An exploration on Environmental Act 2021: a step towards potential biodiversity gain?

Introduction

The Environmental Act 2021 is an act implemented to make provisions about targets, plans and policies for improving the natural environment.[1] This article will focus on the Act’s ‘biodiversity gain’ section. It aims to evaluate the benefits and underlying problems of this new Act. After the discussion, it will be argued that although the effectiveness of the Act remained uncertain, the current Act still serves as a massive step when there is an urgent need for biodiversity preservation.

Statute

Environmental Act 2021 states that planning permission in England will only be granted when a biodiversity gain objective is met. A 10% gain in biodiversity in each development site should be met. The increase must be maintained for 30 years, with the local planning authority to enforce it. [2]

Discussion

On one hand, legislation requiring biodiversity gain is a massive step up in environmental protection. It focuses on restoration, offsetting damages done to the environment. In contrast, previous legislations such as the Town and Country Planning Regulations 2012[3], focused more on procedural requirements like an Environmental Impact Assessment to be done, with the aim to be mitigating environmental damages.

In addition, the Act seems to have struck a balance between the prolonged tension between economic and environmental interests. Most of the time, economic interests dominate over environmental interests.[4] Not only does the Act allow development but at the same time offsetting the environmental damages, but also diverting the cost to private developers instead of using public tax. It looks like a win-win situation that satisfies both interests.

On the other hand, to calculate a biodiversity gain means that there is a huge presumption in which nature’s ‘value’ is calculatable. This can be theoretically and realistically problematic.

Theoretically, it shows that humans are taking an anthropocentric point of view upon nature. At present, biodiversity is viewed as a part of a common heritage for the benefit of everyone.[5] However, by putting a ‘value’ on nature shows that it has become a commercial commodity. It undermines nature’s spiritual and communal values. In other words, there is a conceptual mistake for humans, who are also part of but not above nature, to put a price tag on nature.

Realistically, it is questionable whether nature’s ‘value’ can actually be calculated. Currently, the ‘unit’ for calculation is created by the Department for Environment, Food and Rural Affairs (DEFRA) to measure all substances of nature may not be accurate. According to DEFRA, they do consider various factors such as habitat conditions, potential risks, and uncertainties. [6] But this issue remains contestable. Specifically, how is the ‘value’ calculated remains confusing. Under such a calculation system, it seems to be allowing the loss of a habitat for a ‘giant panda in exchange for the effective conservation of areas of Amazonian rainforest.’[7] But undoubtedly, different habitats have their own uniqueness, with different species living there and interact differently with Earth’s systems. Therefore, it is suggested that lawmakers could provide clearer guidance and explanation of the issue, as improved transparency to the public can be a reassurance to the public.[8]

Argument

When it comes to evaluating a legal measure’s effectiveness, there is a fundamental problem: uncertainties in nature. Ecosystems are complex, sometimes they may undergo changes that can result in great replacements, but sometimes they can return to their equilibrium state with no problem. Yet, as humans, we cannot precisely calculate nature’s resilience to changes. Thus, it is vital to implement legal measures to build up nature’s capacity to adapt as one doesn’t know how much resilience nature requires to survive future challenges.[9]

The loss of biodiversity is at an unprecedented rate, faster than it is able to recover, happening in every region of the world.[10] There is an urgent need not only to stop environmental deterioration, but also to offset the damages already done to the environment. Thus, the current Act, despite being controversial, is a big step in helping to build up nature’s resilience to changes.  

Conclusion

To summarise, this article shows that while there are advantages and disadvantages in implementing the new Act, as well as nature’s unpredictability, with an unprecedented loss of biodiversity, there is an urgent need to conserve the environment. Although we cannot precisely know if the policy of offsetting will be successful or not, it is a big step towards preserving biodiversity in nature.

Bibliography

Primary Sources

Statutes

1.     Environmental Act 2021.

2.     Town and Country Planning (Local Planning) (England) Regulations 2012.

Secondary Sources

Journal Articles

3.     Concetta Castiglione, Davide Infante and Janna Smirnova, ‘Environment and economic growth: is the rule of law the go-between? The case of high-income countries’ (2015) Energy, Sustainability and Society 5, 26.

4.     Colin. T Reid, ‘The Privatisation of Biodiversity? Possible New Approaches to Nature Conservation Law in the UK’ (2011) Journal of Environmental Law 23, 2.

5.     Colin. T Reid, ‘Between Priceless and Worthless: Challenges in Using Market Mechanisms for Conserving Biodiversity’ (2013) Transnational Environmental Law 2, 2.

6.     Vernon H. Heywood, ‘Conserving plants within and beyond protected areas – still problematic and future uncertain’ (2019) Plant Diversity 41, 2. 

Books

7.     Olivia Woolley, Ecological Governance: Reappraising Law's Role in Protecting Ecosystem Functionality (2014).

Official reports

8.     Department for Environment, Food and Rural Affairs, Biodiversity Offsetting Pilots Technical Paper: the metric for the biodiversity offsetting pilot in England (2012).

[1] Environmental Act 2021, Introductory text.

[2] Ibid, Schedule 14.

[3] Town and Country Planning (Local Planning) (England) Regulations 2012.

[4] Concetta Castiglione, Davide Infante and Janna Smirnova, ‘Environment and economic growth: is the rule of law the go-between? The case of high-income countries’ (2015) Energy, Sustainability and Society 5, 26.

[5] Colin. T Reid, ‘The Privatisation of Biodiversity? Possible New Approaches to Nature Conservation Law in the UK’ (2011) Journal of Environmental Law 23, 2.

[6] Department for Environment, Food and Rural Affairs, Biodiversity Offsetting Pilots Technical Paper: the metric for the biodiversity offsetting pilot in England (2012).

[7] Colin. T Reid, ‘Between Priceless and Worthless: Challenges in Using Market Mechanisms for Conserving Biodiversity’ (2013) Transnational Environmental Law 2, 2.

[8] Ibid.

[9] Olivia Woolley, Ecological Governance: Reappraising Law's Role in Protecting Ecosystem Functionality (2014).

[10] Vernon H. Heywood, ‘Conserving plants within and beyond protected areas – still problematic and future uncertain’ (2019) Plant Diversity 41, 2.