Ecological compensations as an emerging protection tool

Minna Pappila,
Dr., Senior Researcher,
University of Turku,
Finland

Charlotta Zetterberg,
Professor of Environmental Law,
University of Uppsala,
Sweden

We humans like thriving societies and economies. So far this has meant pollution, conversion of land cover for human needs and intensive use of natural resources, all of which is intensifying climate change and biodiversity loss. Meanwhile, it is evident that humans are dependent on healthy ecosystems and services they provide us.

We have learnt to curb pollution, but biodiversity loss is said to be the most serious problem facing humanity. Traditional nature conservation areas protect some parts of nature, but in spite of them and other conservation activities, biodiversity is declining. Ecological compensations are said to be part of the solution.

EU biodiversity strategies have emphasized no net loss (NNL) of biodiversity as an EU level aim and many national biodiversity strategies have the same aim. Achieving NNL requires that all biodiversity losses that cannot be prevented – prevention must always be the first step – are compensated i.e. offset. Ecological compensation can mean e.g. restoration of degraded habitats, creation of new wetlands or managed relocation of species. There are many ways to implement compensations in practice: developers can complete offsetting themselves, or buy offsetting services from private companies (‘habitat banks’). Sometimes the developer pays the state for offset activities.

Biodiversity offsetting was introduced already in the 1970s in the US and Germany. Now about forty countries have mandatory compensation policies concerning at least some species or habitats. Legal requirements for ecological compensations are different in Finland and Sweden.

Sweden

The Environmental Code and the underlying regulations have general requirements for precautions, requirements for environmental impact assessments of the extent to which it is possible to remedy likely environmental effects and offer an opportunity to impose compensatory measures in the event of infringement of public interests. The latter rule applies when assessing permits and dispensations (e.g. biotope protection). Compensation may mean replacing environmental values in an area with similar values in a corresponding area or of other conservation benefits being created elsewhere.

The Environmental Code contains rules on the protection of endangered species and habitats, on Natura 2000 sites, and on area protection (nature reserves), etc. In connection with species protection issues, dispensation is often subject to various compensatory measures. In addition, ecological compensation is required in the event of intrusion or damage in nature reserves and Natura 2000 sites.

There is nothing specific about biodiversity being protected in the Planning and Building Act and the question of how to compensate for biodiversity losses in relation to exploitation is predominantly unregulated. Nevertheless, and in terms of detailed development planning or other exploitation, a municipality can regulate how exploitation is to be carried out in order to ensure that no net loss of natural and recreational values (as well as other ecosystem services) occurs. This can be done in development agreements or other agreements.

Finland

In Finland there is also a legal obligation to offset biodiversity losses, but only in the case of deterioration of Natura 2000 conservation sites and there have not been any such cases yet. Nevertheless, in some infrastructure projects (e.g. building tramlines and roads), ecological compensations have been voluntarily used to protect endangered species.

The recent environmental impact assessment (EIA) of the faster train connection between Helsinki and Turku provides an example of voluntary compensations. In the EIA report offsetting suggested related to certain critically endangered species, whose habitat is going to be destroyed; new habitats for these species would be created. A new habitat for a frog species will also be created. Two nature conservation areas and habitats of other protected species will also be partially ravaged by the railroad. As for these areas, there are no plans to compensate.

Future challenges

In either of the countries, legislation does not provide general, direct and clear protection of biodiversity when planning for construction and other land use or in the establishment of activities in individual cases.

Finnish Nature Conservation Act is currently being reformed and ecological compensations are most likely going to be part of the new act, probably related to a limited number of endangered species or habitats. Based on research, it is clear that this is not enough. Achieving no net loss of biodiversity requires a wider approach and biodiversity should be considered on a larger scale in e.g. land use planning and infrastructure and other projects. Otherwise ‘the death by a thousand cuts’ continue. As the awareness of biodiversity decline is growing, also the willingness to act – and even to compensate – is slowly increasing.

Email
minpap@utu.fi
Charlotta.Zetterberg@jur.uu.se

Expert article 2899

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