Protected Areas and Wildlife in Changing Landscapes: The Law and Policy Context for NGO Responses to Climate Change in the UK

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Acknowledgments

Notes

Council of the European Union, Biodiversity Post-2010: EU and Global Vision and Targets and International ABS Regime, Secretariat Information Note 7536/10 (Brussels, 16 March 2010). At the 10th Conference of the Parties (COP 10) to the Convention on Biological Diversity (CBD) in Nagoya, Japan, in October 2010, Decision X/2, Strategic Plan for Biodiversity 2011–2020, used similar language to the EU target.

The EU Nature Directives comprise the Birds Directive and the Habitats Directive. The Birds Directive, adopted in 1979, was replaced in 2009 by the codified version, Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, 2010 OJ (L 20/7) 26. Adopted against a backdrop of declining European bird populations, it aims to take co-ordinated EU-wide action for all wild birds, both on land and at sea. Specific action is required for rare, threatened, and vulnerable birds (listed on Annex I) and migratory birds, the latter representing a common European heritage. Both habitat and species conservation measures are required to ensure that the ecological requirements of all wild birds are met. The Habitats Directive was adopted in 1992 (Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora 1992 OJ (L 206) 7. For the text of the Directive with later amendments, see http://ec.europa.cu/environment/nature/legislation/habitatsdirective/index_en.htm (visited 16 August 2011). The Habitats Directive requires similar habitat and species conservation measures to the Birds Directive in respect of natural habitats, wild flora, and non-avian fauna of European Community interest, listed on various annexes to the Directive.

Each Directive contributes its own protected area system to the EU-wide Natura 2000 network. Article 4 of the Birds Directive requires the classification of Special Protection Areas (SPAs) for species listed on Annex I and regularly occurring migrant birds. Article 3 of the Habitats Directive requires the designation of Special Areas of Conservation (SACs) for natural habitats and species of European importance.

The Nature Directives use habitat conservation and species conservation measures to attain the goal of FCS for the species and habitats protected by the Directives (defined in Article 1 and required by Article 2 of the Habitats Directive). FCS has been described by the European Commission as a situation in which a species or habitat is prospering, with good prospects of doing so in the future. See European Commission, Assessment, Monitoring and Reporting Under Article 17 of The Habitats Directive: Explanatory Notes and Guidelines. Final Draft (Brussels, October 2006). FCS is not in the text of the Birds Directive. However, the EC has argued the obligation is implicit in Article 2 of the Birds Directive. See European Commission, Guide to Sustainable Hunting Under the Birds Directive (Brussels, 2008). In this article, therefore, we use FCS as shorthand for the Article 2 requirements of both the Birds and Habitats Directives.

Even with limited implementation, the potential is clear. See, for example, Paul Donald et al., International Conservation Policy Delivers Benefits for Birds in Europe 317 Science 810–813 (2007). The authors found that the greater the proportion of a country in SPAs (classified under the Birds Directive), the stronger the response of bird populations, especially for the rare and vulnerable Annex I species.

In the last ten years, the UK government has instigated reviews of different aspects of the UK regulatory system with the aim of reducing the regulatory burden: HM Treasury, Reducing Administrative Burdens: Effective inspection and enforcement (London 2005) (at http://www.berr.gov.uk/files/file22988.pdf (visited 9 August 2011); HM Treasury, Davidson Review: Implementation of EU legislation (London 2006) (at http://www.bis.gov.uk/files/file44583.pdf (visited 9 August 2011); Cabinet Office, Regulatory Justice: Making Sanctions Effective. Final report, (London 2006) (at http://www.berr.gov.uk/files/file44593.pdf (visited 9 August 2011).

Landscape-scale conservation as we use the term is not a “new way” of doing conservation. Rather, the innovation is in seeking to maximise the added value that comes from the delivery in a more integrated and spatially explicit way, and across larger contiguous areas, of separate programs of site-based and wider countryside management, thus exploiting the synergies between different individual initiatives. It recognises that it is impractical and impossible for anyone organisation to manage all the land within a landscape and that success requires multiple land managers to work collaboratively.

Habitat conservation measures lie at the heart of both the Birds and Habitats Directives. Both see protected areas as one part of an integrated approach to habitat conservation to secure FCS. For a fuller treatment, see Andrew Dodd et al., Protected Areas and Climate Change: Reflections from a Practitioner's Perspective 6 Utrecht L. Rev. 141–150 (2010). The Birds Directive (Article 3) is most explicit in this respect, setting out a range of conservation measures required to conserve the habitats of all wild birds to meet their ecological requirements, including protected areas, habitat management inside and outside protected areas, re-establishing destroyed biotopes, and creation of new biotopes. All such measures are treated equally, suggesting the need for Member States to assess the optimum mix for any one species or group of species (something there is little evidence of in the UK).

UK National Ecosystem Assessment, The UK National Ecosystem Assessment: Synthesis of the Key Findings (UNEP-WCMC, Cambridge 2011). The NEA represents the first ever attempt to assess the stock of natural wealth in the UK and how this has changed over time. It audits change in terms of both broad habitat types and in terms of the ecosystem services delivered.

Department for Environment, Food and Rural Affairs, Natural Choice: The Value of Nature, 2010, Cm. 8082 (hereinafter Natural Choice). The white paper's stated aim is to place the value of nature at the center of key choices government makes to enhance the environment, economic growth, and personal well-being.

John Sheail, Nature in Trust: The History of Nature Conservation in Britain (1976) at 22 (hereinafter Nature in Trust).

Id. at 12

Oliver Rackham, The History of the Countryside (1986); Francis Pryor, The Making of the British Landscape (2010).

The national network of protected areas is known as Sites of Special Scientific Interest (SSSIs) in Great Britain (England, Scotland, and Wales) or Areas of Special Scientific Interest (ASSIs) in Northern Ireland. They are selected and notified under national legislation by statutory nature conservation agencies in each UK country, who must designate such land where they are of the opinion that it is “ … of special interest by reason of any of its flora, fauna, or geological or physiographical features … ”. Some 10% (2.5 million hectares or 6.15 million acres) of the UK is currently designated as SSSI or ASSI, with the majority of that (96%) in Great Britain: much of this is in private ownership. They range from under a tenth of a hectare (quarter of an acre) to over 180,000 hectares (444,000 acres).

The SPA and SAC networks overlap to a large extent, reflecting the multiple wildlife values exhibited by those semi-natural habitats considered to be of highest conservation importance.

See note 20, supra.

Nature in Trust, supra note 17, at xiii.

John Sheail, An Environmental History of Twentieth Century Britain (2002), at 123.

As of May 2011, landholdings of the RSPB and The Wildlife Trusts (successors to the SPNR) total nearly 142,000 ha (350,470 acres) and over 90,000 hectares (222,000 acres), respectively. The National Trust's holdings are even greater at 255,000 hectares (630,000 acres).

The Town and Country Planning Act 1947 brought almost all development under control by making it subject to planning permission. See Barry Cullingworth & Vincent Nadin, Town and Country Planning in the UK (13th ed. 2002), at 21.

The National Parks and Access to the Countryside Act 1949 established the modern system of protected areas in the UK. The government nature conservation agency created by the law, the Nature Conservancy, was required to notify local planning authorities of SSSIs so that they could, in theory, take them into account when giving consent to built development.

Nature in Trust, supra note 17, at 22.

See Philip Lowe et al., Countryside Conflicts: The Politics of Farming, Forestry and Conservation (1986).

Gwyn Williams and Mike Hall, The Loss of Coastal Grazing Marshes in South and East England, with Special Reference to East Essex, England, 39 Biological Conservation 243–253 (1987).

Transposed in Great Britain through the Wildlife and Countryside Act 1981 and, in Northern Ireland, by the Nature Conservation and Amenity Lands Order 1985 (protected areas) and Wildlife Order 1985 (protected species).

This two-pronged approach has shaped the architecture of all subsequent UK wildlife legislation.

See Stuart Housden, Wildlife in Westminster, 9(1) Birds 50–52 (1982).

See Andrew Dodd, EU Nature Directives: Rights, Responsibilities and Results, 20 Envt’l L. & Mgmt. (2008), at 242–243.

See Article 3(2)(b) to 3(2)(d), Birds Directive, supra note 8.

The SSSI provisions in the Wildlife and Countryside Act 1981 were rewritten and extended. For England and Wales, see Schedule 9 of the Countryside and Rights of Way Act 2000. For Scotland, see the Nature Conservation (Scotland) Act 2004, Part 2.

Article 6(2) of the Habitats Directive applies to both SACs and SPAs and requires Member States to take appropriate steps to avoid problems occurring for the protected features of Natura 2000 sites.

The England target was for 95% by area of SSSIs to be in favorable condition or unfavorable but recovering condition by the end of 2010. Devolved administrations in Northern Ireland, Scotland, and Wales adopted similar targets.

That is, the “management scheme” and “management notice” provisions set out in sections 28J and 28K, respectively, of the Wildlife and Countryside Act 1981, as amended by the Countryside and Rights of Way Act 2000.

See Red Data Birds in Britain (Leo Batten et al. eds. 1990); Colin Bibby et al., Towards a Bird Conservation Strategy, 3 RSPB Conservation Review (1989) at 4–8; Richard Porter et al., Species Action Plans for Birds, 4 RSPB Conservation Review (1990) at 10–14; Stuart Housden et al., Towards a Habitat Conservation Strategy for Bird Habitats in Britain, 5 RSPB Conservation Review (1991) at 9–16. These sources suggest that just ten years after transposition of the Birds Directive, there is evidence that it was effective in protecting habitat at a time of ongoing losses, but they do not address the Directive's wider habitat conservation objectives.

Department of the Environment et al., Biodiversity: The UK Action Plan, 1994, Cm. 2428 (1994). The iconic status of this document is related at http://jncc.defra.gov.uk/default.aspx?page=5155 (visited 16 August 2011).

Initially, UK-BAP had no legal underpinning and only recently have relatively weak legal duties been placed on public bodies to “have regard” to the CBD's provisions. For example, see sections 40 and 41, of the Natural Environment and Rural Communities Act 2006.

See, for example, Wildlife and Countryside Link, Halting Biodiversity Loss by 2010. Final Progress Assessment (London, February 2011). At http://www.wcl.org.uk/docs/2011/Link_Jan2011_Biodiversity_2010_Progress_Assessment_25Feb11.pdf (visited 16 August 2011).

Biodiversity: The UK Action Plan, supra note 41, contained the so-called fifty-nine steps required to restore biodiversity. However, these were never translated into implementation, in contrast to at least some of the plans for priority species and habitats.

Alan Woods et al., The Reform of the Common Agricultural Policy: Opportunities for Wildlife and the Environment (1988); Martin Mathers & Alan Woods, Making the Most of Environmentally Sensitive Areas, 3 RSPB Conservation Review (1989) at 51.

See Jeremy Wilson et al., Bird Conservation and Agriculture (2009).

See John Lawton et al., Making Space for Nature: A Review of England's Wildlife Sites and Ecological Network. Report to the Department of the Environment, Food and Rural Affairs (September 2010). At http://archive.defra.gov.uk/environment/biodiversity/documents/201009space-for-nature.pdf (visited 16 August 2011).

See Malcolm Ausden & Graham Hirons, Grassland Nature Reserves for Breeding Wading Birds in England and the Implication for the ESA Agri-Environment Scheme, 106 Biological Conservation 279–291 (2002)

See, for example, Paul Opdam & Dirk Wascher, Climate Change Meets Habitat Fragmentation: Linking Landscape and Biogeographical Scale Level in Research and Conservation. 117 Biological Conservation 285–297 (2004). Others argue protected areas will provide important sites for colonizing species. See e.g., Rhys Green & James Pearce-Higgins, Species Management in the Face of a Changing Climate, in Species Management: Challenges and Solutions for the 21st Century 517–536 (John Baxter & Colin Galbraith eds., 2010).

Biodiversity: The UK Action Plan, supra note 41, at 93 devotes just a single paragraph to climate change in the section on energy.

For example, in 1994, the RSPB commissioned the Environmental Change Unit at Oxford University to review the implications of a number of climate scenarios for agricultural and land use in Europe, focusing on the implications for habitats of conservation interest in Britain (see B. Briggs & Jo Hossell, The Implications of Climate Change for Biodiversity, 9 RSPB Conservation Review (1995) at 41–47). It recommended the RSPB review its habitat action plans, incorporate climate change to enable adaptive responses well in advance of implementation, and identify “win–win” strategies. Suggested responses for key habitats included both in situ management and expansion through habitat creation at new locations to support the species dependent on them. Critically, it formally recognized the need for adaptation, as well as mitigation, measures.

See BirdLife International and WWF, Summary of Working Papers of a BirdLife International/WWF Workshop on the Impacts of Climate Change on Flora and Fauna (Boulder, CO, 19–22 September 1997). Copy on file with the authors.

For examples, see Chris Thomas et al., Extinction Risk from Climate Change, 427 Nature 145–148 (2004); Modelling Natural Resource Responses to Climate Change (MONARCH): A Synthesis for Biodiversity Conservation (Clive Walmsley et al., eds. 2007); Brian Huntley et al., A Climatic Atlas of European Breeding Birds (2007); Richard Gregory et al., An Indicator of the Impact of Climate Change on European Bird Populations, 4 PLoS ONE e4678. doi:10.1371/journal.pone.0004678 (2009); Rhys Green et al., Performance of Climate Envelope Models in Retrodicting Recent Changes in Bird Population Size from Observed Climate Change, 4 Biology Letters 599–602 (2008).

Huntley et al., supra note 53.

See Rachael Hickling et al., The Distributions of a Wide Range of Taxonomic Groups Are Expanding Polewards, 12 Global Change Biology 450–455 (2006); Frederic Jiguet et al., Climate Envelope, Life History Traits and the Resilience of Birds Facing Global Change, 13 Global Change Biology 1672–1684 (2007).

Intergovernmental Panel on Climate Change, Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II (Martin Parry et al. eds. 2007).

See Royal Society for the Protection of Birds et al., No Place to Go? The Impact of Climate Change on Wildlife (RSPB, Sandy, UK 1999); Department of the Environment, Transport and Regions, Climate Change and UK Nature Conservation: A Review of the Impact of Climate Change on UK Species and Habitat Conservation Policy (J. Hossell, B. Briggs & I.R. Hepburn eds. 2000). At http://www.coastman.net.co/publicaciones/cc/(0071).pdf (visited 16 August 2011).

RSPB, No Place to Go? supra note 57; Europarc Federation and RSPB, Role of Protected Areas in a Changing Climate. Proceedings of a Conference and Workshop on the Implications of Climate Change for Wildlife and Habitats, London, 11–12 December 2000 (RSPB, 2001).

See Donald et al., supra note 11.

See, for example, Department of the Environment, Transport and Regions (2000) supra note 57 and also The Woodland Trust, A Midsummer Night's Nightmare? The Future of UK Woodland in the Face of Climate Change (The Woodland Trust, Grantham, Lincolnshire, 2001). At http://www.woodlandtrust.org.uk/SiteCollectionDocuments/pdf/climatechangereport.pdf (visited 16 August 2011); Richard Smithers & Mike Townsend, Where Now in Climate and Nature Conservation? 31(1) Ecos 50–54 (2010). The latter paper sets out the personal views of the authors, one a past and one a present employee of the Woodland Trust. This issue was seen as of such significance that it was a key agenda item at the meeting of the EU Nature Directors during the UK presidency of the EU in autumn 2005 (the EU Nature Directors comprise senior civil servants from the Government departments of each Member State responsible for nature conservation policy. Member States hold the EU presidency for 6 months on a rotating basis), and resulted in the RSPB making a formal submission on the topic, based around legal advice, setting out the legal, policy, and scientific case that a flexible and dynamic approach to climate change adaptation was both possible and necessary under the Nature Directives, the basis of which was summarized in Rosie Sutherland et al., Climate Change and the Birds and Habitats Directives: Can They Work Together? 26(3/4) Ecos 86–94 (2005).

In January 2010, the Dutch newspaper Volkskrant published correspondence between the then-Prime Minister of the Netherlands (letter dated 13 July 2009) and the President of the European Commission (letter dated 26 October 2009). The Netherlands had requested a review of the Nature Directives to strike a better balance between biodiversity conservation and economic interests, arguing, among other things, that the Natura 2000 network was too static in the face of climate change and should be more dynamic. The EC President provided a comprehensive response. On the particular point of dynamic approaches versus static conservation objectives, he argued that the Habitats Directive offered ample scope for, and required, dynamic approaches to enable the achievement of conservation objectives adapted to natural developments and climate change where necessary. This dovetails well with the arguments published a few weeks later in Dodd et al., supra note 14.

The NGO response has sought to achieve objectives that are in a constant state of dynamic tension with each other. First, to protect the existing legal framework from unnecessary weakening to avoid going back to pre-Nature Directives days; second, to promote better implementation of the Nature Directives to achieve improved ecological outcomes; and third, to promote a more constructive view of their role in facilitating more sustainable development.

See, e.g., Dodd et al., supra note 14.

See John Hopkins et al., Conserving Biodiversity in a Changing Climate: Guidance on Building Capacity to Adapt (2007); Department of Environment, Food and Rural Affairs, England Biodiversity Strategy. Climate Change Adaptation Principles (London, 2008). At http://archive.defra.gov.uk/environment/biodiversity/documents/ebs-ccap.pdf; Lawton et al., supra note 47 (visited 16 August 2011); Brian Huntley, Climatic Change and the Conservation of European Biodiversity: Towards the Development of Adaptation Strategies. Discussion Paper T-PVS/Inf (2007) 3 (Council of Europe, Strasbourg, 2007). At https://wcd.coe.int/wcd/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1574437&SecMode=1&DocId=1438656&Usage=2 (visited 16 August 2011).

Resilience is the ability of a system to absorb disturbances, in this case from climate change, while retaining the same basic structure and function. Accommodation is the ability of a new species to colonise a site, or populations to increase at a site, in response to climate change. The two complementary strategic approaches define the biological outcomes required and hence the actions and policy necessary.

Each of these can overlap spatially and ecologically, and most can simultaneously enhance resilience of sites and populations while enhancing the ability to accommodate movement. It is important to remember that they will operate at different spatial scales, dependent on the requirements of the individual species or habitat.

Lawton et al., supra note 47.

For example, the RSPB has bought and run a commercial farm to test and implement wildlife friendly management options offered through agri-environment schemes. In the first 10 years of operation, farmland bird numbers increased by 201%, while maintaining high agricultural yields.

The Wildlife Trusts launched their Living Landscapes program in 1996 with a call to restore the UK's ecosystems to respond to biodiversity loss and the impacts of climate change. It now covers over 100 sites across the UK with a restore-reconnect-recreate theme. First launched in 2001, the RSPB's Futurescapes program was refreshed in 2010, as the UK failed to meet the 2010 target to reduce biodiversity loss and knowledge of climate change impacts increased. Originally positioned to give impetus to delivery of the habitat creation targets in the UK BAP (Biodiversity: The UK Action Plan, supra note 41), the 2010 program goes further than its predecessor by describing an integrated approach to LSC with clear plans to improve the ecological performance of over 80 landscapes across the UK. Both programs are predicated on developing partnerships with an increasing range of other organizations that can influence land management.

The UK government and the EU are showing increased interest in “payment for ecosystem services” schemes, although there is little actual experience to analyze. The UK has produced an introductory summary report on the subject [Department for Environment, Food and Rural Affairs, Payments for Ecosystem Services. A short introduction (London 2010) (at: http://archive.defra.gov.uk/environment/policy/natural-environ/documents/payments-ecosystem.pdf (visited 9 August 2011)]. This is to be followed by a full report in 2011 which will discuss, in more detail, barriers and opportunities in the UK. Current examples of publicly funded schemes in the UK and EU focus on river restoration, flood alleviation, and providing water quality benefits. Examples described on the Internet include: (i) Wetted Land: the Assessment, Techniques and Economics of Restoration (WATER), at http://www.projectwater.eu/index.html (visited 9 August 2011), and (ii) Adaptive Land use for Flood Alleviation (ALFA), UK – Eden Rivers Trust, at http://www.alfa-project.eu/en/about/ (visited 9 August 2011). An example of a privately funded scheme is the Westcountry Rivers Trust's Upstream Thinking Project at http://www.wrt.org.uk/projects/upstreamthinking/upstreamthinking.html (visited 9 August 2011).

Lawton et al., supra note 47.

Wildlife and Countryside Link, Wildlife and Countryside Link Position on Ecological Restoration Zones (February 2011) at http://www.wcl.org.uk/docs/2011/Link_position_Ecological_Resoration_Zones_22Feb11.pdf (visited 16 August 2011).

Natural Choice, supra note 16.

Dodd et al., supra note 74.

This is inherent in the definition of FCS contained within the EU Habitats Directive but has yet to be adopted in the systems designed to manage the UK's protected areas, which focus on the individual protected area and its condition at the time of selection, as opposed to the need to restore the site or to increase its resilience under climate change. See Joint Nature Conservation Committee, Common Standards Monitoring. Introduction to the Guidance Manual (London 2004), at http://jncc.defra.gov.uk/pdf/CSM_introduction.pdf (visited 9 August 2011), and, in particular, section 5 of the manual on the relationship between common standards monitoring and the Habitats/Birds Directives, and section 11 on setting targets. The need to modernize the purpose of the national system of protected areas to build in climate change adaptation was recognized by the UK Parliament. See House of Commons, Committee on Innovation, Universities, Science and Skills, Sites of Special Scientific Interest (Tenth Report, Session 2008–2009), at para. 25, at http://www.parliament.the-stationery-office.co.uk/pa/cm200809/cmselect/cmdius/717/71702.htm#evidence (visited 16 August 2011).

See Royal Society for the Protection of Birds, RSPB Reserves 2010: A Review of Our Work (RSPB, Sandy, UK) at 84–89. At http://www.rspb.org.uk/Images/Reserves_tcm9-258564.pdf (visited 16 August 2011).

Royal Commission on Environmental Pollution, Adapting Institutions to Climate Change: Twenty-Eighth Report, 2010, Cm. 7843, para. 5.42 at 102.

See Dodd et al., supra note 14.

Natural Choice, supra note 16.

See Andrew Balmford et al., Economic Reasons for Conserving Wild Nature, 297 Science 950–953 (2002); The Economics of Ecosystems and Biodiversity (TEEB), The Economics of Ecosystems and Biodiversity in National and International Policy Making (2011); UK National Ecosystem Assessment, supra note 15.

See National Audit Office, Natural England's Role in Improving Sites of Special Scientific Interest, Report by the Comptroller and Auditor General, 2007–8, HC 1051.

IP Holman, An Estimate of Peat Reserves and Loss in the East Anglian Fens. A Report to the RSPB (Department of Natural Resources, Cranfield University, Cranfield, Bedfordshire, October 2009), At http://www.rspb.org.uk/Images/Fenlandpeatassessment_tcm9-236041.pdf (visited 9 August 2011).

UK National Ecosystem Assessment, supra note 15, specifically chapter 2 of the Technical Report on Conceptual Framework and Methodology (section 2.4.1 at p. 5); Claire Kremen, Managing Ecosystem Services: What Do We Need to Know about Their Ecology? 8 Ecology Letters 468–479 (2005).

Payments for agri-environment measures formed part, but not all, of this €8.7 billion total.

UK National Ecosystem Assessment, supra note 15, at 5.

Head of Site Conservation Policy, The Royal Society for the Protection of Birds (RSPB), Sandy, UK.

Head of Reserves and Protected Areas, RSPB, Sandy, UK.

Head of Environmental Research, RSPB, Sandy, UK.

Senior Policy Officer (Future Land Use), RSPB, Sandy, UK.

Futurescapes Manager, RSPB, Sandy, UK.

Senior Policy Officer (Climate Change), RSPB, Sandy, UK.