Claws & Laws

Trends in nature protection laws

Environmental laws are binding and enforceable tools that constrain human impacts on the environment, but how effective are they at keeping humanity away from critical planetary boundaries when faced with political pressure? In a paper published in Nature Ecology and Evolution, we describe a taxonomy of tactics that are routinely used to make biodiversity laws less effective.

We identify five broad categories of tactics used to weaken nature protection laws: i) changing the targets of protection, ii) changing the mechanisms of protection, iii) changing the importance of biodiversity relative to other considerations, iv) limiting access to justice and v) weakening the rule of law.

These tactics can occur through various public policy processes, for example legislative or executive acts, constitutional amendments or international agreements. Additionally, laws that remain constant on paper can nevertheless be changed in practice through evolving jurisprudence, administrative discretion or political interference. Finally, governments may simply disregard their legal obligations, without even changing the laws.

Read more in Chapron et al. (2017). Bolster legal boundaries to stay within planetary boundaries. Nature Ecology and Evolution 1(3): 0086.


Figure: Feedbacks between human activities (red area) and legal boundaries (yellow bands) relative to planetary boundaries (Earth). Legal boundaries may be effective when constraining growing human activities and preventing transgression of planetary boundaries. Increasingly porous boundaries, on the contrary, will let human activities grow and eventually transgress planetary boundaries. Misplaced boundaries are farther away than planetary boundaries and ineffective in preventing their transgression, and may be constantly pushed further by colliding human activities.

How nature protection laws get weakened

We enumerate attacks on biodiversity laws and provide illustrative examples from the past decade. We exclude related legal tactics that do not specifically pertain to biodiversity laws, such as censorship on government scientists or use of national security and anti-terrorism laws to crack down on environmental advocates.

Change targets of protection

Permit extinction of species under protection law

Western Australia’s Biodiversity Conservation Act 2016 allowed for exemptions, including allowing species to become extinct, if ordered by the environment minister and approved by Parliament.

Bypass ordinary standards to remove protection

United States budget rider stripped ESA protections from grey wolves (Canis lupus) in Montana and Idaho.

Redefine terms

US H.R.1042 proposed to declare a species extinct if its population status has not substantially increased 15 years after being listed as endangered.

Remove species protection through taxonomic meddling

The Indian state of Goa amended a law forbidding the felling of certain trees without permission by including only woody plants of a certain size that have branches, which excluded the coconut tree (Cocos nucifera) from protection.

Weaken species protection through taxonomic ambiguity

The US ‘McKittrick policy’ makes criminal prosecution of individuals who killed protected species impossible unless knowledge that the animal was a protected species can be proven.

Restrict protection to economically valuable species

The Canada Fisheries Act (2012) conferred protection only against serious harm to fish that are part of a commercial, recreational or aboriginal fishery (including non-native).

Remove natural habitat protection

New Brazilian Forest Code decreased forest protections along riverbanks and hills and relieved landholders of the obligation to reforest illegally cleared land.

Change mechanisms of protection

Make requirements for protected status more difficult to meet

The US Fish and Wildlife Service (FWS) issued a new interpretation of 16 USC Section 1532(6) species “significant portion of its range” that allowed it to consider small and isolated species populations non-endangered.

Increase requirements to regulate industrial activity

French MPs proposed to increase the size at which industrial pig farms need a specific assessment to operate.

Fast-track environmental approval of development projects

Brazilian bill 654/2015 proposes to fast-track environmental approval of development projects considered strategic for the country.

Preempt protection

The US Consolidated Appropriations Act (2016) prevented consideration of protection for the sage grouse (Centrocercus urophasianus) during that year.

Give protection an expiry date

US S.855 proposes to automatically remove species from the protected list after 5 years.

Shield specific threats from regulation

The Canada Fisheries Act (2012) removed prohibition on harmful alteration, disruption or destruction of fish habitat.

Weaken environmental licensing

Brazilian constitutional amendment PEC 65/2012 proposes to remove the possibility of cancelling development projects due to anticipated negative environmental impacts.

Transfer of powers

The South African National Environmental Management Act (2009) was amended to empower the Minister of Minerals and Energy Affairs (instead of the Minister of Environmental Affairs) to implement all environmental matters in relation to mining.

Remove oversight from higher authorities

Canadian 2012 budget bill C-38 replaced the Canadian Environmental Assessment Act by a regulation removing numerous industrial and development projects from federal assessment.

Race to the bottom

The Netherlands reformed its biodiversity legislation, based on express policy to reduce protection to minimum standards, resulting in deletion of entire categories of protected areas and a severe decrease in the number of protected species.

Change importance of biodiversity relative to other considerations

Remove independent scientific advice

Canadian 2012 budget bill C-38 closed the National Round Table on the Environment and the Economy which provided non-partisan advice on federal environmental policies.

Preclude consideration of certain scientific data

US S.3071 proposed to amend the ESA to prohibit considering climate change in the determination as to whether a species is threatened or endangered.

Change definition of scientific data

US S.736 proposed to amend the ESA so that any information submitted by a state, tribal, or county government qualifies as best available science.

Suspend protection under particular circumstances

US H.R.1668 proposed to suspend the ESA for water management in case a drought is declared.

Prioritize industry

Swedish expropriation law was amended to require any restriction on a landowner’s ongoing land use (such as forestry) that led to “significant difficulties” (generally an economic loss of more than 10%) to be compensated at 125% of the total loss, making biodiversity protection more expensive and in some cases not possible.

Prioritize trade

The Australian government proposes to repeal section 487(2) of the Environmental Protection and Biodiversity Act to avoid negative impacts on free trade agreement negotiations with India.

Prioritize military activities

US S.2410 (Sec. 353) allowed incidental take of California southern sea otters (Enhydra lutris) during training for military readiness activities.

Prioritize anti-immigration measures

The US 2005 Real ID Act ensured that the ESA and other environmental legislation are not applied to construction of Mexican border fences.

Prioritize diplomacy

The Pakistani Supreme Court lifted a ban on houbara bustard (Chlamydotis undulata) hunting after the government argued it harmed relations with Arab states.

Prioritize ‘national interest’

A Mauritian biodiversity law (2015) opened the possibility to cull a species in the ‘national interest’, and was used to cull >20,000 Mauritius fruit bats (Pteropus niger).

Investor–state dispute settlement (ISDS) mechanisms

Mexico was ordered to pay US$40 million in compensation for losses and lost future profits, plus 50% of litigation costs, to Abengoa, a Spanish multinational corporation, after revoking a permit for a waste facility in an environmentally vulnerable area.

Limit access to justice

Reduce access to justice

The Netherlands eliminated the actio popularis that allowed anybody to challenge environmental permits, limiting access to parties deemed to have an interest in the case.

Shield government decisions from judicial review

The Swedish government modified law to make large carnivore hunting decisions appealable only to the government authority issuing them and not to court.

Increase financial risk when litigating

The British government proposes to increase the financial liability of NGOs if they lose public interest environmental litigation.

Litigate to intimidate and silence critics

A Canadian timber company engaged in a strategic lawsuit against public participation (SLAPP) against US NGOs after sustainability certificates were suspended.

Abuse political power and weaken rule of law

Criminalize data collection and sharing

Wyoming data trespass law made it illegal to collect environmental data on open lands (including public lands) without permission.

Silently neglect enforcement of strong laws

Spanish authorities failed to enforce the EU strict protection regime for the Sierra Morena wolf population, resulting in the disappearance of the population due to widespread illegal killing.

Expressly weaken law enforcement

The French environment minister ordered law enforcement forces to not arrest illegal hunters of migratory birds.

Deny apparent violation of law

Australian authorities culled sharks despite the apparent violation of the Convention on Migratory Species.

Defund law enforcement

US HR 2822 (amendment 634) proposed prohibiting the use of funds by USFWS to enforce the ESA with respect to certain mussels.

Ignore court ruling

Greece failed to curb uncontrolled management of a landfill affecting a sea turtle (Caretta caretta) breeding site.

Regulatory chill

Several mining companies won exemption from Indonesian law banning open-pit mining in protected forest areas following threats of costly ISDS litigation.

References for the illustrative examples can be found in Chapron et al. (2017). Bolster legal boundaries to stay within planetary boundaries. Nature Ecology and Evolution 1(3): 0086.

Website of Claws & Laws. Developed by Guillaume Chapron © 2019