PES Legal Frameworks - 2010 - J Costenbader


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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)
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PES Legal Frameworks - 2010 - J Costenbader

  1. 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. 2. Flow 1. Weighing options 2. Scaling up 3. Refining goals
  3. 3. (1) Weighing Options: Role of Legal Frameworks in PES 3
  4. 4. (1) Weighing Options: Potential PES Legal Instruments • Constitution • Sectoral laws and indirectly relevant laws • Specific (P)ES law: 4
  5. 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. 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. 7. (2) Scaling Up: Iterative Development of PES Frameworks
  8. 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. 9. (2) Scaling Up: Property Rights Solutions
  10. 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. 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. 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. 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. 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. 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. 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. 17. Thank you for your attention! Related recent work from IUCN-ELC. . .