Wildlife Conservation and Protected Areas: Politics, Procedure and the Performance of Failure Under the EU Birds and Habitats Directive

Abstract

Attentive students of international wildlife law and policy will have noted that the Birds and Habitats Directives of the European Union (EU) have lost a great deal of their former luster. Not too very long ago, when Simon Lyster was compiling the first compendium of international wildlife law, the Birds Directive was the poster child of potentially effective international wildlife law and policy. Both it and the Habitats Directive, which came later but with which it is now usually bracketed, appeared to be toughly worded, mandatory rather than hortatory in the obligations they imposed on EU Member States, and equipped with explicit reporting and deadline requirements – the very models, in key respects, of effective international wildlife law.

What happened? This paper reviews the argument that the Directives have fallen prey to the performance of failure. It then asks what might explain the reluctance of the British courts to quash major development projects on the basis of non-compliance with the Directives. It concludes that domestic courts, at least in Britain, are sometimes willing to give the law a sympathetic reading, but not at the expense of appearing to decide political questions or raising constitutional issues about the separation of powers. The watchword is deference. And the result is a climate in which settled expectations about development, both for implementing agencies and business, remain largely undisturbed.

Keywords: Birds and Habitats Directives, EU environmental law, British courts