Polycentrism, Fragmentation, and the Role of Linkages in the Decade on Biodiversity

The United Nations has declared 2011-2020 the Decade on Biodiversity and the Convention on Biological Diversity has adopted a Strategic Plan for this period. The plan suggests an emphasis on national and regional action with support from the international level. The approach fits generally within the concept of polycentric governance that is receiving increased attention as an approach to climate change (for legal literature advocating this approach, see here and here).

Polycentric governance, a concept that grows out of social science studies of municipal governance in the mid-twentieth century, provides a useful framework for thinking about how to address complex global collective action problems at a time when the chances of agreement on an overarching top-down treaty are nearly nonexistent. It proposes that governance can be more effective by creating multiple nodes of authority, and urges that trust among participants is among the most important factors for success in addressing collective action problems.

The existing structure of international environmental law is highly fragmented and, thus, might lend itself to a more polycentric approach. However, the issues addressed by international environmental law are often closely linked to each other in an ecological sense. Thus, one of the challenges for developing a more effective approach to biodiversity preservation over the Decade of Biodiversity is to ensure that efforts give appropriate attention to these linkages among issues. One way to do this will be to target program development, under CBD or elsewhere, and funding to programs that make progress on multiple fronts. I develop this idea further in an article recently posted to SSRN. This issue linkage based approach to new initiatives can compliment the diffusion of authority characterizing polycentric governance by countering the negative impacts of institutional fragmentation while enhancing the overall effectiveness of internationally financed or initiated programs.

More on Brazilian Deforestation

The European environmental law group ClientEarth has also done some blogging on the moves to open forest land for agriculture in Brazil (see post here). Their post highlights the reason that REDD, which I've written about here (among other places), seems to generate so much hope where prior international forestry efforts have fallen flat: money. When it comes to legal changes that promote or discourage deforestation, the potential economic impact of REDD could turn the tide. Brazil may be a testing ground . . .

Brazil Debates Easing Curbs on Developing Amazon Forest

NYT reports that the Brazilian Congress is considering legislation to exempt small farms from current requirements to maintain forest on property within the Amazon, which would allow significantly more deforestation than current law. Along with the traditional concerns about deforestation, the effort to relax deforestation restrictions comes at a time when large sections of the Amazon appear to be approaching a tipping point. Recent droughts and predicted climate changes suggest that at least parts of the Amazon are on the edge of flipping to another ecosystem type from forest dieback. Such an event would likely have major biodiversity and climate implications -- reducing or eliminating large swaths of habitat and releasing vast quantities of carbon dioxide. (A 2005 Amazon dieback caused by drought, for example, is a suspected cause of a notable spike in global GHG concentrations that year). With the ecosystem already teetering, now is not the time to relax forest protection law.

Association for Law, Property and Society

I have just returned from the wonderful 2nd Annual Meeting of the Association for Law, Property and Society. An excellent array of papers from the conference is available here, including several of direct relevance to biolaw. The 3rd Annual Meeting will be held March 2-3, 2012 -- highly recommended for attorenys, law professors, and social scientists with an interest in property law and its relationship to society!

CBD COP-10 and the Eve of UNFCCC COP-16

The Earth Negotiations Bulletin notes that for some, the CBD COP-10 in Nagoya “marked the re-birth of environmental multilateralism” and suggests it “exorcise the ghost of Copenhagen.” Unfortunately, Nagoya’s successes, while significant, do not resonate that profoundly.

The 10th Conference of the Parties to the Convention on Biological Diversity in Nagoya produced a “package” of results, most notably the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, may help to put to rest some of the most extreme predictions about the end of multilateralism in international environmental law. But it is far from a panacea. Even within the confines of biodiversity law, the COP-10 outcomes do not provide a strong likelihood of significantly reducing the extensive loss of biological diversity (which was documented in Global Biodiversity Outlook 3 shortly before the Nagoya meetings). The Strategic Plan for 2011-2020 identifies the key changes and activities needed to address biodiversity loss, but does not make any major breakthroughs.

Nagoya does not signal a new era or multilateralism, it does not make more likely binding international targets for biodiversity preservation or greenhouse gas emissions limitations. Instead, it reflects several key realities about international environmental law that should be borne in mind as the UNFCCC COP-16 unfolds. First, the Nagoya Protocol in access and benefit sharing is deeply ambiguous. This ambiguity was necessary to reach agreement. Second, the Protocol came into being only because of closed-door session among a few major players, reminiscent of the meetings that led to the Copenhagen Accord. Third, the Strategic Plan emphasizes the Convention’s role as a facilitator of national and subnational action to address biodiversity. Finally, the Strategic Plan and Strategy for Resource Mobilization deeply embrace the need to find creative and effective financing mechanisms for biodiversity preservation.

Taken together, these characteristics of the Nagoya meetings portray the current state of international environmental law fairly well. Top-down binding international environmental law is not the future of the field. In many ways, the Kyoto Protocol may be the high water mark of that approach. Instead, international environmental treaties will continue to contain the extensively qualified and ambiguous language that any student of the field is familiar with. Further, even within a multilateral UN framework, the key players in any context will likely hammer-out the main features of any agreement that can be reached – and they may do so in private. These things are not new.

Growth and development in international environmental law will come through its deeper integration into national and subnational law, and through its ability to facilitate the creation and implementation of ever more effective approaches to solving globally significant environmental problems. Authority is, and will remain, polycentric. Nations need not surrender sovereignty, but may participate in cooperative efforts that are made possible by multilateral institutional arrangements. In particular, issues such as financing, technology transfer, and monitoring are far more likely to be advanced in the context of multilateral commitments – however ambiguous they may be – than through bilateral or unilateral efforts.

In sum, Nagoya was successful for its achievements in updating several key aspects of the CBD regime, but its shouldn’t be seen as a sign that the UNFCCC COP-16 is likely to make any meaningful progress towards a Kyoto-style climate change agreement. Rather, COP-16 may be most important for the extent to which it advances the facilitative capacity of the UNFCCC regime to support a wide array of approaches to address climate change on the national and subnational levels.

Environmental Disasters: Linking Law, Science, & Policy

Biolaw readers may be interested in viewing the presentations at the 12th Annual Northeast Florida Environmental Summit, which addressed the theme "Environmental Disasters: Linking Law, Science, & Policy." The excellent opening keynote address by Jurisdynamics creator Jim Chen has the most direct relevance for biolaw, but a number of the presenters discussed themes that will prove important to addressing the drivers of biodiversity loss (especially climate change). I've highlighted a couple of the panels on Teaching Climate Change Law and Policy and full video of the conference is available at the link above.

Article on Biodiversity & Human Well-Being in Climate Forest Governance

Biolaw readers may be interested in the article Global Climate Governance to Enhance Biodiversity & Well-Being: Integrating Non-StateNetworks and Public International Law in Tropical Forests (forthcoming in 41 Environmental Law, 2011), which is available for free download here.

Here is the abstract:


Environmental governance frequently represents a leading edge of global regulation. The climate regime even continues to create new modes of regulation despite a negotiation impasse. These new initiatives, like existing legal approaches to environmental challenges, too often embrace a fragmented view of issue areas that fails to reflect fundamental connections between the objects of regulation. The shortcomings of a state-driven international issue-by-issue approach to global environmental governance have long been obvious in some areas (such as tropical forests), and are becoming ever clearer in others (most notably climate change). Therefore, private networks play an increasingly important role in global environmental governance, as illustrated most directly by forest certification that was developed to fill a gap left by negotiation failures of the 1990s. These prior failures also laid the groundwork for tropical forests to become an object of climate regime regulation, giving rise to one of the most promising and innovative programs for generating a much-needed new approach to global environmental governance more broadly. The reduced emissions from deforestation and degradation (REDD) program holds out the promise of not only reducing greenhouse gas emissions in the forest sector, but also promoting public goods associated with biodiversity and human well-being. Nonetheless, REDD remains incompletely formed and fragile. An over-emphasis on mitigation, which seems likely given REDD’s climate regime origins, may prove self-limiting or even self-defeating for the program. In response to this concern, and the need for greater recognition of issue-linkages in designing global environmental regulation generally, this article proposes a novel hybrid public-private governance approach to REDD that can encourage maximum emissions reductions while also effectively promoting a broad array of benefits for biodiversity and human well-being. In so doing, the article also offers an innovative and generalizable model for combining private market finance and public funding to increase the coherence and effectiveness of global environmental regulation.

GE Eucalyptus Experiments in the Southern US

USDA has approved plantings of genetically engineered eucalyptus tress at sites in seven states. Center for Biological Diversity and other organizations are suing to set aside the approval.

Eucalyptus is a fast-growing tree that dominates tropical timber plantations. It is not native to the U.S. and has become invasive in some places.

Two major international timber companies, International Paper and MedWestvaco, have formed ArborGen to test eucalyptus that has been engineered for cold-tolerance and other traits in the southern U.S.

There are a number of potential benefits, particularly for the timber industry. However, the CBD suit alleges that USDA did not fully evaluate the risk of the introduced species becoming invasive along with other potential negative environmental consequences. Projects to selectively breed eucalyptus for use in the U.S. have been underway for some time, but the introduction of engineered genes could pose unique risks for impacts on surrounding species and ecosystems.

Additional discussion is available here, here, and here.

Long-Term Biodiversity Impacts of the Gulf Oil Spill

The Deepwater Horizon Oil Spill's impacts on biodiversity are sure to go beyond harm to the charismatic mega-fauna featured in front-page photographs. A much longer term threat exists in regard to impacts on lower levels of the food chain. The extent of future impacts remains uncertain, but may be closely linked with the extensive use of dispersants.

These chemicals spread the oil below the surface, making it much less visible and reducing the immediate economic impact. They could potentially also reduce BP's liability, not only by limiting immediate economic impact but also by inhibiting accurate estimates of the volume of oil spilled. At the same time, dispersing the oil deep below the surface could have major negative impacts on micro-organisms and other less well-known organisms essential for the functioning of the ecosystem. Are we avoiding short-term costs by imposing much greater and longer-term impacts on the biodiversity of the Gulf?

A good piece on tonight's PBS Newshour raises some of these questions, while detailed information on Gulf biodiversity and impacts from the spill is available here, among other places, and current fish & wildlife reports are available here.

Climate Change & Human Health

Biolaw readers may find the National Institute of Environmental Health Sciences recent publication, A Human Health Perspective on Climate Change, noteworthy. It provides an accessible discussion of existing knowledge and research needs pertaining the strikingly wide array of health impacts related to climate change, organized into 11 broad topics. Greater awareness of the probable direct impacts of climate change on human health in the U.S. could go a long way toward raising the public's perception of climate change as an important policy issue.

Asian Carp

Asian carp in the Illinois River and other waters west of the Great Lakes are becoming infamous invasive species and threatening to wreak havoc on the Great Leaks ecosystems if they cross an electric barrier meant to block them from Lake Michigan. Some species grow to over 100 lbs., while others have become notorious in popular media for their quantity and jumping into and over boats.

The carp are also the subject of a multi-state effort to persuade the U.S. Supreme Court to re-open the 1929 case Wisconsin v. Illinois. In that case, the Court ruled against Illinois' excessive water withdrawal but retained jurisdiction as Illinois worked to find alternatives. The case was reopened several times, including as recently as 1980.

The current controversy is over the option of closing the canal and locks connecting Chicago area rivers to Lake Michigan as a means of prevent the carp from entering the Lakes. Michigan unsuccessfully requested an injunction from the U.S. Supreme Court to close the locks, and the Obama Administration has just released a new Asian Carp control plan that opts not to close off the connection. Instead, the plan relies on an electric barricade and targeted efforts to kill the fish closest to the lake.

The effort to reopen the Wisconsin v. Illinois case, joined by several lake states (most recently Indiana) is pending before the U.S. Supreme Court. Michigan Attorney General Mike Cox initiated a project seeking to organize public pressure on the Obama administration to close the Illinois River connection to Lake Michigan, and has been joined by Indiana, Ohio, Pennsylvania, and Wisconsin.

The interests driving the controversy are partly economic -- lake states fear lost jobs and revenues if the carp enter the Great Lakes, while closing the locks would have major economic implications for shipping in the Chicago area -- but there is also a major environmental risk if the carp make the crossing into Lake Michigan. For that reason, this issue calls out for a precautionary approach: the locks should be temporarily closed as the effectiveness of other methods is determined.

More broadly, the Asian carp situation highlights the need for a more comprehensive and consistent legal mechanism to address invasive species. The problem will only become worse, and the current ad hoc approach leaves the response to each arising problem dependent on the direction of the political winds.

Video: Environmental Summit

Full video of the 11th Annual Northeast Florida Environmental Summit is now available online (this link will take you to the agenda, which links to each panel individually).

This interdisciplinary Summit, hosted by Florida Coastal School of Law and co-sponsored by Jacksonville University, featured eight panels and three plenary speakers addressing various issue areas under the broad theme of sustainability. Many of the presentations may be of interest to Biolaw readers, including the panles on Land Use, Biodiversity & Ecosystems, and Forestry & Agriculutre.

REDD Financing

AP reports that talks over REDD are faltering because developed countries are not willing to finance developing country readiness for the program. This is not surprising since financing disputes have repeatedly limited the development of international environmental law. The significance of financing disputes are nowhere more apparent than in the history of efforts to secure a binding international agreement to slow deforestation (which, after over 16 years of on-and-off efforts, is not even close to realization).

However, REDD promises a way to overcome the issues that have derailed prior efforts to secure tropical forest protection. Among other things, it offers developed countries an opportunity to buy carbon credits for less than the cost of reducing their domestic emissions, while giving developed countries a chance to sell credits for more than the costs of avoiding deforestation . . . if they can establish the necessary verification and monitoring systems to demonstrate avoided deforestation.

I've offered an option for incentivizing protection of biodiversity through a voluntary certification option within REDD in a recent article. I think that a similar approach could offer a way around the current financing disputes as well. REDD could be a two-tier system that offers a choice for developing countries to develop either relatively streamlined mitigation projects without international financing, or more elaborate adaptation-oriented REDD projects with certification for biodiversity and socio-economic co-benefits that is underwritten by international assistance. I am currently working on an article to develop this concept, but it certainly won't be ready by the time negotiations wrap up later this week. :-)

Cross-posted here.

IUCN Red List Update

IUCN has released its annual update to the Red List. Of the nearly 50,000 species surveyed, close to 20,000 are threatened. In other words, more than 1/3 of the species evaluated by IUCN are vulnerable, endangered or critically endangered.

It is high time that biodiversity loss receive at least the level of international attention that has recently been paid to climate change. As I have noted many times on this blog and elsewhere, perhaps linking those two issues will offer an opportunity for stemming some of the hemorrhaging of biodiversity. The CBD has recently released two reports (here and here) detailing scientific linkages between the issue areas.

Advancing Biodiversity Protection in International Negotiations

What is the most important opportunity for advancing biodiversity protection in the near term? Given the uneven distribution of species throughout the globe, and the rapid destruction of habitat in many developing countries, the appropriate scale is global with local and regional implimentation.

The most obvious possibilities for developing global regulation, such as the Convention on Biological Diversity (CBD), remain limited by problems that were present at their interception. The CBD contains only qualified commitments as a result of developing countries’ concern for sovereignty and development prerogatives, and the unwillingness of developed countries to financially support formal protection of biodiversity and habitat. Similar problems plague other global efforts to preserve habitat, such as forests and wetlands. These traditional, direct attempts to regulate biodiversity and habitat loss continue to come up short and the prospects for dramatic improvements to in situ preservation through them are dim.

In contrast, the forthcoming COP-15 negotiations under the UN Framework Convention on Climate Change offer a unique and potentially very powerful opportunity to re-orient the financial and political incentives that have undermined global biodiversity and habitat agreements. The expected inclusion of a “reduced emissions from deforestation and degradation” (REDD) mechanism offers a key chance to recognize an unusual alignment of interests in preservation of tropical forests that benefits biodiversity. REDD will ultimately create a market for trading carbon credits generated through avoiding deforestation (which currently releases far more carbon dioxide per year than complete compliance with the Kyoto Protocol would prevent). After an initial setup phase, REDD will likely include tradable offset credits that simultaneously generate more wealth for tropical forest nations than current destructive activities (such as clearing for agriculture) and allow developed nations to meet emissions limitations requirements more cheaply than domestic retrofitting could acheive.

With financial incentives to conserve tropical forests, perhaps the hurdles to effective biodiversity preservation can be overcome. Further, biodiversity preservation is of fundamental importance for successful adaptation during climate change, particularly in poor areas of many developing countries, and is an appropriate design consideration in the climate regime. Indeed, many REDD proposals highlight potential biodiversity “co-benefits” that could materialize. However, none offers a mechanism that would ensure their realization.

Tropical forests are among the most biodiverse ecosystems on earth, but not all are equal. Those forests that pose the most urgent priorities for preserving biodiversity are frequently fragmented and relatively small. Thus, the purely carbon-centered approach to REDD that currently dominates most proposals does not assure net benefits for biodiversity and may even prove worse than the status quo.

As I explain in a short article published today in the Carbon & Climate Law Review, if REDD is really going to materialize as a powerful force for biodiversity protection, its design must include a mechanism to identify and reward REDD projects that preserve biodiversity priority areas. Through designation of biodiversity-enhancing projects, together with added financial incentives for developing and investing in them, REDD could become the most effective tool yet for stemming the sixth mass extinction.

Assiting Migration of Trees in the Northwest

Associated Press reports on a large-scale Canadian project to plant 16 tree species in areas that may be more suitable to them as climate change. The project involves several planting sites in British Columbia and the Northwestern United States. Geneticist Gregg O'Neill, who heads the project, notes the need to plant trees that can thrive over the next 80 years while the climate changes. British Columbia has also relaxed its elevation restrictions on re-planting by timber companies in an effort to facilitate adpation of tree species to climate change. The assisted migration project's website is here.

In other forest news . . .

After my post on the WOPR withdrawal, I came across this much less publicized news item on administration logging decisions. On the same day as the WOPR withdrawal, Secretary of Agriculture Tom Vilsak approved a 381 acre clear-cut of primary forest (the Orion North timber sale) in a roadless area of the Tongass National Forest in Thorn Arm, near Ketchikan.

This decision represents the first approval under Vilsack's May 2009 memorandum reserving decision-making authority to approve or disapprove timber contracts in roadless areas. This policy is the latest turn in the evolution of the 2001 Roadless Rule, which was permanently enjoined by a 2008 Wyoming District Court decision roughly 18 months after the District Court for the Northern District of California enjoined the Forest Service from taking any action contrary to the 2001 Roadless Rule, leaving the Forest Service in a bit of a quandary.

Vilsack's May 2009 memorandum reportedly drew some praise from environmentalists and democrats, apparently banking on Obama's campaign promises to support the roadless rule. The decision to move forward with the Orion North sale has drawn sharp criticism from environmentalists and others. For example, the Environmental News Service quotes Carol Cairnes, president of the board of the Ketchikan-based Tongass Conservation Society: "The day when this kind of timber sale made sense is long gone. . . . Cutting these trees will not even bring in half the money the Forest Service will spend building a road to get to the trees." The sale will require building or updating eight miles of roads, which Tom Waldo of Earthjustice (which was challenging the Orion North sale prior to Vilsack's decision) states will cost four times as much as the profit from the sale. According to the Juneau Empire, the approval was driven by the secretary's recognition of "how much people in the area needed the jobs and the economic boost."


In reporting the Orion North sale, MongaBay.com reports: "The U.S. has the world's seventh highest rate of primary forest loss in the world. Between 2000 and 2005, the United States lost an average of 831 square miles (215,200 hectares) of "primary forest" -- defined as forests with no visible signs of past or present human activities." The website, an exceptional source of biodiversity-related news, then notes the high biodiversity levels found in primary forests, as well as their priority place in conservationists' agendas. Indeed, primary forests frequently provide irreplaceable services (see here for a freely-available study of tropical forests reaching this conclusion).

The Orion North sale tempers my enthusiasm at seeing the WOPR withdrawal, and gives me concern for the future of "balancing" irreplaceable remnants of national forests against temporary and questionable economic benefits. Hopefully, the 2001 Roadless Rule will be re-instated, or the administration will otherwise move toward a uniform approach to logging that favors primary forest preservation and works to concentrate logging in secondary forests without particularly important ecologial benefits and to existing timber plantations.

Withdrawing the WOPR

Interior Secretary Salazar withdrew the Western Oregon Plan Revision (WOPR) today. The Department of Interior news release begins: "Because the previous Administration failed to follow established administrative procedure before leaving office, its plan to intensify logging in western Oregon – known as the Western Oregon Plan Revisions (WOPR) – is legally indefensible and must be withdrawn."

The WOPR was adopted by the Bush administration in late 2008 to dramatically increase the amount of logging that would be allowed under the Northwest Forest Plan. The Northwest Forest Plan grew out of the extraordinarily contentious spotted owl controversy during the Clinton administration. Environmental groups fiercely opposed the WOPR. In creating the WOPR, the Bush adminstration disregarded Endangered Species Act consultation requirements (for posts on another Bush administration consultation action see here).

Withdrawing the WOPR is a significant step in favor of environmental protection on the part of the Obama administration because it supports preservation of the spotted owl, Pacific salmon, and the remaining old-growth forest of Oregon. Further, the administration is seeking to vacate a 2008 critical habitat revision for the spotted owl. The moves are particularly notable endorsements of environmental protection considering the strong condemnation to be expected from timber-dependent communities that have been hard-hit by the logging reductions of the 1990s and the current economic recession.

At least equally important, the WOPR and the critical habitat revision were tainted by the involvement of Julie MacDonald, the Bush-era Deputy Assistant Secretary found to have been "heavily involved in . . . reshaping scientific reports" despite her lack of a scientific background, among other things. Further, the WOPR's allowence of increased logging was in contrast to the majority of the 30,000 comments received and over 250 formal protests submitted.

Salazar's announcement included a promise to engage the community and follow legal process requirements in developing a new plan revision. This aspect of the announcement, at least, is welcomed by even timber industry representatives, some of whom joined a lawsuit based on concern that the WOPR was vulnerable to legal challenge. It is also yet another welcome change from the prior administration.

Continued Life for the ESA

I share Andrew Torrence's concern that climate change may be taking priority over biodiversity conservation. (However, as I've expressed previously, I think the attention garnered by climate change can be harnessed to more effectively address some of the most challenging and critical issues of biodiversity conservation). Nonethless, I think that the polar bear is a long way from the snail darter and the role of the ESA in its conservation presents a fundementally new question of the ESA's scope and intent.

Polar bears, of course, remain listed under the ESA (see posts here, here, here, and here). Further, federal agencies are still required to consult with FWS where their activities may affect the polar bear because FWS recently revoked a Bush-era midnight regulation that, among other things, essentially eliminated the consultation requirement for GHG emissions. The 4(d) rule that FWS recently decided to retain intersects with consultation by eliminating the need for incidental take permits for certain activities that may cause a take -- most significantly, GHG emissions.

The broader effect of the 4(d) rule, in my view, is to firmly establish that FWS will not attempt to set climate change policy for the nation. The rule also avoids the potentially unmangeable issues that would be created if FWS had to approve all federally-authorized GHG emissions through the consultation process. While I support a strong reading of the ESA, as embraced in TVA v Hill, expanding FWS' authority to include a final say on all GHG authorizations takes us into uncharted territory.

FWS should be consulted on GHG issues, and biodiversity conservation must be a major consideration in the creation of national GHG policy. However, this policy will be more socially and politically tenable, I think, if it arises through a process that is more organic than FWS consultation. Ultimately, it seems impossible that FWS authority over GHG emissions would craft a lasting climate change policy. It would, instead, pressure Congress to create such a lasting policy. That pressure is already building, and the ESA faces a greater risk of being weakened if FWS asserts authority over power plants to protect the polar bear because Congress would be forced to address that question in crafting a new regime.

The ESA has a role at the intersection of climate change and biodiversity. It is a role that is not likely to be filled by any other statute or policy, and it is critical. The ESA is the strongest bit of ecocentric legislation in the U.S., and perhaps the strongest biodiversity legislation in the world. Its role during a phase of climate change is to ensure that other species are not left out of the adaption equation as we humans scramble to change our behavior. In other words, the ESA can call attention to the impacts of climate change through lisitings (as FWS may well do with the pika) and should preserve or create every available option for the polar bear and other climate-threatened species to survive the impacts of climate change. This is an important function that the ESA can fill, and perhaps serve as a model for the international level where a similar problem must be addressed.

Better REDD than Dead: Biodiversity in the Climate Regime

What is the best opportunity to secure effective international legal protection for biodiversity in the near term? It does not currently seem to be proceedings under the Convention on Biological Diversity (CBD). Nor is it likely to lie under international efforts aimed exclusively at habitat protection, such as the UN Forum on Forests. These efforts were largely unsuccessful from their inception at the 1992 Rio Earth Summit and the reasons for those failures continue to plague the regimes.

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.