Living with Success - and with Wolves: Addressing the Legal Issues Raised by the Unexpected Raised by the Unexpected Homecoming of a Controversial Carnivore
![handle is hein.kluwer/eelr0023 and id is 89 raw text is: European Energy and Environmental Law Review June 2014 89
Living with Success - and with Wolves
Living with Success - and with
Wolves: Addressing the Legal
Issues Raised by the
Unexpected Homecoming of a
Controversial Carnivore
Arie Trouwborst
Summary
The central problem addressed in this article is the
friction that may arise between EU legislation and
subsequent developments that were unforeseen at the
time the legislation was created. This problem is viewed
through the lens of one such development, namely the
remarkable comeback that wolf (Canis lupus)
populations have been staging across Europe in recent
years. Aided by legal protection, these large carnivores
are returning to regions and countries from which they
have long been absent, creating fresh legal challenges in
the process. This article identifies and analyzes several
concrete issues where there is an apparent mismatch
between current wolf conservation and management
needs on the ground and the phrasing or interpretation
of relevant provisions in the 1992 EU Habitats
Directive. These problems can be traced back, at least in
part, to the fact that the current wolf comeback was
unforeseen at the time the Directive was drawn up. The
article thus provides an intriguing illustration of the
slightly paradoxical notion that a development actually
aimed for in EU legislation - the recovery of European
wolf populations - can still come as a surprise.
I Introduction
As in any legal system, it is a constant challenge for the
drafters of EU legislation to navigate an appropriate
course between, on the one hand, the need for legal
certainty and, on the other hand, the need for
sufficient flexibility to enable the law's application to
variable circumstances. Striking the right balance in
this regard is a particularly onerous challenge in the
field of EU environmental law. For effective environ-
mental protection, foresight is of the essence in order
to anticipate future developments as far as possible. At
the same time, a degree of adaptability is required to
enable adequate responses to subsequent develop-
ments that were unforeseen after all. Indeed, surprises
abound in this field, on account of the complexity and
unpredictability of nature itself and of human impacts
thereon. Hence, it is no easy task to combine the
aforementioned prerequisites - anticipating and
responding to changes - with the objective of ensuring
a sufficiently high and durable level of environmental
protection. One well studied example is the growing
influence of climate change on wildlife. The ecological
mass migration which has been set in motion by the
shifting climatic zones, and other climate change
impacts, pose challenges which were not envisaged in
the 1970s and 1990s, when the EU's principal nature
conservation instruments were drafted.' These instru-
ments are the 1979 Wild Birds Directive2 and the 1992
Directive on the Conservation of Natural Habitats
and of Wild Fauna and Flora (Habitats Directive).3
The present article focuses on the Habitats Direc-
tive, but not on climate change. Instead, it views the
problem of unforeseen circumstances through the lens
of another issue which, although hardly less intriguing,
has hitherto received less attention in the legal
literature. This concerns the return of wild wolves
(Canis lupus) to areas and entire countries from which
the species had long ago disappeared. Whereas the
recovery of wolf populations is something the Habitats
Directive aims for, this recovery has succeeded to a
degree that was really not anticipated when the
Directive was drawn up. In many places, the species'
unexpected return is raising complex societal ques-
tions, including intricate legal issues. The present
article purports to contribute to the identification and
resolution of those legal issues.
The article is structured as follows. The next two
sections concisely introduce the factual background
and European legal framework. Subsequent sections
each deal with a particular legal question raised by the
ongoing wolf recolonization.
* A.Trouwborst@uvt.nl, Associate Professor of Environ-
mental Law, Tilburg Law School.
1 See, inter alia, K. Wheeler, Bird Protection & Climate
Changes: A Challenge for Natura 2000? [2006] 13 Tilburg
Foreign Law Review 283; A. Cliquet et al., Adaptation to
Climate Change: Legal Challenges for Protected Areas
[2009] 5 Utrecht Law Review 158; S. Erens et al.,
Adaptation to Climate Change to Save Biodiversity:
Lessons Learned from African and European Experiences
in B.J. Richardson et al., Climate Law and Developing
Countries.- Legal and Policy Challenges for the Wor/d
Economy (2009) 106; J. Verschuuren, Rethinking Restora-
tion in the European Union's Birds and Habitats Direc-
tives [2010] 28 Ecological Restoration 431; A Trouwborst,
Conserving European Biodiversity in a Changing Climate:
The Bern Convention, the EU Birds and Habitats Directives
and the Adaptation of Nature to Climate Change [2011] 20
RECIEL 62; and A. Trouwborst, The Habitats Directive
and Climate Change: Is the Law Climate Proof? in C Born
ed.), 20 Years of Habitats Directive (in press).
Directive 2009/147/EC of the European Parliament and of
the Council of 30 November 2009 on the conservation of
wild birds, [2010] OJ L 20/7; this is the codified version of
Council Directive 79/409/EEC of 2 April 1979 as subse-
quently modified.
Council Directive 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna and
flora, [1979] OJ L 206/7.](ViewImageLocal?handle=hein.kluwer/eelr0023&div=16&collection=&method=preview&ext=.png&size=3)
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Living with Success - and with Wolves: Addressing the Legal Issues Raised by the Unexpected Raised by the Unexpected Homecoming of a Controversial Carnivore
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