– Project publications –


A dialogue between law and ecology

During the past few decades, countries have ratified a growing number of international agreements relevant to biodiversity conservation. In the European Union, the Habitats Directive requires that populations of wild species of conservation interest reach a Favourable Conservation Status (FCS). These legal instruments however remain often abstract and may not be amenable to concrete interpretation pertaining to real world decisions affecting population recovery and management.

In this project, we will establish a dialogue between law and ecology to interpret the Habitats Directive in ecological terms and use quantitative ecological models to quantify FCS and delineate conservation and management policies in line with the Directive. We will take the example of large carnivores – wolf (Canis lupus), lynx (Lynx lynx), wolverine (Gulo gulo) and brown bear (Ursus arctos) – for which recoveries are particularly conflictive and where national or local management has become a series of one-day-at-a-time decisions in an attempt to navigate between protests from different interest groups and possible legal actions by the EU Commission.

The project will run from January 2014 to December 2016 and will build upon a portfolio of illustrative case studies to deliver results that are highly relevant for a wide diversity of stakeholders. We intend (i) to clarify, both ecologically and legally, the concept of FCS, (ii) to delineate conservation and management policies deemed to be compatible with the law and (iii) to suggest improvement of the law informed by ecological research. Ultimately, the generalization of our project findings will allow addressing some shortcomings of key policy instruments and will help fulfilling environmental objectives relevant to biodiversity. The project is funded by Naturvårdsverket (Swedish Environmental Protection Agency) Styrmedel för miljöarbetet. All views and opinions on this website and resulting from the project are those of the authors only and do not engage the funder or hosting institutions.

Legal status of carnivores in Europe
In Europe, species protection is governed primarily by the Bern Convention and Habitats Directive 92/43/EEC, the latter being the European Union implementation of the former. Wolves, wolverines, brown bears and lynx are listed as strictly protected in the Habitats Directive's Annex IV, though there are exceptions in some of the Member States where they are listed in Annex V, which gives more flexibility. Article 2 expresses the Directive's overarching goals: to take measures to maintain or restore the FCS of species and habitats listed in the Directive's annexes. FCS for species is defined by Article 1(i) of the Habitats Directive thusly: the species is maintaining itself as a viable component of its natural habitats, its natural range is not being reduced, and there is a sufficiently large habitat to maintain its population, and that these three conditions are likely to continue. Article 16 enumerates exceptional circumstances under which derogation can be granted from the Article 12 prohibitions against harmful actions towards species, in particular that the derogation is not detrimental to the maintenance of the species at a favorable conservation status in its natural range. These requirements are not defined in scientifically discernible terms, so to be functional for management, they therefore must be examined in cooperation between ecologists and legal scholars.

Need and relevance
Interdisciplinary work linking law and ecology is almost non-existent and guidance for understanding what constitutes FCS, as well as the obligations of Articles 12 and 16, is limited to the case-law of the EU's Court of Justice as well as in guiding documents, albeit non-legally-binding, from the European Commission and the Large Carnivore Initiative for Europe from IUCN. These guidelines are given in general and broad terms and lack any legal and quantitative ecological approach. What FCS and associated obligations precisely mean in a given situation crucially remain to be analyzed and discussed. During the past few years, the debate around the recovery of large carnivores in Europe has become increasingly controversial and shaped by what stakeholders – interest groups, national or regional governments, the EU Commission – believe the Habitats Directive may or may not imply. The controversy around large carnivores illustrates well that stakeholders are lacking and in need of a clear analysis based on legal and ecological foundations that inform what their obligations are and how much discretion they have. The analysis we provide will help lawmakers and administrative regulators to act consistently with the Directive and consequently reduce unnecessary and costly legal disputes, both at the national and European levels. In addition, our project will suggest ways to improve national implementation of EU legal obligations, discuss new legal approaches to EU law, and contribute to a more adequate and coherent interpretation of species protection obligations in future cases, thus improving species management and protection in Europe.

Research team
The project involves quantitative ecology and legal researchers bringing a range of comprehensive and complementary skills. Our vision is to conduct a truly interdisciplinary endeavor where both disciplines mutually feed each other with analysis and perspectives to improved applied policy instruments. Project specific tasks involve ecological statistics and modeling and legal analysis. The research team consists of:

  • Guillaume Chapron, PhD is Associate Professor at Grimsö Wildlife Research Station, Department of Ecology, Swedish University of Agricultural Sciences. His research interests focus on carnivore quantitative ecology applied to conservation. He is particularly interested in developing population models to design conservation and management strategies for large carnivores using different approaches, from simple deterministic models to complex hierarchical state-space models. He is member of the LCIE and his work has been used by several governments. He will lead the project, perform quantitative and modeling analyses as well as coordinate the interaction between legal and ecological aspects. Relevant publications include Chapron, G., et al. 2013. Science 339: 1521; Marescot, L., et al. 2013. Methods in Ecology and Evolution 4(9): 872-884; Liberg, O., et al. 2011. Proceedings of the Royal Society B 279 (1730): 910-915; Chapron, G., et al. 2009. PLoS ONE 4(10): e7568; Chapron, G., et al. 2003. Comptes Rendus Biologies 326: 575–587. He can be reached by email at guillaume.chapron@slu.se, on www.carnivorescience.info and on Twitter @CarnivoreSci

  • Yaffa Epstein, Jur. Lic., researches at the Uppsala University Faculty of Law. Her research interests include biodiversity and species protection law, and environmental issues in EU law and public international law. She will expand on her prior research on legal instruments for the protection and management of large carnivores and will write legal analysis of when hunting may be permitted when conservation status is not favourable, as well as comparatively analyse US and EU regulatory mechanisms. Relevant publications include Epstein Y. 2014. Georgetown International Environmental Law Review Vol. 26.2; Darpö J. & Esptein Y. 2013. Journal of European Environmental & Planning Law Vol. 10.3; Epstein Y. 2013. Georgetown International Environmental Law Review Vol. 25.4. She can be reached at

  • José Vicente López Bao, PhD is researcher at Grimsö Wildlife Research Station, Department of Ecology, Swedish University of Agricultural Sciences. His research interests are in integrating quantitative and multidisciplinary approaches to achieve solutions to ecological, conservation and management problems for large carnivores. He is particularly interested in the integration of ecological, molecular, veterinary, economic, law and social disciplines to better understand the effects of anthropogenic disturbance on species and human-carnivore conflicts. He will contribute with insights into large carnivore ecology, conservation and management. Relevant publications include López-Bao JV et al. 2013 Conservation letters, 6:448-455; Rodríguez A et al. 2012 Conservation Biology, 26:737-739; Palomares F,et al. 2012. Conservation Biology, 26:689-697; Palomares F, et al. 2011 Conservation Biology, 25:4-8. He can be reached at jv.lopezbao@gmail.com, on www.carnivorescience.info and on Twitter @CarnivoreSci

  • Anna Christiernsson is Jur. Dr. presently working at the Havsmiljöinstitutet, Gothenburg University. Her research interests focus on biodiversity and nature conservation law, hunting law, fisheries and water management laws. She will coordinate the legal case studies, workshops and will lead the synthesis report as well as carrying out the case study on lynx in Sweden and contributing to the discussion on the theoretical and methodological interdisciplinary approach "legal ecology". Relevant publications include Christiernsson, A. 2011. Rättens förhållande till komplexa and dynamiska ekosystem - En studie om rättsliga förutsättningar för adaptiv och ekosystembaserad reglering och planering för bevarandet av biologisk mångfald vid jakt. Doktorsavhandling, Luleå University; Christiernsson, A. 2006. Legal Limits and Adaptive Management of Wildlife Populations Swedish Law (conference paper); Christiernsson, A. 2010. Biodiverse 4:7 She can be reached at Anna.Christiernsson@havsmiljoinstitutet.se

  • Henrik Andrén, PhD is full professor of ecology at Department of Ecology, Swedish University of Agricultural Sciences and director of the Grimsö Wildlife Research Station since 1995. His research interests focus behavioral and quantitative applied ecology of large carnivore management and he is member of the LCIE. He will provide broader insights and expertise in large carnivore ecology. Relevant publications include Liberg O et al. 2005. Biology Letters, 1:17-20; Sæther BE et al. 2010. Biological Conservation, 143:1970-1979. He can be reached at henrik.andren@slu.se

  • Jan Darpö, Jur. Dr. is full professor of environmental law at Uppsala University. His research focuses on environmental procedure, permit regimes, nature conservation,species protection and access to justice. He served as an adjunct member of the Environmental Court of Appeal 2001-2004 and has been the chair of the Task Force on Access to Justice under the Aarhus Convention since 2008. He has also worked as a lead consultant to the European Commission and evaluator for several international research institutes. He will take part in the synthesis report of the country studies and will coordinate the legal part of the project. Relevant publications include Darpö J. & Esptein Y. 2013. Journal of European Environmental & Planning Law Vol. 10.3. Darpö, J. 2009. Ur De Lege Iustus s. 201; Darpö, J. 2011. SIEPS Policy Analysis 8; Darpö J. 2013. Europarättslig Tidskrift s. 481; Darpö J. & Nilsson A 2008 Festskrift till Ellen Margrethe Basse. JØF s. 261. He can be reached at jan.darpo@jur.uu.se and on www.jandarpo.se

Specific project tasks

Task 1: Estimating Favorable Conservation Status (FCS)
There is little consensus on how to interpret, apply and operationalize the definition of FCS given in article 1 of the Directive. We will legally analyze and clarify the definition of FCS in terms that make possible the use of population models to deliver quantitative estimates of FCS. Our approach further intends to bring conceptual and methodological improvements compared to statistical estimates done in a standard Population Viability Analysis (PVA).

Task 2: Delineating lawful management options through illustrative case studies
We will analyze several illustrative case studies for drawing general conclusions about the legal implications of species protection under different legal instruments.

  • Hunting when conservation status is not favorable: Wolves in Scandinavia
    We will examine under what circumstances hunting may and may not be permitted through a case study of the wolf populations of the Scandinavian Peninsula and connected Finnish/Russian Karelian region. There was until recently a consensus that the conservation status of wolves in Sweden is not favorable. By examining the legal situation for wolves in Sweden, Norway, Finland and Russia, this project will analyze when hunting is permissible under both the Bern Convention and Habitats Directive.

  • Hunting when conservation status is favorable: Lynx in Sweden
    In Sweden, lynx are strictly protected through listing in Annex II and IV. Since the species is considered to have a FCS (with > 1500 animals), it is managed in part through license hunting. However, the species has not been down-listed to Annex V. We will thus use this case to analyze under what circumstances and levels hunting may and may not be permitted when a species has reached FCS but still is strictly protected under Annex IV. This analysis will also serve as a basis for a discussion of how to improve adaptivity of EU law to changing ecological circumstances.

  • Transboundary obligations and conflicts: Wolves in Poland and Slovakia
    In Poland and Slovakia, the wolf is listed in Annex II and V of the Habitat Directive, thus giving the Member States significant management discretion. Despite the fact that the population is transboundary between two EU Member States, the legal situation differs substantially: the wolf is protected in Poland and hunted extensively in Slovakia. We will use this case to analyze whether the actions of one Member State that jeopardize the ability to achieve FCS in another Member State is legal under the Habitats Directive.

  • Conflicting management practices within a state: Wolves in Spain
    The wolf is strictly protected in Annex IV of the Habitats Directive in Spain except for the Spanish population north of Duero River, which is listed in Annex V. Locally, wolves have lived in some parts of Spain continuously for many years with relatively little controversy. In Spain wolf management is fully decentralized to the county level, each with its own management schemes. This case will therefore be used to analyze the relation between different legal mechanisms and level of controversies as well as legal mechanisms to secure an adequate level of species protection when decision making is decentralized.

  • Positive obligations to rescue small populations: Brown bears in France
    The brown bear in the French Pyrénées is listed in Annex II and IV of the Habitats Directive and also strictly protected in national law. Despite the strict protection under the different legal instruments, as well as the reintroduction of individuals, the population remains very small (20 individuals albeit slowly growing) and the conservation status is far from favorable. We will use this case to analyze the legal obligations and prerequisites for reintroducing individuals when a population of a protected species is extremely small to improve its conservation status under the Habitats Directive.

  • A comparative view of legal responses to carnivore recovery: the United States
    Comparative analysis of carnivore recovery in the EU and US will be used to identify the most effective legal mechanisms on both continents and recommend changes to EU law. Differences between the EU and US systems fall into two categories: structural, those relating to larger differences between federalism and the Union; and substantive, those relating to the regulations themselves. These will be considered in tandem in order to effectively compare the legal regimes in the USA and Europe for species protection. Some foci for analysis include the division of responsibility between the state and federation/union, the role of stakeholders in administration and enforcement, and the ability to adapt the legal instruments in order to respond to changing conditions in nature.

Task 3: Towards a theory of "legal ecology" to improve applied instruments
An important aim of our project is to contribute to the improvement of EU law and its national implementation in order to achieve FCS, while minimizing conflicts between opposing interests. For this purpose we will make proposals on how to construct an ideal regulatory approach to large carnivore protection in accordance with ecological knowledge. This includes inter alia to provide suggestions on how to formulate and define legal concepts and norms in accordance with ecological theory as well as theoretically discussing necessary legal mechanisms for integration and transforming ecological knowledge into legal norms in an adequate manner. Since we acknowledge that ecosystems are complex and dynamic and scientific knowledge often uncertain, we will furthermore discuss legal mechanisms for adaptation of legal norms to changing ecological circumstances and/or to new ecological knowledge, as a part of an adaptive wildlife management approach. Suggestions on how to achieve regulatory adaptivity without jeopardizing the maintenance or achievement of FCS are vital. The new ideal regulatory approach developed in the project will thus contribute to more efficient and flexible management, while at the same time achieving conservation objectives.

 

Svensk sammanfattning

Europeiska Unionens medlemsstater är bundna av art- och habitatdirektivet (AHD) och därmed av kravet att återupprätta eller bibehålla populationer av vilda arter av gemenskapsintresse i en gynnsam bevarandestatus (GYBS). Liksom många internationella naturvårdskonventioner, använder direktivet begrepp från naturvetenskaplig forskning. Detta leder ofta till att begreppen blir abstrakta och problematiska att tillämpa i den praktiska förvaltningen av arterna. I detta projekt kommer en dialog mellan juridik och ekologi att etableras, med syfte att tolka och förtydliga AHD utifrån ekologiska termer. Bayesianska populationsmodeller används för att kvantifiera och härleda strategier för bevarande och förvaltning som är förenliga med direktivets krav. Mer specifikt fokuserar projektet på varg, lodjur, järv och björn i ett antal länder där återställandet av bevarandestatusen är mycket kontroversiellt. De utvalda länderna är medlemmar i - eller gränsar till - EU. Vidare ska en studie av USAs Endangered Species Act utföras för att vidga jämförelsen. Vi syftar till att (i) klargöra begreppet GYBS både ekologiskt och rättsligt, (ii) härleda modellbaserade strategier för bevarande och förvaltning som är förenliga med EU-rätten samt (iii) föreslå förändringar och nya rättsliga angreppssätt utifrån naturvetenskaplig forskning. Slutligen syftar projekt till att överbrygga klyftan mellan juridik och ekologi och därmed ge kunskap till nytta för förvaltningen av den biologiska mångfalden.

 

 
 
     Guillaume Chapron © 2014