The body of international environmental law receiving the most attention recently is plainly the climate change regime. Yet, in its current form, it provides virtually no sign of legally requiring attention to biodiversity issues. Even where it comes closest, in the potential regulation of reforestation and afforestation projects under the clean development mechanism, the climate regime remains clearly – and from a biodiversity perspective, counterproductively – focused exclusively on net aggregate emissions of greenhouse gases.
As climate change progresses, however, maintenance of biodiversity becomes all the more pressing. Climate change itself will create strong pressures on species and ecosystems, causing a need for migration or evolution. Migration will be limited by fragmentation of habitat, as well as non-anthropogenic factors (such as the inability of mountain-top communities to move upwards in response to warming at higher elevations). Thus, significant extinction is a likely impact of climate change. At the same time, biodiverse ecosystems, such as primary tropical forests, offer an array of ecosystem services that offer major adaption value. Regulation of micro-climates, provision of freshwater, and similar services offer the potential to reduce climate change impacts or at least provide a bridge into a different climactic future. This value is essentially unrecognized by any formal mechanism of the climate change regime.
Since 2005, however, the Conference of the Parties (COP) to the UN Framework Convention on Climate Change have recognized the possibility of creating some form of economically valuable credit for reducing emissions from deforestation and degradation (REDD). Indeed, since the 2007 COP meeting in Bali, it has become increasingly likely that some form of REDD credit will be created. The target date for agreement on this and many other elements of the climate change regime is December 2009 when the COP meets in Copenhagen, Denmark.
Will REDD offer a means of securing biodiversity protection? It could. Tropical forests are among the most biodiverse ecosystems on the planet. At the same time, they have been steadily disappearing for decades. If REDD were able to make tropical forest preservation more profitable than tropical deforestation, it could overcome the hurdles that have tripped-up prior efforts to protect our rich biological heritage. REDD offers a way around the question of national sovereignty over forests because it leaves to countries the choice of whether the program should be implemented and how ecosystems are preserved. It simultaneously offers the potential to offset both direct drivers of deforestation – such as expansion of industrial agriculture – and the indirect drivers – such as poverty and lack of governance capacity. It is, potentially, an excellent example of a legal mechanism that can re-orient the financial market incentives of behavior affecting the environment. With appropriate benchmarks and payment systems, REDD could make it more profitable to preserve forests than to destroy them, and foster development of the institutional capacity to achieve commitments.
But even if the financial incentives are aligned to make REDD successful, will it protect high-biodiversity forests? Not necessarily. Protection solely for avoiding carbon dioxide emissions does not naturally equate to protection of the most significant biodiversity habitats. It could even increase the pressure on such forests by taking other areas off the table of options for, inter alia, global agricultural production. If all that REDD does is to create value for the carbon stored in trees, this "leakage" concern may make no more valuable a mechanism than the current CBD processes.
Is there a way around this problem – a way to make REDD a tool for biodiversity protection? I think there is. The keys lie in program design. This is an argument that I recently spelled out during a presentation at the University of Aarhus in Denmark. Although the issue is complex, the essence of the solution lies in purposefully designing the regime in a way that makes biodiversity a priority for REDD. In financial terms, this means creating some form of additional value – whether for investors or for tropical forest owners – in the REDD credits generated by high biodiversity forests. As I will elaborate in the near future, articulating a biodiversity element to REDD is not only legitimate under a regime aimed at addressing climate change, it is a virtual necessity. It provides both climate and biodiversity benefit while aliviating some of the ills born of fragmentation in our international legal regimes addressing environmental issues.
Climate change law is about more than reducing emissions. As important as the concentration of greenhouse gases in the atmosphere is, an exclusive focus on that concern is myopic. Even under the best of scenarios, we will have to adapt to changes in the global climate for decades to come. That change threatens to dramatically increase the rate of biodiversity loss. Yet, the presence of rich biological diversity, as well as the intact habitats necessary for its maintenance, offers one of our best insurance policies against suffering negative impacts of that change. One way or another, it is high time we recognize the value of that insurance – for climate change events and other forms of environmental impact. REDD is the best bet among the options currently on the table for international negotiations . . . if it is structured appropriately. Those concerned with biodiversity preservation should, therefore, work vigorously over the next few months to develop and advance a framework for REDD that will realize its potential benefits for our rich biological legacy, and eliminate the risk that REDD will become but another fragmented and partially counterproductive element of a well-intentioned and incompletely-realized effort to bring about international legal consensus that actually betters the state of our fragile planet.