Adaptive capacity of legal and policy frameworks for biodiversity protection considering climate change

Land Use Policy 34 (2013) 213–222

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Adaptive capacity of legal and policy frameworks for biodiversity protection considering climate change Maria Pettersson a,b,∗ , E. Carina H. Keskitalo b a b

Luleå University of Technology, Department of Business Administration, Technology and Social Sciences, Law Unit, Sweden Umeå University, Department of Geography and Economic History, Sweden

a r t i c l e

i n f o

Article history: Received 15 October 2012 Received in revised form 1 March 2013 Accepted 4 March 2013 Keywords: Adaptive capacity Institutional framework Legal capacity Biological diversity Climate change Forestry

a b s t r a c t Protection of biodiversity under conditions of climate change is likely to place large requirements on existing frameworks for biodiversity protection at both EU and national level. While these systems are not perfectly adapted today, the inclusion of climate change concerns will require revision and addition of new issues, such as species migration corridors and buffers, as well as proactive strategies in areas that may not be protected today. Biodiversity in forest is particularly important as forest range over large areas that include also other land uses; this holds particularly true for the large forested areas in northern Europe. Illustrating complexities regarding biodiversity protection, this study reviews the applicable legal framework related to biodiversity in forests on EU and national level in Sweden, one of the countries with the largest forest areas in the EU. Mainly drawing on a policy and legal study, the paper concludes that adapting the legislative and policy system to a future with large uncertainties in terms of extent of change poses a problem for what are largely reactive systems in particular in terms of legislation. © 2013 Elsevier Ltd. All rights reserved.

Introduction and aim Impacts of climate change on biodiversity are widely acknowledged as resulting in challenges for protection systems. These include changes in ecosystem dynamics and competitiveness of different species; changes in suitability of areas for different species, where species may be out-competed; the in-migration of new species, who may both change ecosystems and constitute potential invasive species; and the need for species to be able to access migration paths in what is often a very fragmented landscape (e.g. Ruhl, 2010; Cliquet et al., 2009). Changes in the climate may result in an impact on systems where variations in temperature and precipitation make habitats unsuitable for niche species, and where species may not be able to adapt, especially in case of limited migration paths or excessively rapid climate change. Adaptation to climate change is often defined as the way in which the impacts of climate change can be managed, and is to a very high extent dependent on socio-economic and political resources, including the institutional systems through which adaptations may be developed and channelled (Smit and Wandel, 2006; Smit and Pilifosova, 2001; Klenk et al., 2011). Reviews of conservation needs under climate change suggest, for forest, that important ways to support

∗ Corresponding author at: Luleå University of Technology, Department of Business Administration, Technology and Social Sciences, Law Unit, Sweden. Tel.: +46 70 2209911. E-mail address: [email protected] (M. Pettersson). 0264-8377/$ – see front matter © 2013 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.landusepol.2013.03.007

adaptation include reducing existing stressors, promoting biological diversity and ecological function, establishing buffers and corridors for species migration and implementing proactive management and restoration strategies, as well as including climate change in monitoring and reporting systems. Such changes would need to be developed through changes in land use policy at both national and EU level, including site management and adaptation of existing conservation plans (Cliquet et al., 2009). It is also necessary to review policies for new land use to take climate change into account and take measures for species adaptation (Glick et al., 2009; Clarke, 2007). Developing such systems place a large strain on both legal and policy systems (Keskitalo, 2010). The institutional environment is made up of both interlinked and disjointed legal and political systems, which for northern Europe include broad governance systems including international law, EU and national policy and law, as well as local practices and norms connected to these (Skelcher et al., 2005; Keskitalo, 2010). In the case of biodiversity, the formal institutional framework includes both international conventions, such as the Convention on Biological Diversity (CBD) and various EU directives, primarily the Birds and Habitat Directives and the associated Natura 2000 network. Also the Water Framework Directive forms part of the EU institutional framework regarding biodiversity protection (with regard to water quality in natural systems). In Sweden the legal systems for biodiversity protection range from generally formulated rules concerning the management of natural resources to specific regulation of special protection areas.

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While these systems may not be well adapted to protect biodiversity even today – given limited linkages between sites and migration paths – climate change thus makes the issue of biodiversity preservation even more pressing. According to Dunlop and Brown “the current goal of preventing change to species and ecosystems is impossible to achieve under climate change; biodiversity managers will now need to choose more actively what it is they are trying to conserve” (Dunlop and Brown, 2008, p. 91). The traditional site-based conservation approach may in consequence not be able to respond to the dynamics of change. Climate change thus presents large impacts on systems which are targeted at preserving biodiversity at current, relatively limited and welldefined sites (Wilson and Piper, 2008; Keskitalo, 2010; Cliquet et al., 2009). However, discussing how to adapt the legislative and policy system to a future with uncertainties in terms of the extent of change – i.e. not already given conditions – poses a problem for what are largely reactive systems in terms of legislation and, to a lesser extent, policy development. As a novel area of development, adaptation and future risk may here need to be integrated among multiple bodies of existing legislation – a problem that may be the most prevalent in countries where large land uses such as forest are already subject to complex legislation in several sectors (due to large established interest structures and multiple interests). Forest biodiversity has here been recognised as an important biodiversity carrier (e.g. Honnay et al., 2004). In Sweden, one of the countries in the EU with the largest forest areas, production and protection are both included as equal aims in the Forestry Act. However, possibilities to preserve biodiversity – both habitats and species – in forest areas is limited by the intensive forestry system in Sweden, where the production forest is in general only subject to general consideration implemented amongst other by forest certification aims (for instance, saving some trees and preserving dead wood during clear cutting) (e.g. Johansson and Lidestav, 2011). Sweden can thus be seen as a case where adaptation requires large integration, and where problems in integration may highlight potential concerns also more widely in the EU.1 This study aims to define the existing institutional framework, in terms of legal regimes and policy instruments, that govern forest biodiversity in Sweden, and to identify potential implications in terms of the adaptive capacity of these systems in relation to climate change. The current system for biodiversity protection is related to changes proposed in policy with regard to the presumed need for increased adaptive capacity of the institutional systems. The study thus asks to what extent existing formal institutions such as legal and policy systems are able to accommodate unexpected and unpredictable changes and in particular changes in the future, and aims to highlight the institutional constraints of these systems. Theoretical framework and methodology Adaptation and adaptive capacity literature has developed over the last few decades in particular in relation to large-scale risk, including both natural hazards and climate change. This literature, developed mainly in the social sciences, targets the vulnerability of a system and the possibilities to adapt to or cope with risk on different levels (individual to system) (Smit and Wandel, 2006). While much of this literature has been future-oriented and related to opportunities to adapt to upcoming risk, in particular the social vulnerability literature has emphasised that also adaptation to future risk is to a large extent dependent on the capacities of the present system and to what extent they are able to relate to

1 An early review of adaptation options in forestry among EU 27 indicate large differences both in development of adaptation policy as well as scale at which development of adaptation options are determined (Keskitalo, 2010).

this given their current preconditions and potential stresses from now to the assessed future condition. As a result, this literature has highlighted the need to understand our present socio-political and economic systems, as well as how adaptation has occurred in the past (Keskitalo, 2008; Smit and Pilifosova, 2001). Smit and Pilifosova (2001) note that institutional characteristics are crucial for what adaptation strategies are chosen and how these are implemented, and other adaptation literature has noted that effective responses to climate change require institutional innovation (Rodima-Taylor et al., 2011) and that institutions can in particular be seen as mobilisers of change (e.g. Klenk et al., 2011) and thereby impact a broader adaptive capacity or “adaptability” of organisations. However, so far, this literature has not related sufficiently to the inherent limitations in different policy systems. Gupta et al. argue that “Institutions are inherently conservative” and that they “carry the bias of previous interactions, views and power relations” (Gupta et al., 2010, p. 460). Institutions, such as laws and rules, thus carry a certain resistance to change (Gupta et al., 2010). As a traditionally more reactive area, law typically responds to issues already recognised in e.g. policy. Hence, instead of being determined in relation to the future, regulation is usually an act in response to a defined problem, and once that decision is made it will induce further steps in that same direction. Even if the institution in time becomes less desirable, it will take considerable effort to change it. The relative conservatism of the legal system is however also due to a universal requirement to uphold legal certainty and thereby the Rule of Law; implications of the legal system on individual as well as system level must be foreseeable and as a consequence law cannot be too flexible.2 The role of law in climate change adaptation is complex and has at least two sides: as “an essential vehicle for implementing adaptation policy across a range of sector and fields” and by “providing a basis for policies aimed at changing behaviour” etc. the law can facilitate adaptation (McDonald, 2011, p. 284). The law may, however, also constitute a barrier to adaptation as a result of the inertia of the system as such, but also by general legal principles, for example rights to compensation for restrictions on property rights, here among measures that significantly complicate the current land use, or complicated permitting processes (McDonald, 2011; Pettersson, 2008, pp. 13 and 21; Forsberg, 2012). McDonald (2011) furthermore notes that “[t]he responsiveness, robustness and accountability of a legal system – encompassing formal and informal rules and the agencies responsible for their design and implementation – will influence the timeliness and effectiveness of climate change adaptation strategies.” (McDonald, 2011, p. 283). Regarding the protection of biodiversity in general and particularly with regard to climate change, the legal (and policy) action internationally as well as in the EU and its Member States is based a desire to halt biodiversity losses. To achieve the objective, rules and regulations that aim to control activities and govern behaviour in that direction are formulated and implemented, e.g. in the form of substantive provisions that restrict access to, or prohibit use of designated habitats. In keeping with the above, the degree to which these rules and regulations contribute to reaching the desired state will however depend on a number of factors. For instance compliance with overriding principles, such as property rights, or elements of conflicts with other objectives; energy policy goals to increase the production of biomass may literally be at odds with the protection of biodiversity, and the preservation of forest land may

2 See for example Swedish Instrument of Government ch. 2, s. 9–11 concerning legal certainty and s. 15 concerning property protection. See also the EU Treaty Article 5 on the principle of proportionality.

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stand in sharp contrast to the landowner’s own desire to harvest (see e.g. Michanek and Pettersson, 2010). The legal system is thus understood here as having the capacity to facilitate as well as impede change; in addition to its constraining, or controlling, function, law can also be used as an instrument for change (McDonald, 2011; Pettersson, 2008, p. 20), for example by altering the distribution of rights and obligations. However, risks include that systems may be both mired in existing path dependencies and also constitute very complex systems where integration of new measures may require both increasing coordination and increasing costs (Ruhl, 2010). According to Kundis Craig (2010, p. 31) “Climate change adaptation law must be able to accommodate the transforming ecological realities of particular places and not attempt to freeze ecosystems and their components into some prior state of being.” Hence, it is important for the institutional framework to be flexible enough in terms of the ability to quickly establish protection for habitat, but also in terms of opportunities to repeal or amend the regimes, to adapt to a changing reality. An example of an area strongly influenced by different legislative and policy areas is the forest sector. Covering large land areas and constituting the remainder of the natural environment for many terrestrial species, forests are impacted by a large number of biodiversity laws and policies, in addition to sectoral land use policies. Sweden is a relevant case in that Swedish forest policy includes the double aims of production (forestry) and protection (biodiversity). The Swedish Commission on Climate and Vulnerability (2007) represents Sweden’s major assessment of adaptation needs in relation to climate change, and amongst other formed the basis for parts of the 2009 Climate and Energy bill (Government Office of Sweden: Prop. 2008/09:162). The report from the commission notes that “Terrestrial ecosystems in Sweden face great upheavals, and the loss of biodiversity will increase as a result of climate change” and also that “The natural forests we have today will be transformed both as a result of climate change in itself and due to changes in forestry”. Climate changes may here impact species reproduction, size and distribution, length of the growing season, and outbreaks and occurrences of pest and disease, and effects may be increased due to interrelation with effects of land utilisation (Swedish Commission on Climate and Vulnerability, 2007). The existing (formal) institutional framework for biodiversity protection, i.e. applicable law, is primarily defined by analyses of the legal texts and relevant case law consistent with the traditional juridical approach (see e.g. Rentto, 1996). Reviewing the extent to which current adaptation policy in Sweden has been developed in order to deal with biodiversity protection requirements, the study draws mainly on policy literature (notably various legislative bills, the Swedish Commission on Climate and Vulnerability (2007), regulation letters, and internal reports). The results are divided into two sections. First, to evaluate the adaptive capacity of the conservation regimes, including its opposing functions, the various ways in which forest biodiversity can be protected by Swedish law is examined, focusing on the following questions: (a) what type of area can be subject to the protection; (b) what restrictions does the protection imply in terms of e.g. land use (i.e. how strong/well adapted is the protection); (c) under what circumstances can the protection be repealed or amended; and (d) who is responsible for authorising and upholding the protection/restrictions? In this, the study also reviews relevant EU law that impacts Swedish biodiversity legislation. Finally, a section on the ways in which Sweden is considering revisions to its biodiversity framework is included, targeting mainly revisions following the recent government investigation including adaptation concerns (Swedish Commission on Climate and Vulnerability, 2007).

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Results The current system: the Swedish legal framework for biodiversity protection on forest land Swedish forests enjoy legal protection of various kinds and to different degrees depending on the type of forest and whether it is a habitat for protected species. Formal protection of land is achieved via administrative decisions in accordance with provisions in the Swedish Environmental Code (hereafter the Environmental Code); no formal division between protected and unprotected forest land is made in the Swedish Forestry Act and the starting point is therefore that all forest land is unprotected. The Environmental Code’s provisions concerning the protection of areas range from general provisions on the management of natural resources to more specific and far-reaching protection of certain areas. The research management provisions in the Environmental Code may be viewed as representing the national planning in Sweden.3 The provisions include both guidelines for the overall use of land and water areas (the general provisions in ch. 3) and specific provisions with regard to geographically defined areas of the country (ch. 4). Among the areas protected by the general provisions are, for example, large unaffected areas; particularly sensitive areas; and forest land of importance for forestry (ch. 3, s. 2–4). The design of these provisions implies a degree of protection since they have the capacity to avert activities that may significantly affect or damage preservation interests, or that may significantly complicate user interests, such as forestry. The general protection however only applies “to the extent possible”, making it possible for decision makers to make other priorities (see further ch. 3, s. 2–9). The provisions’ protective capacity is somewhat stronger if the site is of national interest for the specified purpose. If so, the area “shall” be protected and, more importantly, must not be overlooked in the spatial planning.4 This connection between the legally established guidelines for the use of resources and the municipal physical planning is vital since it constitutes the only legal link between planning on national and local level (Pettersson, 2008, p. 49). However, since the classification of an area as national interest is not legally binding, the actual protection will be determined by the licencing authority. It is thus possible both to repeal and amend national interest designations. The provisions concerning the geographically defined areas are more specific. These areas are defined as national interests for their natural and cultural values and as such they are protected from exploitation activities in so far that any intervention must not significantly harm the protected values (as a rule). Among the areas we find coastal areas, mountain areas, and the national rivers. The provisions also contain a reference to areas protected in accordance with the Natura 2000 regulations since such areas also enjoy the status of national interest. The strength of the protection varies with the area type; while the national rivers enjoy a strong protection against all hydropower development, some coastal areas are only protected from heavy industrial activity. Despite the fact that these areas are considered as “national interests” and no balancing is intended in this regard, the exceptions to the rules imply rather far-reaching possibilities for development in most of the areas; the provisions do, for example, not prevent the extraction of minerals

3 As a result of the municipal planning monopoly, Sweden has no continuous spatial planning on national level. The resource management provisions originate from the 1970s guidelines for (national) resource management (SOU 1971:75) and the subsequent regulations on national physical planning (Civildepartementet, 1972:1). 4 The designation is made by the different sector authorities. The Energy Agency is for example responsible for the designation of national interest for wind power production in accordance with ch. 3, s. 8, para. 2.

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or the development of existing urban areas (ch. 4, s. 1, para. 2). The exceptions do however not apply to Natura 2000 sites. The general and special resource management provisions in the Environmental Code play no decisive role in the protection of biodiversity in forests; they are far too general. However, since the rules apply in connection with licensed operations and spatial planning, their capacity to avert damaging activities may have some impact in an overall context. Areas that are yet to be safeguarded by other measures might, for example, still receive some initial protection via these provisions. The flexibility of the provisions moreover implies that the adaptive capacity of the regulation is rather extensive. The Environmental Code also contains a special chapter on the protection of areas (ch. 7) in which various ways to restrict land use are specified. With the intention to “preserve larger continuous areas of a certain landscape type in its natural state” or “in essentially unaltered state” state owned land and adjoining water areas may be declared National parks (ch. 7, s. 2). Among the various forms of protection, this is probably the most prestigious designation and it offers a relatively strict protection against interfering activities; they must not conflict with the conservation interests (Government Office of Sweden: Prop. 1997/98:45 Part 2, p. 69; Michanek and Zetterberg, 2008, p. 209). Specific restrictions for each National park are set by the Swedish Environmental Protection Agency and the parks are mainly managed by the County Administrative Boards. Although there is no legal basis to cancel a National park, the Swedish Environmental Protection Agency’s restrictions and management plans for the areas can be repealed and amended and the protection can thereby be adapted to changed circumstances. To preserve biodiversity and to maintain or conserve valuable natural environments, or to meet the needs for areas for outdoor recreation, areas can also be declared Nature reserves (ch. 7, s. 4). The authority to decide on Nature reserves was expanded with the advent of the Environmental Code to include municipalities and County Administrative Boards on the grounds that nature conservation is a local as well as a national concern. Protection in the form of Nature reserves is expected to be “an important instrument in the efforts to maintain biodiversity” (Government Office of Sweden: Prop. 1997/98:45 Part 2, p. 71), but this requires (a) that the purpose of the protection is specifically stated; and (b) that the restrictions on land use established for the reserve clearly reflect the purpose of the protection and prevent any use that may compromise the conservation of biodiversity. This means that in determining the boundaries for the reserve the need for ‘buffer areas’ must be considered; valuable species and habitats may require that a larger area than the actual habitat is protected in order to maintain the overall objective (Government Office of Sweden: Prop. 1997/98:45 Part 2). Nature reserves established for other reasons, for example to preserve valuable natural environments, may not imply any protection for biodiversity since the restrictions provided for the area will be directly related to the purpose of protection; restrictions required to safeguard geologically interesting formations are, for example, unlikely to imply any protection of biodiversity. Even if the purpose of a Nature reserve is to establish a definite protection, the County Administrative Board or the municipality may, fully or partially, revoke it if exceptional reasons exist and if the infringement in the natural values is compensated (ch. 7, s. 7). Naturally, exploitation activities typically do not qualify for the exception. Such exceptional reasons may exist if the area has undergone substantial changes or if the conditions for the protection have changed by reason of spatial planning decisions (Government Office of Sweden: Prop. 1997/98:45 Part 2, p. 75). In January 2010 the Stockholm County Administrative Board revoked part of a Nature reserve in Sigtuna municipality following an application from the municipality regarding a place for laying up boats. The

site in question was judged to be of little conservation value and of marginal importance for outdoor recreation. As compensation, an expansion of the existing (northern parts) of the reserve was planned (County Administrative Board Decision, 2010-01-15, Dnr. 511-2009-76244). On a direct question to the Swedish Minister of Environment regarding the planned repeal of two Nature reserves and if there were any initiatives to clarify or strengthen the law to safeguard the Nature reserve institute, the Minister affirmed that the purpose of a Nature reserve is to create a permanent protection and that “The law in this areas is thus very restrictive and I see no need for changes. It is also very unusual that Nature reserves are revoked.;” (Answer to written question 2009/10:1019). A less intrusive way to get around the Nature reserve regulations is to apply for dispensation. Dispensation also applies restrictively and may only be granted if there are special reasons and the intrusion must be compensated. The dispensation assessment involves a balance between the environmental interest and the conflicting interests, particularly the interest of the landowner, but also other can be considered, for example interests of the local community and visitors. In a court case from the Environmental Court of Appeal regarding dispensation from reserve regulations for control of mosquitos the Court concluded that although the reserve regulations prohibited the use of biological pesticides, the mosquito problems in the reserve were extensive and affected both locals and visitors. Special reasons were thus considered to exist (Judgement from the Environmental Court of Appeal 2009:1 in case nr. 2979-08). On the whole, it appears as if the possibilities both to revoke a Nature reserve and to be exempted from the reserve regulations are relatively limited, both in view of the positive provisions and the practical examples. However, the possibilities that do exist may prove important in a climate change scenario with species migration and – as a consequence – changed need for protection where new areas may need to be utilised while others are no longer worthy of protection. To protect small land and water areas that constitute valuable habitats for endangered species Habitat protection areas may be established in accordance with ch. 7, s. 11 in the Environmental Code. Two types of habitat protection areas exist: A and B. A-type Habitat protection areas are specified in statutory text and include avenues with at least five deciduous trees, stone walls and wetlands in agricultural land (Ordinance (1998:1252), s. 5 and appendix 1). B-type Habitat protection areas must also be specified in statutory text and be designated geographically for the protection to apply. This includes ravine forests, swamp forests, older sand forest and older grazing embossed forests (Ordinance (1998:1252), s. 6–7 and appendix 1). The statutory protection is generally formulated: “activities or measures that may damage the natural environment” must not be undertaken and dispensation may only be granted under special circumstances (s. 11, para. 2) and relatively meagre; on the one hand it is indeed very precise, but on the other hand it does not specify what constitutes harm, nor is it supposed to be completed with such administrative regulations. Given the purpose of the instrument as such, i.e. to protect habitats for endangered species, one must therefore assume that any type of activity that risks destroying these habitats implies a violation of the protection and is thus forbidden. Regarding the protective power of the habitat protection, it is assumed to provide a relatively strong protection for the covered values (Forsberg, 2012, pp. 221/222). The provisions regarding Habitat protection areas include no positive legal rules supporting a repeal of the protection, but according to the Code’s rules regarding consideration of matters by administrative authorities and municipalities (ch. 19, s. 1) a municipal decision to withdraw a status as Habitat protection area can be appealed to the CAB. As a result, it must be possible for the municipalities to make such a decision.

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In obedience to the EU nature conservation legislation Sweden is required to select and designate Special Protection Areas (SPAs) under the Birds Directive5 and Special Areas of Conservation (SACs) under the Habitats Directive6 with the purpose of maintaining or restoring natural habitats and species of wild flora and fauna of EU interest at favourable conservation status (ch. 7 s. 28, Environmental Code). Activities that can significantly impact the environment in such Natura 2000 areas require a special license (s. 28 a) that may only be granted if it can be ensured that the activity will not damage the protected values or expose protected species to disturbance that significantly obstruct their conservation (s. 28 b). However, if there are no alternative solutions; and if the activity must be carried out for imperative reasons of overriding public interest; and if measures are taken to compensate for lost values thereby ensuring that the purpose of the protection is still achieved, activities in Natura 2000 areas can still be allowed (s. 29). For this, all paragraphs must be met, and the decision is made by the government. Regarding the possibilities to repeal SPA or SCA declarations, article 9 in the Habitats Directive allows for SACs “to be considered for declassification where this is warranted by natural developments”. Although no corresponding provision is found in the Birds Directive, there seems to be support for the possibility of declassifying also these areas (Bándi, 2011, see also Cliquet et al., 2009, p. 168). According to Bánd, declassification (or redesignation) of SACs is possible if it is no longer in the interest of the Community to reach favourable conservation status in the areas, and declassification may thus “be overall considered a discretionary decision” (Bándi, 2011, p. 3). Under Swedish law, both SACs and SPAs may be repealed “if the area’s natural values no longer justify such a declaration” (ch. 7, s. 28, para. 3), for example, if a permitted activity has resulted in such a damage that protection is no longer motivated. The decision is made by the Government and requires consultation with the Commission. The restrictiveness that can be traced to the application of Article 9 of the Habitats Directive is thus not found in the corresponding Swedish provision; here it is clear that both SACs and SPAs can be declassified on the same grounds (Government Office of Sweden: Prop. 1997/98:45 Part 2, p. 100). The aim of the Natura 2000 network is to is to guarantee the long-term survival of valuable species and habitat by the creation of a “coherent European ecological network” (Art. 3 in the Habitats Directive). To improve the ecological coherence Member States shall, if they consider it necessary, strive to enhance “the management of features of the landscape which are of major importance for wild fauna and flora” in their land use planning and development policies (Art. 10 in the Habitats Directive). The intention with the network is thus not to create a system of strictly protected Nature reserves without human activity, but to ensure a sustainable future management of valuable natural resources. The extent of activity in the areas must thus be decided from case to case (Commission working document on Natura, 2000). The Swedish counterpart to the EU nature conservation legislation offers a comparatively strong protection for the designated sites; the requirement to obtain permit occurs already at risk of significant harm, and the relatively clear criteria for assessment will ensure that due account is taken to the area’s natural values. The integrated assessment also implies that all activities that may impact the areas should be considered, including activities outside the actual site. The focus of the Swedish legislation is however the static area protection, rather than the creation of a coherent ecological system of protected areas. According to Cliquet et al. (2009) the criteria for the selection of

5 Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds. Codified version of Directive 79/409/EEC. 6 Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.

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SACs, most notably ‘the geographical situation of the site in relation to migration routes of species’, shows that there is room for a more flexible approach and suggests that climate change adaptation is taken into account when sites are selected. Voluntary agreements, consideration, certification and spatial planning – additional means to biodiversity protection In addition to the statutory site protection, targeting in particular biodiversity protection on specifically appointed land, a number of additional measures to take biodiversity considerations in forest land exist. Here among voluntary agreements, forestry considerations, forest certification and spatial planning. Voluntary Nature Conservation Agreements (NCA) may be set up between the state (represented by the Forestry Agency) and individual land-owners interested in nature conservation. The contract is typically used to protect woodland with high natural values and means that the owner waives certain rights with regard to the land use, for example felling, planting, and fertilising in favour of state management rights. Depending on the exact formulation of the contract, the NCA can imply a rather far-reaching protection against exploitation activities. One very important difference between the NCA and the statutory area protection is the possibility to cancel the protection; on condition that both parties agree to it, a NCA may be completely terminated (Ellison et al., 2009). This makes it a rather flexible instrument that enhances the adaptive capacity of the institutional system. In woodland overall, the Swedish Forestry Act’s requirement for environmental consideration also constitutes an important factor: it may even be the primary means by which environmental protection is included in non-protected (production) forest. Section 30 in the Swedish Forestry Act here notes the requirement to include specific biodiversity protection in logging, including buffer zones to water, requirements on retention of trees and protection of dead wood. While the formulation in s. 30 is relatively general, the requirements are specified in the Ordinance to the Forestry Act as well as in the Forestry Agency’s regulations and (non-binding) general advice. Higher levels of consideration in these kinds of areas can be seen as institutionalised through the voluntary market mechanism of certification. Sweden is one of the countries in the world with the highest degree of certified forest, and all large forest owners are either FSC- or PEFC-certified. Certification, with increasingly limited differences between the two systems, in general requires higher and more specific consideration measures than those under the Forestry Act (see e.g. Gustafsson et al., 2012). Spatial planning is another important aspect of all environmental protection strategies, including adaptation. According to Wilson, the planning system has been identified as a “key public area to anticipate and prevent adverse impacts” and by incorporating e.g. climate change considerations into the planning process early action is allowed (Wilson, 2006, p. 611). Spatial planning is crucial also for the protection of biodiversity; well-functioning, and strategic, planning can help identify and manage cumulative threats, and integrate biodiversity protection into the various activities that are controlled by the physical planning system (Byron and Treweek, 2005). Although outside the scope of the formal competence of the EU, European policies also call for spatial planning to help maintain the protection of sites in accordance with both EU and national law, as well as to incorporate green infrastructure (Wilson and Piper, 2008; COM (2011) 244 final). In Sweden, the planning system is highly decentralised and characterised by a municipal planning monopoly; according to the planning legislation, planning for the use of land and water areas is “a municipal matter” (ch. 1, s. 2, Swedish Planning and Building Act), meaning that it is the municipality that determines if and when a plan should be adopted, and also to a large extent what it will contain. The discretionary space provided by the planning

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legislation is considerable and little guidance as for how to solve the often inevitable conflicts between exploitation and preservation is offered (Michanek and Zetterberg, 2008, p. 449). Moreover, in comparison with the time-frame within which climate change is predicted (next century), the Swedish land-use planning is short-termed (5–10 years). The long-term development shall be determined in overview plans, but these are not always updated, or even present, since there are no rules to force the adoption of the instrument, nor are they legally binding. The enforceable detail plans (cf. zoning plans) are on the other hand too concrete and too narrow in scope to take appropriate account of long-term dynamic changes (see e.g. Pettersson, 2008). The strong municipal position is suggested to imply considerable difficulties in implementing environmental policy objectives; different conditions in terms of natural resource assets and economic conditions as well as various political ambitions “may create strong incentives to make other priorities” than those indicated at EU or national level (Söderholm et al., 2007, p. 392). The 2004 incorporation of the Strategic Environmental Assessment (SEA) Directive (2001/42/EC) into Swedish legislation has so far not implied any significant changes to the Swedish planning system in terms of long-term considerations of environmental and social impacts of plans and programmes. In March 2012, the Commission also urged Sweden to bring its national legislation into line with the EU SEA rules; according to the Commission Sweden has, for example, failed to meet the requirements for public participation (IP/12/294). Also in general the SEA tool is allegedly not been fully utilised. According to Wilson and Piper (2008) “Existing tools, such as SEA and Appropriate Assessment . . ., are not being used systematically to consider the impacts of climate change” and suggests that SEA is used “more explicitly to promote the conservation and sustainable use of biodiversity under climate change.” (Wilson and Piper, 2008, p. 146). Implications from the European Union legal and policy framework for biodiversity protection in forests on Sweden Although the EU does not currently have a binding forest policy nor a binding adaptation policy (only a white paper on adaptation), adaptation is impacted by many other policy fields, such as nature, water and biodiversity, such as the requirements following the Birds and Habitat Directives, including the Natura 2000 Network. The European Parliament highlighted a number of issues in response to the Green paper on preparing forests for climate change in a recent report, here among: the need to extend sustainable forest management; that the protection of forests should be mainstreamed in all EU policy that affect forest; and that the EU forest strategy and forest action plan should be revised in order to include climate change, amongst other suggesting development of a white paper on forest protection (European Parliament, 2011, see also European Commission, 2010). In part as a response to its commitment to the UN Convention on Biological Diversity (CBD),7 the EU committed in 2001 to halt the decline in biodiversity and to restore habitats and natural systems by 2010. In May 2006 a Communication from the commission entitled: “Halting the loss of biodiversity by 2010 – and Beyond. Sustaining ecosystem services for human well-being” was adopted. The decision stressed the importance of conservation of biological diversity as a means towards sustainable development and established an action plan aiming to intensify the efforts to halt biodiversity losses (i.e. the EU Biodiversity Action Plan) (COM(2006)

7 The CBD aims to deal with problems arising in connection with the use of living resources holistically, and has three main goals: conservation of biological diversity; sustainable use of its components; and fair and equitable sharing of the benefits arising out of the utilisation of generic resources (Art. 1).

216 final). In short, the decision to halt biodiversity losses implied strengthened ambitions with regard to the existing framework for protection of biological diversity, primarily the Natura 2000 network, and increased integration between biodiversity concerns and other environmental policy areas. The main conclusion of the 2008 assessment of progress in implementing the action plan was however that, unless significant additional efforts were made during the last two years of the decade, the EU would fail to meet the target (COM(2008) 864 final). The report highlights priority measures for the coming years, here among management and restoration of sites under Natura 2000 protection and implementation of systematic use of environmental assessments (EIA and SEA) in connection with environmentally sensitive programmes and projects (Towards a Strategy on Climate Change, Ecosystem Services and Biodiversity. A discussion paper prepared by the EU Ad Hoc Expert Working Group on Biodiversity and Climate Change). In 2011 a new biodiversity strategy was adopted, this time with a vision for 2050 and a headline target for 2020 to “halting the loss of biodiversity and the degradation of ecosystem services in the EU by 2020, and restoring them in so far as feasible, while stepping up the EU contribution to averting global biodiversity loss.” (SEC(2011) 540 final and SEC(2011) 541 final). The framework for action for the coming decade includes six targets that respond to the objectives of the headline target. One of the most important targets with regard to the legal implementation of the biodiversity strategy is Target 1 which states that: “To halt the deterioration in the status of all species and habitats covered by EU nature legislation and achieve a significant and measurable improvement in their status so that, by 2020, compared to current assessments: (i) 100% more habitat assessments and 50% more species assessments under the Habitats Directive show an improved conservation status; and that (ii) 50% more species assessments under the Birds Directive show a secure or improved status.” (SEC(2011) 540 final and SEC(2011) 541 final, p. 5). Target 1 responds to the specific objective of a full implementation of the Birds and Habitats Directives where all species and habitats encompassed by the Directives have reached favourable conservation status, something that is seen as “critical to preventing further loss and restoring biodiversity in the EU. With regard to forestry, the strategy aims to integrate biodiversity objectives into the development and implementation of other sectors and refers to the 2006 Forest Action Plan (COM(2006) 302) that aims to maintain and enhance forest biodiversity. In addition, target 3 states that by 2020 Forest Management Plans or equivalent instruments for Sustainable Forest Management shall be in place for all EU funded publicly owned forests and larger private forest holdings. Improvements in forest biodiversity will be measured against the quantified aims set under target 1. In addition, the EU Biodiversity Action Plan emphasises the need for a timely implementation of the EU Water Framework Directive (2006/60/EC) in relation to its implementation cycles and continued efforts to reduce water pollution, protect soils and restore valuable rivers and wetlands. Although the term biodiversity is not explicitly mentioned in the WFD, the criteria for describing good ecological status implicitly consider biodiversity. The WFD is a very ambitious approach to water issues and sets stringent requirements for the MS (Keskitalo and Pettersson, 2012) and efforts to e.g. reduce the level of pollutants and maintain and restore valuable freshwater systems as part of the river basin management plans will help safeguard the biodiversity of the systems. The integrated approach of the Directive (see e.g. Keskitalo and Pettersson, 2012) also presumably implies a relatively high degree of flexibility in the design and implementation of the protection. The strictness of these regimes in terms of how well the intended protection is upheld depends crucially on the implementation of the Directives at MS level. Although the Commission is responsible to ensure respect for EU-law, the actual implementation of the

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required protection measures takes place at national (and indeed local) level. Regarding the Natura 2000 regime, the Swedish enactment is reviewed above and is one of the strongest instruments for area protection in Sweden today. However, concerning the WFD, the capacity of the regime in terms of biodiversity protection is still very much unknown. The requirements of the WFD are in part implemented via the Ordinance on water quality management which, again, implies a degree of protection for certain types of water bodies, such as fish and clam water, and hence also the biodiversity of these areas (Swedish Environmental Protection Agency, 2008). Future actions: assessments of adaptation needs for biodiversity protection The Swedish Commission on Climate and Vulnerability (2007) report,8 so far constituting Sweden’s main assessment of adaptation needs, treated a large number of sectors impacted by climate change. Biodiversity is mentioned in a specific section on terrestrial biodiversity, on mountain ecosystems and in sections on the aquatic environment, forest and agriculture. The report notes generally that climate change will amongst other affect the possibilities for Sweden to attain its Environmental Quality Objectives, a number of defined policy goals which include e.g. A Rich Diversity of Plant and Animal Life, A Magnificent Mountain Landscape, Flourishing Wetlands, A varied agricultural landscape and Zero Eutrophication: policy goals which have so far been difficult to show strong progress on (e.g. Swedish EPA, 2011). The Commission on Climate and Vulnerability report recognises that much of future vulnerability to climate change may depend on reduced ecosystem services. Biodiversity is declining both in agricultural and forest landscapes due to fragmentation and decline in natural areas including natural forest, and in the aquatic environment and wetlands due to eutrophication, regulation and introduction of non-native species, both of which with particularly severe effects on species with few or no routes of retreat. The report notes that the current system of red listing threatened species should be supplemented to assess effects of climate change on biodiversity, for instance identification of extremely climate-dependent species, to provide a basis for division of responsibility e.g. between different counties. Measures may also need to be taken to reinforce biodiversity in the face of potentially increased land use under a warmer climate. To accurately assess the impacts on the principal biodiversity goal (A Rich Diversity of Plant and Animal Life), it is concluded that “a thorough review of current strategies in this field is required, as well as an analysis of whether the formulation of the environmental objectives and the sub-objectives is relevant in a changing climate. In addition, an endeavor to give consideration to the effects of climate change on biodiversity should be integrated into social planning and the construction of facilities and infrastructure, particularly when drawing up Environmental Impact Assessments and Strategic Environmental Assessments. The EU’s nature conservation policy should be reviewed in order to reflect the fact that natural areas of distribution for biotopes and species will change in a changed climate. The policy should increasingly focus on the creation of corridors and routes of retreat for species that are retreating to the north. During this

8 Following this report has also sectoral responsibilities on national level been developed for sectoral agencies, SMHI from 2011 also being given the assignment to develop a national knowledge centre for adaptation. Responsibilities for coordination of adaptation on regional level have been attributed to the county administrative boards (see e.g. Swedish Commission on Climate and Vulnerability, 2007).

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review, the need for changes to the EU’s Habitats Directive (92/43/EEC) should be considered” (Swedish Commission on Climate and Vulnerability, 2007). In sections on forest ecosystems and forestry, the report notes that as more than 90 percent of forest land is currently used for forest production, natural forest fragmentation makes nature reserves important, with climate change potentially increasing the need for accommodating robust species populations in non-production as well as dispersal corridors and routes of retreat as vegetation zones may shift. Such corridors will need to be created within a comprehensive natural forest corridor system, also in pure production forest, something that requires a long-term perspective and also greater consideration within production forestry. This would need to result in a review of current protection and management strategies. As a result, “The choice of adaptation strategies within forestry, such as the choice of tree species and rotation periods, will be extremely important for biodiversity and the environmental objectives” (Swedish Commission on Climate and Vulnerability, 2007). To accomplish this, the report stresses the need to integrate knowledge of climate change in biodiversity strategies: “Despite a growing realisation that ecosystems will change in a changed climate, there is generally speaking a considerable lack of understanding about how different ecosystems will change and the role played by land usage. With our current level of knowledge, it is difficult to lay down overall guidelines for how to adjust the protection of the natural environment and biodiversity with regard to climate changes. A compilation based on current knowledge about the effects of climate changes on various ecosystems should be created . . . and would also constitute a good foundation for identifying additional research needs” (Swedish Commission on Climate and Vulnerability, 2007). Amongst others, areas where limited knowledge exists include effects of biofuel production and effects of altered land use, such as increases in tourism and infrastructure development (Swedish Commission on Climate and Vulnerability, 2007). As a result, a number of commissions for, primarily, the Swedish Environmental Protection Agency are proposed, for instance for the Agency to in consultation with the Swedish University of Agricultural Sciences “chart the sensitivity of various ecosystems/species to a changed climate, taking land use into consideration” and propose measures for protection of “extremely climate-dependent species, species with particular requirements as regards living environment, key species, species that are threatened regionally in Sweden and responsibility species for Sweden”. In cooperation with the Forest Agency, and on the basis of the climate sensitivity of ecosystems and species, the Swedish Environmental Protection Agency is to evaluate current protection systems in light of climate change, including the potential to reach environmental objectives in a changing climate. If necessary, the Agency should propose changes to the formulations of the objectives and their action programmes (Swedish Commission on Climate and Vulnerability, 2007). In addition, with regard to agency within the EU system, the report notes that the EU action plan Halting the loss of biodiversity by 2010 – and beyond, indeed declares climate change as a threat to biodiversity, but that “there are no concrete proposals on how biodiversity can be protected better in a changed climate other than adding to the Natura 2000 network.” The Swedish Commission is of the opinion that the EU nature conservation policy needs to be overhauled “in order to fully take account of the fact that certain climate changes are unavoidable, and to prioritise efforts aimed at protecting ecosystems and species so that retreat routes northwards are created.” The Commission thus advocates for a revision of the Habitat Directive and the Natura 2000 network and suggests a stronger emphasis on creating species corridors, as well as an

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investigation of the need to actively move species (Swedish Commission on Climate and Vulnerability, 2007). The Climate Bill (Government Office of Sweden: Prop. 2008/09:162) largely follows the broad suggestions in the proposal. It suggests that the activity area of environmental monitoring, state funded and undertaken as an assignment by the Swedish University of Agricultural Sciences should be developed “to on the background of a changing climate meet future demands for collection, analysis and provision of environmental data” (Government Office of Sweden: Prop. 2008/09:162, authors’ translation). The bill defines multiple policy backgrounds (not only adaptation) as the motivation and possible utilisation for such decisions. In the short section on biological diversity and ecosystem services, the Government identifies needs for increasing knowledge on the effects of climate change on biodiversity and suggests the Swedish Environmental Protection Agency to assess possibilities for cost effective monitoring of key species in a changing climate (Government Office of Sweden: Prop. 2008/09:162). Further, the bill also refers to that species migration made possible through e.g. protection, restoration, and consideration will be handled in the 2009 bill on area protection, and that concerns on increasing competition over land and water in the mountain areas may be treated through an assignment to various governmental Agencies and impacted County Administrative Boards to suggest appropriate measures to limit negative impact (Government Office of Sweden: Prop. 2008/09:162). In the bill on area protection (Government Office of Sweden: Prop. 2008/09:214) increased possibilities for private forest owners to initiate suggestions for formal nature protection and increase the use of voluntary nature conservation agreements was suggested (e.g. by increasing the possibilities to receive access to other land areas in exchange). The legislative changes following the bill included higher reimbursements for decisions under s. 18 in the Forestry Act, i.e. regarding the protection of mountain-close forests, as well as increased municipal rights to decide on habitat protection in accordance with ch. 7, s. 11 in the Environment Code (see above part 3) (Government Office of Sweden: Prop. 2008/09:214). In regulation letters (the means by which Government steers governmental agencies on an annual basis) from 2009 to 2011 to the Swedish Environmental Protection Agency exist general instructions on assessment and reporting of how funding for measures regarding biodiversity is used. In 2009, it is noted that reporting needs to clarify for example use of funding in relation to Swedish implementation of the Water Framework Directive, development of voluntary environmental protection agreements, and total area of Natura 2000-areas that are formally protected (Department of the Environment 2009; see also Department of the Environment 2011for a focus including wildlife protection). The regulation letter also notes the need for the Swedish EPA to judge consequences for Sweden for work internationally and in relation to the EU (Department of the Environment 2009, cf. Department of the Environment, 2010). In the regulation letter for 2011 the Swedish Environmental Protection Agency was further given the governmental assignment to make a coherent assessment of Swedish environmental monitoring, in cooperation in particular with the new Swedish Agency for Marine and Water Management (developed in relation to WFD requirements: something that may also suggest that in particular new water regulation constituted one motivation to the assignment) (Swedish Environmental Protection Agency, 2012b,c). However, it is also noted that earlier bills suggest the requirement for improved environmental monitoring (bills 1990/91:90 & 1997/98:145 (Swedish Environmental Protection Agency, 2012c). In their report in March 2012, Swedish EPA concludes that “the Swedish EPA environmental monitoring programme today does not have the size necessary to deliver the information required for adaptive management of our natural resources” (Swedish

Environmental Protection Agency, 2012b). The report notes that monitoring of one group of species on a Swedish basis carries a cost of about 1 MSEK, which means that only species with high indicator values can be prioritised, and that recommendations from an investigation by the Swedish EPA in 2010 suggested potential costs of 7–35 MSEK per year for wildlife monitoring. In addition to this the report notes amongst other the need to monitor invasive/foreign species and genetic diversity (an issue requiring clarification of responsibilities of different government and private parties) (Swedish Environmental Protection Agency, 2012c). The Agency also notes that it has already developed a suggestion for climate related impact monitoring, for example suggesting the need to review tree line changes, impacts on wetlands, and monitoring of lakes above the tree line and potentially carrying a cost of about 15 MSEK per year (Swedish Environmental Protection Agency, 2012c, Swedish Environmental Protection Agency, 2010; potentially relevant also in continuing work with the environmental quality objectives, cf. Swedish Environmental Protection Agency, 2012a).

Discussion and conclusion Nature protection in general and the protection of biodiversity in particular are of high importance both within the EU and in Sweden and the institutional framework is relatively welldeveloped. However, partly as a result of the relative conservatism that characterises at least the formal institutional framework, the adaptive capacity of the system is generally limited and varies with different types of instruments. The extent to which policy objectives, such as the EU goal of halting the loss of biodiversity, is implemented on national and local level thus depends on a number of factors impacting the implementation process. Issues arise as a result of e.g. different ways in which policy and law is framed, interpreted and applied on national (and local) level; the distribution of power between various levels of governance; and different regulation techniques (Wilson and Piper, 2008; Beunen, 2006) as well as embedded barriers to both implementation and adaptation. In Sweden, site conservation is the main strategy to preserve and protect biodiversity, also in forests, and the regulatory approach consists primarily of restrictions on land-use, sometimes together with a license requirement. Depending on the type of instrument used, which in turn is mainly – but not only – due to the area’s sensitivity, the legal protection varies from mild dissuasive to strong prevention of actions/interventions that can damage the protected values. For biodiversity in forests, a rather strong site protection is achieved via the establishment of Habitat protection areas. Forsberg (2012, p. 222) notes that: “Given the strength of the habitat protection, but also its size, the form of protection may be considered a suitable tool in the context of forest management.” Like most other forms of protection, the habitat protection also has a certain built-in flexibility through the possibility to adapt and repeal decisions on protection. However, in consideration of the potential conservation needs resulting from climate change, the very purpose of a Habitat protection area, i.e. to safeguard small land or water areas, does not contribute to the creation of an ecological coherent network of areas since it is not consistent with e.g. the need for buffer zones and corridors for species migration. The establishment of a Habitat protection area for a swamp forest in the middle of a production forest may in fact make it impossible to uphold the purpose of the protection in the long term. To protect forest biodiversity in a wider area it is possible to establish a Nature reserve. The scope and muscle of the protection in this case is however entirely dependent on the regulations issued for the reserve, which in turn depend on the purpose of the protection. It is theoretically possible for a Nature reserve to accommodate both the need for buffer zones and species migration,

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as well as proactive management and restoration strategies (Glick et al., 2009) and thereby provide long-term adaptive protection of forest biodiversity. However, as a result of increased compensation costs in combination with lack of conservation funding the possibilities to establish Nature reserves is somewhat limited and there are many examples where a lack of resources has resulted in harvesting of high conservation values, even in certified forests (Forsberg, 2012, p. 204). In terms of adaptive capacity, the protection of Natura 2000 areas to some extent suffer from similar deficiencies as both the habitat protection and the nature reserve; even though the protection of a Natura 2000 area may extend beyond the site boundaries, and thereby allows for the consideration of the need for e.g. buffer zones, is not unusual that the natural values must give way to conflicting interests. One prime example is the installation of a wind farm on the low mountain of Sjisjka within Kaitum mountain primaeval forest which constitutes a nature reserve that is part of the Natura 2000 network. The area was also subject to a writ of protection of the landscape. Despite the high conservation values, the government decided to authorise the activity with reference to certain energy policy objectives (Pettersson, 2011; Forsberg, 2012). Consequently, site conservation is an indispensable, but probably not a sufficient instrument for the protection of biodiversity considering climate change. The static nature of the conservation instruments implies that protected areas tend to become ‘institutions’ (unless challenged by a conflicting interest) under a preservation paradigm that does not allow for ecosystem change (Kundis Craig, 2010). The designation of areas is also essentially a one-time event that does not necessarily ensure a holistic and dynamic approach to the protection of biodiversity. In terms of ‘facilitating’ and ‘hindering’ functions of the law, site conservation is definitely a pro-factor, but one that probably needs to be complemented with other instruments not to become a barrier. In a broader perspective, site conservation is part of the overall land-use (spatial) planning; the designated areas set limits for and affect the possibility to e.g. develop towns, roads and facilities. At the same time, planning is in itself a very important instrument for long-term protection of biodiversity (see e.g. Glicksman, 2009) for example via the Strategic Environmental Assessment; well-functioning planning is an active and dynamic process that requires constant/periodic consideration of environmental issues, and that has the capacity to safeguard designated sites and enhance ecological connectivity (Wilson and Piper, 2008). In Sweden, however, the local self-government and municipal planning monopoly imply a very high degree of decentralisation where local authorities in principle (i.e. within the frame of the planning law) decide on all planning matters based on the individual circumstances of each municipality. As a result, national (or indeed global) issues may be overlooked for the benefit of local interests. Among the barriers to more effective planning policies identified by Wilson and Piper, several apply to the Swedish system. First, compared to the forecast for climate change, the Swedish planning horizon of 5–10 years is usually too short; according to Wilson and Piper (2008, p. 145) “Spatial plans that are not able to conceive of significant future changes, for instance the quality and distribution of biodiversity, are not able to take pre-emptive action now.” Secondly, we have the general issue of uncertainty of climate change impacts, which, especially in combination with conflicting plans and interests may seriously hamper implementation of necessary strategic planning to protect biodiversity. Thirdly, the lack of vertical integration in the Swedish planning system implies that there is a “gap” between the national objectives and the local implementation. The state therefore has no direct implementation powers, nor can the State force the municipality to make appropriate plans (Pettersson et al., 2010; Pettersson, 2008, pp. 216/217). Finally, Wilson and Piper (2008, p. 144) notes that existing planning instruments, such

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as the Strategic Environmental Assessment (SEA) “is not used systematically to consider the impacts under a changing climate”. Also in Sweden, the use of the SEA-tool is immature and the assessments of policies, plans and programmes are often unsatisfactory, not least with regard to biodiversity protection (see e.g. Chaker et al., 2006; Sheate et al., 2001, p. 136). The creation of a coherent ecological network of areas for biodiversity protection requires strategic considerations at an early stage; a detail plan with a time horizon of 5–15 years must be in line with overarching strategic development goals on national, regional and local level in which e.g. climate change considerations are considered. The strategic environmental assessment of plans, policies and programmes can contribute to the creation of a long-term sustainable spatial planning, within the framework of which development projects can be assessed by the EIA instrument. Without such long-term strategic target it may prove difficult to handle conflicts between exploitation and preservation interests in a sustainable manner, particularly if the former contributes to local economic growth and employment etc. Significant costs also apply to developing and integrating knowledge on climate change into existing monitoring frameworks and developing measures in relation to potential climate change, in particular in relation to considerations of species corridors in a production forest landscape. In similarity with many other authors, Ruhl (2010) recommends a “shift from ‘front end’ decision methods relying on robust predictive capacity to ‘back end’ decision methods relying on active adaptive management” (Ruhl, 2010, p. 363). This study illustrates the very large costs and requirements on coordination responses inherent in such a challenge. Acknowledgements We are grateful to the Future Forest programme (funded by the MISTRA Agency for Swedish Strategic Environmental Research, the forest industries, Umeå University and SLU) for funding our work. References Answer to written question, 2009/10:1019. Bándi, G., 2011. Biodiversity Loss Permitted? Redesignation and Declassification of Natura 2000 Sites. Position Paper, Justice and Environment 2011. Beunen, R., 2006. European nature conservation legislation and spatial planning: for better or for worse? Journal of Environmental Planning and Management 49 (4), 605–619. Byron, H., Treweek, Jo, 2005. Guest editorial “Strategic Environmental Assessment – Great Potential for Biodiversity?”. Journal of Environmental Assessment Policy and Management 7 (2), v–xiii. Chaker, A., El-Fadl, K., Chamas, L., Hatjian, B., 2006. A review of strategic environmental assessment in 12 selected countries. Environmental Impact Assessment Review 26, 15–56. Civildepartementet, 1972:1. Lagstiftning om fysisk riksplanering. Clarke, H., 2007. Conserving biodiversity in the face of climate change. Agenda 14, 157–170. Cliquet, A., Backers, C., Harris, J., Howsam, J., 2009. Adaptation to climate change. Legal challenges for protected areas. Utrecht Law Review 5 (1), 158–175. Commission of the European Communities COM, 2006. 216 final. Commission staff working document. Annexes to the Communication from the Commission. Halting the loss of Biodiversity by 2010 – and beyond. Sustaining ecosystem services for human well-being. Technical Annex. COM, 2006. 302. COM, 2008. 864 final. COM 2011. 244 final. Council Directive, Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. Council Directive, 2009/147/EC of 30 November 2009 on the conservation of wild birds. Codified version of Council Directive 79/409/EEC. County Administrative Board Decision, 2010-01-15, Dnr. 511-2009-76244. Departement of the Environment, 2009. Regleringsbrev för budgetåret 2010 avseende Naturvårdsverket. Regeringsbeslut 45 2009-12-10 M2009/4306/A. Department of the Environment, Swedish Government. Department of the Environment, 2010. Regleringsbrev för budgetåret 2010 avseende Naturvårdsverket. Regeringsbeslut 36 2010-09-09 M2009/4180/Na; M2010/3366/A; M2010/3535/A. Department of the Environment, Swedish Government.

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M. Pettersson, E.C.H. Keskitalo / Land Use Policy 34 (2013) 213–222

Departement of the Environment, 2011. Regleringsbrev för budgetåret 2011 avseende Naturvårdsverket. Regeringsbeslut I:9 2011-03-24 M2011/1381/S. Department of the Environment, Swedish Government. Dunlop, M., Brown, P., 2008. Implications of climate change for Australia’s National Reserve System: a preliminary assessment. Report to the Department of Climate Change, and the Department of the Environment, Water, Heritage and the Arts, March 2008. Ellison, D., Pettersson, M., Carina, E., Keskitalo, H., 2009. Forest Governance. International, EU and National-Level Frameworks. External drivers affecting Swedish forests and forestry, Future Forest Working Report 2009. European Commission, 2010. Green Paper on Forest Protection and Information in the EU: preparing forests for climate change, Brussels (01.03.2010). European Parliament, 2011. Report on the Commission Green Paper on forest protection and information in the EU: preparing forests for climate change. A70113/2011. European Parliament, Committee on the Environment, Public Health and Food Safety, Brussels. European Commission Press Release. Environment: Commission asks Sweden to comply with EU legislation on strategic environmental impact assessments. IP/12/294. Forsberg, M., 2012. Skogen som livsmiljö. En rättsvetenskaplig studie om skyddet för biologisk mångfald. Doctoral Dissertation, Uppsala University, Elanders AB, Sweden. Glick, P., Staudt, A., Stein, B., 2009. A new era for conservation. Review of climate change adaptation literature. Discussion Paper. National Wildlife Foundation, March 2009. Glicksman, R.L., 2009. Ecosystem resilience to disruptions linked to global climate change: an adaptive approach to federal land management. Nebraska Law Review 87, 833–892. Government Office of Sweden: Prop., 1997/98:45 Part 2. Environmental Code Constitutional Comment and Appendix 1. Stockholm. Government Office of Sweden: Prop., 2008/09:162. En sammanhållen klimat – och energipolitik. Stockholm. Government Office of Sweden: Prop., 2008/09:214. Hållbart skydd av naturområden. Stockholm. Gupta, J., Termeer, C., Klostermann, J., Meijerink, S., van den Brink, M., Jong, P., Nooteboom, S., Bergsma, E., 2010. The adaptive capacity wheel: a method to assess the inherent characteristics of institutions to enable the adaptive capacity of society. Environmental Science & Policy 13, 459–471. Gustafsson, L., Baker, S.C., Bauhus, J., Beese, W.J., Brodie, A., Kouki, J., Lindenmayer, D.B., Lõhmus, A., Martínez Pastur, G., Messier, C., Neyland, M., Palik, B., SverdrupThygeson, A., Volney, J.A., Wayne, A., Franklin, J.F., 2012. Retention forestry to maintain multifunctional forests: a world perspective. BioScience 62, 633–645. Honnay, O., Bossuyt, B., Hermy, M. (Eds.), 2004. Forest Biodiversity: Lessons from History for Conservation. CABI, Wallingford. Kundis Craig, R., 2010. ‘Stationary is Dead’ – long live transformation: five principles for climate change adaptation law. Harvard Environmental Law Review 34, 9–74. Johansson, J., Lidestav, G., 2011. Can voluntary standards regulate forestry? Assessing the environmental impacts of forest certification in Sweden. Forest Policy and Economics 13 (3), 191–198. Keskitalo, E.C.H., Pettersson, M., 2012. Implementing Multi-level Governance? The Legal Basis and Implementation of the EU Water Framework Directive for Forestry in Sweden. Environmental Policy and Governance 22, 90–103. Keskitalo, E.C.H., 2008. Climate Change and Globalization in the Arctic: An Integrated Approach to Vulnerability Assessment. Earthscan Publications, London. Keskitalo, E.C.H., 2010. Introduction: adaptation to climate change in Europe – theoretical framework and study design. In: Keskitalo, E.C.H. (Ed.), The Development of Adaptation Policy and Practice in Europe: Multi-Level Governance of Climate Change. Springer, Dordrecht, pp. 1–38. Klenk, N., Reed, M.G., Mendis-Millard, S., 2011. Adaptive capacity in Canadian model forest communities: a social and regional analysis. In: Beaulieu, M.S., Harpelle, R.N. (Eds.), Pulp Friction: Communities and the Forest Industry in a Global Perspective. Laurier University Press, Waterloo, Canada. McDonald, J., 2011. The role of law in adapting to climate change. WIREs Climate Change 2, 283–295. Michanek, G., Zetterberg, C., 2008. Den Svenska Miljörätten. Iustus Förlag AB, Sweden. Michanek, G., Pettersson, M., 2010. Rättsliga förutsättningar för intensivodling av skog. Faktaunderlag till MINT-utredningen. Uppsala Faculty of Law, Working Paper 2010:8. Ordinance, 1998:1252, on area protection according to the Environmental Code etc. Pettersson, M., 2008. Wind power development and the function of law: a comparative study of legal rules related to planning, installation and operation of windmills. Doctoral Dissertation. Luleå University of Technology.

Pettersson, M., Ek, K., Söderholm, K., Söderholm, P., 2010. Wind power planning and permitting: comparative perspectives from the nordic countries. Renewable and Sustainable Energy Reviews 14, 3116–3123. Pettersson, M., 2011. Path dependence of the legal system: implications for the development of wind power. Nordic Environmental Law Journal 2, 37–54. Rodima-Taylor, D., et al., 2011. Adaptation as innovation. In: innovation as adaptation: An institutional approach to climate change. Applied Geography, http://dx.doi.org/10.1016/j.apgeog.2011.10.011. Ruhl, J.B., 2010. Climate change adaptation and the structural transformation of environmental law. Environmental Law 40, 363–431. Rentto, J.-P., 1996. Rättsfilosofi, rättsteori, rättslära, rättsvetenskap? Hårklyverier och gränsdragningar. Retfærd nr 74, 3–16, 19 Årgang 1996. SEC, 2011. 540 final. SEC, 2011. 541 final. Sheate, W., Dagg, S., Richardson, J., Ascherman, R., Palerm, J., Steen, U., Wolmarans, P., 2001. SEA and Integration of the Environment into Strategic Decision-Making, Volume 3 (Case Studies), Final Report to the European Commission, Contract No. B4-3040/99/136634/MAR/B4, May 2001, College House, London, UK. Skelcher, C., Mathur, N., Smith, M., 2005. The public governance of collaborative spaces: discourse, design and democracy. Public Administration 83 (3), 573–596. SMHI, 2012. Roller och ansvar. Klimatanpassningsportalen http://www.smhi.se/ klimatanpassningsportalen/roller-och-ansvar (accessed 15.06.12). Smit, B., Pilifosova, O., 2001. Adaptation to climate change in the context of sustainable development and equity. In: McCarthy, J.M., Canziani, N., Leary, A., Dokken, D.J., White, K.S. (Eds.), Climate Change 2001: Impacts, Adaptation, and Vulnerability, Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change, Published for the Intergovernmental Panel on Climate Change. Cambridge University Press, Cambridge, Available at http://www.grida.no/publications/other/ipcc tar/ Smit, B., Wandel, J., 2006. Adaptation, adaptive capacity and vulnerability. Global Environmental Change 16, 282–292. Söderholm, P., Ek, K., Pettersson, M., 2007. Wind power development in Sweden: global policies and local obstacles. Renewable and Sustainable Energy Reviews 11, 365–400. Swedish Commission on Climate and Vulnerability, 2007. Sweden facing climate change – threats and opportunities. Swedish Government Official Report SOU 2007:60, Stockholm. Swedish Environmental Protection Agency, 2011. Miljömålen på ny grund. Naturvårdsverkets utökade årliga redovisning av miljökvalitetsmålen 2011. Rapport 6420. Swedish Environmental Protection Agency, Stockholm. Swedish Environmental Protection Agency, 2012a. Information om ekosyshttp://www.naturvardsverket.se/Start/Om-Naturvardsverket/ temtjänster. Regeringsuppdrag/Aktuella-regeringsuppdrag/Information-omekosystemtjanster/ (accessed 15.06.12). Environmental Swedish Protection Agency, 2012b. http://www. naturvardsverket.se/Start/Om-Naturvardsverket/Regeringsuppdrag/ Redovisade-regeringsuppdrag-2012/Avtalshantering-inommiljoovervakningen/ (accessed 15.06.12). Swedish Environmental Protection Agency, 2012c. Avtalshantering inom miljöövervakningen. Redovisning av ett regeringsuppdrag, M2011/2396/S. Skrivelse 2012-02-16 Ärendenr: NV-06965-11. Available at http://www. naturvardsverket.se/upload/20-om-naturvardsverket/Regeringsuppdrag/2012/ Miljoovervakning.pdf (accessed 15.06.12). Swedish Environmental Protection Agency, 2010. Miljömålsrådets användning av medel 2009. II. Miljöövervakning. http://www.naturvardsverket.se/ upload/02 tillstandet i miljon/Miljoovervakning/rapporter/allmant/ miljomalsradets arsrapport%202009.pdf (accessed 15.06.12). Swedish Environmental Protection Agency, 2008. Fakta: Skyddade områden. Förordning (2004:660) om förvaltning av kvaliteten på vattenmiljön. Fakta, 8323, April 2008. Swedish Environmental Code, SFS 1998:808. Swedish Forestry Act, SFS 1979:357. Swedish Planning and Building Act, SFS 2010:900. The EU Biodiversity Action Plan. Towards a Strategy on Climate Change, Ecosystem Services and Biodiversity. A discussion paper prepared by the EU Ad Hoc Expert Working Group on Biodiversity and Climate Change. UN Convention on Biological Diversity. Wilson, E., 2006. Adapting to climate change at the local level: the spatial planning response local environment. The International Journal of Justice and Sustainability 11 (6), 609–625. Wilson, E., Piper, J., 2008. Spatial planning for biodiversity in Europe’s changing climate. European Environmental 18, 135–151.