Compensating Biodiversity Loss: From a Soft Glance to a Hard Look?

Abstract

This Article assesses that part of the legal obligation to provide for compensatory habitat under Article 6(4) of the EU Habitats Directive which requires an opinion from the European Commission. This is located within a wider ‘impact neutrality’ context where such offsetting measures are increasingly being advanced. Although the bare duty is reasonably clear, there is much uncertainty, and some unease, about its scope and application. The literature on compensatory habitat, some of which relates to site-specific measures and some to habitat ‘banking’, is considered in order to map how compensatory measures may be prone to failure. This is done against the criteria of functionality, proponent bias, monitoring and enforceability, and economic influence. These are then used to evaluate the Commission’s opinions under the Directive. While the compensation obligation is to be applauded, the Commission’s opinions fare poorly against all these criteria, a common, and important, thread being a lack of transparency. This calls into question the wider compensatory aspects of the legislation.

Keywords: Habitats, ‘no net loss’, compensation, EU law, Habitats Directive 92/43, Article 6(4), Commission opinions