After the Heat Comes the Labour Dispute
Comment by Vivianne Rau
Insight by Stephan Piskol
In the EU, the European Commission’s Biodiversity Strategy for 2030 aims to put biodiversity on a path to recovery by 2030 . This objective will be reached amongst other things through new legally binding restoration targets, i.e., a new EU restoration law .
A new EU environmental law is not an everyday occurrence. The two most recent pieces of EU biodiversity legislation were the 1992 Habitats Directive and the Invasive Alien Species Regulation from 2014. In this context, we give an overview of the steps taken to put the new law in place, as well as an initial commentary on what we should watch out for in the process of doing so.
Restoration broadly describes the act of bringing back something that has been lost (e.g. data) or returning it to a previous condition (e.g. an old building or a painting). With respect to ecosystems, restoration is the process of assisting the recovery of an ecosystem that has been degraded, damaged or destroyed, for instance with respect to the original community structure, natural complement of species, and natural functions [4,5]. An analogous term used by the Commission is “re-creation of ecosystems”, when a particular ecosystem has been entirely destroyed in a specific location.
Restoration can be “active” or “passive”. In some cases, natural processes will allow an ecosystem to restore itself once unsustainable use or harmful activities have been stopped. In other situations, ecosystems might have been permanently altered or would transition towards alternative and undesirable states if left alone. In these cases, initial, active restoration measures may be necessary (e.g. the removal of nutrients in grasslands, obsolete barriers in rivers or undesired vegetation types). As can be seen from these examples, restoration activities go hand-in-hand with conservation (protection). Increasing the protection afforded to those areas of remaining nature is at least equally important as bringing back what has been lost. For that reason, the EU Biodiversity Strategy to 2030 also includes new ambitious targets for protected areas.
However, the new law will not aim to cover every instance of ecosystem restoration in Europe. This is because certain environmental problems are (or should be) already addressed by other pieces of legislation (such as the Common Agricultural Policy (CAP)) or because EU action is not the most effective approach to govern them.
The EU treaties provide the European Commission with the right of initiative to propose new laws (conferral) when it can act more effectively than national governments (subsidiarity). However, “EU action cannot exceed what is necessary to achieve the objectives of the treaties” (proportionality). The adherence to these principles is ensured by a transparent, inclusive as well as scientifically and legally sound procedure.
Specifically, this procedure included the consultation of citizens (through an open public consultation, which ended in April 2021 ) and various online stakeholder workshops. Simultaneously, the Commission is carrying out an Impact Assessment, which must describe “who will be affected by the initiative and how” and present the results of the previous consultation processes . The Impact Assessment also evaluates the environmental, social and economic impacts of different legal scenarios (no action, non-binding initiatives/improving existing legislation, new legislation). The quality of the Impact Assessment will then be checked by the Regulatory Scrutiny Board . Finally, before being published, the legislative proposal must also go through interservice consultations with the other directorates-general (DGs) (similar to interministerial coordination of legislative acts on a national level).
The proposal and Impact Assessment are scheduled to be published together by the end of 2021 and then enter the EU’s co-decision process (Ordinary Legislative Procedure) with the European Parliament and member states (council) . However, in contrast to the Commission, the two co-legislators are not bound to such a scientifically sound and evidence-based approach. Instead the amendments and changes proposed by the council and the parliament can be politically motivated.
Europe’s nature is as diverse as its culture and the socio-economic realities of its citizens. This is not only due to varying biogeographic conditions across the continent, but also to differences in the condition and extent of habitats in different member states resulting from the varying land uses and pressures on the natural environment .
The challenge for the Commission is to design an ambitious instrument that leads to real improvements on the ground, while at the same time levelling the playing field in a fair and equitable way between densely populated countries with intensive land uses and countries with large areas of largely intact, highly biodiverse nature.
During stakeholder workshops, the Commission shared initial ideas such as envisaging a two-step approach where the initial targets are closely linked to those included in existing legislation such as the nature directives, the EU Water Framework Directive and the Marine Strategy Framework Directive. These targets would be broken down by main habitat types and then further specified by each member state through national restoration plans. The plans would also lay out restoration needs, measures and timeframes to achieve the targets. The first milestone to reach the target would be 2030, however, potentially extending the trajectory with a vision towards 2040 and 2050 is also being discussed.
The targets would have to address quantitative aspects (hectares of land on which restoration measures have been carried out) as well as qualitative aspects (e.g. absolute and relative improvements achieved or set in motion). To ensure the targets are measurable, a monitoring process tracking the implementation of the restoration law needs to be established. The Commission better regulation toolbox  differentiates between “output indicators” (i.e. the actions by member states to achieve the objective) and “result/impact indicators” (the desired objective itself, in this case the improvement of the condition of ecosystems and possibly socio-economic co-benefits). Output indicators in particular need to be well defined to continuously track member states’ efforts and progress towards the target. To support the discussions on indicators and their use for prioritization and subsequent monitoring, adelphi helped to organize two EU level expert workshops for the German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (BMU) and the Federal Agency for Nature Conservation (BfN) in cooperation with the European Commission’s DG Environment.
Scientific knowledge on restoration needs is not lacking. From a purely natural-sciences perspective, we can easily identify ecological priorities and the optimal restoration measures. However, this is before taking socio-economic barriers and political interests into account. What can actually be done in light of these barriers is referred to as “restoration potential”. By addressing the relevant barriers, such as lack of stakeholder acceptance or lack of funding and institutional capacity, the restoration potential can be increased – for example, by focusing on unproductive economic activities (e.g. obsolete river barriers, forests vulnerable to climate change, agricultural land with low productivity, etc.) or by comparing the cost and effort necessary to restore an ecosystem to the socio-economic co-benefits that the restored nature would provide (nature’s contribution to people). This is stressed by the Commission in the Biodiversity Strategy to 2030, which highlights the synergies created through carbon sequestration in natural forests or rewetted peatlands or flood prevention through restored rivers.
Taking these co-benefits into account, the German Naturschutzbund (BirdLife Germany) recently published a study identifying suitable restoration measures for different ecosystems and providing an initial assessment of the scale of areas that are particularly suitable for restoration measures. Focusing on organic soils, grassland, forests, floodplains, and agricultural soils with low yield potential, this study led by the landscape planning agency GFN in cooperation with adelphi found that a total of 20 percent of the federal territory has high potential for restoration.
In any case, the identification of potential areas for restoration will need a strong scientific and democratic basis to overcome a possible lack of acceptance from stakeholders. This also needs to include communication activities to close knowledge gaps and misconceptions early on. As we have seen with previous EU nature laws (for example the establishment of the Natura 2000 network of protected areas), this is one of the most important barriers for effective implementation.
While the Commission represents the EU treaties, the two co-legislators represent the European Citizens directly and through their elected governments. Both institutions have spoken out in favour of ambitious and legally binding restoration targets in the past . However, in practice, member states and members of the European Parliament (MEPs) often tend to weaken Commission proposals during the trilogue negotiations. The previous as well as the current reform of the Common Agricultural Policy are probably among the most infamous examples for such dilution processes [13,14].
For the restoration law such weakening could manifest itself as:
It is clear that the needs and requirements differ between member states, and it is natural that they should try to adapt the legal proposal to meet their own requirements. Nonetheless, they have already recognised the need for EU action. This implies an acceptance of the fact that “nature crosses borders” and protecting biodiversity needs a coordinated, European approach. Here, sharing existing knowledge on prioritizing restoration measures can also help to speed up implementation of the new law.
When drafting the restoration law, the Commission should also critically reflect on the fate of many of its proposals for environmental legislation and ensure that clear rules and guidance to member states are included in the initial proposal. Aside from well-defined quantitative targets, this must include a clear framework of eligible restoration measures for each ecosystem and their different baseline conditions as well as simple, robust and sensitive indicators to monitor the success of restoration activities. Only in this way can we ensure that bringing nature back is a real step forward for biodiversity and for EU citizens.