Habitat Banking in the Quest for Effective Biodiversity Offsets : Comparative Legal Analysis of the Schemes in place in the United States and Australia in view of their Potential Establishment in the European Union


Ressource 1Request a copy Under indefinite embargo.
UNIL restricted access
State: Public
Version: Final published version
License: Not specified
Serval ID
Article: article from journal or magazin.
Habitat Banking in the Quest for Effective Biodiversity Offsets : Comparative Legal Analysis of the Schemes in place in the United States and Australia in view of their Potential Establishment in the European Union
Annales de droit
Dupont Valérie
Publication state
Issued date
Whereas a growing number of European laws encourage or impose to compensate for significant impacts to biodiversity, no comprehensive framework exists for the design and implementation of biodiversity offsets. As a result, most compensatory measures occur on a case by case basis, with little coherence, efficiency, and consistency. Given the difficulties and risks associated with offsets, the absence of a legal framework that sets clear guidelines and safeguards as regard to ecological equivalency, additionality, proportionality, long-term protection, and stakeholder participation opens the door to a “licence to trash”. Questions have arisen as to the effectiveness of biodiversity offsets, whether they are truly implemented by developers who must compensate their impacts, whether they reach their ecological goals, and whether they are maintained in the long run. In several countries, similar issues have led the development of a market-based approach to implement wetland compensatory measures (habitat banking). Instead of implementing their offsets themselves, developers can buy mitigation credits that have been generated ex ante by specialized institutions or companies with positive actions on biodiversity (creation, restoration, enhancement, or preservation of wetland). Our research aims to determine the relevance and feasibility of a habitat banking scheme in the European Union and its Member States. Our intuition is that such a scheme would better meet the challenge of biodiversity loss, would induce a better synergy between biodiversity protection instruments and would thus enable a more coherent conservation policy, as compared to a sole case-by-case approach. In addition, we believe a unified and coordinated system integrating the various obligations to compensate (Natura 2000, environmental responsibility, environmental impact assessment, etc.) would reduce transaction costs, bring legal certainty and fairness between participants. On the basis of the lessons learned from the theoretical and practical analysis of the various banking systems in force in the United States and Australia, we identify the conditions essential to the emergence of a banking scheme and the structural legal modalities of the mechanism. Public authorities play a key role in defining the demand and supply of biodiversity credits. Furthermore, only a strictly regulated market administered by a specialized nature conservation authority is to guarantee the effectiveness, efficiency and fairness of such a mechanism, given the difficulty of reconciling nature conservation objectives with a commercial logic inherent to any market. In the European Union, the standards that must be met and the potential constraints on the use of biodiversity credits differ from one regime to the other, even when those overlap and address the same resources. The dispersal and inconsistency of the rules complicate the task of national public authorities and potential bank sponsors who would want to establish an integrated banking scheme with habitat banks providing credits for more than one regulatory trigger. A legal framework at EU level setting common legal standards and safeguards would ensure that habitat banking schemes contribute to, rather than undermine, the objectives of these laws.
Biodiversity Offsets, Habitat Banking, No Net Loss
Create date
11/11/2022 19:49
Last modification date
21/11/2022 17:17
Usage data