Biodiversity Offset Mechanisms and Compensation for Loss from Exceptional to Popular: Rediscovering Environmental Law

Abstract

The use of compensatory mechanisms for biodiversity conservation, also known as biodiversity offsets, has increased significantly in recent decades. The Kunming Montreal Global Biodiversity Framework mentions them as an innovative scheme in support of substantially and progressively increasing the level of financial resources for biodiversity conservation. This article traces the origin of compensatory mechanisms in international environmental law and their development in transnational biodiversity governance. The article points to the shifts in the application of the biodiversity offsets: from the context of wetlands to other habitats and ecosystems; from its use in intergovernmental conventions to an increasing number of transnational (business) networks; and from an instrument of last resort to a source of additional funding for biodiversity conservation. In the evolution, compensatory mechanisms have been decoupled from their original purpose as an exceptional mitigation measure and a strong focus of environmental law on the preventive function. The increased rhetoric of commitment to no net loss, net gain, restoration, and the mitigation hierarchy has not been matched by an improved status of wetlands and other ecosystems. The processes within the biodiversity conventions (Ramsar and CBD) have accepted an ongoing destruction of nature and limited the role of environmental law to minimizing harmful impacts on nature and consolidating the decline, rather than shaping socio-ecological outcomes. An ambiguous position about the spread of compensatory mechanisms has been part and parcel of this; biodiversity conventions have neither endorsed nor distanced themselves from the application, promotion, and justification of compensatory mechanisms. To maintain the integrity of environmental law, the rules that prevent biodiversity loss need to be emphasised and enforced.