The role of soft law vs hard law instruments in the enforcement of biodiversity offsets and their impacts on stakeholders

Abstract

The enforcement of biodiversity offsets is of utmost important for their effectiveness. According to many studies, the principal reasons offsets fail to achieve their intended purpose in regulatory systems are the lack of clear and unambiguous policy requirements, insufficient political will to require high standards, and inadequate monitoring, oversight and enforcement (Pilgrim and Ekstrom 2014). While many studies have been conducted on the standards that biodiversity offsets should meet in order to reach a no net loss of biodiversity, enforcement issues are often understudied. Yet, in the absence of adequate enforcement strategies, developers and offset suppliers are not incentivised to implement high quality offsets. In order to ensure their effectiveness, biodiversity offsets must be incorporated in binding legal tool and stated in terms that are sufficiently precise as to their content and objectives to generate enforceable obligations. In addition, responsible parties should be clearly identified (developer, offset suppliers and bank sponsors, intermediaries, …). Whereas developers are often the only party legally liable in first-party offsets, banking schemes usually operate a transfer of responsibility to the bank sponsors. The major advantage of transferring the responsibility of the biodiversity offsets measure is to facilitate the enforcement of the measures. If the project fails, public authorities can deal with the failure directly with the person in charge of implementing the measures instead of having to pursue each developer separately. Furthermore, public authorities should have at their disposal a variety of enforcement tools from monitoring powers to the application of several remedies. In this regard, the nature of enforcement means may have important impacts on stakeholders (Earnhart and Glicksman 2015). Whereas some public authorities rely on strong legal remedies (penalties, injunctive relief, forced execution), others adopt cooperative strategies (negotiation and adaptation of offset requirements) or economic approaches (financial guarantees, accreditation, progressive release of biodiversity credits). Lastly, public enforcement may be complemented by private enforcement through the use of conservation easements or citizen suits provisions (Owley 2013). 1. Pilgrim JD and Ekstrom JMM, Technical Conditions for Positive Outcomes from Biodiversity Offsets: An Input Paper for the IUCN Technical Study Group on Biodiversity Offsets (IUCN, Gland, Switzerland, 2014) 2. Earnhart DH and Glicksman RL, ‘Coercive vs. Cooperative Enforcement: Effect of Enforcement Approach on Environmental Management’ 42 International Review of Law and Economics 135 3. Owley J, ‘From Citizen Suits to Conservation Easements: The Increasing Private Role in Public Permit Enforcement’ (2013) 43 Environmental Law Reporter 10486