Implementation of the habitats directive in a governance perspective: the case of Denmark

Abstract

The present report constitutes part of the Danish contribution to the European research project New Modes of Governance for Sustainable Forests in Europe (GoFOR). It builds on the conceptual framework developed during the GoFOR project and is structured according to the corresponding Terms of Reference. The empirical study was conducted in the period 2005-2007. The Habitat Directive (HD) was adopted in the EC (now EU) in 1992. It has subsequently been in the process of implementation, encompassing the following phases: 1992-2001, 2005: Designation of SAC sites (1992-2001, 2005) 2003-2005: Implementation in legislation: Act on Environmental Objectives and revision of existing acts 2005-2007: Technical specification of the HD in a Danish context: identify nature types, quantitative interpretation of ‘favourable conservation status’ for each nature type mapping and conduct base analysis 2007-2009: Natura 2000 plans and Natura 2000 action plans This case follows the implementation of the HD in Denmark, beginning with the designation of SAC sites in 1993 and ending with the base analysis in 2006. The HD was chosen to contrast the NPP case rather than for being an example of new modes of governance. The HD case has major financial and political significance and is characterised by a multilevel decision structure. In contrast to the NPP, the HD case was deliberately strongly sector specific, expertise driven, and not participatory. Participation was restricted to public hearings of sector related NGOs and public authorities, whereas ordinary citizens were not a target for participation. In the first designation of SAC sites, the affected landowners were not directly consulted. This gave rise to critics, and in the subsequent revised designation of SAC’s landowners were consulted on an individual basis. Complaints over insufficient designation of SAC sites and insufficient implementation of the HD in the Danish legislation caused the EU to require the Danish Government to follow up on this. Indirectly, the right to lodge a complaint is used by NGOs to strengthen their position of influence towards the environmental, public authorities in general and may be the most effective means of influence. At the outset the general impression in the public administration was that the HD would have little practical influence on land management. It was assumed that the existing legislation was sufficient to conserve biodiversity corresponding to the requirements of the HD. In 1995, the Minister of Environment at the time explicitly stated that the HD would have minor significance to private landowners. This was also the excuse for not consulting landowners in advance of designating SAC sites in 1995. Subsequent cases at the European Court of Justice showed that implementation of HD would require changes of management. These fundamental changes of preconditions caused a loss of trust among landowners towards the environmental authorities. Intersectoral coordination The HD overrules all other regulation, except for pressing societal matters. The intersectoral coordination in the HD case took place as forced coordination rather than cooperation. This mode of policy implementation clashes with the administration culture in Denmark: Danish environmental legislation is based on decentralisation and framework legislation providing discretionary powers to the local public authorities to balance economic, social and ecological interests in the specific context. In contrast, the HD has to be implemented according to specific, uniform standards, with limited room for interpretation. As such, the implementation of the HD is a move away from more soft modes of governance towards hierarchic, rule based government. v Multi-level governance The HD case is multileveled, involving EU, national, county and municipal level, and to a limited extent landowners. Decisions made at the Environmental Court of Justice apply to all EU countries, even if the case is raised regarding one country only. This means that the scope of influence for NGOs etc. has widened to encompass activities and authorities throughout Europe. This relatively strengthens EU aware NGOs like BirdLife. Expertise The HD has a strongly technical and scientific character. The HD specifically calls for scientific expertise in its implementation and there was extensive use of experts from the sector research institutions of the Ministry of the Environment (NERI, S&L, GEUS) and staff from NFNA to specify and interpret the different elements of the HD. From the perspective of the NFNA, all, known experts were involved. There were discussions and different viewpoints among experts about what the correct interpretation of the HD is. It was not a transparent process. Documents have been both physically and linguistically difficult to access, because of the technical-scientific language applied. Adaptive, iterative planning The HD was a forced iterative process. Built in mechanisms to induce iterativity were: (i) Sixyearly reporting to the EU, (ii) Possibility for citizens to lodge a complaint to the EU Commission (iii) Monitoring of habitats, cf. the HD (iv) possibility of supplementary designation of SACs (v) Lack of legal implementation – opening statement from EU – revised legal implementation. The weakness of the process is that it is designed as a one-way process, with little scope for revising the foundation: the EU policy design. This may be critical, e.g. in a period where climate changes forces a new and more dynamic approach to nature conservation than the HD allows for. Conclusion The HD has altered the Danish tradition for balancing economic and ecological interests and possibly giving exemptions from legislation. In contrast, EU and European Court of Justice require a strict interpretation of the HD, and not only measured on actions and intentions, but on the actual conservation status of the habitats and species. This can be considered a strengthening of the ‘rule of law’. The HD is far less participatory than the NPP case. But as the two cases shows, the participation process in the NPP was less suited at managing conflicts of interests, as that of a powerful minority group (agriculture) against a majority. In contrast, The HD, based on legislation and the court, is able to deal with such conflicts.