No net loss of biodiversity or paper offsets? A critical review of the French no net loss policy

doi:10.1016/j.envsci.2013.11.009

Environmental Science & Policy

Volume 38, April 2014, Pages 120-131

https://doi.org/10.1016/j.envsci.2013.11.009 Get rights and content

Highlights

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Offsetting development impacts could help achieve no net loss of biodiversity.
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France recently geared its legislation on offsetting towards no net loss.
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New guidance promises improved offset design and implementation.
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Institutional arrangements for delivering offsets are either poor or lacking.
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Appropriate institutional arrangements are necessary to avoid paper offsets.

Abstract

French regulations concerning the mitigation of development impacts have been progressively strengthened with offsets now required for impacts on forests, wetlands, and protected species, among others. In 2012, following a national consultative process called Grenelle de l’Environnement, legal requirements in terms of monitoring and effective implementation of measures aimed at avoiding, reducing and offsetting impacts were strengthened. This has created strong “demand” for offsets.

The workability of these new requirements has come under scrutiny, not least because of their strong legal and financial implications for developers. In this context, official government guidance on implementing the mitigation hierarchy was published in 2012. Under this guidance, the aim of the mitigation hierarchy is to achieve no net loss (NNL) of biodiversity, and preferably a net gain for currently threatened biodiversity and ecosystems. We discuss what NNL means in this context, and highlight some of the technical and governance issues raised by the French approach to NNL.

Our analysis shows that the French guidance, in spite of its laudable ambition, does not address the institutional arrangements and science base needed to reach the policy's objective of NNL. The burden of designing and building adequate institutional arrangements is shifted down to local and regional permitting authorities, and even developers themselves. Consequently, and in spite of the increasing demand for offsets, the result is a highly variable and often ineffective project by project approach to offset supply, with minimal commitments. Unless the institutional and scientific challenges are tackled, the likely outcome will be an expansion of “paper offsets”.

Introduction

The headline objective of the EU's most recent Biodiversity Strategy (European Commission, 2011) is to halt the loss of biodiversity and the degradation of ecosystem services by 2020, and to restore them as far as feasible. In this context, the European Commission announced an initiative under Target 2 of the Biodiversity Strategy ‘to ensure there is no net loss of ecosystems and their services (e.g. through compensation or offsetting schemes)’ (EC, 2011). Determining what no net loss (henceforth NNL) actually means and how offsetting can contribute to it will be critical to designing appropriate policy instruments for reaching the strategy's goals.

Offsets are defined as the last step in a sequence of avoiding, reducing and offsetting or repairing impacts on the environment that is known as the mitigation hierarchy. This hierarchy is central in much of the environmental legislation of the European Union (Jiricka and Pröbstl, 2009, McGillivray, 2012). In France, the mitigation hierarchy was incorporated into environmental law in 1976 but offsets remained, for the most part, ignored or ill-applied until EU Directives were progressively transposed into French legislation from 2007 onwards. This has drawn the attention of both developers and public authorities to previously neglected “ecological compensation” requirements. Following various changes in the corresponding legislation, the French government published guidance on the mitigation hierarchy which explicitly outlines NNL as its goal (MEDDE, 2012a, MEDDE, 2013). Valuable lessons could be learned from this process.

Experience shows that effective implementation and enforcement of offsets is at least as important for achieving NNL as appropriate offset design, if not more so (Hough and Robertson, 2009, Morandeau and Vilaysack, 2012, Bull et al., 2013). Our assumption is that if no ambitious institutional arrangements are adopted in parallel with the new requirements for offsetting spelled out under the French NNL policy, this could lead to “paper offsets” – akin to “paper parks” where protected areas are not actually enforced on the ground, but with added twist of areas being protected as offsets that were not actually threatened.

To address this question, we describe France's most recent environmental policy developments around the NNL principle. Following a review of official policy documents, we critically discuss the coherence between these legal developments and the institutional and organizational needs for effective implementation and enforcement. Our analysis identifies some of the missing design elements for an effective NNL policy based on offsets, which is applicable to France as well as other jurisdictions.

Section snippets

The slow transposition of EU directives into French law (1992–2010)

As outlined above, the transposition of European directives has been a major driver in the recent reinforcement of the mitigation hierarchy in France. The EU directive 92/43/EC of May 21st 1992 (known as the ‘Habitats Directive’) was a major step for nature conservation in Europe (Ledoux et al., 2000). Through its articles 12 and 16, the Directive conditions the possibility of impacting protected species of plants and animals (those listed in Annex IV of the Directive) to a set of requirements:

Critical review of the French NNL policy

We use the French NNL policy as a running example to establish how it stands relative to some of the key challenges for achieving NNL through offsets.

Discussion

The current debate on NNL and offsets in France is focused on impacts caused by development (urban expansion, infrastructure, and industrial projects, including renewable energy, extractive industries, etc.), in the context of permitting procedures. Human activities that cause losses of biodiversity but for which permits are generally not required (e.g. farming and forestry practices or fisheries) are not currently required to achieve NNL. By design, the French NNL policy should therefore be

Acknowledgements

The ideas in this paper greatly benefited from fruitful discussions in the working group on setting guidelines for applying the mitigation hierarchy in France, chaired by the French Ministry of Environment, and discussions in the working group on no net loss, convened by the European Commission. Special thanks go to Marc Lansiart, Elen Lemaître – Curri, Delphine Morandeau and Michel Perret (French Ministry of Environment) as well as Michel Echaubard and Serge Muller (Conseil National de

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View full text

No net loss of biodiversity or paper offsets? A critical review of the French no net loss policy

Highlights

Abstract

Introduction

Section snippets

The slow transposition of EU directives into French law (1992–2010)

Critical review of the French NNL policy

Discussion

Acknowledgements

Landscape and Urban Planning

Landscape and Urban Planning

Environmental Impact Assessment Review

Trends in Ecology & Evolution

Land Use Policy

Ecological Economics

Landscape and Urban Planning

Environmental Impact Assessment Review

Land Use Policy

Marine Policy

Biological Conservation

Ecological Economics

Biological Conservation

Biological Conservation

Biological Conservation

Ecological Economics

Geoforum

Biological Conservation

Standard on Biodiversity Offsets

Enhancement of biodiversity and ecosystem services by ecological restoration: a meta-analysis

Science

Biodiversity offsets in theory and practice

Oryx

Conservation by Proxy: Indicator, Umbrella, Keystone, Flagship, and Other Surrogate Species

Les conditions du développement des banques d’actif naturels en France – Analyse du régime institutionnel de la première réserve d’actifs naturels française

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Trading connectivity improvement for area loss in patch-based biodiversity reserve networks

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Technical Paper: The Metric for the Biodiversity Offsetting Pilot in England

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Guidance Document on the Strict Protection of Animal Species of Community Interest Under the Habitats Directive 92/43/EEC

Guidance Document on Article 6 (4) of the “Habitats Directive” 92/43/EEC

Our Life Insurance, Our Natural Capital: An EU Biodiversity Strategy to 2020 3. 5. 2011. COM (2011) 244