Conserving Europe's Wildlife

Law and Policy of the Natura 2000 Network of Protected Areas

Andrew L.R. Jackson

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781315471198
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

The Natura 2000 network of protected areas is the centrepiece of European Union nature policy, currently covering almost one-fifth of the EU's entire land territory plus large marine areas. This vast EU-wide network, which aims to conserve Europe's most valuable and threatened species and habitats, has major impacts on land use throughout all Member States of the EU. This book critically assesses the origins and implementation of the Natura 2000 network, established under the Birds Directive of 1979 and the Habitats Directive of 1992.

Based on original archival research and interviews with key participants, the book records a detailed history of the origins and negotiation of Natura 2000 policy and law, with the history of EU environmental policy provided as a framework. An historical institutionalist approach is adopted, which emphasises the importance of understanding legal and policy development as processes that unfold over time. Three phases in the history of EU environmental policy are identified and described, and the history of EU nature policy is placed within the context of these three phases. Informed by this history, the author presents a comprehensive summary and assessment of the law and policy that protects Natura 2000 sites at EU level, and reviews the nature conservation outcomes for the targeted species and habitats. The book reveals how a knowledge of the history of Natura 2000 enriches our understanding of key issues such as conflicts in establishing and conserving the Natura 2000 network, EU integration in the field of nature conservation, and the future of EU nature policy.

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1

INTRODUCTION

[The creation of an EU network of protected nature conservation areas] would constitute an awesome challenge to the sensitivities of member nations. It is one thing for Brussels to dictate the content of sausages, but quite another for it to control the uses to which the motherland is put.

(Shoard, 1990)

EU environmental policy has in the past been described as a flanking policy to other apparently more central concerns such as the single market (e.g., European Commission, 1987, pp. 54–55). However, environmental policy has long since stepped out of the shadow of the single market, and has shown itself of high political salience. The establishment and conservation of the EU’s vast network of protected areas for wildlife – known as Natura 2000 – is a good example of this. Regulating land use at EU level has indeed proven controversial, as Shoard (1990) predicted.

For example, when asked for his views regarding the EU immediately before and after assuming the US presidency in 2017, Donald Trump focused on his failure to obtain permission to build a 2.8km-long, 4m-high, 20m-wide wall on a Natura 2000 beach in Ireland, a project aimed at safeguarding a Trump golf course from coastal erosion. As the Washington Post commented,

To Trump, the bloc’s environmental protection regulations were a threat to his exquisitely manicured fairways and putting greens. ‘I found it to be a very unpleasant experience,’ he told British and German interviewers [in January 2017] after bringing up the wall dispute, unbidden, when asked his opinion of the EU. ‘A very bad experience,’ he emphasized weeks later as he raised the issue at his first White House news conference.

(Witte, 2017)

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Trump returned to the theme again in May 2017 during his first visit to Europe as US president, reportedly telling the Belgian prime minister that his golf course experience in Ireland “did not give him a very good image of the European Union” (Demonty et al., 2017). “The bureaucratic battle over a golf-course sea wall makes for an unlikely inflection point in geopolitical history”, notes the Washington Post (Witte, 2017). And yet, EU nature conservation policy has been a sensitive and much-debated topic since its earliest origins, touching as it does on fundamental issues such as land rights and land use control.

To a developer such as Trump, the legislation and institutions that operate to conserve the Natura 2000 network may be something of a culture shock (see Demonty et al., 2017). As this book details, the EU’s nature conservation laws set demanding requirements for Member States, which in turn have been strictly interpreted by the Court of Justice of the EU (CJEU) (see Chapter 10). There can be little doubt that these laws are amongst the most powerful and far-reaching the EU has ever passed in the environmental sphere. This raises interesting questions about the origins and history of these laws, their development, and the interplay between the key actors involved.

This book critically assesses the origins, development and implementation of the EU’s Natura 2000 network of protected areas, established under the Birds Directive (1979) and the Habitats Directive (1992). Natura 2000 is the flagship of EU nature policy, currently covering almost one fifth of the EU’s entire land territory plus large marine areas. This huge EU-wide network of protected areas, which aims to conserve Europe’s most valuable and threatened species and habitats, has major impacts on land use across the EU, as Donald Trump and many others have discovered.

Based on original archival research and interviews with key participants,¹ the book records a detailed history of the origins and negotiation of Natura 2000 policy and law. As such, the book adopts an historical institutionalist approach – which emphasises the importance of understanding legal and policy development as processes which unfold over time (Pierson, 1996) – in seeking to understand current EU nature conservation policy in the light of its history and the institutional interplay that brought it into being. Three phases in the history of EU environmental policy and law are identified. EU nature conservation policy and law are then placed in the context of these three phases. Under the umbrella of the first phase (1958 to 1987), the origins and negotiation of the Birds Directive and the road to the Habitats Directive are assessed. The second phase (1987 to 1992) covers the negotiation and adoption of the Habitats Directive. The third phase (1992 to present day) covers the implementation of the Natura 2000 network.

The book provides a detailed history and assessment of Natura 2000 policy and law in the EU, against the backdrop of the general history of EU environmental policy. The book then applies an historical institutionalist analysis to address the following four central issues. What insights can this detailed history and the attendant historical institutionalist approach contribute to understanding:

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1. Conflicts in establishing the Natura 2000 network?

2. The resolution of acute conflicts between human land uses and Natura 2000 sites?

3. The process of EU integration in the nature policy field?

4. The future of EU nature policy?

As regards the negotiation phases of the Birds and Habitats Directives, the history presented here focuses primarily on the negotiation of provisions relating to the designation and protection of Natura 2000 sites. In the context of the Habitats Directive, other interesting issues such as the drafting and negotiation of the annexes of species and habitats requiring Natura 2000 sites, and the negotiation of provisions relating to the protection of land outside the Natura 2000 network – e.g., corridors and stepping stones – are beyond the scope of this book.

Introduction to EU nature conservation policy and Natura 2000

At the global level, in 2002 the Parties to the Convention on Biological Diversity pledged to achieve by 2010 a significant reduction in the then current rate of biodiversity loss (UNCBD, 2002). The EU adopted a more ambitious target, seeking to halt biodiversity loss in the EU by 2010 (European Council, 2001), but both the EU’s target and the global target were missed (European Commission, 2010b; UNCBD, 2010). The revised global aim, adopted in October 2010, was to take “effective and urgent action to halt the loss of biodiversity in order to ensure that by 2020 ecosystems are resilient and continue to provide essential services, thereby securing the planet’s variety of life, and contributing to human well-being, and poverty eradication” (UNCBD, 2010, paragraph 12). The EU adopted an even more ambitious headline target for 2020: halting the loss of biodiversity and the degradation of ecosystem services in the EU by 2020, and restoring them in so far as feasible, while stepping up the EU contribution to averting global biodiversity loss – and included in addition a vision for the better protection of biodiversity in the EU by 2050 (European Commission, 2011, p. 2).

The Birds Directive (1979) and the Habitats Directive (1992) are the “cornerstones of the EU’s biodiversity policy” (European Commission, 2010a, p. 17). The protection provided by the Directives is divided between species protection measures and site protection measures (European Commission, 2007). In general terms, the species protection measures require the EU’s Member States to protect certain species wherever they are found in the wild in the Member States’ territories, while the site protection measures require Member States to identify, designate and protect conservation areas for certain habitat types and for the habitats of certain species: namely, Special Protection Areas (SPAs) under the Birds Directive, and Special Areas of Conservation (SACs) under the Habitats Directive. The network of SACs and SPAs – which is intended to comprise an ecologically coherent whole (Article 3(1) of the Habitats Directive, 1992) – is collectively known as Natura 2000, and is the “centrepiece” of EU biodiversity policy (European Commission, 2009).²

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Notwithstanding the difficulties that have been encountered in establishing the Natura 2000 network, and the fact that the network is not yet complete (European Commission, 2017),³ the network’s importance and impacts should not be underestimated. In 2017, 25 years after the Habitats Directive was adopted, the Natura 2000 network now covers more than 27,500 sites in 28 countries, comprising about 18% of the EU’s land territory plus large marine areas (European Commission, 2017),⁴ making it the largest network of protected areas in the world (European Commission, 2010b). Recent research has revealed that the network is delivering conservation benefits,⁵ notwithstanding a poor picture for biodiversity overall in the EU (EEA, 2015a).

Of course, it is not merely the network’s extent that gives Natura 2000 its significance in terms of land use control. Rather, it is the combined effect of this extent, the strict legal protection afforded to Natura 2000 sites by EU law, and the fact that protection for the sites can be enforced by the European Commission, a supranational authority. When one combines these elements, conflicts with human land uses are inevitable. As Claus Stuffmann, the European Commission’s senior negotiator in respect of both the Birds and Habitats Directives, reflects,

areas placed under national protection status can always be victims of arbitration when taking account only national interests. It is quite a different matter, however, when this arbitration must comply with criteria established at Community level . . . Designating a special area of conservation under the Community directives is not merely another label, but it also constitutes considerable additional legal protection.

(Stuffmann, 1994, p. 205)

This has arguably been one contributory factor to the delays experienced in establishing the Natura 2000 network: Coffey and Shaw (2001, p. 22) refer to the Habitats Directive as “one of the most notorious items of EC law, as far as implementation by the Member States is concerned”, and it is notable that the Habitats and Birds Directives consistently account for a relatively high percentage of the European Commission’s infringement caseload in the environmental sector (e.g., see European Commission, 2016b).⁶

An historical approach to understanding EU nature law and policy

Whilst there are existing overviews of the history of EU nature conservation policy (e.g., see Krämer, 1993; Van Hoorick, 1997), and detailed accounts of the history of the Birds Directive by Meyer (2010, 2011, 2014), there is no existing detailed account of the history of the Habitats Directive, the Natura 2000 network, or the origin and negotiation of the rules applying to protect that network, notwithstanding the network’s far-reaching impacts on day-to-day land use planning in the EU.⁷ This book aims to fill this gap, mindful of Jordan’s (1998, p. 235) emphasis on the need for research to “link broader political and economic currents with the detailed nitty gritty of policy development and implementation”. This book therefore provides as a backdrop an overview of the history of EU environmental policy, against which the detailed development of EU nature policy played out. As this book aims to show, a knowledge of this history serves to illuminate the key issues set out below.

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Conflicts in establishing the Natura 2000 network

Whilst the establishment of the Natura 2000 network represents a remarkable achievement, there have nevertheless been difficulties regarding the network’s implementation, including delays in establishing the network, resistance at national level, and, in some cases, inadequate management of and protection for sites. Krämer (1993, p. 25) provides an important insight into these problems. It is

the difference between the European Community (EC) and the United States that has the greatest implication for nature protection within Europe. The Federal Government of the United States owns one-third of all United States territory, including land that provides vital habitat for wildlife. For example, the United States Federal Government owns ninety percent of the habitat of the spotted owl. Consequently, the Federal Gove...