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PES Legal Frameworks - 2010 - J Costenbader
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PES Legal Frameworks - 2010 - J Costenbader

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John Costenbader, IUCN Environmental Law Centre …

John Costenbader, IUCN Environmental Law Centre
Legal Frameworks for Payment for Ecosystem Services Schemes
Payments for Ecosystem Services: Towards an Implementation Strategy Workshop
Isle of Vilm, Germany
German Federal Agency for Nature Conservation (Bundesamt für Naturschutz, BfN)
Workshop Page: http://www.bfn.de/0610_payments-ecosystem-services+M52087573ab0.html

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  • 1. Legal Frameworks for Payment for Ecosystem Services Schemes Payments for Ecosystem Services Towards an Implementation Strategy Workshop 14-16 December 2010 Isle of Vilm, Germany John Costenbader, Legal Officer, IUCN Environmental Law Centre INTERNATIONAL UNION FOR CONSERVATION OF NATURE
  • 2. Flow 1. Weighing options 2. Scaling up 3. Refining goals
  • 3. (1) Weighing Options: Role of Legal Frameworks in PES 3
  • 4. (1) Weighing Options: Potential PES Legal Instruments • Constitution • Sectoral laws and indirectly relevant laws • Specific (P)ES law: 4
  • 5. (1) Weighing Options: Content of PES Provisions • Introducing national PES vision – Regulations on cross-cutting purpose and scope • Clarifying terminology – ‘ecological’ (ES) vs. ‘environmental’ services – Different types of ES / PES • Financing regulations – PES funding sources – taxes, etc. – Percentage to be dedicated to PES – Establishment of special PES fund – Aggregating various resources, bundling services
  • 6. (1) Weighing Options: Content of PES Provisions • Institutional regulations – Duties and authorities – System of checks and balances – Harmonization of relation between institutions • Implementing regulations – Contractual – Safeguards for benefit-sharing – Property rights and tenure – Land use planning – Compliance and enforcement issues - MRV – Legislative conflicts
  • 7. (2) Scaling Up: Iterative Development of PES Frameworks
  • 8. (2) Scaling Up: Role of Property Rights for PES • PES to date usually on private land, and PES literature mostly considers payments to individuals… but… – PES can encompass a wide array of benefit arrangements, including national-subnational  (e.g., Inter-Governmental Fiscal Transfers) – Around 80% tropical forests de jure state forest, and many other areas community or unassigned forest • Exclusivity of land tenure difficult • Competing, conflicting claims, nonformal systems
  • 9. (2) Scaling Up: Property Rights Solutions
  • 10. (2) Scaling Up: Property Rights Solutions • Referring not only to ownership – Allow participation of access & use rights holders • Establishing registries – In practice, often difficult; could bottleneck PES if pursued as sole method – But potential co-benefits from ongoing registration processes • Trying alternative methods – Recognizing de facto property rights – Bypassing property rights via provision of services
  • 11. (2) Scaling Up: Benefit-Sharing • Key feature of PES is conditionality of payments on provision of environmental services – Timing and size of benefits key to conditionality – Dynamic opportunity costs of alternative land uses important to reflect in PES regulations/contracts • Under REDD+, PES benefit-sharing regulatory arrangements may build on existing regional tendencies: • Latin America: strong mixed private project-public PES system frameworks in place • Africa & Asia: • Participatory forest management (JFM / CBFM) • Forest concession revenue-sharing
  • 12. (2) Scaling Up: National or Sub-National Frameworks National Coherence Homogeny Vertical integration Sub-national PES programmes synchronized with national programmes Standardized PES units and procedures Coordination with regional & international scale initiatives Individual PES responses to regional & local needs PES criteria tailored to unique local circumstances Local stakeholder participation in PES project decisions Standardized criteria for allocating human and financial resources Effectiveness In-country leakage minimized Efficiencies Little bureaucracy saves on transaction costs and allows flexibility Local information supports effective PES project execution
  • 13. (2) Scaling Up: Integration of PES and REDD+ Frameworks Example: Challenges to PES and REDD+ integration in Vietnam PES Buyers Prices Funds REDD+ Local buyers (e.g. water utilities, dam operators) can be legislated Set by local studies International contributors/buyers must be attracted Set by global market Co-mingling of different ES Funds for REDD+ activities funds (water, eco-tourism) kept separate with agreed safeguards Voluntarity VN companies mandated REDD credits sold only to buy ES according to international market demand
  • 14. (3) Refining Goals: Promoting Co-Benefits • Experiences from REDD+: Proportions of REDD+ funds potentially allocated to forest-losing countries to: A – minimize carbon emissions B – minimize loss of forest vertebrates From Venter 2009, Science – ‘Harnessing Carbon Payments to Protect Biodiversity’
  • 15. (3) Refining Goals: Promoting Sustainable Development • Benefits should target poor/marginal or they risk receiving insignificant benefits or may even be negatively affected • Sustainability of PES schemes: – What next after termination of a PES (e.g., servitude?)  (c.f. non-regression principle in international law) • As regards North-South PES especially, much could depend on whether we really see PES as more: – Development subsidy? OR – Service contract?
  • 16. (3) Refining Goals: Future Challenges • PES as one instrument among many to conserve ES – Auxiliary role for ‘fines & fences’ conservation law • PES-related laws and regulations need to: – Promote integrated ES approach in different planning processes – Facilitate efficient bundling of ES and participants – Adjust institutional frameworks to improve governance of ES across sectors and agencies – Integrate with and enhance co-benefits from international financing
  • 17. Thank you for your attention! Related recent work from IUCN-ELC. . . www.iucn.org/law