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Protected Areas Governance and Justice: Theory
and the European Union’s Habitats Directive
Dr Jouni Paavola
Centre for Social and Economic Research
on the Global Environment
University of East Anglia
Norwich NR4 7TJ, UK
44-1603-593116 (tel)
44-1603-693739 (fax)
j.paavola@uea.ac.uk
ABSTRACT
This article investigates protected areas governance and the role of justice in it. The article
argues that protected areas governance is needed because resources such as biodiversity and
heritage create conflicts over their use and preservation. The resolutions of these conflicts
need to be justified for the involved and affected interest groups in order to guarantee their
legitimacy and effectiveness. The legitimacy of governance solutions is argued to rest on both
distributive and procedural justice. On one hand, the distribution of beneficial and adverse
consequences of protected areas governance must be justifiable and justified. On the other
hand, decision-making regarding protected areas has to satisfy expectations regarding
procedural justice. The article exemplifies these arguments by analysing the European
Union’s Habitats Directive and experiences in implementing it. The article demonstrates how
the lack of attention to distributive and procedural justice has resulted in conflicts which have
delayed the implementation of the directive and have undermined its effectiveness.
KEYWORDS
Environmental governance, protected areas, justice, participation, Habitats Directive
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1. INTRODUCTION
Protected areas governance has been a practice-driven area of environmental
management. One reason for this is that the roots of protected areas governance extend to the
establishment of first national parks such as the Yellowstone and the Yosemite in the United
States during the latter half of the 19th century, when neither life sciences nor social sciences
could offer elaborate justifications and guidance for establishing and designing governance
solutions. Motives for the establishment of early national parks such as the Yellowstone also
varied from the desire to secure revenue from tourism to desires to create national symbols.
Economics could offer a justification for protected areas governance and inform the
design of governance solutions. Conventional economic prescriptions include the setting of
welfare-maximising policy goals and the use of market-mimicking policy instruments (1).
Most economic research pertinent to protected areas governance has indeed examined
monetary value of species, habitats or biodiversity on the basis of individuals’ willingness to
pay or analysed costs and benefits of protected areas (2, 3, 4, 5). However, protected areas are
seldom established exclusively for the improvement of human welfare: non-welfarist goals
such as preservation for its own sake are often involved. Protected areas also include goods
for which it is difficult to establish free markets, albeit not necessarily impossible as
suggestions for biodiversity credit systems illustrate. Because they offer little guidance
regarding how to devise non-market institutions for realising goals other than those related to
human welfare, conventional economic arguments have had somewhat limited influence on
protected areas governance.
The new institutional approach to the management of natural resources and
environmental quality at the local and international levels which have emerged in the last
decade promises to offer more for protected areas governance (6, 7, 8, 9, 10, 11, 12, 13). This
interdisciplinary approach has discredited “the tragedy of the commons” and has indicated
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under what circumstances communities can manage natural resources they depend on in a
sustainable way. This research has focused on the management of common-pool resources
under local and international governance solutions, but it can be extended to national policies
and resources that have different physical attributes (14). The approach is attractive because it
can shed light on the implications of governance institutions and the role of justice in
protected areas governance. The approach argues that the purpose of environmental
governance is to resolve conflicts over the use and protection of environmental resources.
Different resources will generate different kinds of conflicts and institutional solutions for
governance obviously differ with respect to their capacity to resolve conflicts. Justice is
intimately involved in the resolution of conflicts and will thus influence the effectiveness and
outcomes of governance solutions.
This article demonstrates how the new institutional approach can be extended to
protected areas governance by examining the conceptual similarities and differences of
common pool resources and joint impact goods and resources, of which biodiversity,
landscapes and heritage are examples. Both kinds of goods or resources create
interdependence which results in conflicts and requires collective decisions regarding
governance. While common-pool resources involve decisions regarding the aggregate level
of use and the distribution of entitlements to use, joint impact goods and resources involve
decisions regarding the quantity and quality of the good to be provided and the distribution of
cost of providing the good (15). The latter decisions invite strategic behaviour and free riding,
which make the resolution of conflicts regarding joint impact goods difficult. When parties to
a conflict are interdependent, all governance solutions will favour some of them and
disadvantage others. This is why justice is intimately involved in decisions regarding
protected areas governance.
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In the article justice is understood as a social activity that generates resolutions to inter-
personal dilemmas and establishes the legitimacy of these resolutions through certain
practices, as well as the body and implications of these resolutions (16). Justice encompasses
the incidence of beneficial and adverse consequences of decisions as well as the implications
of the way in which decisions are made. Distributive and procedural justice are tied together:
unequal distribution of wealth often translates to unequal participation in collective decisions
and political power is used for wealth-seeking. All collective decisions have justice
dimensions – protected areas governance is not a special case in this sense. Moreover, justice
implications of collective environmental decisions are nothing new. For example, past
decisions and actions such as enclosures of agricultural land and pastures and the creation of
private property rights in them have had significant justice implications. Finally, as pluralist,
communitarian and pragmatist scholars have reminded, justice is not universal or timeless: it
is specific to particular issues, time, and context.
The article will exemplify these conceptual arguments by analysing the experiences
with the establishment and implementation of the European Union’s Habitats Directive, the
primary institutional solution for the governance of biodiversity and protected areas in the
European Union. The Habitats Directive provides a fruitful object for analysis because its
implementation has brought up numerous conflicts in member states and at the European
level. The analysis seeks to interpret the implementation experiences in the light of
theoretical discussion presented in the article in order to indicate and evaluate the
ramifications and usefulness of these theoretical ideas. The analysis does not seek to ground
argumentation on extensive empirical evidence gathered from the stakeholders although such
exercise would take the now completed analysis forward. The article suggests that disregard
for the distributive and procedural justice implications of the Habitats Directive is one
important reason for the experienced conflicts and that it has compromised the legitimacy and
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effectiveness of protected areas governance in Europe. The article suggests some potential
remedies and further issues to be researched.
In what follows, the second section indicates how the new institutional approach can be
applied to protected areas governance. The third section discusses the role of justice in
protected areas governance. The fourth section analyses the implementation of Habitats
Directive. The conclusions discuss the policy implications of presented arguments.
2. ENVIRONMENTAL GOVERNANCE, CONFLICTS AND INTERDEPENDENCY
The governance literature argues that environmental governance exists to facilitate and
manage collective action and cooperation, and to resolve conflicts (17). It also agrees that
institutional arrangements are the instruments with which decisions that resolve
environmental conflicts are implemented. However, much less attention has been spent on
what are the sources of environmental conflicts and whether there are systematic differences
in the nature of environmental conflicts that would call for different institutional solutions in
order to resolve them (however, see 18, 19, 20). Answers to these questions would shed light
on how the relationships (fit) between governance problems and solutions influence the
effectiveness and outcomes of environmental governance. They are also important for
extending the new institutional approach from its conventional domains – the analysis of
local common property regimes and international environmental conventions for the
governance of common-pool resources – to new areas of application.
Protected areas governance is one possible new area of application for the new
institutional approach to environmental governance. The first question from its viewpoint is:
what is the environmental resource that is sought to be preserved by protected areas
governance? The answer is not straightforward. Protected areas have been established to
preserve certain natural resources but protected areas governance can hardly be argued to
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reduce to natural resources management. Sometimes concerns for certain plant or animal
species have provided the incentive for the establishment of protected areas, while at other
times the incentive for their establishment has been the preservation of increasingly scarce
types of ecosystems. We can encompass these concerns by protection of biodiversity but even
that does not exhaust what protected areas governance is all about. For example, there often
are issues of landscape and natural and cultural heritage at stake.
Biodiversity, landscapes and heritage have certain physical attributes in common that
set them apart from common-pool resources such as pastures, forests and fisheries. Units of
flows of common-pool resources are rival in consumption (21). For example, fisheries
generate flows of fish: when a fish is captured by one individual it is not available for others.
Biodiversity, landscapes and heritage are often called public goods. More specifically, they
are joint impact goods that can be used simultaneously by a number of users so that an
additional user does not decrease the ability of others to use them (22). For example, a
majestic landscape can be enjoyed by a large number of people at the same time. Similarly, a
stock of biodiversity confers benefits to a number of people simultaneously. While goods
such as biodiversity, landscapes and heritage make a joint use by a number of users possible,
their capacity is typically finite and sometimes quite limited.
The consumption attributes of biodiversity and common pool resources are thus
different but they do often share another important physical attribute. It is often difficult to
prevent or exclude people from enjoying or using both kinds of environmental resources.
This resource attribute makes it difficult to establish effective private property rights in
common-pool resources and suggests the use of collective action and collective ownership
arrangements instead. Joint impact goods may or may not portray the difficulty of exclusion.
For example, small parks and other small sites with few access points may be easy to control
but bigger areas with diffuse boundaries are not. Resources such as (ecosystem) biodiversity
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are even more difficult to control and to exclude from. The implication is the same as with
common-pool resources. Collective action and provision are needed and markets cannot be
relied on to generate adequate supply.
What then is the significance of physical attributes of biodiversity, landscapes and
heritage in comparison to those of common-pool resources? When the difficulty of exclusion
is present, it suggests collective action and provision with respect to both kinds of resources.
However, the difference in consumption attributes results in some differences in governance
problems and solutions. In the case of common-pool resources, rivalry in use and difficulty of
exclusion may result in competitive extraction that decimates the resource. This is the
“tragedy of the commons” or, rather, tragedy of the open access as new institutional scholars
have pointed out (23, 24). With regard to common-pool resources, the conflict is about who
has a right to extract a unit of resource. This conflict can be resolved by establishing
communal property rights or environmental regulations that determine the rights of
competing resource users. Joint impact resources such as biodiversity, landscapes and
heritage present a different dilemma. On one hand, these resources are available for all when
they are available for one agent. There is thus an incentive to ride free on the effort of others
to provide the resource. If nothing is done to constrain free-riding, nobody will make the
sacrifices needed for the continued provision of the resource. Moreover, same quantity and
quality of the resource is available to all and cannot be altered to suit individual preferences.
Thus the conflict is: how much of the resource and of what quality should be provided and
how the costs of provision should be distributed? Governance institutions will have to resolve
these issues in one way or another and create either free riders or unwilling riders (25).
Joint impact goods and common-pool resources generate different kinds of conflicts
because their resource attributes engender different interdependencies between the involved
agents. Interdependence exist when one agent’s choices influence the alternatives or choices
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of other agents. Interdependence is omitted in the conventional economic approach although
it is a commonplace in the real world. Rival consumption of common pool resources makes
competing resource users interdependent because one user’s consumption precludes that by
another one. Joint consumption of resources such as biodiversity, landscapes and heritage
means that whatever quantity and quality is made available for an agent, it also determines
the choice sets of other agents. One agent’s decision to ride free on the efforts of others will
increase the costs others will have to carry. If all are forced to contribute to costs on equal
basis or according to some formula, some individuals are contributing more than they would
want to while others contribute less than they would be willing to.
The concept of interdependence clarifies how environmental governance resolves
environmental conflicts. Interdependent agents end up in a conflict because their alternatives
and choices are tied together in a way which does not permit everybody to realise their
interests simultaneously. When some interests in environmental resources are realised by
governance solutions those of others are inevitably frustrated or sacrificed. These choices
between interests are not a matter of optimising as the conventional economic approach
suggests. Those whose interests are frustrated by an environmental decision are hardly
persuaded about the legitimacy of an environmental decision by demonstrating that it was
optimal or welfare-maximising to endorse and realise the interests of others. The legitimacy
of environmental decisions hinges on distributive and procedural justice, which I will discuss
in greater detail in the following section.
3. JUSTICE IN PROTECTED AREAS GOVERNANCE
Understanding the role of justice in environmental governance requires that we
examine the motivations that inform individuals’ interdependent choices and behaviour.
Environmental governance literature does not usually dwell much on its behavioural
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assumptions. It often shares the conventional economic assumption according to which
agents seek to improve their welfare or utility. Alternative behavioural motivations such as
environmental stewardship are sometimes acknowledged but explicit attempts to broaden
behavioural assumptions are rare. Yet a more nuanced treatment of human motivations is
needed to understand environmental conflicts and collective choices required by them.
Early economists understood that individuals pursued either psychological pleasure or
what enhanced their material wellbeing. Both of these early assumptions regarded that
individuals are motivated by the enhancement of their personal welfare, although they had
different notions of what personal welfare is. Conventional economics moved beyond these
welfarist assumptions when Hicks and Allen (26) redefined utility as the degree of preference
satisfaction. This definition recognises plural motivations but argues that a common measure
(utility) exist for aggregating the degree of their satisfaction (27). All of these assumptions
are problematic. Welfarism does not reflect the actual diversity of human motivations while
preference utilitarianism commensurates the diversity of motivations that it, in principle,
allows. Moreover, preference utilitarianism is often mistakenly interpreted in a welfarist
manner: the maximisation of utility is thought to imply the maximisation of welfare (28, 29).
It is more useful to acknowledge that individuals have a number of motivations that
cannot be brought together under any notion of utility. Individuals are frequently interested in
their own welfare as conventional economics suggests. However, they may also act on
concerns for the welfare of other humans or non-humans. Sometimes individuals seek
outcomes such as the preservation of an endangered species they consider intrinsically
valuable – or avoid outcomes such as extinction that they consider intrinsically bad. Finally,
individuals sometimes act on principles without regard to any of their consequences. For
example, certain duties may be assumed to respect the rights attributed to other humans or
non-humans (30). Thus there are different reasons to pursue / oppose protected areas
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governance. Some pursue effective protected areas governance because of its presumed
positive welfare consequences. Others consider its consequences inherently good so that they
are worth pursuing even if that would require welfare sacrifices. For still others species may
have a right to exist and we have a corresponding duty to respect that right, for example
through protected areas governance. Those who object protected areas governance can also
do so on a number of grounds – not only because it is in their economic interest. For example,
they may consider private property rights inviolable and defend them even if doing so would
actually require welfare sacrifices from them.
It is common to argue that peoples’ values – which underlie motivations – differ, but I
am making a particular argument for what I call “radical pluralism”, which I will define in
more detailed manner shortly. The recognition of pluralism is nothing new. Even
conventional economics recognizes that A may prefer the conversion of a unit of rainforest to
a pasture while B prefers its preservation. It would argue that the agent who is able and
willing to pay more should have his or her way with the rainforest, either with or without
compensating the other agent for any losses. There is a sense in which the compensation rule
would be just when both A and B are self- and welfare-centred. In the world constructed by
the standard economic assumptions, both would be indifferent between some amount of
compensation and the loss of a unit of rainforest. However, the conclusion changes if we
allow one of them to consider the preservation of rainforest the right thing to do or an
intrinsically valuable outcome. Now she or he would think that it is impossible to put a
monetary value on a unit of rainforest and, as a consequence, would not be indifferent
between some amount of compensation and the loss of a unit of rainforest.
More generally, welfare goals are incommensurable with goals regarded as intrinsically
valuable outcomes, as well as with rule following that is not goal-oriented. I refer with radical
pluralism to the simultaneous existence of and reliance on incommensurable ethical premises
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which can , for example, be informed by utilitarian, non-utilitarian consequential or
deontological ethics. Radical pluralism complicates collective environmental decision-
making because value premises influence what resolutions are considered just. For example,
even the certainty of positive welfare consequences might not justify the adoption of an
international emission trading scheme for greenhouse gases to some of its opponents. Any
acceptable justification ought to provide reasons for why, under the prevailing circumstances,
would it be better to adopt a trading scheme rather than some other solution to allocate
emission reductions (31). These reasons must explain why certain considerations such as
social welfare ought to be considered decisive in a policy choice and why other
considerations, such as the loss of complete ecosystem types or damages and risks imposed
upon innocent people as distinct from welfare consequences, can be considered secondary in
nature or be omitted completely. Other environmental choices such as those related to
protected areas governance are similarly based on best reasons for undertaking them, and
they may or may not relate to welfare concerns.
Sufficient reasons for environmental decisions relate to both distributive and procedural
justice. Distributive justice matters because environmental decisions and governance
institutions resolve whose interests in environmental resources are realised and what the
incidence of beneficial and adverse consequences of decisions will be. The familiar rules of
equity or distributive justice such as Aristotle’s just deserts, Bentham’s greatest happiness for
the greatest numbers, Rawl’s maximin and other approaches such as “no envy” and
“equality” (see 32) are not likely to be satisfactory when radical pluralism prevails. They all
focus on the distribution of some notion welfare and thus do not acknowledge the attainment
of non-welfarist goals. To put it in another way, those holding non-welfarist motivations have
no reason to be satisfied or persuaded with appeals to or use of these rules of distributive
justice. Another problem is that they propose universal solutions to distributive dilemmas.
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Yet the notion of pluralism would suggest that different rules ought to be used to resolve
different justice dilemmas.
Communitarian and pragmatist theories argue that justice is specific to particular
communities and that rules of justice are tentative and likely to vary across communities,
issues and contexts (33). While these theories have problematic features of their own, such as
cultural and moral relativism, they offer some important heuristics. In essence, these theories
suggest a compartmentalised notion of justice which has it that different rules of justice are
likely to and should prevail in different spheres of justice. This kind of notion of justice is
compatible with pluralism. For example, a rule such as Walzer’s (34) complex equality –
which requires the absence of domination by one group of people across “spheres of justice”
– could secure the legitimacy of pluralist environmental decisions. On the other hand, the
existence of a number of spheres of justice does not reduce the degree of pluralism in any of
the spheres. It would still be difficult to agree on rules of justice in each of them.
The achievement of “non-domination” requires certain features from the process
through which collective decisions are being made. More broadly speaking, the legitimacy of
environmental decisions rests in part on procedural justice (35). Procedural justice
encompasses recognition, hearing, participation and the distribution of power in
environmental decision-making (36). Procedural justice is important because it can assure
those whose interests are not endorsed by a particular environmental decision that their
interests can count in other decisions. Procedural justice also enables the adversely affected
parties to express their dissent or consent with environmental decisions and to maintain their
dignity, whether or not their interests are realised by an environmental decision.
To conclude, both distributive and procedural justice are needed to legitimate
environmental decisions when it is acknowledged that people have broader concerns than just
their narrowly construed economic welfare. Distributive justice will matter, but in a broader
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sense of whose interests and values will be realised by environmental decisions and the
establishment, change or affirmation of environmental governance institutions. Procedural
justice is also needed in order to justify decisions to those who have to accept that their
interests and values are sacrificed to realise some other interests and values. In what follows,
I will exemplify these arguments by showing how the issues of distributive and procedural
justice have played out in the protection of species and habitats in the European Union.
4. LESSONS FROM IMPLEMENTATION OF THE HABITATS DIRECTIVE
In European Union, nature conservation is based on the Birds Directive (37) and on the
Habitats Directive (38). These directives also shape the governance of many protected areas.
The main aim of the Birds Directive is to maintain populations of wild birds, especially to
protect endangered, vulnerable, rare and other species of birds that are considered to merit
special attention. The directive identifies the establishment of special protection areas
(SPAs), ecologically informed management of biotopes outside these special protection areas,
and the re-establishment of destroyed biotopes as the main bird protection measures. It also
imposes limitations on the killing and capture of naturally occurring wild birds and the taking
of their eggs (39). The Habitats Directive provides for the creation of a European network of
special areas of conservation (SACs) which is also known as Natura 2000. The directive lists
priority natural habitat types and priority species that member countries should specifically
consider when designating special areas of conservation (40). In what follows, the focus will
be on the Habitats Directive although the observations and arguments also largely apply to
the Birds Directive.
The Habitats Directive’s Article 3 requires the member states to designate sites for
habitat and species conservation in conformance with the guidance provided in the Annex I
and Annex II of the Directive (41). The directive set the deadline of June 1995 for
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transmitting a list of designated sites to the European Union’s Commission. Article 5
empowers the Commission to request amendments from a member state if its list does not
adequately reflect its habitat types and priority species. The Commission can also have the
omitted sites included into the list by the Council’s unanimous decision if member states do
not include them voluntarily. The Commission and the member states were to select Sites of
Community Interest (SCIs) from the submitted lists by June 1998. Finally, the member states
are to designate the selected sites as Special Areas of Conservation (SACs) – which, together
with the SPA sites designated on the basis of the Birds Directive, form the Natura 2000
network. The deadline for the completion of the third stage is 2004 (42). These provisions
seek to address the governance problems related to quantity, quality, cost sharing and free
riding at the European level by limiting the freedom of member states to act as they wish in
biodiversity protection.
The Habitats Directive also establishes rules for the management of conservation sites.
These provisions also relate to the quantity and quality of provision, cost sharing and
elimination of free-riding. Article 6 provides that the member states have to take steps to
avoid such deterioration of SACs which would compromise the directive’s objectives. It also
requires the assessment of projects that can have significant effects on the sites either on their
own or in combination with other projects. The article provides that the authorities in member
states should agree to a project only on the condition that it does not endanger the integrity of
the site and suggests (but does not require) that public consultation could be used before
making decisions. The article also provides that member states should undertake
compensatory measures if overriding economic and social reasons make a project necessary
despite its adverse consequences to a site. When these adverse consequences would fall on
priority habitats and species, only projects related to public health and safety can be
considered as having such overriding reasons (43).
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Some other articles of the Habitats Directive also make important provisions for nature
conservation in the European Community. For example, Article 8 makes Community co-
financing available for the management of sites that host priority natural habitats or priority
species and specifies measures towards co-financing. This provision obviously addresses
cost-sharing as part of the governance problematic. Article 12 in turn sets requirements for
other measures for the protection of species in the member states, including those regarding
the capture, killing, disturbance, keeping and selling of specimens of species; destruction or
taking of eggs; and deterioration or destruction of nesting and resting places. Finally, Article
17 requires the member states to report on the implementation of measures required by the
Habitats Directive every sixth year (44).
The implementation of Habitats Directive has been controversial and it has not
conformed with the originally adopted deadlines. The Commission has taken several member
states – including Denmark, Finland, France, Germany, Greece, Ireland, and the Netherlands
– to the European Court of Justice because of their failure to submit lists of designated sites
in conformance with the deadlines and other requirements of the Article 3 (45), and because
of some member states’ failure to take measures identified in Article 6 to prevent the
degradation of sites. Most member states are still making amendments required by the
Commission to their lists of designated areas, so the selection of Sites of Community Interest
(SCIs) is also lagging behind the original deadline of June 1998. In fact, the first SCIs were
chosen only in the end of 2001 and the member states are expected to establish SACs by
national legislation thereafter. Thus it seems highly unlikely that the Natura 2000 Network
will exist by 2004 as prescribed by the Habitats Directive.
There are many reasons for the slow and ineffective implementation of the Habitats
Directive. Several authors have argued that the establishment, interpretation and
implementation of Habitats Directive reflects the relatively greater power of environmental
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non-governmental organisations (ENGOs) in European decision-making than in the national
one (46, 47). This means that the EU priorities and national priorities may be in conflict. It
could have been possible that the member states did not prioritise and allocate adequate
resources to the implementation of the Habitats Directive (48, 49). Even without this lack of
enthusiasm, the original implementation timetable was ambitious. Low political priority and
tight timetable resulted in further problems. The Habitats Directive delegated to the member
states the task of promulgating procedures for designating sites for Natura 2000 network.
Member states followed the orientation of the directive and designated sites on the basis of
scientific criteria and existing scientific information. This strategy resulted in conflicts all
over Europe.
In France, the lack of public consultation in the designation process inflamed forest
owners and hunters, who questioned both the science-based site designation and the quality
of scientific information on which the designations were based, arguing that it was often
superficial and past its “use by date”, and at times simply wrong (50). Local residents, owners
of agricultural land and forests, hunters, and other stakeholder groups were excluded from the
site designation process also in Finland (51), Germany (52, 53) and the United Kingdom (54).
The excluded groups staged protests and even hunger strikes (55). In contrast, ENGOs are
argued to have been able to influence and to participate in the site designation process
because they could offer resources and expertise that the national governments and
administrative agencies needed but did not have (56). The ENGOs also pressured member
state governments and administrations by making complaints of non-compliance with
deadlines and provisions of the Directive to the Commission, which in turn referred the cases
to the European Court of Justice (57). However, the ENGOs are still far from satisfied with
the state of nature conservation and biodiversity protection in Europe and there is indeed little
reason to be satisfied with it.
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While arguments regarding the mismatch of European and national priorities certainly
have some merit and in part explain the slow progress and conflicts over nature conservation
in Europe, they were also in part caused by the omission of justice concerns. It probably
would have been possible to implement European priorities at national levels had it been
done differently. The Habitats Directive sought to establish protected areas which do not
exclude human use but would rather balance economic, social, cultural and ecological
concerns. Despite acknowledging the need to balance different concerns regarding nature
conservation, the directive suggested site designation on the basis of scientific criteria and did
not make any provisions regarding distributive consequences and the recognition and hearing
of involved stakeholder groups. The formulation of designation process was delegated to the
member states without guidelines as to how to do it. The member states also failed to make
provisions for the acknowledgement of concerns for procedural justice.
The emergence of conflicts over the designation process is thus not a surprise
retrospectively. The lack of information and the resulting ambiguity regarding the
implications and consequences of site designation for land use and other activities created a
perception that land owners and other users of designated sites would stand to loose. This was
an important issue of distributive justice which should have been acknowledged and dealt
with in advance. It could have been taken into consideration by clarifying and moderating the
consequences of site designation to their existing users and uses, by justifying the imposition
of constraints on current site uses and, where necessary, and by providing for flexibility and
compensatory measures such as credit banking (58) or payments for the provision of
ecosystem services. Payments for the provision of ecosystem services could have been
funded without additional tax burden simply by the redirection of some of the funds used to
support agricultural production under Common Agricultural Policy.
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Yet these conflicts cannot be explained on the basis of distributive justice only and it
would be ill-advised to try to resolve them exclusively by the means of distributive justice.
Full compensation for the attenuation of private property rights in every instance can hardly
be considered just, because it would place the whole financial burden of legal change on the
public and paralyse public policy. In other words, exclusive reliance on compensation as a
measure of distributive justice would protect economic interests too steadfastly and ask too
much from the public. The parties who are burdened by environmental policies can also often
shift part of the burden on the public via markets as increased prices. This is why industrial
polluters are hardly ever compensated for stricter environmental regulations. Landowners
involved in agriculture and forestry have been compensated for adverse legal changes more
often. One reason for this is that as small entrepreneurs operating in highly regulated markets
their capacity to shift costs to others is much more limited than that of industrial polluters, for
example. However, there is also a sense in which measures of distributive justice such as
compensation do not go far enough in guaranteeing legitimacy. For example, it is difficult to
understand how pecuniary compensation could adequately appease those whose non-welfarist
concerns, say for the continuation of a customary way of life or habitation of a long-
established residence of a family, are sacrificed. They cannot be fully compensated in the
ordinary sense of the word. However, this does not mean that they should not be
compensated or that their concerns do not matter. Addressing the concerns of adversely
affected parties is important for the legitimacy and effectiveness of protected areas
governance and the durability of its desired outcomes.
This brings us to procedural justice. Conflicts over the Habitats Directive were first and
foremost about procedural justice. The accounts of these conflicts indicate that the lack of
recognition, hearing and right of participation most infuriated the protesting interest groups.
Not surprisingly, many member states have had to revise designation processes so as to
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improve the recognition and hearing of affected stakeholder groups. For example, France
suspended the Habitats Directive in 1996 and started the designation process anew with
public consultations in 1997 (59). The revised process resulted in a much reduced list of
designated sites and also otherwise failed to realise conservation goals. However, it remains a
good question whether this was a result of a participatory process or a consequence of a lack
of trust created by the earlier designation process. Other member states were also forced to
adopt more participatory designation processes and the right to participation and consultation
in environmental decisions has since received greater attention at the European level as well
(60).
5. CONCLUSIONS
Protected areas governance is necessary to provide joint impact goods such as
biodiversity, landscapes and heritage. Protected areas governance involves the resolution of
conflicts between different interests in the use of environmental resources that comprise
protected areas. These conflicts typically take place between those who want to conserve or
preserve important and increasingly scarce environmental resources and those who want to
make economic use of such resources. This article has argued that justice considerations are
important in the resolution of these conflicts and in the choice of governance solutions,
because they will influence the legitimacy and effectiveness of governance solutions.
Governance solutions such as the Habitats Directive do make provisions that are
intended to address governance problems related to issues such as quantity and quality of
resources to be provided, the sharing of costs and free riding. However such provisions
cannot ever be fully implemented and the degree of implementation depends on the design of
governance institutions (the possibility of implementation), the resources and effort invested
in implementation (ability and willingness to implement), as well as the degree to which
19
stakeholders do cooperate and comply voluntarily with governance solutions. The justice
implications of governance solutions are important because they influence the willingness to
cooperate with administration and voluntary compliance with governance solutions.
The importance of justice concerns becomes obvious on the basis of conceptual
analysis as soon as a realistic view of human behaviour is adopted. The making of this point
was one important goal of the article, but it also sought to demonstrate the importance of
justice considerations in practice by briefly analysing the difficulties in the implementation of
the Habitats Directive in the European Union. Disregard for distributive consequences and
procedural justice provides an important explanation for the conflicts over the
implementation of the directive all over Europe. These conflicts have already significantly
delayed the directive’s implementation. The delayed acknowledgement of procedural
concerns may also compromise the directive’s goals, because the lack of trust it has created
has resulted in diminished lists of sites and can undermine voluntary compliance with the
future management plans. For this reason, there is an urgent need to clarify the governance of
sites that will comprise the Natura 2000 Network. The directive refers to the need of
management plans for some sites but remains unclear about most aspects of their
management in the future. Yet the management plans and procedures will importantly
influence how competing interests in the use of protected areas are balanced and how
legitimate and effective their management will be. The problem of recognition and
participation of stakeholders is thus far from resolved.
The European experiences have also wider importance as the Habitats Directive is but
one example of multi-level governance solutions for nature conservation and the protection of
biodiversity, species and habitats. The recognition, hearing and participation of stakeholder
groups is difficult to arrange in all multi-level governance solutions. This is not a reason to
abandon or reject either multi-level governance or participatory processes. It is rather a
20
reminder that the lack of adequate attention to relevant justice issues may also compromise
the legitimacy and effectiveness of other multi-level governance regimes such as CITES and
CBD. These regimes do pursue valuable and widely shared goals but the actual attainment of
those goals requires the recognition of developmental and other goals that are also at stake.
21
ACKNOWLEDGEMENTS
This work forms a part of an interdisciplinary Programme on Environmental Decision-
Making (PEDM) at the ESRC Centre for Social and Economic Research on the Global
Environment (CSERGE). The support of the Economic and Social Research Council (ESRC)
is gratefully acknowledged. I also thank Sylvain Martinez, Kjell Sevón, and Gianluca Solera
from the Greens | European Free Alliance for good discussions on the subject of the article as
well as Sergio Rosendo and the two anonymous reviewers for helpful comments on a
previous version of it. As usual, presented views and all shortcomings are entirely mine.
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