Biodiversity Offsetting in Transnational Governance

• DOI: http://doi.org/10.1111/reel.12102
• Author: Jerneja Penca
• Date: 01 April 2015
• Published date: 01 April 2015

Biodiversity Offsetting in Transnational Governance

Jerneja Penca*

This article discusses the introduction of biodiversity

offsets at the transnational governance level, at the

vanguard of which is the practice by the Business and

Biodiversity Offset Programme (BBOP). The institu-

tional setting of the BBOP and the legal arrangement

of biodiversity offsets at the international level are

analyzed, zooming in on the institutional and norma-

tive interplay between the transnational governance

network (BBOP) and the Convention on Biological

Diversity as well as the Ramsar Convention. The sig-

nificance of the case study lies in highlighting the

cooperative, but also the exclusionary, effect of trans-

national networks and in demonstrating how new

governance structures implement treaty provisions

but rely on a contested interpretation, which then

feeds back into the treaty process.

INTRODUCTION

Biodiversity offsets are drawing heightened levels of

interest by policy makers in certain parts of the world as

well as within international institutions as tools to gen-

erate biodiversity benefits.1At the heart of the idea is

that biodiversity damage caused in the course of an

economic development project can be compensated.

This strategy is simultaneously promising and contro-

versial. On the one hand, the impact of offsets has been

promoted as resulting in no loss of natural habitats by

the creation of ‘new, bigger or better nature sites’

replacing those lost to development.2On the other

hand, critics view the concept as a false solution for

wildlife and habitats, and argue that it will likely lead to

increased damage.3

This article examines how this controversy is

reflected in global biodiversity governance, looking in

particular at how biodiversity offsetting as a legal and

policy approach to biodiversity conservation has been

explored in international avenues (intergovernmental

treaty processes) and in parallel transnational struc-

tures (networks that include non-State entities). There

has been an increasing scholarly interest in the impact

of authority, law and regulation beyond the State in the

area of environmental protection,4particularly in the

context of climate change governance. Studies examine

how transnational initiatives interact with the treaty

process,5but also provide insights into how to norma-

tively think about this interplay.6This body of literature

has drawn attention not just to the fact that authority is

increasingly spread across different actors and levels,

but also to the significant interactions between inter-

governmental and transnational environmental law. In

doing so, these studies overcome the limited consider-

ation of the role of treaties in (transnational) private

governance, which could otherwise leave the impres-

sion that ‘a choice is to be made between treaties and

private law initiatives’.7As part of the attempt to

improve our understanding of the intersection between

these two types of governance forms, this article exam-

ines the influence of substantive rules developed in

international (intergovernmental) law on transnational

* Corresponding author.

Email: jerneja.penca@jus.uio.no.

1For instance, biodiversity – more precisely habitat – offsetting looms

large in European Union (EU) policy plans. While habitat offsetting is

already required under three different EU Directives in case of

damage to the Natura 2000 network of nature protection sites, the EU

Biodiversity Strategy to halt biodiversity and ecosystem service loss

by 2020 foresees its much more widespread use in land use deci-

sions. The ‘no net loss initiative’, aiming at the implementation of

biodiversity offsetting in some form, received a formal endorsement

by the European Council in 2011, and a Working Group on No Net

Loss of Ecosystems and Their Services was established by the

European Commission with a view to support the Commission in its

preparation of a No Net Loss initiative. The Biodiversity Strategy is

expected to be in place by 2015. See European Commission, ‘Our

Life Insurance, Our Natural Capital: An EU Biodiversity Strategy to

2020’, COM(2011) 244; European Commission, ‘No Net Loss’,

found at: <http://ec.europa.eu/environment/nature/biodiversity/nnl/

index_en.htm>. Biodiversity offsets are also considered by the United

Kingdom government. See Department for Environment, Food and

Rural Affairs (Defra), ‘Biodiversity Offsetting’ (5 September 2013),

found at: <https://www.gov.uk/biodiversity-offsetting>.

2See Defra, n. 1 above.

3See, e.g., <http://no-biodiversity-offsets.makenoise.org/>.

4See, e.g., the editorials in 1:1 Transnational Environmental Law

(2012), 1–29. See also L. Andonova, M. Betsill and H. Bulkeley,

‘Transnational Climate Governance’, 9:2 Global Environmental Poli-

tics (2009), 52, at 53–57.

5V. Heyvaert, ‘What’s in a Name? The Covenant of Mayors as

Transnational Environmental Regulation’, 22:1 Review of European,

Comparative and International Environmental Law (2013), 78; S.

Bernstein et al., ‘A Tale of Two Copenhagens: Carbon Markets and

Climate Governance’, 39:1 Millennium (2010), 161; G. Shaffer and M.

Pollack, ‘The Interaction between Formal and Informal International

Lawmaking’, in: J. Pauwelyn, R.A. Wessel and J. Wouters (eds.),

Informal International Lawmaking (Oxford University Press, 2012),

241.

6G. Shaffer and D. Bodansky, ‘Transnationalism, Unilateralism and

International Law’, 1:1 Transnational Environmental Law (2012), 31.

7N. Affolder, ‘The Market for Treaties’, 11:1 Chicago Journal of Inter-

national Law (2010), 159, at 161.

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Review of European Community & International Environmental Law

RECIEL 24 (1) 2015. ISSN 2050-0386 DOI: 10.1111/reel.12102

© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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