Are Koalas Fungible? Biodiversity Offsetting and the Law

Abstract

Humans are decimating nonhuman species and ecosystems, undercutting our own life support systems. In response, conservationists are crafting new ideas to sustain the biodiversity that sustains us all, and lawyers and policymakers are sculpting those ideas into law.

Laws facilitating “biodiversity offsetting” are now on the books or in process in over 100 jurisdictions. Where biodiversity offsetting is permitted, developers may degrade or destroy biodiversity in one place in exchange for “offsetting” the damage elsewhere.

But is life fungible? What does it signify — for human and nonhuman communities — when laws permit us to destroy koalas with certainty right here and now in exchange for offsetting hypothetical koalas in the future, over yonder?

This Article describes this burgeoning practice of biodiversity offsetting, drawing on fieldwork in the United States, Australia, South Africa, and the United Kingdom. The Article explores the many, vehement objections to the process, and counter with the responses to those objections. It concludes that given the shortcomings of laws that guide traditional conservation efforts, and the specter of increasing human demands on a planet threatened by global climate change, offsetting done right can be one tool in a reconfigured approach to preserving nonhuman (and thus human) life on Earth.

But how can offsetting be done “right?” Can it ever be anything other than a sop to developers? This Article develops criteria for what effective biodiversity offsetting would look like, explaining how offsetting can fit into landscape-level planning that serves human and nonhuman needs, and illustrate some examples of “best practice” offsetting from the field.

The Article concludes with observations about what biodiversity offsetting says about conservation in the twenty-first century and what sustainable biodiversity conservation in the twenty-first century requires of biodiversity offsetting as we careen into a future of exploding human needs, chaotic climate change, and a renewed need to acknowledge our oft-overlooked crucial dependence on the natural world that sustains us all.

Keywords: Biodiversity, Biodiversity Offset, Ecosystem Services, Environmental Law, Endangered Species, International Law, International Environmental Law, Biodiversity Law