EU Law and Habitat Protection

In January the government released its 25 Year Plan to Improve the Environment. Contained within the plan are the government’s ambitions for the environment, namely their hopes of being the first generation to leave it in a better state than it was inherited. Secretary of State for Environment, Food and Rural Affairs Michael Gove highlighted the importance of respecting the ‘intrinsic value’ of nature and the need to ‘safeguard cherished landscapes from exploitation’. The Plan is compelling. It contains many of the buzzwords found in the vernacular of those sympathetic to the conservation cause; it talks of the link between nature and our wellbeing, protecting natural capital, corridors for wildlife, the evidence of harmful pesticides on pollinators and the reintroduction of species. White-tailed eagle, orange-spotted emerald dragonfly and beaver are all mentioned specifically.

Though the plan reads like a fusion of ideas from leading writers on the subject it neglects to reveal any impending legislation. The executive can only truly be held to account when the public are able to rely on legal provisions protecting the environment. Without resorting to political cliché, the promises made in a plan fall short if they cannot be enforced by the judiciary. Perhaps this is why environmental lawyers at ClientEarth flatly described the Plan as ‘underwhelming’. The Plan declares that the UK leaving the EU is an opportunity to improve the environment, though critics fear the uncertainty around Brexit terms leave environmental controls, many of which come from Brussels, open to exploitation.

Legitimate competing interests such as private property rights and the need for economic development have had to face the greater weight now given to conservation issues in decision making. Concerns for the environment have become more than mere material considerations and a substantial part of this is down to controls introduced by the EU. Libertarian commentators may admonish such controls, labelling them a hinderance and a good example of red taping. However, the way in which Europe is carved up matters little to our flora and fauna, for example the wandering path of a migratory bird. The bird does not see our borders as it flies and thus fragmentary protections of habitats are viewed as insufficient.

The development of the Natura 2000 network of sites established by Directive 2009/147/EC on the Conservation of Wild Birds and Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (the Wild Birds Directive and the Habitats Directive) allow inter-state protection. Natura 2000 sites are made up of ‘Special Areas of Conservation’ and ‘Special Protection Areas’. SACs are the sites containing habitats listed in Annex I + II of the Habitats Directive and SPAs are classified under the Wild Birds Directive. SPAs obligate Member State governments to designate sites that meet the criteria and the Court of Justice has also held that a Member State can be in breach if it does not designate enough sites. The North Norfolk Coast is a good example of an SPA. Once designated as an SPA the Member State must take appropriate steps to avoid significant pollution or deterioration or disturbance of the birds within it. SACs differ in that the list is drawn up by the European Commission based on Member State submissions and on the scientific advice of a committee of independent experts. Local SACs include the Broads and Breckland.

Natura 2000 sites found themselves entangled in one of the central debates of the referendum; state sovereignty. Small decisions affect a larger picture and so conserving wildlife involves protecting it wherever we find it, whilst relying on other countries to do the same. Deciding not to protect a species in one area on the basis that it exists elsewhere is an approach which fails if we all assume the same attitude. The Natura 2000 network aims to promote conservation efforts across the continent in this way, thus avoiding a death by a thousand cuts. For example, in 2001 the RSPB questioned the Secretary of State for Scotland’s decision to grant licences to shoot barnacle geese in Islay (a Natura 2000 site). The licences were being granted to protect crops. The dispute went to court where the judges held in favour of the RSPB, concluding that the deterioration and disturbance to Islay in conservation terms was what the Secretary of State had to consider when making the decision – not the prospective damage to the network of sites overall. This decision confirmed that it did not matter if barnacle geese could be found elsewhere, the responsibility for the Scottish government was to look after their site regardless as it had been designated to protect the geese. The concern for some conservationists now is that in taking back control of its own decisions the government may be inclined to prioritise other interests before the protection of our flora and fauna and the strong provisions offered by the EU will vanish.

Last month the government introduced the Environmental Principles and Governance Bill, providing further hope that conservation protection will be maintained and perhaps strengthened post-Brexit. This was the first sign that new legislation is impending. The UK contains 270 SPAs and 626 SACS which are currently protected under EU legislation; how these habitat protections are maintained or strengthened is uncertain. Fortunately, interest in environmental issues is greater than ever.

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