2007:039
D - U P P S A T S
Legal Limits and Adaptive Management of Wildlife Populations
in the Environmental Code and the Hunting Act
Anna Christiernsson
Luleå tekniska universitet D-uppsats
Rättsvetenskap
Institutionen för Industriell ekonomi och samhällsvetenskap Avdelningen för Samhällsvetenskap
ABSTRACT
During the last century the variety of species has decreased dramatically and numerous species are today classified as endangered or threatened. Since the middle of the last century, a number of legal instruments concerning the use and conservation of natural resources have been applied, such as protection of individual species and their nests and restrictions on hunting and fishing, without hindering the eradication of species. One proposition for the failures of traditional legal instruments is the lack of a holistic approach in regarding ecosystem characteristics such as inter-species and habitats relations and biodiversity and lack of adaptivity to deal with the dynamics of biodiversity. The objective of the thesis is therefore to describe and assess the adequacy, with reference to diversity and adaptivity criteria, of the existing legal instruments concerning the protection and utilization of species. To achieve the above stated objective environmental legal methodology has been applied. The analysis founds that the legal instruments mainly are concerned with the rational use or protection of a certain species rather than dealing with inter-relations and the sustainability of ecosystems and that that the legal system concerning the protection of species generally lacks adaptive elements. A legislative approach which is more holistic and adaptive is thus necessary;
otherwise there is a risk that the preservation of biodiversity will be further frustrated.
SAMMANFATTNING
Under det senaste århundradet har mångfalden arter minskat dramatiskt och många arter är idag klassificerade som sällsynta eller hotade. Sedan mitten av 1900-talet har ett flertal rättsliga instrument tillämpats för att reglera användandet och bevarandet av naturresurser såsom fridlysning av arter och deras bon, restriktion på jakt och fiske utan att hindra utarmningen av artdiversiteten. En förklaring till varför traditionella rättsliga instrument inte har lyckats är bristen på ett holistiskt angreppssätt med avseende på hänsyn till ekosystemkriterier såsom relationer mellan arter och habitat och biodiversitet samt brist på adaptivitet för att hantera dynamiken och osäkerheten vad gäller biologisk mångfald. Syftet med uppsatsen är därför att beskriva och analysera huruvida de befintliga rättsliga instrumenten för användandet och bevarandet av arter är lämpliga med hänsyn till diversitet- och adaptivetskriterier. För att uppnå syftet har miljörättslig metod använts. Analysen visar att de rättliga instrumenten till största del fokuserar på användande eller skyddet av en viss art utan hänsyn till ekosystemkriterier samt att lagstiftningen brister vad gäller adaptiviteten.
Utifrån detta föreslås att ett mer holistiskt och adaptivt angreppssätt är nödvändigt; annars riskeras den biologiska mångfalden utarmas ytterligare.
TABLE OF CONTENTS
ABSTRACT i
SAMMANFATTNING ii
TABLE OF CONTENTS iii
TABLE OF DEFINITIONS v
Chapter 1 INTRODUCTION 1
1.1 Background 1
1.2 Objectives of the thesis 4
1.3 Methodology 4
1.4 Scope 6
1.5 Future Research 7
1.5 Outline 7
Chapter 2 THE ENVIRONMENTAL CODE AND PROTECTION OF SPECIES AND BIODIVERSITY 8
2.1 The Environmental Code and the Protection of Species and Biodiversity 8
2.2 The Legal and Ecological Basis for Protection in the Environmental Code 11
2.2.1 The Protection of Habitats of Threatened Species 14
2.2.2 The Protection of Biodiversity between Species 17
Chapter 3 THE HUNTING ACT AND PROTECTION OF WILDLIFE SPECIES AND BIODIVERSITY 19
3.1 The Hunting Act and the Protection of Wildlife Species and Biodiversity 19
3.2 The Legal and Ecological Limits to Hunting 22
3.2.1 Wildlife Management and Hunting 22
3.2.2 Wildlife Management Areas 25
3.2.3 Time Limits to Hunting 26
3.2.4 Quantitative Limits to Hunting 30
3.2.5 The Protection of Biodiversity in the Hunting Legislation 34
Chapter 4 ADAPTIVITY OF THE LEGISLATION ON THE PROTECTION OF SPECIES AND BIODIVERSITY 39
4.1 Monitoring of Species and Biodiversity 39
4.2 Level of Responsibility 40
4.3 The Hunting Limits and Adaptive Elements 41
4.3.1 Hunting Seasons and Adaptivity 42
4.3.2 Hunting Quotas and Adaptivity 44
Chapter 5 SUMMARIZING AND CONCLUDING RESULTS 46
REFERENCES 48
TABLE OF DEFINITIONS
Adaptive Management Adaptive management is often described as “a systemic process for continually improving management policies and practices by learning from the outcomes of operational programs”. Active adaptive management is seen as the most effective form of adaptive management and “employs management programs that are designed to experimentally compare selected policies or practices, by evaluating alternative hypothesis about the system being managed”(Walters, 1986).
Biological Diversity Biological diversity is the variety of life at all levels of organization, from the level of genetic variation within and among species to the level of variation within and among ecosystems and biomes (Daly (1997). Biodiversity is defined in article 2 in the Convention on Biological Diversity as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems”.
Biotope A biotope is an area of uniform environmental
(physical) conditions providing habitat(s) for a specific assemblage of plants and animals (http://en.wikipedia.org/wiki/Biotope)
Ecosystem Ecosystems are systems in which properties and
patterns at higher levels emerge from localized interactions and selection processes acting at lower scales may feedback to influence the subsequent development of those interactions (Levin, 1998).
Endangered A taxon is endangered when it is not critically endangered but is facing a very high risk of extinction in the wild in the near future (http:wwww.ramsar.org/about/about_glossary2_e.ht m).
Habitat A habitat of a species is any portion of the surface of the earth where the species is able to colonize and live (Fretwell and Lucas, 1968).
Hunting Hunting refers to capturing or killing wild animals (Hunting Act, 1986:259, 2§)
Population A population is a group of individuals of the same species that live together in an area of sufficient size to permit normal dispersal and/or migration behaviour and in which numerical changes are largely determined by birth and death processes (Barryman, 2002).
Resilience Ecosystem resilience is the magnitude of disturbance that can be absorbed or buffered before the ecosystem redefines its structure by changing the variable and processes that control its functional characteristics, that is, the ability of ecosystems to remain within a stability domain. See e.g. Holling and Meffe (1996), Gunderson (2000), Berkes et al.
(2003).
Species Species are groups of actually or potentially interbreeding natural populations which are reproductively isolated from other such groups (en.wikipedia.org/wiki/Species).
Species interaction Exchanges of information or energy between species that are of particular interest of significance, e.g.
symbiosis, commensalisms, mutual resource defence,
parasitism, predation, competition (http:wwww.ramsar.org/about/about_glossary2_e.ht
m).
Wildlife Wildlife refers to all wild mammals, including marine mammals, and birds (Hunting Act, 1986:259, 2§).
Chapter 1 INTRODUCTION
1.1 Background
The variety of species has decreased drastically during the last century and many species are today classified as endangered or threatened. The current extinction of species is one of the most destructive changes in world history known today1 and goes beyond what can be explained by natural evolution; the determining factor is instead factors such as building, forestry,2 farming, intensive hunting and fishing and other human related activities.3 The loss of species is a threat to biodiversity4 and since the stability, functioning, and sustainability of ecosystems depend on biodiversity,5 the maintenance of biodiversity is an indispensable6 criterion to achieve sustainable development.7,8
Since the middle of the 20th century, a number of legal instruments concerning the use and conservation of natural resources have been applied. The instruments used are for example the protection of individual species and their nests, individual protection of areas and general
1 The extinction of species is not a new phenomena, however the current extinction of species is comparable with the mass extinction that took place 65 million years ago when the dinosaurian disappeared. See Brandt and Gröndahl (2000) and Swedish Environmental Protection Agency (SEPA).
2 It is estimated that, due to the forestry alone, 27.000 species are extinct every year around the world, which is equivalent to 74 species per day or 3 species per hours and the pace is increasing (Brandt and Gröndahl, 2000).
In Sweden about 500 species are in danger of extinction (CBM, 2005).
3 Daily, G. (1997).
4 Measuring loss of biodiversity is however complex and the counting of simple species is not a sufficient way to determine the condition of the ecosystem. The explanation for this is that not all species are equally important to the maintenance of key processes and that the essential dimensions of diversity extend above and below the level of species (Levin, 1998). For definition of biodiversity, see table of definitions, p. v.
5 There is evidence of strong dependence on biodiversity and the resistance of ecosystem functioning to disturbance, which indicates that more diverse ecosystems are more stable (Tilman, D, 1997).
6 It is here assumed that there is an enormous amount of uncertainty about whether technological development will be able to compensate for loss of biodiversity above a certain threshold and that a precautionary perspective therefore is needed. Ecological sustainability is thus presupposed to be mandatory for achieving sustainable development.
7 The achievement of sustainable development is an objective laid down in national law as well as in EC law and international law and it is here presupposed that sustainable development must be the ultimate goal of all (environmental) statues.
8 The connection between biodiversity and sustainable development is recognized in national as well as international law. See for example the Rio conference documents (such as the global convention on biological diversity), the Swedish Environmental Code and the preparatory work for a new national environmental objective on a rich flora and fauna (prop. 2004/05:10 s. 203).
protection of certain types of habitats, licensing of harmful activities and restrictions on hunting and fishing, such as licensing and catch quotas.9 However, despite the array of instruments applied to protect species, the law has not been successful in hindering the eradication of species and the achievement of sustainable development is thus jeopardized.
There may be several reasons for why the law has not been successful in hindering the eradication of species.10 One important explanation for the failures of traditional legal instruments to achieve environmental goals lies in the inherent properties of the ecosystems themselves. Ecosystems are complex adaptive systems.11 An essential aspect of complex adaptive systems is that they are characterized by nonlinear relations, threshold effects, historical dependence, multiple possible outcomes and limited predictability.12 Ecosystems are thus subject to constant change, surprise and uncertainty and since we only have rudimentary knowledge of many of these ecosystem processes, it is necessary to maintain the resilience of ecosystem.13
Since it is argued that ecological resilience is generated from biological diversity it is necessary that the instruments for protection have a holistic ecosystem approach, that is, that the focus is not on single variables and that species are not treated separable from its ecosystem.14 The definition of a sustainable stock of a species would thus be determined with respect to the aim of achieving sufficient diversity of species in the ecosystems rather than on the survival of that particular species alone. The traditional instruments applied during the last decades have however mainly been concerned with the rational use or protection of a certain species rather than dealing with the sustainability of ecosystems.15,16 In fact, instruments that
9 Wilson et al. (1994), Gunderson et al. (1995), Michanek-Zetterberg (2004), p. 194ff.
10 The problem with not achieving environmental goals is sometimes referred to as implementation deficits. See Westerlund (1997).
11 Levin (1998) characterizes ecosystems as systems in which properties and patterns at higher levels emerge from localized interactions and selection processes acting at lower scales and may feedback to influence the subsequent development of those interactions.
12 Scheffer et al. (2001) and Olsson, Folke and Berkes (2003).
13 Ecosystem resilience is the magnitude of disturbance that can be absorbed or buffered before the ecosystem redefines its structure by changing the variable and processes that control its functional characteristics, that is, the ability of ecosystems to remain within a stability domain. See e.g. Holling and Meffe (1996), Gunderson (2000), Berkes et al. (2003).
14 E.g., the recruitment of juveniles and fluctuations of roach, trout and vendace are related to the status of the crayfish population in Lake Racken according to Olsson and Folke (2003).
15 According to Ericsson et al., (2001) and Peterson et al. (2003), procedures for calculating and “harvesting”
maximal amounts of resource units usually have the primary aim to uphold maximal yield of that particular species, rather than to sustain the ecosystems themselves.
typically focuses on controlling a single target,17 has led to lower resilience within ecosystems. This supports the notion that the focus should be shift to system properties such as resilience and adaptive capacity.18
Legal rules and instruments must thus be developed with respect to these characteristics of ecosystems in order to result, with reasonable certainty, in the achievement of biodiversity and thus sustainability goals. However, it is not sufficient to develop legal instruments that correspond to these ecological criteria, the instruments must also be made dependent on whether the goal was achieved or not.19 Rules that establish a legal setting that is fixed are unlikely to be able to achieve goals such as biodiversity, since biodiversity is something that is complex and dynamic. This calls for legal systems which are adaptive in a way so that ecological reactions feedback to the legal system and from there into enforceable laws and rules.20
Flexibility in social systems is argued to be an indispensable prerequisite for the successful implementation of adaptive management policies, which have been proposed as one solution to deal with the complexity and dynamics surrounding the management of ecosystems. The basic idea in the theory of adaptive management, first introduced by Holling in the early 1970’s and developed by other researchers, is that management should rely on direct experimentation to learn about ecosystems, accepting that our knowledge base often is limited, accepting uncertainty and expecting surprises.21 The adaptive management approach therefore treats policies as hypotheses and management as experiments,22 the consequences of decisions should thus be evaluated and the information gained used for future decision- making.23 However, relying on direct experimentation to learn about ecosystem dynamics requires precaution since the losses of species, especially those that play a vital role in the
16 The Convention on Biological Diversity was an important development towards a more holistic perspective of the protection of the natural environment. The Convention has however been criticized to be too weak and too general leaving much room for interpretation. See Boyle (1994).
17 Gunderson (2000), labels this as command-and-control resource management.
18 Ibid.
19 Carlman (2005).
20 The legal system must thus have the capacity to respond to changes in the ecosystem.
21 The recognition of the importance of experiential knowledge is the basis of the paradigm of adaptive management of complex ecological systems. See e.g. Olsson and Folke (2003), Holling (1978), Gunderson et al.
(1995) and Walters (1986).
22 Gunderson (2000).
23 The principle of adaptive management assert that decision-making should be regarded as experimentation such that the consequences of decisions are subsequently evaluated, and the information thereby gained, used to inform future decision-making (Holling, 1978). See table of definitions, p. v.
ecosystem, can have a destructive outcome on the ecosystem resilience.24 Adaptive management cannot be applied when the risks that the consequences of the experiments are unacceptable, e.g. if there is a risk of extinction of endangered species.25
About 30 years from the introduction of the theory on adaptive management, assessments show that there has been little success in implementing adaptive management policies due to institutional obstacles, such as no flexibility in social systems, little or no resilience in key components of the ecological system and technical challenges with designing experiments.26 Successful ecosystem management requires that ecological knowledge and understanding be built into institutions (such as rules and laws) since institutions shape human behaviour.27 An adaptive legal system must thus include means of learning about ecosystem dynamics, that is, when environmental conditions change and new problems arise, existing knowledge and understanding, which form the basis for decisions, must continuously be reinterpreted and evaluated so that laws and rules can be changed in accordance.28
1. 2 Objectives of the thesis
The objective of the thesis is to describe and assess the adequacy of the existing legal instruments concerning the protection and utilization of species with reference to diversity and adaptivity criteria.
1.3 Methodology
To achieve the above stated objective of the thesis a two-step approach has been used. The first step aims at determining the content of the law29 concerning the protection of species and biodiversity by examining legal texts, and where appropriate, EC-law, preparatory works and case law. There is a hierarchical order of the legal sources for the determination of the content of national law according to the theory of sources of law.30 Of the legal sources used in this thesis, legal provisions rank first followed by EC-law, case law and preparatory works. This
24 Resilience in ecosystem is the property that allows for experimentation, a system with low resilience will be more vulnerable to disturbances and leaving less room for experimentation. See table of definitions, p. v.
25 Gunderson (1999).
26 Walters 1997 and Gunderson (1999).
27 North (1990). Institutions can build resilience in ecosystems. See Gunderson (2000) and Ostrom (1995).
28 See for example Gunderson (1999).
29 Law refers to both parliamentary laws (acts) and to governmental regulations (regulations/ordinances/decrees).
However, non-binding by-laws will be assessed as well where necessary.
30 Other legal sources are customary rules, opinions from juridical experts and opinions from non-juridical experts. This theory is referred to as Rättskälleläran in Swedish. See for example Strömholm (1996), p. 319-321.
order, applicable to the determination of the content of national law, is not generally given.
The only legal source that is legally binding is the legal text and the order of the non-binding legal sources may vary from case to case.31 EC-law with its own legal sources is binding on member states according to article 10 of the EC-treaty and member states are obliged to take all appropriate measures to ensure fulfilment. In case of conflict between EC-law and national law EC-law prevails according to the principle of supremacy of EC-law. 32
The second step aims at assessing the adequacy of the existing legal instruments given the findings of the first step. The adequacy of the instruments will be assessed by discussing legal criteria for protection and utilization and by searching for adaptivity elements in the relevant legislation. In this context the following question will be dealt with;
• Which are the legal limits related to the use of wildlife and fish and are any limits missing? Legal limits can be of different types, such as limits in the quantity of animals which may hunted to achieve a sustainable stock of animals, limits in time, limits on hunting and hunting methods and limits on places such as protecting habitats or ecosystems).
31If there is a conflict between the preparatory works and case-law an assessment on a case-by-case basis must be made, taking into account variables such as the accuracy of the preparatory works due to time and changes in social values and the amount and unity of precedent case courts. E.g. in situations where the prepatory work is elderly or/and there is an extensive amount of court cases, case-law may rank higher than prepatory work.31 See Bernitz (2002), p. 27 and Strömholm (1996), p. 319-321. EC-law with its own legal sources is binding on member states according to article 10 of the EC-treaty and member states are obliged to take all appropriate measures to ensure fulfilment. In case of conflict between EC-law and national law EC-law prevails according to the principle of supremacy of EC-law.
32When member states have failed to implement the full extent of the EC-law three doctrines developed by the court to ensure the protection of the rights of individuals apply, namely the doctrines on direct effect, indirect effect and state liability. According to the principle of direct effect rights stemming from EC-law can, under certain conditions, be enforceable by individuals before the national courts. When national legislation conflicts with EC-law and direct effect is not applicable the principle of indirect effect is to be applied by all the authorities of member states including the courts within their judicial discretion. According to this principle national courts are obliged to interpret national law adopted for the implementation of EC-law in the light of the wording and the purpose of EC-law in order to achieve the result envisaged by EC-law in so far it is given discretion to do so under national law. The principle is sometimes referred to as the principle of consistent interpretation. See Case 14/83 Von Colson and Kamann v. Land Nordrhein-Wesfalten (1984) ECR 1891, n. 26 and 28, where this principle was first developed. In case of conflict with EC-law and national case law, the EC- law ranks higher in all cases if the provision is laid down in a regulation or if the provision is laid down in a directive an has direct effect. In cases of indirect effect of a provision laid down in a directive, national case law will probably rank higher if it is clear and precise. In the case of EC law, the judgements of the EC-court is generally of significant importance for the interpretation of the valid law, although not mandatory precedent, and preparatory work is often less detailed or even non-existing. here is no public access to the prepatory work of primary EC law and the preamble of the treaties are generally too vague to give any guidance for interpretation.
The prepatory work of secondary EC law is found in the Council and Commission documents. The preamble of secondary legislation can also be used as guidance for interpretation. These prepatory works are however non- binding as well and often not extensive.
• Do legal criteria for determination of protection or utilization correspond to ecological criteria? E.g., how is sustainable use of a wildlife defined and what are the criteria for determining a “sustainable stock” for a certain species? Are the criteria based on the survival of the targeted species or on the maintenance of biodiversity taking into account the relation to other species and also the preconditions in the ecosystem concerned? Other questions concern the criteria for the classification and listing of protected species and the scope of the protection. E.g. is the protection limited to certain species, such as valuable or visible species, and is the protection limited to the species exclusively or does it include protection of habitats as well and what are the criteria for the determination of habitats and the boundaries of ecosystem?
• Are there any adaptive elements in the legislation? Is there an interaction between law and new knowledge and ecological changes? Are there any requirement of monitoring and assessment of the conservation status of species and biodiversity and which is the level of responsibility?
The methodological approach described above, which aims at studying the relation between legal rules and specific preconditions in nature, may be referred to as “environmental legal methodology”. This methodological approach has been applied in several dissertations and other literature in environmental law, e.g. in discussions on so called environmental quality standards related to pollution.33
1.4 Scope
There are several limitations of the study. The study is limited to legislation concerning protection of species and legislation on hunting. There are several types of instruments relating to the protection of areas, some with specific wildlife management purposes, which will not be dealt with in this thesis. There is also a limit to the scope of the concepts species and biodiversity. The legislation on species protection covers a wide range of species, such as mammals, birds, reptiles, amphibians, plants, lichens, fungi and invertebrates, the legislation on hunting is however limited to wild mammals and birds. The term biodiversity is defined as
“the variety of life at all levels of organization, from the level of genetic variation within and
33 Different legal approaches in environmental legal research are discussed in Michanek (2003). Concerning environmental legal methodology, see Gipperth, Westerlund, p. 16 ff. and Christensen, a dissertation in law with considerable input of natural sciences.
among species to the level of variation within and among ecosystems and biomes”; however, in this study the term biodiversity refers to diversity between species.
1.5 Future Research
Given the failure of law in achieving biodiversity and sustainability goals so far, it is essential to find new legal approaches for achieving these goals. This calls for a de lege ferenda discussion, that is, in addition to discussing the valid law (de lege lata) and whether it is suitable for its purpose or not (environmental legal methodology), a discussion on how the rules should be designed given the biodiversity and sustainability goals is necessary. The next step will thus be to give suggestion on how to change the law, that is, a new legal approach to promote species diversity should be developed.34 The new legislation should include legal criteria that correspond to ecological criteria and thus sets the outer frames for the sustainable use fish and wildlife resources. Acknowledging that adaptive management can be one effective way of achieving biodiversity and sustainability goals in a world with uncertainty, it is necessary to work out how to change the legal framework to make adaptive management policies successful. This raises questions concerning the operationalization and implementation that must be dealt with. An assessment of legal obstacles, such as possible conflicts with the principle of legal certainty, legitimacy and contra productive rules, must furthermore be performed.
1.6 Outline
Chapter 2 will describe and assess the protection of species and biodiversity established by Swedish law as well as assessing the adequacy of the relevant prohibitions. The study is limited to provisions laid down in chapter 8 of the Environmental Code and subsidiary legislation. Chapter 3 will describe and assess the protection of wildlife species and biodiversity established by the Swedish hunting legislation and chapter 4 will assess whether there are adaptive elements in the hunting legislation. Chapter 5 gives the concluding remarks of the thesis.
34 This methodological approach is sometimes referred to as ”constructive legal dogmatic method”.
Chapter 2
THE ENVIRONMENTAL CODE AND THE PROTECTION OF SPECIES AND BIODIVERSITY
This chapter will describe and assess the protection of species and biodiversity established by Swedish law as well as assessing the adequacy of the relevant prohibitions in terms of legal limits and adaptive management. The study is limited to provisions laid down in chapter 8 of the Environmental Code and subsidiary legislation.35 The provisions laid down in the Environmental Code supplement the provisions laid down in the hunting and fisheries legislations which will be reviewed in the following chapters.36
2.1 The Environmental Code and the Protection of Species and Biodiversity Already in 1994, as a consequence of the adoption of the Convention on Biological Diversity, a national strategy to reach the biodiversity goal was enacted.37 The strategy aimed at developing sector responsibility38 and stated that the conservation efforts should focus on ecosystems and habitats and that species must be maintained in viable long-term populations and that the approach taken to maintain ecological processes and long-term survival should be holistic.39 This strategy has been developed by government bills and by written communications from the Government. In 1997, a government bill on the protection of endangered species and action plans for biodiversity was enacted.40 In 1998 the biodiversity goal was laid down in law; the Environmental Code chapter 1, section 1 lays down that the
35 The Environmental Code (1998:808) and the Regulation (1998:179) on the protection of species. See also by- laws by the Swedish Environmental Protection Agency (NFS 1999:7).
36 The laws should be applied simultaneously; that is, the legislations should not be applied in isolation from each other. The general provisions in the Environmental Code is supplementary by covering species not covered by the hunting and fishing legislations and by protecting species from activities that cannot be referred to as hunting or fishing.
37 Prop. 1993/94:30.
38 Each sector of society should be responsible for ensuring that its own activities do not add to depletion of biodiversity but instead contribute to its conservation.Emphasis is laid on the importance of biodiversity conservation in sectors such as forestry, agriculture, reindeer herding and fishing.
39 The Government bill resulted in five action plans, e.g. the Swedish Environmental Protection Agency was commissioned by the Government to draw up on action plan to promote conservation and sustainable use of biological diversity. See Action Plan on Biological Diversity, report 4567.
40 Prop. 1996/97:75. See also government bill 1997/98:2 on sustainable fisheries and agriculture.
purpose of the Code is to promote sustainable development and to achieve this overall goal, the code shall be applied to ensure that:
1. human health and the environment are protected against damage and detriment, whether caused by pollutants or other impacts;
2. valuable natural and cultural environments are protected and preserved;
3. biological diversity is preserved;41
4. the use of land, water and the physical environment in general is such as to secure long term good management in ecological, social, cultural and economic terms; and
5. reuse and recycling, as well as other management of materials, raw materials and energy are encouraged so that natural cycles are established and maintained.42
Preservation of biodiversity is thus one prerequisites to be fulfilled to reach the overall objective of the Environmental Code; a sustainable development.43 In the preparatory work for the Environmental Code it is stated that the Environmental Goals established by the Parliament give guidance for the interpretation of the goal. In 2005 a new national environmental objective on a rich flora and fauna was established.44 The aim of the biodiversity goal includes e.g. that biological diversity should be maintained through a combination of sustainable use of biological resources and conservation of species and their habitats, and that species which are exploited, e.g. through hunting or fishing, should be managed in such a way that they can be harvested as a renewable resource in the long term without affecting ecosystem structures or functions, that the resilience of ecosystems should be maintained, habitats should exist in sufficient numbers to maintain long-term viable species populations (favourable conservation status) and that the distribution throughout the country of animal and plant species within their natural ranges should ensure sufficient genetic variation within and between populations.
Chapter 8 of the Environmental Code lays down specific rules on the protection of species with the purpose to preserve biodiversity. Section 1 concerns the protection of animal species and establishes that the killing, injury or capture of wild animals or the taking of or causing of damage to the eggs, spawn, roe or nests of such animals can be prohibited by the
41 Author’s italics. According to prop. 1997/98:45, part 2, p. 9, biological diversity refers to diversity within species, between species and ecosystems.
42 See 1:1 Environmental Code.
43 The connection between biodiversity and sustainable development is recognized by the global convention on biological diversity as well.
44 See prop. 2004/05:10, p. 203-227.
Government45 when there is a risk of a wild animal species becoming extinct or being subjected to exploitation or when it is necessary for compliance with international undertakings to protect the species.46 Section 1 also establishes a general derogation in cases of attacks of persons or valuable goods; the prohibition shall not apply where animals must be killed, injured or captured in order to defend a person or valuable property against attack.
When an act takes place in connection with hunting and fishing, the provisions laid down in the hunting and fisheries legislations apply. However, the rules in the environmental code on the protection of animal species complement the provisions in the hunting and fishing regulations. The environmental code applies to other species than merely the species protected by the Hunting Act which is applicable to wild mammals and birds and the Fisheries Act which is applicable to fish and aquatic invertebrates. The environmental code applies to all reptiles, all amphibians and terrestrial invertebrates and to eggs and roe from these animals as well. In addition the environmental code complements the hunting and fishing legislations by applying to species that are covered by the hunting and fishing legislation when an act does not take place in connection with hunting or fishing.
Section 2 concerns the protection of plant species and establishes that the removal of, the causing of damage to or the taking of seeds or other parts of wild plants can be prohibited by the Government47 when there is a risk of a wild plant species becoming extinct or being subjected to exploitation or when it is necessary for compliance with international undertakings to protect the species.48 According to the preparatory work, the causing of damage to or the taking of seeds or other parts of wild plants refers to acts such as picking, breaking of twigs, the removal of whole plants or the spraying of plant species.49
The Regulation on the protection of species50 gives more detailed provisions on the protection of animals and plant species and delegates power to the Environmental Protection Agency to adopt the necessary regulations to protect species at the national level and to the counties to
45 Or by the authority appointed by the Government.
46 Author’s italics.
47 Or by the authority appointed by the Government.
48 Author’s italics.
49 See prop. 1997/98:45, part 2, p. 104.
50 Regulation (1998:179).
protect species at the regional level.51 The provisions laid down in the regulation on the protection of species builds on EC law.52 The regulations states that it is prohibited to deliberately capture and kill animals, deliberately disturb animals, particularly during the period of breeding, rearing, hibernation and migration, deliberately destruct or take egg from the wild and deteriorate or destruct breeding sites or resting places for wild animal species that are marked with N or n in the annex to the regulation.53 The prohibitions apply to all stages of life of the animals54 and do not apply to hunting of birds and mammals and to fisheries.55 In the case of wild plant species marked with N in the annex to the regulation, the regulation states that it is prohibited to deliberately pick, collect, cut, uproot or destruct plants in their natural range in the wild and that the prohibitions shall apply to all stages of the biological cycle of the plants.56
Those species that are marked with N are species that are listed in annex 4 of the habitat directive and therefore requires strict protection. Species marked with n are species that require strict protection according to a national assessment or according to international undertakings.57 Derogations from the prohibitions are given in section 1f.58 Derogations are only allowed if there is no satisfactory alternative and that the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range and that the derogation is for one of the objectives set out in section 1f (1-6). The prohibitions concerning protection of species are criminalized.59
2.2 The Legal and Ecological Basis for Protection in the Environmental Code
According to the rules laid down in section 8 of the Environmental Code species can be protected on three grounds. The first legal basis for protection is when there is a risk of the species becoming extinct. If the species is endangered or if there is a risk of it becoming
51 See sections 1a, 1c and 1d in the Regulation on the protection of species. At the moment about 300 species are protected at the national level. Those species can be grouped into 45 orchids, 186 other vessel species, 11 species of mosses, 8 species of lichens, 5 species of fungi, 20 reptiles and amphibians and 25 species of invertebrates.
These species are listed in appendix 1 of the by-laws on species protection (NFS 1999:7 and changed by NFS 1999:12 and NFS 2005:12), issued by the Swedish Environmental Protection Agency.
52 The EC Habitat and Bird Directives lay down rules concerning the protection of wild flora and fauna.
53 See section 1a in the Regulation on the protection of species. These provisions originate from article 12 in the Habitat Directive.
54 See section 1a, section 2.
55 See section 1a, section 3. In these cases the hunting and fisheries legislation apply.
56 See 1c in the Regulation on the protection of species. These provisions originate from article 13 in the Habitat Directive.
57 These species are not listed in annex 4 of the Habitat Directive.
58 These prohibitions originate from article 16 in the Habitat Directive.
59 Environmental Code, chapter 29, sections 8 and 9.
endangered in the whole or parts of its natural range, the species can be listed and protected nationally or regionally. The risk of extinction must not be global and the threat must not be caused by human activities.60 The second legal basis is when the species is not endangered, but it is being subjected to exploitation.61 E.g. the species may become regionally extinct due to the picking, killing or capturing of the species. The third reason for protection is that protection of the species is necessary for compliance with international undertakings. The species must then be protected even if it is not threatened in Sweden.62 The Swedish Environmental Protection Agency extends the second criterion for protection; species that are subjected to collection and resemble species that should be protected according to any of the other criteria can in certain cases be protected although it is not endangered.63 Protection of a species includes protection of subspecies as well as hybrids, if both animal parents are protected.64
To determine whether a species is endangered or if there is a risk of the species becoming endangered the conservation status of the species must be evaluated in some way. A favourable conservation status is defined in section 16 of the Regulation on protection of Areas.65 Section 16 states that a the conservation status of a species is favourable when the population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and there is and will probably continue to be, a sufficiently large habitat to maintain its populations on long-term basis.66 That is, if viable67 populations of the species cannot be
60 Prop. 1997/98:45, part 2, p. 103.
61 This basis for the protection of animal species was implemented by the Environmental Code. See Prop.
1997/98:45, part 2, p. 103.
62 The species protected by e.g. the EC Habitat and Bird Directives and the Bern Convention must thus be protected. E.g. species marked with N in the annex to the Regulation on the protection of species are listed in annex 4 of the Habitat Directive and therefore requires strict protection in Swedish law.
63 According to Swedish Environmental Protection Agency (1999) this is a fourth criterion for protection. The same criteria, but from a regional perspective, apply for counties when protection species regionally. However, it is stated that species should primarily be protected nationally (see p. 4).
64 Sometimes only the subspecies is protected (Swedish Environmental Protection Agency, 1999).
65 Regulation (1998:1252) on protection of areas according to the Environmental Code. Conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations according to section 16(4).
66 Author’s italics. The provision originates from article 1 (i) of the Habitat Directive.
67 A viable population is a population that is able to live or exist in a particular place or climate. See table 1.
maintained on a long-term basis within their natural range,68 protection of the species is justified.
More detailed criteria for the assessment of species’ conservation status are not laid down in law. Guidelines for interpretation of the criteria for protection of species can however be found in the environmental quality objectives which describe what quality and state of the environment are sustainable in the long term.69 Guidelines can also be found in the red-list system that has been developed through by-laws and preparatory works in Sweden since the 1960s.70 The system is used to classify species into different categories to reflect the relative risk of extinction faced by the species assessed and to facilitate the priority of protection measures. The red list is not legally binding; there is no legal connection between the red list and the lists of protected species. The red list however has an important indicative value.71 In 1997, preparatory work on protection of threatened species and action plans on biological diversity, established that the red list system should be developed.72 It is for instance suggested that the red list should be extended to include critical habitats of the threatened species and that a system for deciding priority of species-specific measures should be established by the Swedish Environmental Protection Agency and the Swedish Species Information Centre.73 At the moment, the red-list only covers threatened species.
The red list system includes ten different categories. Species assigned to five of these categories are so-called red listed species and thus considered threatened. The red list categories are regionally extinct, critically endangered (extremely high risk of extinction in the wild in the immediate future), endangered (very high risk of extinction in the wild in the near future), vulnerable (high risk of extinction in the wild in the medium-term future), near
68 Natural range is a dynamic concept which refers to the whole of the geographical area in which the species has occurred regularly and naturally during some period of time or where it could occur. It can for example be estimated on the basis of the likely distribution of the species. This concept should be distinguished from concepts such as natural habitats or habitats of species which are biological concepts determined by the species actual occurrence. See table 1.
69 The objectives are adopted by the Swedish Parliament (15 objectives were adopted in 1999 and one on biodiversity in 2005, “A rich diversity of plant and animal life”, prop. 2004/05: 150, p. 203-227). They provide the basis for the environmental policy in Sweden, but are not legally binding.
70 In 1994 an international standard was presented by the IUCN. For more information see http://www.artdata.slu.se/.
71 The Swedish Environmental Protection Agency states that the view of the Swedish Species Information Centre should be take into account at an early stage when a decision on protection is being planned. Moreover, all the species that exist in Sweden and are considered globally endangered according to the red-list of IUCN are protected. See Swedish Environmental Protection Agency (1999).
72 Prop. 1996/97:75, p. 63-65.
73 Ibid. See also decision 2002-09-27 (Dnr 235-5601-02N1).
threatened (close or likely to qualifying for a threatened category in the near future) and data deficient (species that could not be assigned due to lack of information but that most probably would be assigned to the threatened categories or to the least concern category). When a red list is being established a system based on five criteria is used to determine the categorization of the species. The criteria used for assessment concern reduction of the population (if the population has been or expected to become substantially reduced), the geographical extent of the population (if the range is limited, continuing to decline, fragmented and/or extremely fluctuating), the size of the population (if it is small and is continuing to decline or if it is very small) and quantitative analysis of the probability of extinction with a defined time frame.
Only one of these criteria must be met for the listing of a species in the red list categories. To determine in which category a species should be listed, the criteria have a different numerical threshold value for each of the different categories.74 For example, the threshold value for classifying a species as critically endangered according to the first criterion (population reduction) is that there has been or will be in the coming 10 years a reduction of the population with 80 percent or more.75
2.2.1 The Protection of Habitats of Threatened Species
The protection of species laid down in the Environmental Code and the regulation on the protection of species is limited to acts that directly damage the protected species or their eggs, nests or roe. According to section 8:1 it is prohibited to kill, injure or capture wild animals or to take of or causing of damage to the eggs, roe or nests of these animals and according to section 8:2 it is prohibited to remove, cause damage to or take seeds or other parts of wild plants.76 According to the regulation on the protection of species it is prohibited to deliberately capture and kill and disturb animals, deliberately destruct or take egg and deteriorate or destruct breeding sites or resting places77 and to deliberately pick, collect, cut, uproot or destruct plants. Acts that are not deliberate, but that lead to e.g. the killing, or disturbing of protected species is thus not prohibited. Only in the case of destructing breeding sites or resting places are acts that are not deliberate prohibited. The prohibitions do not apply to ongoing land use with other purposes, such as forestry or farming.78 A question then is
74 For more details see http://artdatabanken.slu.se.
75 Ibid.
76 Author’s italics.
77 The deterioration or destruction of breeding sites or resting places is not limited to deliberate actions.
78 In certain cases the rational use of land can be impeded by the prohibitions concerning protected species.
According to 1 e§ in the Regulation on the protection of species, the rational use of land can be impeded if this is prescribed when the prohibition is laid down. This derogation applies only to species protected by the Swedish
what the term deliberate refers to. Is it enough to be aware of the consequence of the act for the protected species or must the consequence be intended? A case from the EC Court79 gives some support for the former interpretation; that is, that it is enough to be aware of the consequence for the prohibition to apply.80 However, a more extensive interpretation necessitates a change in the provisions concerning the legal right to compensation to be compatible with the constitution.81 At the moment there is no right to compensation connected to the provision on the protection of species laid down in chapter 8, section 1 and 2 of the Environmental Code.82
The protection of species is thus limited to acts that are deliberate and that directly damage the protected species or the eggs, nests or roe of that species. However, acts that damage habitats that are critical for the survival of the protected species are not prohibited. The Swedish legislation on species protection does not comprise protection of the habitats of protected species (only breeding sites or resting places for listed species are protected). Loss and fragmentation of habitats is often a serious threat to species and biodiversity83 and an extended protection of the habitat of the protected species is therefore an important approach in protecting species.84 The environmental goal on biodiversity lies down that to conserve biological diversity, not only species but habitats must be maintained in favourable conservation status. Habitats must therefore exist in sufficient numbers and in a favourable conservation status to maintain long-term viable species populations. Habitats that have been damaged, reduced in area or distribution or where the quality has been degraded, must be restored.85
The law provides other possibilities, with differing strengths, to protect habitats of endangered species and/or biodiversity, such as the establishment of protected areas, such as nature
Environmental Protection Agency or by the county administration board and not to species listed in annex 1of the regulation. In those cases section 24 and 27 in the Regulation (1998:1252) on the protection of areas according to the Environmental Code apply. The species is however not protected against ongoing land use.
79 Case 412/85 Commission vs. Germany [1987] ECR 3503.
80 For a more detailed discussion see Michanek and Zetterberg (2004), p. 223-227, and Berggren (2006).
81 See Instrument of Government (RF) 2:18.
82 See chapter 31, section 4, Environmental Code.
83According to prop. 2004/05:150, p. 206, destruction of ecosystems and species habitats are the largest threat to biodiversity.
84 Critical modifications of habitats of protected species would consequently be prohibited.
85 Prop. 2004/05:150, p. 9.
reserves, habitat protection areas, wildlife and plant sanctuaries and shore protection areas.86 However, the protection of areas is limited to the targeted area and/or requires listing.87 The protected area approach has a disadvantage compared to the system of protecting habitats as it fails to protect scattered habitats which often is important, especially when species are wide ranging. A habitat protection system which goes beyond the system of protecting areas can therefore be more adequate for the protection of threatened species which ranges outside legal borders. However, the protection of scattered habitats can have adverse consequences e.g. on predictability and legal certainty. For example, in the United States, where the protection of species in the Endangered Species Act includes protection of the habitat of the endangered species, the building of a dam was halted, although 80 percent of the work had been completed, when the snail darter (a new species of perch) was discovered. As the snail darter was listed as an endangered species and the river where the dam was being built declared as its critical habitat, the building of the dam was halted.88
According to EC-law, there is also a direct connection between the species and the protection of the habitat of the species. Habitats for bird species listed in annex 1 of the Bird Directive should be classified as special protection areas for the conservation of these species and similar measures should be taken for migratory speciesnot listed in annex 189 and habitats for fauna and flora species listed in annex II of the Habitat Directive should be designated as special areas of conservation90 and appropriate measures to avoid deterioration of habitats or disturbances of these species protected on the site should be taken.91 However, the protection of habitats includes non-designated areas as well. The EC-court has declared that article 4(4) of the Bird Directive applies to areas that have not been classified as special protection areas but should have been classified.92 In another case the court declared that an interpretation of article 7 of the Habitat Directive, article 6(2) and 4 of the Habitat Directive does not apply to
86 See chapter 7 of the Environmental Code. The general rules of considerations in chapter 2 of the Environmental Code are applicable as well, however, these rules are not criminalized.
87 Designations, decisions etc.
88 See case Tennessee Valley Authority v. Hill. In Finland the protection of species incorporates protection of habitats as well. In two cases the protection of the flying squirrel has lead to restriction of activities (limited rights to forestry and cancelled permission to quarrying of rock). See cases 25.06.2003/1540 (HFD 2003:30) and 25.06.2003/1541.
89 Directive 79/409 on the conservation of wild birds [1979] O.J. L103/1, article 4.
90 Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] O.J. L206, article 4 and 6.
91 See article 4(4) of the Bird Directive and article 6(2) of the Habitat Directive. According to article 4(4) of the Bird Directive shall take such measures within the special protection area while outside the protection areas member states shall strive to avoid pollution or deterioration of habitats” (author’s italics). Such distinction is not made in article 6(2) of the Habitat Directive.
92 See case C-355/90, Commission v. Spain [1993] ECR I-4221.
