Mitigation and compensation under EU nature conservation law in the Flemish region: beyond the deadlock for development projects?

Hendrik Schoukens & An CliquetWater and Ocean Law in Times of Climate Change, Utrecht University 31 October & 1 November 2013

Overview

I. Setting the stage

II. The rise of the concepts of mitigation and compensation

III. Mitigation in the Flemish Region

IV. Compensation in the Flemish Region

V. Main conclusions

I. SETTING THE STAGE

I. Setting the scene

•Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (ex Directive 79/409/CEE)•Coherent network of Special Protection Areas (SPAs) •Strict protection rules for all birds (e.g. destruction of nests, deliberate killing)•Wide array of measures (protected sites, hunting, EIA, protected vegetation,…), poorly enforced and little attention to spatial impacts

“Birds Directive”

I. What is the problem?

•Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora •“Natura 2000" network which is the largest ecological network in the world •Articles 12 and 16 of the Habitats Directive are aimed at the establishment and implementation of a strict protection regime for species listed in Annex IV •Modification of the Nature Conservation Decree in 2002 + Species Protection Regulation in 2009

“Habitats Directive”

I. Setting the stage

II. THE RISE OF THE CONCEPTS OF MITIGATION AND COMPENSATION

II. The rise of the concepts of mitigation and compensation

In dubio pro natura!

“The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site’s conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects” (CoJ, C-127/02)

II. The rise of the concepts of mitigation and compensation

II. The rise of the concepts of mitigation and compensation

Ants block extension of recreation zone?

II. The rise of the concepts of mitigation and compensation

II. The rise of the concepts of mitigation and compensation

III. MITIGATION IN THE FLEMISH REGION

III. Mitigation approaches

•dissatisfaction and frustration about the additional assessment rules •appropriate assessment “must allow a detailed analysis which satisfies the conservation objectives of the site in question, as set out in Article 6, particularly as regards the protection of natural habitats and priority species”•how to circumvent and/or bypass this bottleneck?

I. Mitigation during screening?

III. Mitigation approaches

•inclusion of mitigation measures in an early planning stage in order to avoid full application of the assessment rules of art. 6(3) HD•UK High Court (Hart District Council, 2008): “As a matter of common sense, anything which encourages the proponents of plans and projects to incorporate mitigation measures at the earliest possible stage in the evolution of their plan or project is surely to be encouraged”

I. Mitigation during screening?

III. Mitigation approaches

•Belgian courts are reluctant in allowing mitigation measures in the screening stage under Article 6(3) HD•mitigation measures could not be taken into account as a ground to bypass the duty to carry out an appropriate assessment under Article 6(3) HD•the mere fact that mitigation is required in the screening stage illustrates the necessity of carrying out an additional assessment (e.g. CoS, no. 206.330)•realistic approach <> in line with EC’s guidances!

I. Mitigation during screening?

Strict scrutiny!

III. Mitigation approaches

II. Adaptive licensing

Residual significant risks

Significant effects

Reduced below threshold by tradtional mitigation measures

(e.g. location)

Monitoring protocol + strict conditions

NO

YES

III. Mitigation approaches

•Council of State upheld the legality of a permit for a wind farm, despite there being lasting uncertainties about its effects on the marine wildlife, by referring to the permanent monitoring scheme that had been provided for in the permit (CoS, no 147.047)•Provincial Authority of Antwerp, 13 January 2010: operation of wind mills authorised in the vicinity of a Natura 2000 site since the residual effects on birds populations will be monitored and the results of the ongoing monitored might warrant the shutting down of the operation

II. Adaptive licensing

III. Mitigation approaches

•more reluctance: the obligation to monitor and provide for additional mitigation measures must be drafted in a unequivocal strict way•high threshold: the conditions attached to the permit need to be sufficiently precise to exclude the possibility of adverse significant effects during the duration of the monitoring (no margin of discretion) (CoS, no. 206.911)•more flexibility (absence of reasonable doubt) <> fait accompli-scenario (strict conditions)

II. Adaptive licensing

III. Mitigation approaches

•Flemish planning authorities were not particularly keen on applying the derogation clause for major infrastructure projects (art. 6 (4) HD) – bad experiences from the past•a more broad interpretation of the concept “mitigation” was being advocated for: no application of the strictly formulated derogation clause•also measures that were principally aimed at habitat restoration and creation, in order to offset affected habitats, still qualified as “mitigation”

III. Proactive habitat creation as mitigation?

III. Mitigation approaches

•North-South bypass: the zoning plan provided for the establishment of a corridor zone, located several kilometres away from the affected Natura 2000 sites•the corridor zone (creation of new habitats), together with the construction of ecoducts and fences, was believed to enable to offset the encroachment of the SPAs and SACs by the construction of the road (no need for art. 6(4) HD)

III. Proactive habitat creation as mitigation?

III. Mitigation approaches

•measures that were aimed at offsetting destroyed tracts of habitats, are to be considered compensatory measures (CoS, no. 223.083)•similar reasoning upheld by the AG in the legal proceedings against zoning plan allowing for the construction of new dock in Port of Antwerp (Opinion, 28 September 2013)•strict administrative practice with respect to species protection (e.g. construction new nesting places)

III. Proactive habitat creation as mitigation?

Mitigation v

compensation?

III. Mitigation approaches

•the Council of State’s rigid stance seemed to block better integration of nature conservation considerations in spatial planning <> sustainable development?•more tolerant approach by Dutch Council of State in earlier case-law•the creation of no less than 132 ha of mussels beds could qualify as a mitigation measure for the construction of a housing zone in the IJmeer (CoS, no. 200902644)•request for preliminary ruling by the Court of Justice

III. Proactive habitat creation as mitigation?

Habitat creation ≠

mitigation

IV. COMPENSATION IN THE FLEMISH REGION

IV. Compensation approaches

•extension Port of Zeebrugge: decision to declassify a Natura 2000 site not been made subject to appropriate assessment•no need to apply for derogation in the context of the decision to declassify the Natura 2000 site (not a “project” or “plan”)•application of derogation clause during the subsequent planning procedures (CoS no. 97.221)•art. 9 HD: only declassification whenever this is warranted by natural developments (?)

I. Derogation needed for declassification of a Natura 2000-site?

IV. Compensation approaches

•Deurganckdok: establishment of improvement and preservation measures in existing Natura 2000 sites as compensatory measure•CoS no. 106.563: improvement measures in a site that has already been designated as a SCI cannot serve as compensation (landmark-ruling)•avoid double dipping (additionality) <> EC Guidance: compensatory measures can include restoration or enhancement efforts in existing sites

II. Compensation in existing Natura 2000-sites?

V. CONCLUSIONS AND OUTLOOK

V. Conclusions and outlook

•quest for increased flexibility in order to reconcile nature conservation consideration with economic developments (sustainable development/no net loss)•many legal uncertainties in the absence of clear guidance•Belgian CoS cautious allowing too much leniency in the application of nature conservation law •awaiting for more guidance from CoJ (mitigation vs compensation)•remarkable illustration of environmental judicial activism?