果冻影院

Jeremy Ogilvie-Harris is an LLM candidate at 果冻影院 and a paralegal at the Hackney Community Law Centre. He is the winner of a GGI student essay competition on biodiversity and climate change.

Biodiverse ecosystems provide a range of material and non-material services to humans. Calculating the value of these services is inherently difficult because they are the result of extremely complex processes that can be considered from different ethical perspectives [1,2]. This essay argues that, to tackle the biodiversity crisis while achieving the UN Sustainable Development Goals of reducing inequality (鈥楽DG 10鈥�) and building just institutions (鈥楽DG 16鈥�), the (鈥榯he Bill鈥�) should facilitate a deliberative process that allows the public to meaningfully participate in decisions about biodiversity.

The Bill, which is currently making its way through Parliament, will establish a new framework for environmental protection in the UK, following exit from the EU. Among other provisions, the Bill sets out an obligation to demonstrate a biodiversity net gain in development planning [3]. Before development begins, applicants for planning permission are required to provide a biodiversity gain plan, which specifies the pre- and post-development biodiversity value of a site, what steps will be taken to conserve on-site biodiversity, and any offsite biodiversity gain to compensate for loss of on-site value [4]. This may involve 鈥榬elocating鈥� biodiversity to a different area (known as 鈥榦ffsetting鈥�). Biodiversity gains and losses are calculated using the (鈥榯he Metric鈥�) [5,6]. For pre-development value, the Metric takes into account the size of a habitat, its distinctiveness, condition, strategic significance, and connectivity [7]. For post-development value, it additionally considers a number of risks associated with interventions to create, restore or enhance habitats [8]. Data collection is undertaken by the developers through a series of site visits [9]. It must then be approved by the local planning authority. As the biodiversity gain plan will be produced after planning consent is granted, there is no obligation to consult the public on its content (whereas there would be an obligation to consult pre-application and under the environmental impact assessment process) [10, 11, 12].

聽A variety of different knowledge claims inform the planning process [13]. The Metric combines 鈥渢echnical knowledge claims鈥� with 鈥減rior institutional knowledge claims鈥�. Technical knowledge claims are 鈥渢echnically framed contributions, using consistent language and benchmarks, and self-consciously aspiring to objectivity鈥� produced by experts [14]. In the case of the Metric, this includes the assessment of the 鈥漵ize鈥�, 鈥漜ondition鈥�, 鈥漜onnectivity鈥� and 鈥渄istinctiveness鈥� of a site. Prior institutional knowledge claims reflect existing decisions on the value or status of a particular landscape or site, e.g. designations of species or habitats as protected (given their 鈥漝istinctiveness鈥� and/or 鈥漵trategic significance鈥�) [15]. Notably, the Metric (still) does not consider the social, cultural, or public health value of biodiversity [16].

Fisher argues that the Bill, generally, promotes a 鈥渉ighly technical鈥� vision 鈥渋n which public reason is deemphasised鈥� [17]. Regarding biodiversity, there is no obligation to consult the public on biodiversity gain plans and the Metric requires technical assessment of value which excludes lay participation. Technical knowledge claims are themselves socially constructed and value-laden [18]. However, while such 鈥榝acts鈥� are usually uncertain and contested, without the requisite expertise or resources to instruct experts, lay participants may not be able to challenge them [19, 20]. This exclusion from the process risks perpetuating and exacerbating pre-existing inequalities, undermining SDG 10, and it also runs counter to the aims of SDG 16 on building strong, inclusive and just institutions.

Biodiversity has social, economic, cultural, and public health as well as ecological value [21, 22]. While offsetting may not have an ecological 鈥榥et鈥� impact, it can deprive local communities of, for instance, access to green space and associated health benefits. Such benefits are often already less accessible to disadvantaged urban communities [23]. Accordingly, decisions about biodiversity contain important socio-political questions of distribution. It is through 鈥渓ay knowledge claims鈥� and public participation that the information about these implications can and should be obtained. Indeed, public participation is said to improve substantive decision-making and provide democratic legitimacy to the planning process [24, 25].

Parliament should consider amending the Bill to 鈥渆nsure responsive, inclusive, participatory and representative decision-making at all levels鈥� [26, 27]. This could be achieved by requiring biodiversity gain plans to be produced pre-application or otherwise consulted on; and a deliberative process in which the public actively engages in discussion with applicants for planning permission, experts and decision-makers [28]. This may produce innovative and democratic responses to the biodiversity crisis which work with nature, such as the creation of green infrastructure. There is already an obligation on planning authorities to consider conserving biodiversity [29]. A further obligation could be placed on decision-makers to set out in their decision an explanation of how socio-cultural and socio-political issues, and biodiversity-enhancing alternatives were taken into account [30]. These amendments would allow the public to influence decisions which will affect them and prevent socio-political questions from being resolved through a technical, exclusory process.

References:

1. Stephanie Wray, 鈥楤iodiversity: The Whole Picture鈥�, Transform (Institute of Environmental Management and Assessment, Dec/Jan 2020/21) 26鈥�28.
2. Elizabeth Fisher, Bettina Lange and Eloise Scotford, Environmental Law (2nd edn, Oxford University Press 2019) 45鈥�50.
3. Environment Bill HC Bill (2019-2021, 2021-2022) cl 92.
4. Environment Bill (n 3) sch 14.
5. Ibid.
6. Natural England, The Biodiversity Metric 2.0: User Guide Beta Version, (JP029, 2019).
7. Natural England (n 5) 13.
8. Natural England (n 5) 14.
9. Natural England (n 5) 21-23.
10. Environment Bill (n 3) sch 14.
11. Town and Country Planning Act 1990, s 61W.
12. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, reg. 4.
13. Maria Lee, 鈥楲andscape and Knowledge in wind energy planning鈥� (2017) 37(1) LS 3鈥�24.
14. Lee (n 11) 16
15. Natural England (n 5) 13.
16. See Oliver Taherzadeh and Peter Howley 鈥楴o net loss of what, for whom?: stakeholder perspectives to Biodiversity Offsetting in England鈥� (2018) 20 Environment, Development and Sustainability 1807鈥�1830, 1822.
17. Elizabeth Fisher, 鈥楨xecutive Environmental Law鈥� (2019) 83(1) MLR, 83(1), 163鈥�189, 183.
18. Maria Lee, Lucy Natarajan, Simon Lock, and Yvonne Rydin, 鈥楾echniques of Knowing in Administration: Co production, Models, and Conservation Law鈥� (2018) 45(3) JLS 427鈥�456.
19. Lee (n 11) 18.
20. Chiara Armeni and Maria Lee, 鈥楶articipation in a time of climate crisis鈥�, forthcoming in Journal of Legal Studies 2021 1-28, 15-19.
21. Wray (n 1) 26鈥�28.
22. Andrey Egorov, Pierpaolo Mudu, Matthias Braubach and Marco Martuzzi, 鈥楿rban green spaces and health: A review of evidence鈥� (WHO Europe Report, 2016) < accessed 5 June 2021.
23. Selena Gray and Alan Kellas, 鈥楥ovid-19 has highlighted the inadequate, and unequal, access to high quality green spaces鈥� (BMJ Opinion, 3 July 2020) < accessed 12 May 2021.
24. Chiara Armeni, 鈥楶articipation in Environmental Decision-making: Reflecting on Planning and Community Benefits for Major Wind Farms鈥� (2016) 28 Journal of Environmental Law 415鈥�441, 418鈥�421.
25. Armeni and Lee (no 19) 14-20.
26. United Nations, 鈥楽ustainable Development Goal: Target 16.7鈥� (United Nations, 20 April 2018) < accessed 12 May 2021.
27. On the role of law in facilitating public participation, see Armeni and Lee (no 19) 20-27.
28. For example, see Article 11 Council and Parliament Regulation (EU) 2018/1999 of 21 December 2018 on the Governance of the Energy Union and Climate Action OJ L 328/1.
29. Natural Environment and Rural Communities Act 2006, s 40.聽
30. For example, see Planning Act 2008 s 5(8).