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Protected Areas Governance and Justice: Theory and the European Union’s Habitats Directive

Protected Areas Governance and Justice: Theory and the European Union’s Habitats Directive Environmental Sciences 1569-3430/03/0101–059$16.00 2003/2004, Vol. 1, No. 1, pp. 59–77 Taylor & Francis Ltd RESEARCH ARTICLE 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, 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 imple- mentation of the directive and have undermined its effectiveness. Keywords: environmental governance; protected areas; justice; participation; Habitats Directive 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 Address correspondence to: Dr. Jouni Paavola, Centre for Social and Economic Research on the Global Environment, University of East Anglia, Norwich NR4 7TJ, UK. Tel.: 44-1603-593116. Fax: 44-1603-693739. E-mail: j.paavola@uea.ac.uk 60 JOUNI PAAVOLA 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 prescrip- tions include the setting of welfare-maximising policy goals and the use of market-mimicking policy instruments (Paavola & Bromley, 2002). 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 (Balmford et al., 2002; Chase & Lee, 1998; Nunes & van den Bergh, 2001; ten Brink, Monhouse, & Richartz, 2002). 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 (Baland & Platteau, 1996; Berge & Stenseth, 1999; Bromley, 1992; Keohane & Ostrom, 1995; Ostrom, 1990; Ostrom et al., 2002; Young, 1994a, 2002). This interdisciplinary approach has discredited ‘‘the tragedy of the commons’’ and has indicated 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 (Paavola, 2002). 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 61 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 (Schmid, 1987). 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. 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 (Paavola & Adger, 2004). 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 62 JOUNI PAAVOLA 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 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 (Young, 1994). 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 Schlager, Blomquist, & Tang, 1994; Schlager & Ostrom, 1992; Schmid, 1987). 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 63 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 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 (Ostrom, 1990). 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 (Paavola, 2004). 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 64 JOUNI PAAVOLA such as (ecosystem) biodiversity 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 (Bromley & Cernea, 1989; Ostrom, 1990). 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 (Brubaker, 1975). Joint impact goods and common-pool resources generate different kinds of conflicts because their resource attributes engender different interdependen- cies between the involved agents. Interdependence exist when one agent’s choices influence the alternatives or choices of other agents. Interdependence is omitted in the conventional economic approach although it is a common- place 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 65 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 its legitimacy 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 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 (1934) redefined utility as the degree of preference 66 JOUNI PAAVOLA satisfaction. This definition recognises plural motivations but argues that a common measure (utility) exist for aggregating the degree of their satisfac- tion (Georgescu-Roegen, 1968). 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 (Sen, 1973, 1977). 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 (Paavola, 2002). Thus there are different reasons to pursue/oppose protected areas 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 recog- nition 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 67 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 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 (Bromley & Paavola, 2002). These reasons must explain why certain conside- rations 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 environ- mental 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 Young, 1994b) 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 68 JOUNI PAAVOLA 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. 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 specificto particular communities and that rules of justice are tentative and likely to vary across communities, issues and contexts (Radin, 1996). 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 (1983) complex equality – which requires the absence of domination by one group of people across ‘‘spheres of justice’’ – could secure the legi- timacy 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 (Lind & Tyler, 1988). Procedural justice encompasses recognition, hearing, participation and the distribution of power in environmental decision- making (Paavola & Adger, 2002). Procedural justice is important because it can assure those whose interests are not endorsed by a particular environ- mental 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 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 69 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 (Birds Protection Directive, 79/409/EEC) and on the Habitats Directive (92/43/ EEC). 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 (Birds Protection Directive, 79/409/EEC). 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 (Habitats Directive, 92/43/EEC). 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 (Habitats Directive, 92/ 43/EEC). The directive set the deadline of June 1995 for 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 70 JOUNI PAAVOLA Natura 2000 network. The deadline for the completion of the third stage is 2004 (Lasen Diaz, 2001). 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 (Habitats Directive, 92/43/EEC). 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 mea- sures 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 (Habitats Directive, 92/43/EEC). 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 71 the deadlines and other requirements of the Article 3 (Commission of European Union, 1998), 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 non-governmental organisations (ENGOs) in European decision-making than in the national one (Fairbrass & Jordan, 2001a; Weber & Christophersen, 2002a). 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 (Alphandery ´ & Fortier, 2001; Fairbrass & Jordan, 2001b). 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 (Alphandery ´ & Fortier, 2001). Local residents, owners of agricultural land and forests, hunters, and other stakeholder groups were excluded from the site designation process also in Finland (Hiedanpa ¨a ¨, 2002), Germany (Krott et al., 2000; Stoll-Kleemann, 2001) and the United Kingdom (Ledoux, Crooks, Jordan, & Turner, 2000). The excluded groups staged protests ¨ ¨ and even hunger strikes (Hiedanpaa, 2002). 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 72 JOUNI PAAVOLA and administrative agencies needed but did not have (Weber & Christophersen, 2002b). The ENGOs also pressured member state governments and admin- istrations 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 (Fairbrass & Jordan, 2001b). 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. 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 designa- tion 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, by providing for flexibility and compensatory measures such as credit banking (Ledoux et al., 2000) 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. PROTECTED AREAS GOVERNANCE AND JUSTICE 73 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 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 partic- ipation most infuriated the protesting interest groups. Not surprisingly, many member states have had to revise designation processes so as to 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 (Alphandery & Fortier, 2001). 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 74 JOUNI PAAVOLA the right to participation and consultation in environmental decisions has since received greater attention at the European level as well (Directive on Public participation and Access to Justice, 2003/35/EC). 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 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 acknowl- edgement of procedural concerns may also compromise the directive’s goals, PROTECTED AREAS GOVERNANCE AND JUSTICE 75 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 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. 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 Sevon, and Gianluca Solera from the Greens j 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. REFERENCES Alphandery ´ , P., & Fortier, A. (2001). Can territorial policy be based on science alone: The system for creating the natura 2000 network in France. Sociologia Ruralis, 41, 311–328. Baland, J.-M., & Platteau, J.-P. (1996). Halting degradation of natural resources: Is there a role for rural communities? Oxford: Clarendon Press. 76 JOUNI PAAVOLA Balmford, A., Bruner, A., Cooper, P., Costanza, R., Farber, S., Green, R.E., Jenkins, M., Jeffriess, P., Jessamy, V., Madden, J., Munro, K., Myers, N., Naeem, S., Paavola, J., Rayment, M., Rosendo, S., Roughgarden, J., Trumper, K., & Turner, R.K. (2002). Economic reasons for conserving wild nature. Science, 297, 950–953. Berge, E., & Stenseth, N.C. (Eds.). (1999). Law and the governance of natural resources: Studies from northern Europe and Africa. San Francisco: ICS Press. Birds Protection Directive. (79/409/EEC). Bromley, D.W. (Ed.). (1992). Making the commons work: Theory, practice, and policy. San Francisco: ICS Press. Bromley, D.W., & Cernea, M.M. (1989). The management of common property natural resources: Some conceptual and operational fallacies. Discussion Papers 57, Washington: World Bank. Bromley, D.W., & Paavola, J. (2002). Economics, ethics and environmental policy. In: D.W. Bromley & J. Paavola (Eds.), Economics, ethics, and environmental policy: Contested choices. (pp. 261–276). Malden: Blackwell. Brubaker, E.R. (1975). Free ride, free revelation, or golden rule. Journal of Law and Economics, 18, 147–161. Chase, L.C., & Lee, D.R. (1998). Ecotourism demand and differential pricing of national park access in Costa Rica. Land Economics, 74, 466–482. Commission of the European Union. Commission decides Court applications against several Member States for failing to propose list of habitats for conservation. Press release IP/98/ 352, 1998. Directive on Public Participation and Access to Justice. (2003/35/EC). Fairbrass, J., & Jordan, A. (2001a). Protecting biodiversity in the european union: National barriers and european opportunities? Journal of European Public Policy, 8, 499–518. Fairbrass, J., & Jordan, A. (2001b). European union environmental policy and the UK government: A passive observer or a strategic manager? Environmental Politics, 10(2), 1–21. Georgescu-Roegen, N. (1968). Utility. In D.L. Sills (Ed.), International encyclopedia of the social sciences, (pp. 36–267, vol. 16). New York: Macmillan and Free Press. Habitats Directive. (92/43/EEC). Hicks, J., & Allen, R.G.D.A. (1934). Reconsideration of the theory of value. Economica, 1, 52–76, 196–219. ¨ ¨ Hiedanpaa, J. (2002). European-wide conservation versus local well-being: The reception of the natura 2000 reserve network in Karvia, SW-Finland. Landscape and Urban Planning, 61, 113–123. Keohane, R.O., & Ostrom, E. (Eds.). (1995). Local commons and global interdependence: Heterogeneity and cooperation in two domains. London: Sage. Krott, M., Julien, B., Lammertz, M., Barbier, J.-M., Jen, S., Ballestreros, M., & de Bovis, C. (2000). VOicing Interests and ConcErns: NATURA 2000: An ecological network in conflict with people. Forest Policy and Economics, 1, 357–366. Lasen Diaz, C. (2001). The EC habitats directive approaches its tenth anniversary: An overview. 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Spheres of justice: A defence of pluralism and equality. Oxford: Blackwell. Weber, N., & Christophersen, T. (2002a). The influence of non-governmental organisations on the creation of natura 2000 during the european policy process. Forest Policy and Economics, 4,1–12. Weber, N., & Christophersen, T. (2002b). The influence of non-governmental organisations on the creation of natura 2000 during the european policy process. Forest Policy and Economics, 4,1–12. Young, O.R. (1994a). International governance: Protecting the environment in stateless society. Ithaca: Cornell University Press. Young, H.P. (1994b). Equity: In theory and practice. Princeton: Princeton University Press. Young, O.R. (2002). The institutional dimensions of environmental change: Fit, interplay and change. Cambridge: MIT Press. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Environmental Sciences Taylor & Francis

Protected Areas Governance and Justice: Theory and the European Union’s Habitats Directive

Environmental Sciences , Volume 1 (1): 19 – Jan 1, 2004

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Environmental Sciences 1569-3430/03/0101–059$16.00 2003/2004, Vol. 1, No. 1, pp. 59–77 Taylor & Francis Ltd RESEARCH ARTICLE 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, 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 imple- mentation of the directive and have undermined its effectiveness. Keywords: environmental governance; protected areas; justice; participation; Habitats Directive 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 Address correspondence to: Dr. Jouni Paavola, Centre for Social and Economic Research on the Global Environment, University of East Anglia, Norwich NR4 7TJ, UK. Tel.: 44-1603-593116. Fax: 44-1603-693739. E-mail: j.paavola@uea.ac.uk 60 JOUNI PAAVOLA 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 prescrip- tions include the setting of welfare-maximising policy goals and the use of market-mimicking policy instruments (Paavola & Bromley, 2002). 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 (Balmford et al., 2002; Chase & Lee, 1998; Nunes & van den Bergh, 2001; ten Brink, Monhouse, & Richartz, 2002). 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 (Baland & Platteau, 1996; Berge & Stenseth, 1999; Bromley, 1992; Keohane & Ostrom, 1995; Ostrom, 1990; Ostrom et al., 2002; Young, 1994a, 2002). This interdisciplinary approach has discredited ‘‘the tragedy of the commons’’ and has indicated 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 (Paavola, 2002). 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 61 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 (Schmid, 1987). 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. 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 (Paavola & Adger, 2004). 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 62 JOUNI PAAVOLA 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 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 (Young, 1994). 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 Schlager, Blomquist, & Tang, 1994; Schlager & Ostrom, 1992; Schmid, 1987). 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 63 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 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 (Ostrom, 1990). 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 (Paavola, 2004). 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 64 JOUNI PAAVOLA such as (ecosystem) biodiversity 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 (Bromley & Cernea, 1989; Ostrom, 1990). 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 (Brubaker, 1975). Joint impact goods and common-pool resources generate different kinds of conflicts because their resource attributes engender different interdependen- cies between the involved agents. Interdependence exist when one agent’s choices influence the alternatives or choices of other agents. Interdependence is omitted in the conventional economic approach although it is a common- place 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 65 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 its legitimacy 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 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 (1934) redefined utility as the degree of preference 66 JOUNI PAAVOLA satisfaction. This definition recognises plural motivations but argues that a common measure (utility) exist for aggregating the degree of their satisfac- tion (Georgescu-Roegen, 1968). 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 (Sen, 1973, 1977). 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 (Paavola, 2002). Thus there are different reasons to pursue/oppose protected areas 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 recog- nition 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 67 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 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 (Bromley & Paavola, 2002). These reasons must explain why certain conside- rations 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 environ- mental 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 Young, 1994b) 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 68 JOUNI PAAVOLA 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. 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 specificto particular communities and that rules of justice are tentative and likely to vary across communities, issues and contexts (Radin, 1996). 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 (1983) complex equality – which requires the absence of domination by one group of people across ‘‘spheres of justice’’ – could secure the legi- timacy 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 (Lind & Tyler, 1988). Procedural justice encompasses recognition, hearing, participation and the distribution of power in environmental decision- making (Paavola & Adger, 2002). Procedural justice is important because it can assure those whose interests are not endorsed by a particular environ- mental 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 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 69 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 (Birds Protection Directive, 79/409/EEC) and on the Habitats Directive (92/43/ EEC). 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 (Birds Protection Directive, 79/409/EEC). 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 (Habitats Directive, 92/43/EEC). 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 (Habitats Directive, 92/ 43/EEC). The directive set the deadline of June 1995 for 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 70 JOUNI PAAVOLA Natura 2000 network. The deadline for the completion of the third stage is 2004 (Lasen Diaz, 2001). 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 (Habitats Directive, 92/43/EEC). 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 mea- sures 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 (Habitats Directive, 92/43/EEC). 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 PROTECTED AREAS GOVERNANCE AND JUSTICE 71 the deadlines and other requirements of the Article 3 (Commission of European Union, 1998), 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 non-governmental organisations (ENGOs) in European decision-making than in the national one (Fairbrass & Jordan, 2001a; Weber & Christophersen, 2002a). 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 (Alphandery ´ & Fortier, 2001; Fairbrass & Jordan, 2001b). 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 (Alphandery ´ & Fortier, 2001). Local residents, owners of agricultural land and forests, hunters, and other stakeholder groups were excluded from the site designation process also in Finland (Hiedanpa ¨a ¨, 2002), Germany (Krott et al., 2000; Stoll-Kleemann, 2001) and the United Kingdom (Ledoux, Crooks, Jordan, & Turner, 2000). The excluded groups staged protests ¨ ¨ and even hunger strikes (Hiedanpaa, 2002). 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 72 JOUNI PAAVOLA and administrative agencies needed but did not have (Weber & Christophersen, 2002b). The ENGOs also pressured member state governments and admin- istrations 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 (Fairbrass & Jordan, 2001b). 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. 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 designa- tion 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, by providing for flexibility and compensatory measures such as credit banking (Ledoux et al., 2000) 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. PROTECTED AREAS GOVERNANCE AND JUSTICE 73 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 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 partic- ipation most infuriated the protesting interest groups. Not surprisingly, many member states have had to revise designation processes so as to 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 (Alphandery & Fortier, 2001). 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 74 JOUNI PAAVOLA the right to participation and consultation in environmental decisions has since received greater attention at the European level as well (Directive on Public participation and Access to Justice, 2003/35/EC). 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 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 acknowl- edgement of procedural concerns may also compromise the directive’s goals, PROTECTED AREAS GOVERNANCE AND JUSTICE 75 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 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. 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