as a Member State cannot be held responsible for the failure to develop a management plan if one (or more) of its neighbours does not agree to develop such a plan. It is solely an obligation of effort.[7]Conversely, for Contracting Parties of the mountain regimes stronger commitments apply regarding the development of transboundary management plans.

Legal fragmentation under the Bern Convention and Habitats directive

A third criterion of the Carnivore Guidelines requires that best management practices are developed and applied. The four international and European legal instruments under discussion set up structures to ensure actual implementation of TPLM. The Bern Convention’s Group of Experts on the Conservation of Large Carnivores in Europe facilitates TPLM by monitoring Contracting Parties’ implementation of this obligation. The 2014 terms of reference of the EU Platform on Coexistence between People and Large Carnivores provide that the Platform facilitates TPLM and the implementation of the LIFE program, although this program so far [8] primarily attacks threats at a local scale, contributes to the population’s viability too. Under the mountain regimes significant progress has been made towards achieving common monitoring and management measures for large carnivores throughout the mountain ranges. The Carpathian Working Group on Conservation and Sustainable Use of Biological and Landscape Diversity develops common monitoring standards and BioREGIO Carpathians developed common management measures in transboundary pilot areas. The Alpine Working Group Large Carnivores, Wild Ungulates and Society Platform develops common monitoring standards and is expected to propose common management standards for the Alpine region by 2016.

In the end, even if full-fledged transboundary population level management has not yet been achieved for any population (no transboundary management plans have been adopted yet for Europe’s large carnivore populations)[9] the two mountain regimes have distinct features that make them better equipped for achieving actual implementation of TPLM than the Bern Convention and Habitats Directive.

This blog post is the result of discussions at the Environmental Law Lunch of June 8 @ Tilburg University and a poster presentation [8MB PDF] at the International Congress for Conservation Biology and European Congress for Conservation Biology (3-7 August 2015, Montpellier).