#17718 - Nature Conservation Notes - Environmental Law

Nature Conservation Notes

What is nature conservation?

Definition

Fisher, Scotford and Lange (2019) tell us that nature conservation law is comprised of those laws which are concerned specifically with protecting the natural environment

• ‘Specifically’ is important here, as nearly all environmental law could be understood as protecting the natural environment

Purpose

However, the fact that nature conservation laws seek to protect the natural environment does not tell us why we want to protect nature

• This question of why we want to protect nature will ultimately inform our answer as to the questions of scope of nature conservation law

  • For example, if what is valued is beauty, then nature conservation regimes will frame our understanding of nature by identifying and protecting what is beautiful

Distinction is often drawn between ecocentric and anthropocentric views of environmental protection. However this crude distinction does not capture all of the ways in which nature is valued.

• Eckersley (1992) refers to a range of different ecocentric perspectives, including animal liberation, resource ecology and preservationism

  • He refers to the main features of an ecocentric perspective:

    • Recognises the full range of human interests in the nonhuman world (going beyond resource conservation or human welfare ecology);

    • Recognises the interests of nonhumans (yet goes beyond preservationism);

    • Recognises the interests of future generations of nonhumans; and

    • Values more than just the liberty of individual animals (as in animal liberationism) by valuing populations, ecosystems, species and the ecosphere as well as individuals

• Dworkin (1986) has referred to the anthropocentric perspective of more mainstream socio-political discourse

  • He refers to the TVA v Hill case: “The conservationists discovered that one almost finished TVA dam, costing over one hundred million dollars, would be likely to destroy the only habitat of the snail darter, a three-inch fish of no particular beauty or biological interest or general ecological importance.”

• Mainstream policy and legal discourse is anthropocentric

  • The Millennium Ecosystem Assessment focused on the linkages between ecosystems and human well-being, particularly focusing on ecosystem services

    • DEFRA, in a similar vein, coined the term “natural capital” as the sum of our ecosystems, species, freshwater, land, soils, minerals, air and seas – these are the elements of nature that directly or indirectly bring value to people and the country at large

Scientific Assessment

In order to assess the extent or existence of a nature conservation problem, scientific information is needed about the natural environmental.

• One of the major aspects of promoting biodiversity has been the creation of frameworks for the collection ad dissemination of environmental information

  • The Habitats and Birds Directives provide important benchmarks for what should be measured and how it should be measured

  • Natural England’s State of the Environment Report 2008 provides information up until 2008

Scientific uncertainty is a particularly pertinent problem in understanding nature conservation.

• There are very real practical problems in collecting data about species – no species of animal is simply going to come when you whistle and line up neatly to be counted.

The problems with such uncertainty can be seen in Australian case law

• Leatch v Director General of National Parks and Wildlife Service

  • Facts: This case concerned the impact of building a road through a gorge on the habitat of the Giant Burrowing Frog.

    • The exact legal issues are not of importance here. What is relevant, is the many uncertainties concerning whether the frog was in the gorge and whether the road would have an impact on the frog

      • Webb and York were two experts appearing before the Court, who firmly disagreed as to the potential impact of building of the road

A further issue is presented by the fact that meaningful data about the natural world cannot be collected quickly

• Clutton-Brock and Sheldon (2010) have said in relation to modern genomic approaches that their application requires the existence of extensive phenotypic and ecological data – there are no shortcuts to obtaining these

Polycentricity

Nature conservation issues involved an interrelated web of different interests across society (Fisher, Scotford and Lange, 2019)

• Reid (2011) identifies how nature conservation measures are highly specific to particular areas

  • “Not only must each species and habitat be considered individually, as opposed to the way in which greenhouse gases can be grouped together as the focus of control, but the measures needed are site specific and can only be effective if a whole network sites is similarly protected”

    • Greatly enhanced protection for whales is of no benefit to red squirrels.

Scope of Protection

Nature conservation law can protect different things – species, ecosystems and biodiversity are just a few examples. Different systems take one of two approaches to identifying what should be protected:

• Closed List - some nature conservation regimes, especially those protecting species, explicitly identify the species that are to be protected (i.e., the Protection of Badgers Act 1992)

• General Standard Approach - the other approach sets out the rationale for protection and then creates a process by which areas and/or species can be identified and classified as worthy of protection

What are the different techniques for protecting nature?

Permitting and Criminal Offences

This first technique creates licensing regimes that limit the taking of species, and/or make it a criminal offence to harm, take or trade in a particular protected species

An example of this technique in the UK is the Protection of Badgers Act 1992.

• Section 1 – it is an offence to wilfully kill, injure or take, or attempt to kill, injure or take a badger

  • NOTE: there is an inherent limitation in this sort of provision, to the extent that the biggest threat to species does not normally come from ‘wilfully killing’, but rather from the destruction of habitats

• Section 10 – sets out the basis on which a permit can be granted

This sort of command-and-control regulatory technique is appealing on the basis of its simplicity

• BUT: Fisher, Scotford and Lange (2019) note that they are not so simple in practice – this, at least in part, derives from the fact that they need to be enforced effectively

In particular, the permitting aspect requires the application of discretion, which leads to the inevitable consequences of disagreement as to how the relevant legislation should be interpreted

• Langton, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

  • Facts: The grant of a license for the supplementary culling of badges under s10(2)(a) of the 1992 Act was challenged by means of judicial review

  • Held: The grant of the licenses was held to be lawful

    • Both the Secretary of State’s chief scientific adviser and the government’s chief veterinary officer were in support.

      • Against this background, a policy of maintaining a reduced badger population through supplementary culling cannot be said to be irrational when coupled with the commitment to change tack as evidence became available

Protecting Enclaves

Under the enclave system, it is not only a species that is protected, but also a habitat, landscape or ecosystem.

• ‘Enclave’ denotes an area or population that is distinct from all around it

The enclave technique dominates conservation law in the UK

• Fisher, Scotford and Lange (2019) identify three reasons for this:

  • To protect a species, their habitat must be protected

  • Many nature conservation regimes have focused on protecting not just flora or fauna, but landscapes and ecosystems

  • By protecting parcels of land and limiting what can occur on them, there is a stronger likelihood that legal disputes will arise as compared to other legal techniques

Integration

This method seeks to integrate nature conservation into other areas of decision-making.

• This reflects the inevitable fact that other areas of decision-making, such as transport, energy and planning all have major impacts upon nature conservation.

This technique can be seen in s40(1)-(3) of the Natural Environment and Rural Communities Act 2006

1. Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity.

2. In complying with subsection (1), a Minister of the Crown, government department or the National Assembly for Wales must in particular have regard to the United Nations Environmental Programme Convention on Biological Diversity of 1992.

3. Conserving biodiversity includes, in relation to a living organism or type of habitat, restoring or enhancing a population or habitat. […]

The significance of this obligation is severely limited by the fact that it is mere a duty to “have regard to as far as is consistent” with their functions – there is no duty to conserve biodiversity.

Governance

This technique relies on both public and private actors, and in particular, actors from the non-profit sector.

• Over the course of the last two decades, nature conservation management has begun to be more explicit about the role of the non-government sector

  • Locally-led nature conservation projects have begun to receive public funding for their activities

    • For instance, the government response to the 2010 report Making Space for Nature, was The Natural...