In many walks of life there is much talk about “disruptive” developments which bring change that shatters the established way of doing things. In relation to the conservation of biodiversity, we can see two very different developments which might have such an effect on the conventional legal approaches. One is the inescapable external effect of climate change; the other is the new mind-set created by re-imagining the natural world in terms of ecosystem services.
Although major improvements have been made in recent decades, the world is falling well short of ending–far less reversing–the catastrophic degradation of biodiversity over past centuries. The dominant legal approach is to rely on “command and control” mechanisms to prevent harmful activities. These focus on identifying particular native species and introducing laws making it a crime to kill, capture, or harm them. Areas of land of particular value are also designated, and controls imposed on activities that might have an adverse effect on them. Such mechanisms are producing positive (although not sufficient) results, but their continuing dominance is challenged by the disruptive developments noted above.
In the first place, the increasingly dynamic environment arising from our rapidly changing climate undermines attempts to protect sites and species in the traditional way. A site which today is an ideal home for rich and varied wildlife in future may be under water, as sea levels rise, or may be subject to completely different rainfall patterns or temperatures which no longer suit the present species mix. Species will have to move to find the conditions that suit them and the whole concept of “native” species is undermined as we see major shifts in populations. Long-term conservation requires measures which respond to such changes, preparing tomorrow’s homes for nature; a static, site-based approach will not succeed.
Secondly, there are new ways of thinking about nature and biodiversity. The Ecosystems Approach emphasises the inter-dependence of biodiversity and the need to protect whole ecosystems, not just a few sites and species. More radical is the recognition of Ecosystem Services, identifying the many ways in which the natural environment provides benefits to individuals and society at large in ways which are not captured by existing legal and commercial structures. Examples include storage and purification of water resources, pollination of crops, and aesthetic and spiritual benefits. Thinking about the value that these services provide and the relationships between providers and beneficiaries opens up new ways of regulating our impact on the environment. Structures should provide incentives for the provision of the services, supported by contributions from (or on behalf of) those who benefit from them.
Legal responses can include Payment for Ecosystem Services schemes, Biodiversity Offsetting and tax measures, all of which build on a recognition of the value of ecosystem services. The conservation of biodiversity thus becomes a task for the cumulative impact of many different arrangements between private parties, rather than the exclusive domain of centrally organised programmes run by public conservation bodies. In doing so, new forms of property rights may have to be recognised to provide the long-term relationships and security required to match the long natural cycles of features we wish to protect, such as woodland. There are significant challenges in terms of effectiveness, valuation and equivalence, accountability and ethical acceptability – do such measures amount to “selling nature” in a way that denies its true worth? But these are challenges that should be explored.
The conventional approach is becoming practically and conceptually outdated. Established species and habitat protection measures will continue to have an important role to play, but we need to think afresh about how different approaches can supplement and support them. There may be advantages in a more diverse “legal ecosystem,” with the conservation of biodiversity becoming a shared enterprise using the initiative and resources of a wider range of parties.
Headline image credit: Kinnoull Hill by Colin T. Reid, used with permission.