“Are Koalas Fungible? Biodiversity Offsetting and the Law,” recently published in NYU Environmental Law Journal, is the latest product of Professor David Takacs’s more than two-decade-old exploration of humankind’s efforts to protect the earth’s dwindling biodiversity. So far, his project has produced a book on the concept of biodiversity and numerous articles. This paper is the first of a two-part undertaking designed to train a bright light on programs—which more than 100 jurisdictions around the globe are currently pursuing—of allowing developers, as he puts it, to “degrade biodiversity in one place in exchange for paying to protect biodiversity elsewhere.” The concept has been embraced by the World Bank and nearly 100 financial institutions in more than three dozen countries. Professor Takacs draws on extensive field work he has conducted in Australia, South Africa, the U.K., and the United States.

This first article focuses more on the theory of biodiversity offsetting, examining several different kinds of criticisms that have been made and the responses offered by its defenders. It begins with a compact survey of biodiversity offsetting schemes in the jurisdictions he studied and then turns to the controversies surrounding the concept, which have led more than 100 conservation organizations to call for ending the practice. Critics have charged that the very idea of commodifying biodiversity is unethical, undermines existing species-protection laws, and is impracticable to implement effectively—if, as he puts it, “we could even agree on what `effectively’ means.”

Drawing on the growing literature on the subject, Professor Takacs provides a lucid and balanced analysis of the criticisms, judging where they have merit, where they do not, and where matters are unclear, which is most often the case. He points out, for example, that while biodiversity offsetting builds on well-established forms of pollution trading, it is considerably more complicated because it involves trading more certain losses for “very uncertain gain,” given the complexity of “systems of diverse life forms.” He applies the same methodology to the arguments offered by defenders of biodiversity offsetting, noting how, for example, its pursuit could nurture more “comprehensive landscape-level planning” that can more systematically serve the interests of both development and conservation.

Professor Takacs also properly draws attention to the elephant in the room—the idea that “climate change is shaping and degrading nonhuman life on earth” in ways that are “terrifying.” That makes implementation of biodiversity offsetting more challenging, but also, arguably, more necessary. As he puts it, “done right,” it could be a very useful part of a “deliberate, planned system of ecological design in a postmodern, apocalyptic age of the Anthropocene.” 

Toward the end of this provocative paper, Professor Takacs addresses the lively debate that has emerged between those who condemn, as no longer effective, the classic conservation approach of protecting biodiversity through “protected areas” (landscapes legally put off limits to most forms of development) and those who believe that establishing protected areas should remain the paramount goal. The debate, which another law professor described as a “struggle for the soul of the conservation movement,” is, Professor Takacs argues, beside the point and indeed, “counterproductive,” because protected areas are necessary but not sufficient by themselves to meet the looming threats to the earth’s biodiversity. Thus he concludes that while “no panacea,” biodiversity offsetting “could, and perhaps, should” be practiced.

This instructive article nicely sets the stage for Professor Takacs’s next article, which will describe the legal conditions that should be crafted and enforced if biodiversity offsetting is to be genuinely effective in helping meet the challenges ahead.