Nature Conservation and Environmental Protection by the European Community and British Law - Literature review Example

In relation to an environmental problem of your choice, discuss the extent to which the provisions of international, European Community and domestic law (either in the UK or elsewhere) have sought to reconcile the objective of environmental protection with that of continued economic growth. “Nature conservation has emerged as perhaps one of the most politically controversial areas of environmental regulation in which the interests of landowners have clashed dramatically with those of conservationists and animal rights campaigners.”1 Damage to habitat occurs from a number of sources ranging from private landowners’ failure to understand what is living in their own gardens to the deliberate conversion of the land from agricultural to business use. In fact this latter source has been suggested as the primary threat to habitats.2 However, most damage is not caused deliberately though.. In most instances it occurs as a result of carelessness coupled with the lack of knowledge. In most cases environmental damage is simply a natural consequence of carrying out land projects for both society necessity and private profit. Nevertheless it has been suggested that land development in the UK causes a land loss equivalent to the approximate size of Leicester every five years3. Although the importance of habitat protection is not to be underestimated, it should be recognised that a strict structure of protection could cause harm in other areas, particularly in the economic arena and the growth of trans-European projects involving the development of a network of roads and railroads designed to improve the economic cohesion of the European Community.4 In opposition to this though, some take the view that ‘in principle economic problems ought not to be an excuse for neglect or damage to the environment.’ 5 It is this debate in which the UK and all of Europe is currently engaged. How does society continue to progress without destroying its natural environment? It will therefore be the aim of this research to see whether the law relating to this particular area both in the UK and within the EC have, in accordance with the view of Osborn6: “both individually and en masse, are kept as simple as they can be to achieve their end, that the requirements they impose are proportional to the problem to be addressed and do not impose unreasonable costs for small environmental gain, and that they are implemented firmly, fairly, consistently and economically”. The UK has shown a continued commitment to conservation of the countryside and its inhabitants, evidence of which can be seen from the Department of the Environment, Transport and the Regions Annual Report for 19997 in which the UK’s policies are described as taking an “integrated approach…so as to enhance opportunity in rural areas and achieve active, balanced and inclusive communities and a prosperous rural economy in line with the overall need to secure sustainable development in rural areas…. And to improve enjoyment of the countryside by suitably protecting and enhancing the most treasured landscapes, wildlife, and historical features; and by facilitating access to allow recreation, appreciation and enjoyment by all.”8 To this end, voluntary agreements and partnerships with both public bodies and the local community are said to be encouraged.9 The Rural White Paper which was published in 2001 to look at the longer-term future for the English countryside and at how policies on the economy, health, transport, education, the environment, crime, agriculture, planning and many other areas will support a sustainable countryside.10 The government has also expressed its commitment, through the medium of the Department of the Environment, Transport and the Regions in a recent discussion paper11 to not only maintain high standards of environmental protection for the countryside, but also to ensure economic vitality and sustainable development.12 The balancing of different interests in environmental protection can be seen from the following government statement: “The Government’s manifesto included specific pledges on the countryside: to recognise the special needs of rural areas, not to allow rural transport and other public services to deteriorate, to give greater protection to wildlife, and to give greater freedom for people to explore the open countryside…”13 In pursuance of these objectives, according to the DETR, government policies will strive to ensure that the countryside is environmentally protected while at the same time maintaining its working nature, thereby contributing to national prosperity as part of a competitive economy.14 The government stresses the need for social, economic and environmental concerns all to be considered together.15 Whether though the current legislation is in fact meeting such objectives is debateable. The most substantial protection for the habitat in the UK is to be found in the Wildlife and Countryside Act 1981 which specifically provides for the designation of certain areas, known under the Act as ‘sites of special scientific interest’ or SSSI’s, for protection.16 The Act provides for guidelines on designation criteria17 with the effect that designation will be likely if the area is ‘of special interest by reason of any of its flora, fauna, or geological or physiographical features’.18 In fact, if the area in question satisfies these criteria, then the Nature Conservancy Council19 must deem the areas to be under strict regulation. This ruling was most notably exemplified by the case of R v Nature Conservancy Council, ex parte London Brick Property Ltd20.. Obviously the designation of a private piece of land as protected by environmental legislation can have a serious impact on the value of that land, particularly when it can no longer be used for the purposes for which it was acquired. Although designation does not mean that the landowner can no longer use his land for his own enjoyment, some uses will certainly be restricted, and it does mean that he could risk being in breach of the Act21 if he undertakes a form of action which has been specifically prohibited because of its harmful effects. One very important point to note is the absence of any kind of appeal process in relation to designation of sites as SSSI’s; although landowners are given the opportunity to make representations prior to the designation of their land.22 As a result has been suggested23 that the approach underlying the UK legislation is that it should be based upon co-operation with landowners. In recognition of this, it should be noted that the landowner can apply to the Nature Conservancy Council for permission to undertake a forbidden act in a particular instance24 and will not therefore be in breach of the Act if, after his written application, he either receives the requisite consent or fails to receive a reply within four months. Research suggests that approximately 75 - 90% of applications for consent are actually granted25 Alternatively, the landowner could enter into a management agreement with the Council which would restrict his action and furthermore place upon him positive obligations in preserving the area in an habitat friendly manner but would at least provide him with a level of compensation for his efforts. However, it has been argued that these concessions provide loopholes which severely weaken the protections afforded to the Habitat. Criticisms of these loopholes are exacerbated by the fact that it is only the landowner or occupier who can be prosecuted under the Act which only applies to individuals evidenced to have a ‘stable and continuing relationship with the land.’26 As a result, many harmful actions go without prosecution, thereby arguably weakening the protection of the Act. Those in favour of protecting the land might argue that such a limitation is quite unnecessary and produces obscure results. It is further argued that the Council should have the power to prosecute anybody who carries out a prohibited act in relation to the land whether or not they have any connection therewith. However, the counter-argument lies in the fact that such a wide scope might also produce unfair results, particularly where the defendant is not acting with the deliberate intention of harm and is not aware that he is undertaking a prohibited act. These are not the only criticisms of the current legislation though. It is further argued that even when prosecutions are brought, the fines are relatively low in comparison to the damage caused and can sometimes, therefore, be described as a small price to pay, particularly for the developer who is generally set to make a fortune from the project. One final criticism lies with the fact the current legislation covers only positive action and does not make any attempt to protect the habitat from neglect by landowners, such as a failure to take action to protect. Rectifying this problem by amending the Act is questionable and might be argued to tip the balance too far in favour of the environment at the expense of other interests. Most recently the Joint Nature Conservation Committee28, the governments’ wildlife advisor for England, Scotland and Wales, has made several recommendations to the leaders regarding meeting priority targets by 2010. One of these targets includes plant life, to which the JNCC is not yet a third of the way to meeting its goal. The JNCC has received recognition for helping businesses implement recycling and energy conservation programs from 2004-2006. The Natural Environment and Rural Communities (NERC) Act of 2006 extended the reach of the JNCC to Ireland. The European Community has in recent years also taken a number of steps towards the protection of habitat. The legislation of most concern in this area is that of the Habitats Directive27, Article 1(d) of which defines protected habitat types as ‘natural habitat types in danger of disappearance…. And for the conservation of which the Community has particular responsibility’. Article 3(1) further provides for the introduction and maintenance of a European ecological networks of special areas of conservation, a project known as ‘Natura 2000’ In clear recognition of the need not only to protect the interests of the environment, but to do so in such a way as to take account also of competing interests, the Directive contains a number of exceptions to permit the building of roads and and other infrastructural projects in areas which would otherwise be protected. Article 6(4) provides for two different levels of exception depending upon whether the site is a general or a priority site:- “If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member States shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected… Where the site concerned hosts a primary natural habitat type and/or priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest”. Whether these exceptions strictly allow for a balance between environmental and economic interests is unclear, and it has been suggested that two different interpretations could be applied to the Directive on this point.28 Arguably, though, the best interpretation would be that the legislation requires such a balancing effect that, if the economic or other advantages are to be minimal whilst the environmental impact will be substantial, then perhaps the economic interests should be seen as subsidiary. If however the economic or other interests are to be substantial whilst the environmental impact of a project is to be minimal, then it is submitted that the exception should apply. Finally, in the event that the benefits and the impact are equally minimal or substantial, then it is submitted that a value judgment would have to be exercised by the Commission. To this end, however, it should be recalled that the adverse interest must be ‘overriding,’ and it could be argued that this therefore provides a criteria for the Commission in making their decision. On the contrary though, it might be submitted that it is actually not a very useful criteria because if the impact and benefits are found to be equal, then there can be no ‘overriding’ characteristic attached to either interest. The existence of such exceptions has been subject to much criticism because of the apparent loophole that it would appear to create in the protection of the Directive. However, an explanation for the necessity of exceptions can be gleaned from the fact that Member States might be much more reluctant to designate areas of protection in the first instance if such designation was final and binding upon them forever and regardless of any changes in circumstances.29 Germany has been one of the countries to most notably place reliance on the exceptions over the past few years as a result of their attempts to increase the transportation links between different parts of their country after the relatively recent unification of the East and West. The routes intended to be taken by such links encroach upon many areas of the country which would come within the protection of the Habitats Directive because of their renowned history for the breeding and nesting of rare and endangered birds. In continuing with its plans, Germany would be breaching Article 6(3) of the Directive which requires that no projects must ‘adversely affect the integrity of the site concerned’. However, under the provisions of Article 6(4) based on a balance of interest, it has been held that Germany, like any other country, would be entitled to go ahead with their plans provided:- 1) they take adequate compensatory measures; 2) they show that there are no alternatives available; and 3) Opinion of the Commission is granted in favour of such action. Germany has striven to satisfy the Commission of the first two matters and was subsequently granted an Opinion in their favour, even though they would cause substantial harm to the habitat areas. The ‘imperative reasons of overriding public interest’ justified the consent.30 Such a finding was based on the high level of unemployment found in the areas concerned and the desperate need therefore for the economic growth which would result from new opportunities provided by the links with other parts of the country. The main criticisms, from the point of view of the environmental protectionist, concern not only the loophole apparently present in Article 6(4)31, but the fact that whether or not an area is designated as a protected area is actually at the discretion of the individual Member States. Various criticisms have also been aimed at the procedure followed by the Commission in granting Opinions in favour of economic considerations. It has been suggested32 that in fact the Commission does not make any substantial enquiries as to the allegations of the applicant that the plans contrary to the Habitat Directive will actually bring the benefits that the Member States alleges they will. According to Nollkaemper, in the German case ‘the Commission unquestionably accepted the decision of the German Parliament that the road was needed for the development of the eastern Lander’.33 Whilst admittedly it might be an extremely difficult task for the Commission to ascertain the expected benefits, it is submitted that they should at least make minimal enquiries to satisfy themselves that there is at least potential for economic growth as a result of the project. In any event, quite clearly the exceptions are subject to other stringent requirements including the need to show to the Commission, before a favourable Opinion will be granted, that there are no alternatives to the harmful project. It would appear that this is one requirement, that the Commission make further enquiries into alternative and less harmful projects, makes some attempt, at least, to tip the balance back towards environmental protection. Other than this, it might be submitted that the Directive makes a realistic approach at environmental protection by attempting to avoid harm whenever and wherever this is possible rather than strictly prohibiting it as a general rule. It certainly is argued to do more to consider other interest than does34 the Birds Directive, Article 2 of which provides that “Member states shall take the requisite measures to maintain the population of the species… at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements or to adapt the population of these species to that level” Nollkaemper argues that the section requires Member States to make environmental considerations their priority and treat economic considerations as less important, secondary factors to be taken into account only as far as is absolutely necessary.35 To this end, the legislation might be described as providing near to absolute protection for the species it was enacted to save; the Directive requiring Member States to ‘take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds in so far as these would be significant having regard to the objectives of the article’ is an example.36 This was illustrated in the case of Leybucht37 where the court held that “Significant pollution, deterioration and disturbances can be justified only on exceptional grounds that correspond to a general interest that is ‘superior’ to the general interest represented by the ecological objective of the directive’. It was deemed that economic interests or those regarding the cost of protection compared to its benefits were not factors to be considered in the equation of whether protection should be afforded or not. Moreover, in comparison to the Habitat Directive, it should be noted that Member States do not have much discretion over the areas which are to be protected under the Directive provided the area is being habituated by any one of the species listed in the Directive. At this point, the area must be designated in the absence of good reason, one of which does not clearly include financial considerations.38 Despite the apparent flexibility of the Habitats Directive, particularly as opposed to the Bird Directive as it originally stood, Nollkaemper argues that it is ‘by no means an instrument favourable to economic development’.39 It should be noted, however, that it does go further in attempting to strike a balancing of interests than does the Birds Directive. Habitat is an environmental matter which crosses international frontiers, especially in relation to the question of the protection of birds. There are a number of International Conventions which have the aim of protecting the habitat in one form or another, such as the Convention on Wetlands of International Importance [1971], the Convention on the Conservation of Migratory Species of Wild Animals [1976] and the Convention on International Trade in Endangered Species of Wild Fauna and Flora [1973]. However, perhaps the most comprehensive and far reaching regulation is now provided in the form of the Convention on Biological Diversity which has been signed by over 150 countries. Article 6 of the Convention sets out its aim to be:- 1) the development of national strategies, plans or programmes for the conservation and sustainable use of biodiversity, or adapt existing strategies; and 2) to integrate, as far as possible and appropriate, the conservation and sustainable use of biodiversity into relevant plans and programmes. The main criticism of the aims of the Convention might be obvious. Although it can be applauded for its stance on the protection of conservation, such protection might be argued to be flawed, considering the use of words such as ‘as far as possible and appropriate, which appear to suggest that the environment should take a secondary role to other interests which might be affected as a result of the protection. However, a more reasoned argument might be that the Convention is merely taking in account the fact that environmental protection can never be absolute because there will in some instances, be interests more worthy of protection. Provided though that the Convention is interpreted in a reasonable manner, so that all considerations are undertaken, this it is submitted that the legislation is doing all that it can to recognise the competing interests of parties involved in such areas. The DETR express the view that “Nature conservation policy does not need to be a brake on rural development”40 But it can be seen then that a balancing of interests in environmental protection is not an easy task, as illustrated by the fact that during the passing of the 1981 UK legislation, over 2000 amendments were proposed! However, the first European Union attempt to control environmental damage caused by pollution is known as the Emissions Trading Scheme (ETS)42 Whilst it is clear that protection is needed in all areas, including that of the Habitat, the cost of such protection should known as the Emissions Trading Scheme (ETS)42 This scheme requires that all refineries and heavy industry keep within a certain emission allowance. If they go over, they have to buy a portion of the allowance of another company. Whilst it is clear that protection is needed in all areas, including that of the Habitat, the cost of such protection should not be forgotten or underestimated and as such can cause substantial hardship in many instances. This is recognised by Osborn who states that “…in times of economic difficulties it is hard for any country, rich or poor, to pursue those environmental measures that may have significant short term costs…whatever their medium or long term benefits”.41 Although desirable, it is clear that absolute protection of the habitat is unrealistic. This is the view taken by many including Plater, Abrams and Goldfarb who state that “…strict prohibitions are not always rational when applied in the realities of a complex world. Inevitably there will be circumstances in which they may require modification. In every case there will be regulated and affected parties who argue strongly for eliminating the roadblock or opening it up with a variety of discretionary or bureaucratic flexibility devices…”42 As has been suggested then43, legislators must ‘walk a thin line between interpreting and applying the requirements [of legislation] strictly, and pursuing a legal policy that does not undermine the commitment’ of countries to Habitat44 protection. It would appear then that Nollkaemper might be right when he expresses the view that“…in the final analysis all nature protection laws are vulnerable when ecomonic stakes are high…”45 The previous discussions have shown then, that despite the first glance opinion at both UK and EC habitat protection which suggests that more importance is in fact proffered to the environment than it is to the economic interests of those bound by the laws, in practice the laws have been implemented in such a fashion as to, in the main, permit an acceptable level of a balancing of interests of all concerned, a result which is not easily reached and is therefore to be applauded. Bibliography DETR Annual Report 1999, The Government’s Expenditure Plans 1999-2000 to 2001-02 DETR, “Conference on Biodiversity and a Sustainable Countryside: 9 and 10 March 1998”, Briefing Note DETR, “Opportunities for Change”, Consultation paper on a revised UK strategy for sustainable development, 1998 DETR, “Rural England: A Discussion Document”, 1st October 1999 at para 1.5 Joint Nature Conservation Committee. (2006) [online] Available from” www.jncc.gov.uk Last, “Habitat Protection: Has the Wildlife and Countryside Act 1981 made a difference?”, [1999] 11 Journal of Environmental Law at 15 McEldowney J & S, “Environment and the Law”, 1996, Addison Wesley Longman Limited Nollkaemper, “Habitat Protection in European Community Law: Evolving Conceptions of a Balance of Interests”, [1997] 9 Journal of Environmental Law at 271 Osborn, “Some Reflections on UK Environment Policy, 1970 - 1995”, [1997] 9 Journal of Environmental Law 3 Sunkin, Ong & Wight, “Sourcebook on Environmental Law”, 1998, Cavendish Publishing Thornton & Beckwith, “Environmental Law”, 1997, Sweet & Maxwell Tran, Mark. (2006). Questions raised over EU carbon trading scheme. The Guardian [online] May 15, Available from: www.guardian.co.uk/waste/story 9..1775359,00.htm Wills, “The Birds Directive 15 Years Later: A Survey of the Case Law and a Comparison with the Habitats Directive” [1994] 6 JEL 219 Wolf & White, “Principles of Environmental Law, 2nd Edition, Cavendish Publishing Read More