Where’s the Enforcement?

by emergenceekit

A Review and reflection of Sweden’s forest policy in conjunction with EU laws and a transdisciplinary perspective on how to obtain “Sustainable Forests.”[1]

Christopher (Kit) Hill

 

 

Introduction: The Equality Issue

Preserve biodiversity and simultaneously provide a valuable yield from Swedish forestland has been the daunting task bequeathed to The Swedish Forest Agency as outlined in the Swedish Forestry Act (SFA)[2].  However, the oversight of forestry in Sweden has been primarily carried out by multi-stakeholder forestry certification organizations like the Forest Stewardship Council (FSC)[3]. Within the past year, whistle blowing by organizations like Greenpeace Nordic and the Society for Nature Conservancy (SSNC) have publicly made the FSC’s inactions a cause for concern. With a policy that emphasizes equal status on forest industry and biodiversity preservation, how has nearly one quarter of forestry activity not met the standards of the SFA? Let us review Sweden’s Environmental Objective on “Sustainable Forests” and examine who is responsible for enforcing EC and Swedish policies.  How could and should these policies, along with other measures, be used to protect this Objective?

Swedish Forests and Current Conservation

In the past decade, Sweden’s lumber harvests (in volume) have been kept at historical all time highs, yet management practices outlined in the SFA have much to be desired[4]. Regardless of conservation efforts, the Swedish Forest Agency reports that 22-25% of the forestlands felled are inadequately managed and the SFA is not being fulfilled[5].

The laws in Sweden regarding forestry are intertwined with a historical landscapes dominated by forestlands. Sweden’s forest area is approximately 22.9 million hectares, 55% of the area of Sweden. According the Swedish Forestry Agency; private persons own 50%, Forest companies own 25%, 17% is state forest, 6% is labeled other private and 1% is other public.

Approximately 5% of forests are protected under conservation legislation – most of this land is in northern Sweden and 4% of this land is dominated in a high-altitude conifer forests fringing the mountain range[6][7][8]. In 2005, the Swedish Forest Agency listed 3.3% of productive forestland as protect forestland. However, with further analysis of the data, only 1% of the protect land consists of actual forests[9]. Much of the remaining protected land is comprised of forests previously harvested.

The Swedish Environmental Advisory Council as well as countless natural scientists[10] have advocated for legislative efforts to conserve 10% of Sweden’s forestland, specifically High Conservation Value Forests (HCVF), in order to preserve biodiversity in Sweden. The Swedish Forest Agency reports that there is dialogue between forest-owners but no goals have yet to be met. If conservation is a means to greater biodiversity, Swedish efforts are currently lacking commitment or follow through. This becomes more obvious from current trends in the Swedish Environmental Objective 12.

Objective 12

            In 1999 Swedish parliament adopted 15 Environmental Quality Objectives with the twelfth objective titled, “Sustainable Forests.”[11] Between the years of 2001 and 2003, interim targets based on protecting biodiversity, cultural heritage, long term high conservation forestland and the creation of action programs for threatened species were added to this objective[12]. Thus far, attaining the goals of this objective are, “very difficult or not possible to achieve by 2020, even if further action is taken. No clear trend in the state of the environment can be seen.[13]” Clearly, the laws on forestry need to be reviewed, further examined and or altered in order to preserve, at the very least, a natural resource with the potential of being a sustainable natural resource.

EU and Swedish Forestry Policy

The Swedish Forestry Policy aims to meet the standards set by the European Community (EC) while providing its own interpretation of the laws within its member state context.  Article 174, in the first paragraph of the EC treaty, states that the pursuit of “preserving, protecting and improving the quality of the environment,” as well as “prudent and rational utilisation of natural resources” are community objectives[14].  This interpretation of the objectives can be found in Section 1 of the SFA.

The Swedish Forestry Act was revised in 1994 due to Swedish Parliament’s commitment at the UN Conference on Environment and Development in Rio de Janeiro, 1992. By 1995, Sweden was induced into the EU.  The SFA claims to meet the EC treaties and EC directives.

The EC Directives affecting forestry are known as the Birds Directive established in 1979 and the Habitat Directive established in 1992[15].  These two directives, interpreted together, are designed to create a matrix of protected areas known as the Natura 2000[16].

Under Article 3 of the Habitat Directive, member states are required to establish a series of protected sites.  Natura 2000 consists of 17% of Europe’s total land area. However, delays from member states in establishing conservation sites, let alone conservation measures within member states, have prolonged positive reports of conservation. The first report (on established sites, between 2001-2006) highlights this concern.

All of Europe Tells The Same Story/Report –Article 17

Under the Habitat Directive, Article 17 issues a requirement for all member states to report on progress and current conditions of habitats and species every six years. In 2006, this requirement was fulfilled by almost all member states with unfavorable conclusions, as well as a high percentage of reported ‘unknown,’ missing data[17].

Sweden reported negative trends in all but Alpine regions – a region containing the most national parks and conservation areas. From favorable, unfavorable-inadequate to unfavorable-bad; the boreal region listed 73% of habitats as inadequate/bad[18] and 58% of species living in boreal region were found in the same bracket, inadequate/bad[19].

Protecting biodiversity is a “priority for the European Union[20].” Judging from the results and data listed above, this priority does not seem to be shared, at least statistically, through Sweden’s actions between 2000-2006 (or throughout the rest of Europe, for that matter). Perhaps the priority is there in law but not in practice or reciprocal action.

The over arching assessment of this article suggests a need for sufficient resources invested in monitoring and reporting under both Directives. On multiple occasions, the authors of article 17 emphasize the unparalleled scope and scale of this conglomerated international assessment. Chiefly, they emphasized the need for existing and changing policies to be “monitored to ensure they are providing a permanent improvement into the situation of biodiversity[21].”

Enforcers of National Policy

The question of who monitors and enforces the Swedish Forestry Act may receive replies from multiple organizations, authorities and private landowners. After felling takes place, the Act stipulates that responsibility be placed on the forest owner “for establishing and tending new stands[22].”  The property owners should potentially take responsibility for the follow through of sivilcultural activity and could be a target (or scapegoat) of blame for the inadequacies of not fulfilling the SFA. However, section 33 of the SFA simply states, “The Swedish Forest Agency is responsible for overall supervision of compliance with this Act, and for the issue of regulation made under the provision of this Act.” This possibly raises fault to the Swedish Forest Agency for not doing its job as supervisor and for not giving clear direction and oversight to the forest owner.

To add to the complexity, let us look back at whom Greenpeace targets for negligence. With a closer look at the function of certification organizations, in parallel to the report issued by Greenpeace within the past year, current enforcement has realistically been bestowed on the Forest Stewardship Council (FSC).

The FSC

The Forest Stewardship Council (FSC) offers certifications to lumber companies under the assumption that strict principles and criterion regarding the management of forestry are met and stringently followed. Established in Sweden in 1997, the FSC is an amalgamation of stakeholders from forestry companies, industry, forest trade unions, NGOs, the Saami people and the Swedish EPA.

The FSC currently certifies all major lumber companies in Sweden and issues an Ecological Landscape Plan detailing conservation and silvicultural requirements of forestry before and after felling.  A Certifying Body (CB) and Accreditation Services International (ASI) are supposedly the issuers of FSC certifications.  Being denied a FSC certification insinuates that the Swedish lumber company in question has not been following FSC Principles and Criterion. This will most likely solicit some sort of government audit and penalty by the Swedish Forest Agency for possible violation of the SFA.  This chain of control gives the FSC a great deal of power in the forest industry.

Monitoring the Monitor

The scrutiny directed towards the FSC by Greenpeace and the Swedish Society for Nature Conservation (SSNC) was for negligence in the act of monitoring its monitors. The monitors, or certifying bodies, were to oversee the lumber companies and make sure that the companies upheld FSC principles and criterion[23] in compliance to the SFA.

Greenpeace’s report details substantial evidence that the lumber companies were not upholding these standards[24] and thus a chain reaction of blame followed suit, all the way back to the FSC.  More than 20 per cent of forest production, certified by the FSC in 2007 did not meet FSC criterion, let alone the SFA standards. Greenpeace argued that lumber companies have been able to hide under the umbrella of a certification of non-enforced standards while continuing to harvest old-growth forest and/or High Conservation Value Forests (HCVF).

In response to these and other international concerns and accusations, the FSC has taken initiative and revamped its certification with an emphasis placed on auditing measures[25].  The effectiveness of these monitoring changes can be judged in the coming year of 2010.

Lawful Recommendations: Who Should be Enforcing?

All stakeholders should be enforcing these laws.  This is one reason for why Sweden has not met its own Environmental Objective – laws have not been enforced. The laws, treaties, directives, regulations, acts, principles and criterion have all been written to preserve biodiversity and maintain the longevity of the forest industry. Even if the forest industry, as a stakeholder, is not following the criterion or policies it has agreed to uphold, its actions are only compromising its long term profits in exchange for short term profits attached to possible penalties with long term consequences.  These consequences need to be realized. As of now, we have no clue whether or not the laws actually work based on a sheer lack of stakeholder follow through.

What could be done – Internationally?

Cases need to be brought to the European Court of Justice based on the country of Sweden’s failure to meet the Bird and Habitat Directives.  Much like case C-209/02[26], Article 4 of the Bird Directive[27] and Article 6.3 of the Habitat Directive[28] could be applied, bolstered by research on red listed species living in HCVFs that should be listed under Natura 2000 (as stipulated in the articles), to preserve HCVFs and red listed species.  This would at least buttress the goals of Swedish parliament in its own difficulty towards the implementation of a “long-term protection of forestland”[29] interim objective. As long as Sweden is not fulfilling its own objectives, the EC must step in and aid in the carrying out of Objective and Directive obligations. From an EU stance, if it refuses to comply, Article 7[30] of the Habitat Directive could be used to enforce fines.  However, making sure all stakeholders are involved and that they fully understand decisions that are made is crucial for success[31] (See p. 335 covering “the farmers hunger strike” in Karvia, Finland, alleging Natura 2000’s enforcement did not incorporate local decision-making in its site specifications).

What could be done Nationally?

The FSC needs to rightfully deny lumber companies certifications because they fail to meet their set criterion. With newly enforced auditing measures in 2010, we may see their criterion more fully realized. Along the lines of failing to meet standards, the Swedish Forest Agency needs to audit companies with negative patterns of forestry and enforce responsive measures as covered in Section 35[32] and/or Section 37[33] of the SFA.

All of these examples listed above are cross-scale actions that could be used to enforce the laws of forestry. They are also reactive measures that may or may not enforce long-term commitment by all stakeholders. A preferable proactive approach to forestry would be to avoid reaching certain thresholds that pose substantial threats to both the industry and biodiversity. Avoiding these thresholds means understanding the threats and investing in this understanding.

Funding (and Enforcing) Research

A large part of the enforcement and compliance of laws must come from research and cross-scale collaboration. The interim targets added to the Environmental Objectives were reactive to new research conclusions on biodiversity maintenance[34].  Case C-209/02 was brought to the ECJ because there was significant research on the red listed species and the habitat in question. Without the research, the interim targets and the case would not have existed.

The quantity and quality of research geared towards lumber production and efficiency of forestry production is much more extensive than the research on biodiversity conservation and implementation strategies[35].  Production companies have financial resources to funnel into their own productivity while conservation research relies on government funding and donation based sources. An understanding is needed from the production end, that investments in conservation are investments in their own production longevity.

One research article suggests conducting cost-effectiveness analyses of policies and implemented strategies of conservation[36]. It suggests utilizing not only natural science but economics and in some cases social sciences. More recent articles have elaborated on cross-scale analysis strategies in Swedish Forestry[37][38][39] but perhaps must also utilize political science as a strategy for the implementation of their findings. An alternative research focus could be an analysis of stakeholders and “systems thinking[40]” (particularly in FSC) – what are the reasons for why stakeholders do not enforce their own agreements and promises?  How can these reasons be justly addressed?

Conclusion: Our Common Future Reflections

In retrospective, it comes down to one stakeholder not following rules and the other stakeholders being passive.  All of these enforcement measures would not need to be put in place if lumber companies themselves were following the measures they had promised to follow.

It is almost more of a Corporate Social Responsibility (CSR) problem – following the market – is there a greater incentive to harvest more and possibly be penalized? Or harvest less and not be penalized? Does the cost/benefit analysis say it is worth the risk?  Enforced laws must make the risk too severe for forestry companies to not comply with laws and criterion.

If we want to dig further into CSR and laws, I would agree with Dean Ritz and Patricia Wernhane[41] in that a corporation, (in our case, a lumber corporation) should not be treated as a legal “person.” Under current conditions, I see CSR as an applied consciousness to an unmoral, inhuman entity that needs regulation until it learns how to be a productive and occasionally altruistic member of society (OR an error proof method of transparent CSR is establish). The government should be able regulate corporate activity, particularly when a corporation consistently makes the same offense again and again.  However, I will not open this can of worms further unless I plan on writing a plethora of dissertations over the matter.

Action

The UN Brundtland Report[42] pointed out how environment and development needed to be discussed as one single issue.  Now, articulated in the Habitat Directive report – Article 17, there is a need for joint action on this single issue.

References

Cheney G., May S.,  Roper J. (2007) The Debate over Corporate Social Responsibility. Oxford University Press.

Angelstam, P., Andersson, L., (2001). Estimates of the needs for forest reserves in Sweden. Scand. J. For. Suppl. 3, 38–51.

Aune K., Jonsson B.G., Moen J., (2005). Isolation and edge effects among woodland key habitats in Sweden: Is forest policy promoting fragmentation? Biological Conservation 124. P.89–95.

Eriksson.S., Hammer M., (2006). The challenge of combining timber production and biodiversity conservation for long-term ecosystem functioning—A case study of Swedish boreal forestry. Ecology and Management 237. P.208–217.

Esseen, P.-A., Ehnström, B., Ericson, L., Sjöberg, K., (1997). Boreal forests. Ecol.Bull. 46, 16–47. 1484–1499.

Hysing.,E. (2009). GOVERNING WITHOUT GOVERNMENT? THE PRIVATE GOVERNANCE OF FOREST CERTIFICATION IN SWEDEN. Volume 87 Issue 2Pages 312 – 326 Published Online: 2 Mar 2009

Jönsson M., Jonsson B.G., (2007) Assessing coarse woody debris in Swedish woodland key habitats: Implications for conservation and management. Department of Natural Sciences, Mid Sweden University, SE-851 70 Sundsvall, Sweden

O’Connor, J. & McDermott, I. (1997). The Art of Systems Thinking: Essential Skills for Creativity and Problem-Solving. San Francisco: Thorsons Publishing. p. 11.

Rosenvald R., Löhmu A., (2008) For what, when, and where is green-tree retention better than clear-cutting? A review of the biodiversity aspects. Forest Ecology and Management 255 p.1–15.

SBC, (2005). Skyddad natur. Statistiska meddelanden, serie MI 41.

Wätzold F., Schwedertner K., (2005) Why be wasteful when preserving a valuable resource? A review article on the cost-effectiveness of European biodiversity conservation policy. Biological Conservation 123. P.327–338.

Swedish Environmental Objective 12 www.miljomal.nu Site visited 19/10/09

Swedish Forestry Act. . Section 1 http://www.svo.se/episerver4/templates/SNormalPage.aspx?id=12677 Site visited 26/10/09

Swedish Forestry Agency (20055-19 Table. Compliance with environmental requirements in connection with felling http://www.svo.se/minskog/Templates/EPFileListing.asp?id=16686 visited 19/10/09

Swedish Forest Advisory (2005). http://www.svo.se/minskog/Templates/EPFileListing.asp?id=16688

à5-22 Table. Data on total area of protected forest according to Swedish and international definitions visited 19/10/09

Swedish EPA http://www.miljomal.nu/Environmental-Objectives-Portal/12-Sustainable-Forests/Will-the-objective-be-achieved/ updated 2009-06-30

EC Treaty article 174.1 http://eur-lex.europa.eu/Notice.do?val=262584:cs&lang=en&list=262644:cs,262584:cs,122241:cs,1218:cs,&pos=2&page=1&nbl=4&pgs=10&hwords=EC%20treaty~Article%20174~&checktexte=checkbox&visu=#texte visited 19/10/09

 

92/43/EEC on conservation of habitats and of wild fauna and flora http://eur-lex.europa.eu/Notice.do?val=186097:cs&lang=en&list=410634:cs,264852:cs,371386:cs,212019:cs,195772:cs,186097:cs,415391:cs,185522:cs,449525:cs,183980:cs,&pos=6&page=1&nbl=14&pgs=10&hwords=92/43/EEC~1992~&checktexte=checkbox&visu=#texte visited 19/10/09

79/409/EEC on conservation of wild birds http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1979:103:0001:005:EN:HTML visited 19/10/09

natura2000networkingprogramme.blogspot.com/…/national-natura2000-links.html visited 20/10/09

Habitat Directive Article 17 p.5, http://ec.europa.eu/environment/nature/knowledge/rep_habitats/index_en.htm visited 26/10/09

http://www.fsc-sweden.org/Documents/tabid/110/Default.aspx visited 23/10/09

http://www.fsc.org/news.html?&no_cache=1&tx_ttnews[tt_news]=415&cHash=76cdc33f7a most recent update 29/09/2009

Greenpeace Nordic : Under the Cover of Forest Certification http://www.greenpeace.org/sweden/rapporter-och-dokument/under-the-cover-of-forest-cert written March 10th 2009.

Commission of the European Communities vs Republic of Austria http://eur-lex.europa.eu/Notice.do?val=278057:cs&lang=en&list=436044:cs,432902:cs,426488:cs,358603:cs,287593:cs,278057:cs,336064:cs,352749:cs,372706:cs,372705:cs,&pos=6&page=1&nbl=10&pgs=10&hwords=92/43/EEC~Habitat~&checktexte=checkbox&visu=#texte visited 19/10/09

Swedish Environmental Objective – Long Term Protection of Forestland http://www.miljomal.nu/Environmental-Objectives-Portal/12-Sustainable-Forests/Interim-targets/Long-term-protection-of-forest-land/ most recent update 30/06/2009

Swedish Environmental Objective – Enhanced Biological Diversity http://www.miljomal.nu/Environmental-Objectives-Portal/12-Sustainable-Forests/Interim-targets/Enhanced-biological-diversity/ most recent update 30/06/2009

Brundland Report http://www.un-documents.net/wced-ocf.htm visited 27/10/09


[1] Swedish Environmental Objective 12 www.miljomal.nu Site visited 19/10/09

[2] Swedish Forestry Act. . Section 1 http://www.svo.se/episerver4/templates/SNormalPage.aspx?id=12677 Site visited 26/10/09

[3] Hysing.,E. (2009). GOVERNING WITHOUT GOVERNMENT? THE PRIVATE GOVERNANCE OF FOREST CERTIFICATION IN SWEDEN. Volume 87 Issue 2Pages 312 – 326 Published Online: 2 Mar 2009

[4] SFA Section 1 “managed in such a way as to provide a valuable yield and at the same time preserve biodiversity.” http://www.svo.se/episerver4/templates/SNormalPage.aspx?id=12677 site visited 26/10/09

[6] Esseen, P.-A., Ehnström, B., Ericson, L., Sjöberg, K., 1997. Boreal forests. Ecol.Bull. 46, 16–47. 1484–1499.

[7] SBC, 2005. Skyddad natur. Statistiska meddelanden, serie MI 41.

[8] Angelstam, P., Andersson, L., 2001. Estimates of the needs for forest reserves in Sweden. Scand. J. For. Suppl. 3, 38–51.

[10] Angelstam, P., Andersson, L., 2001. Estimates of the needs for forest reserves in Sweden. Scand. J. For. Suppl. 3, 38–51.

[11] “The value of forests and forest land for biological production must be protected, at the same time as biological diversity and cultural heritage and recreational assets are safeguarded.”

[16] natura2000networkingprogramme.blogspot.com/…/national-natura2000-links.html

[17] Article 17 p.5, 13% of regional habitat assessments and 27% of regional species assessments were reported by Member States as ‘unknown.’ http://ec.europa.eu/environment/nature/knowledge/rep_habitats/index_en.htm

[22] Swedish Forest Act Section 8 http://www.svo.se/episerver4/templates/SNormalPage.aspx?id=12677 visited 26/10/09

[23] FSC (criterion 6.1) Old-growth forests and key habitats should, according to the FSC standard, either be preserved or managed cautiously in order to conserve and support the natural biological diversity of the habitat http://www.fsc-sweden.org/Documents/tabid/110/Default.aspx

[27] “the species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution”

[28] 3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site ‘ s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

[30] As set out in Article 7 of the Habitats Directive, ” obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of [the Birds] Directive … in respect of areas classified pursuant to Article 4(1) … thereof …”

[31] Wätzold F., Schwedertner K., (2005) Why be wasteful when preserving a valuable resource? A review article on the cost-effectiveness of European biodiversity conservation policy. Biological Conservation 123. P.327–338.

[32] The supervisory authority may, where necessary, prescribe or prohibit certain action, to ensure compliance with this Act or regulations made pursuant to this Act.
Certain action may be enforced or prohibited when it has become clear that the advice and directives from the supervisory authority have not been followed. In urgent cases, or where it is necessary to protect nature conservation and/or cultural heritage preservation values, such enforcement or prohibition orders may become operative immediately.
Decisions to enforce or prohibit certain action may be combined with financial penalties.
Should a person fail to comply with an enforcement order, the supervisory authority has the right to order that the prescribed action be carried out at the expense of the person at fault.

[33] Fines, or a maximum of six months imprisonment, may be imposed on any person who, either wilfully or through negligence:
(i) violates any regulation issued under paragraph one of section 7, paragraph two of section 10, section 11, section 20, or paragraph one of section 29;
(ii) violates paragraph one of section 10 or paragraph one of section 10a;
(iii) violates paragraph one of section 16, or conditions governing felling issued under paragraph three of section 16, paragraph two of section 18, or paragraph three of section 21;
(iv) violates paragraph three of section 36, or violates a felling prohibition order made under section 36;
(v) fails to fulfil the duties of notification as laid down under section 14;
(vi) fails to comply with an enforcement order, or violates a prohibition order issued to ensure compliance with section 31, or a regulation made under section 30; or
(vii) violates, through felling or other measures, an enforcement or prohibition order made under the first sentence of paragraph one of section 25, or paragraph one of section 27, or a decision regarding felling issued under paragraph three of section 27.
There will be no conviction for liability in cases of minor violations.
A person who fails to comply with an enforcement or prohibition order may not be sentenced under the terms of this Act for a deed covered by that enforcement or prohibition order.

[35] The challenge of combining timber production and biodiversity conservation for long-term ecosystem functioning—A case study of Swedish boreal forestry Sofia Eriksson a,b,, Monica Hammer a http://www.elsevier.com/locate/forecoForest Ecology and Management 237 (2006) 208–217.

[36] Why be wasteful when preserving a valuable resource? A review article on the cost-effectiveness of European biodiversity conservation policy. Frank Wätzold, Kathleen Schwerdtner Biological Conservation 123 (2005) 327–338

[37] Rosenvald R., Löhmu A., (2008) For what, when, and where is green-tree retention better than clear-cutting? A review of the biodiversity aspects. Forest Ecology and Management 255 p.1–15.

[38] Isolation and edge effects among woodland key habitats in Sweden: Is forest policy promoting fragmentation? Karine Aune, Bengt Gunnar Jonsson b, Jon Moen a Biological Conservation 124 (2005) 89–95

[39] Assessing coarse woody debris in Swedish woodland key habitats: Implications for conservation and management Mari T. Jönsson, Bengt Gunnar Jonsson Department of Natural Sciences, Mid Sweden University, SE-851 70 Sundsvall, Sweden Received 20 April 2006; received in revised form 4 January 2007; accepted 21 January 2007

[40] O’Connor, J. & McDermott, I. (1997). The Art of Systems Thinking: Essential Skills for Creativity and Problem-Solving. San Francisco: Thorsons Publishing. p. 11.

[41]  Cheney G., May S.,  Roper J. (2007) The Debate over Corporate Social Responsibility. Oxford University Press.

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