Nature Restoration: a judicialisation of green policies
At a time when the vote on the Nature Restoration Law in the European Parliament’s Environment Committee has taken a dramatic turn, and was held against a backdrop of unprecedented campaigning, it is worth taking a peaceful look at this text to go beyond the simplistic pro- or anti-nature postures that have been asserted in the debate over the last few days, and understand what is at stake. This law is not the only initiative aimed at protecting biodiversity.
The proposed regulation on nature restoration was published by the European Commission on 22 June 2022, at the same time as the regulation on the sustainable use of pesticides.
The aim of this regulation is to enshrine in law the objectives of restoring natural ecosystems and biodiversity by requiring Member States to draw up national plans. It creates an obligation to achieve results, with the introduction of a legal risk, including through easier access to justice for any citizen with a sufficient interest in the matter, in the spirit of citizens’ initiatives such as the Affaire du siècle and the condemnation of certain States for climate inaction.
This judicialization of environmental protection is the main innovation of the text, which aims to place a legal risk on Member States in the event of non-compliance with progress trajectories. It comes on top of the many directives and regulations drawn up, and in some cases adopted, in recent months as part of the Green Deal to protect the environment, combat climate change and protect biodiversity.
The regulation covers all ecosystems, including agricultural land. Article 9, entitled “restoration of agricultural ecosystems”, aims to increase biodiversity on agricultural land. To achieve this, the European Commission proposes that Member States should achieve an upward trend at national level for each of the following indicators in agricultural ecosystems by 2030:
– grassland butterfly index ;
– organic carbon stock in cultivated mineral soils ;
– share of agricultural area with high-diversity landscape features.
These three indicators are described and specified in Annex IV, which states that “agricultural land with high diversity topographical features is permanent natural or semi-natural vegetation present in an agricultural context that provides ecosystem services and supports biodiversity” and must meet the following conditions: it may not be used for agricultural production (including grazing or fodder production), and it must not be treated with fertilisers or pesticides.
Member States are also expressly asked to restore the population of farmland birds by 2030, on the basis of a list of species detailed in the regulation, and to restore 70% of peatlands to wetland status by 2050.
The point on “agricultural area with high-diversity landscape features” is undoubtedly one of the most sensitive and the one that has prompted reactions from many MEPs. These are measures to be applied at Member State level, which will be responsible for applying them to farms.
In its proposal, the Commission defines the 10% target as a European Union objective, without specifying how it is to be applied by each Member State. This is left to the discretion of the European Commission, which, under Article 14, is required to ensure that the 10% of agricultural area with high-diversity landscape features is achieved. This would most probably lead the European Commission to ask Member States to take agricultural land out of production, when approving the national plans in order to achieve this objective, and if not, an increased legal risk would obviously weight on Member States.
In addition, this proposal creates an overlap and divergence with the CAP cross-compliance requirements which define the rules (different from those proposed in this nature restoration project) to be respected by farmers with regard to ecological focused areas and landscape features.
The draft text presented by the Commission must also be analysed in the light of the provisions of the proposed regulation on the sustainable use of pesticides, which calls for a reduction in their use at national level and a ban on the use of chemical pesticides in areas defined as sensitive covering 70% to 90% of the agricultural land of certain countries.
Finally, broad delegated powers would be given to the European Commission to define the outlines of future national plans, the conditions for their approval, as well as to amend the annexes to the regulation.