The protection of biodiversity, like many other environmental goals, transcends political boundaries. This is particularly true regarding large carnivores, such as wolves, which typically require a relatively low population density and a range that often extends hundreds of kilometers across many legal borders. The two primary legal instruments promoting the protection of species in Europe, the Habitats Directive and Bern Convention, recognize that to be effective in preserving the long-term genetic diversity and thus survival of a population, conservation management must be coordinated throughout the population’s range. Despite the goal of international cooperation for species protection, conservation management rarely occurs at an international level. Using the Scandinavian and Karelian wolf populations as an example, this article comparatively analyzes the two conservation instruments and explores their effect on national law, thus illuminating how the legal situation for a species changes as it crosses political boundaries.

The Stockholm Administrative Court recently ruled that Sweden’s wolf management policies are incompatible with the Habitats Directive. These policies are also the subject of an on-going infringement proceeding by the European Commission. The administrative court’s decision has been appealed. This case is significant for two reasons. First, it interprets controversial provisions of the Habitats Directive. But perhaps more importantly, it demonstrates the growing impact of EU law in a member state. This was the first major case in which the national courts were able to review a hunting decision pertaining to a species protected under EU law because standing to bring public interest lawsuits for the protection of species has been recognized only very recently. Under traditional Swedish procedural law, only the government can represent the public interest in administrative decision making and in court. Here, Swedish courts finally applied to hunting decisions the CJEU’s holding in Slovak Brown Bear, which says that national procedural law must be interpreted so as to allow environmental NGOs to challenge administrative decisions that might contravene EU environmental law. The court did not request a preliminary ruling despite that fact that controversial questions of EU law were implicated however. While the court applied EU law, it preferred to maintain control over its interpretation.

The Bern Convention of the Council of Europe and the European Union’s Habitats Directive are the primary legal instruments driving species protection in Europe. The Habitats Directive implements the Bern Convention in the EU. While the Habitats Directive has stronger enforcement mechanisms than the Bern Convention, it covers a smaller geographical region. Through cooperation, each has used the other’s strength to compensate for its weaknesses. This dynamic interplay between these two legal regimes has most often been beneficial to the pursuit of both instruments’ conservation goals, particularly with regards to enforcement, funding, and capacity building. As the EU has grown in size and competence, however, it now essentially has the ability to direct the application of the Bern Convention. This outsized influence presents challenges to the institutional synergy between the two instruments and the continued functioning of the Bern Convention as an independent legal regime with policy preferences separate from those of the EU.

The Habitats Directive and Endangered Species Act (ESA) are the primary legal instruments governing species protection in the European Union and United States, respectively. These two legal regimes locate the responsibility for their implementation, administration, and enforcement at different levels of government, or governance. The division of responsibility between the Federal authority, state governments, and non-government actors is perhaps the most significant distinction between these two systems. This article looks at this division of responsibility along with several legal features of the two instruments: the prohibitions on killing protected species, the role of hunting, their enforcement mechanisms, and their flexibility to adapt to changing or uncertain circumstances in nature. These features highlight some differences in the legal mechanisms of the Habitats Directive and ESA, as well as some surprising similarities. As the EU continues to gain federation-like competences, it is not surprising that responsibility for biodiversity protection has shifted from the states to the central authority. This authority is also shifting from the state to the non-state actor. In this way, biodiversity protection in the United States and European Union is becoming more similar.