By Sebastian Lakner & Guy Pe’er (iDiv Leipzig)
On 12 July 2023, after a long and intense debate, including a statement by many scientists (see 10.07.23) the EU Parliament voted in favour of the Nature Restoration Law (NRL) as proposed by the EU Commission (See original draft here). In many media and among some NGOs, the vote was celebrated as a great success, in light of the fear that the NRL might be rejected altogether by the Parliament. Beyond the fact that the law passed with a meagre majority (336:300) compared to broad societal support (e.g., 96% of 2,700 respondents to a Eurobarometer survey), we find it important to assess the current status of the law given the many amendments that were proposed for introduction into the law proposal, and which define the starting point of the negotiations. Hundreds of amendments were voted by the Parliament (see document with proposed changes by the EP), the content of which would imply considerable weakening of the law. The Council of environmental Ministers voted for many amendments as well (see document here).
In view of the ongoing trilogue negotiations among the Parliament, Council and the Commission, here we discuss key elements of the proposed amendments, and their implications if accepted in the final form of the NRL. We demonstrate that much is already damaged, but there is still a lot at stake: some of the proposed amendments, if accepted, could significantly weaken the NRL. We focus this blog on amendments that we feel are most critical and explore some details, how NRL was weakened through amendments, mostly by the parliaments position.
Weakening of the core targets (Article 4/5)
Setting the right targets is a key element for success. Article 4 (Restoration of terrestrial, coastal and freshwater ecosystems) and article 5 (marine areas) set the scenes in terms of overall targets. Both articles stand as stark examples on how to weaken core contents through more flexible, less binding or interpretable wording. The original text obliged member states (MS) to restore habitats to good status (analogous to Natura 2000 or habitat-directive (Directive 92/43/EEC of 1992)). Replacing these binding formulations, the Parliament introduced a softer, interpretable formulations that weaken the principle of bindingness so that MS can avoid mandatory measures in case of need. Here is an exemplary amendment as voted by the parliament:
| Article 4: Restoration of terrestrial, coastal and freshwater ecosystems | |
| EU Commissions draft: Member States shall put in place the restoration measures that are necessary to improve to good condition areas of habitat types listed in Annex I which are not in good condition. | EU Parliament amendment: Member States shall aim to put in place the restoration measures in Natura 2000 sites that are necessary to move towards reaching favourable conservation status of habitat types listed in Annex I which are not in good condition. |
According to the proposed new wording MS shall only aim rather than be obliged to “put in place” measures, not to improve habitats that are in poor conditions but rather only move towards improvement. The objectives are weakened and do not need to be met; and the restoration obligations are limited to Natura 2000 sites only. Notably, limiting the restoration law to protected areas only entails the exclusion of urban areas, farmlands and forestry areas, i.e., over 80% of the EU’s territory.
Worse still, the Parliament proposes deleting the obligation of non-deterioration. If approved, it entails that the NRL allows the ongoing loss or degradation of habitats. This is quite awkward, because the most cost-effective way to achieve conservation goals is not to lose habitats from the first place. Restoring a lost or a degraded habitat is a long, complex and often expensive process, without even a 100% guarantee for success. No deterioration requirement thus seems the most logical first step to start with, and should therefore be of highest priority in terms of effective use of taxpayers’ money. Luckily, the Council has a different opinion on this proposal.
For marine habitats (Article 5), too, quantitative targets have been deleted, thus weakening the effect of the law, and the no deterioration clause was softened. Surprisingly, a somewhat similar amendment was made by the council, stating that MS shall make efforts to ensure that the status does not deteriorate significantly. This is a softening because these terms can be interpreted in different ways – what exactly are „efforts“, and what happens if deterioration is not „significant“? Vague or unclear targets give flexibility for member states to avoid binding regulations.
We propose that the principle of non-deterioration is a general principle that Member States (not land users) should respect, especially in protected sites and habitats. The deletion of this principle from the NRL is not only a significant weakening but could even be a step backwards compared to the status quo of European conservation legislation. If these amendments are adopted in Articles 4 and 5, the Nature Restoration Law could fall behind what has already been achieved.
Exclusion of agricultural ecosystems (Article 9)
Article 9 concerns the „restoration of agricultural ecosystems„. The proposal of the Parliament in this case is far more drastic, as they voted to delete Article 9 altogether – thus completely taking out agricultural habitats from the NRL. Notably, agriculture holds a share of ca. 42% of the total area in the EU-27, and agricultural habitats take a significant share of the area covered by the habitat directive (FFH).
According to the “State of Nature Report 2020“, published by the German Federal Ministry for the Environment (BMU), 40% of the area of protected habitats are used by agriculture. Agriculture is not only a key driver of biodiversity loss (Rigal et al. 2023), but also has a significant role to play in achieving the Natura 2000-targets if the right measures are installed to do so. Yet despite investments from the Common Agricultural Policy (CAP), including basic standards (CC), Agri-Environment-Climate measures and Greening (now changed into Eco-schemes), “More than 55 % of all assessments of FFH grassland-LRT are unfavourable-poor, [and] less than 10 % are in a favourable condition. In addition, the trends of the grassland-LRT also predominantly (75%) indicate further deterioration.“ (BMU 2020: P.22).
Interviews with stakeholders, farmers and conservationists show that the implementation of Habitats in Germany is “unsatisfactory”, to put it mildly. The targets within the single conservation areas, the “Sites of Community Interest (SCI)” are largely not being achieved. And for farms perspective, the implementation of the Habitats Directive means legal obligations, additional bureaucracy and practical efforts, for which farmers are not sufficiently paid for. Stakeholders‘ perceptions from all sides suggest that the process of implementation should be significantly improved, and funding should be expanded (Knauber et al. 2023).
To summarize, deleting article 9 with the agricultural ecosystems without any perspective for improvement, takes out one of the largest shares of EU area and strongest driver of biodiversity losses, including many protected habitats that are currently in poor condition, as well as a significant part of protected areas.
Taking out CAP-funds to achieve nature restoration (Article 11)
Article 11 is an even starker example of the addition of texts that are not only counterproductive to the achievement of the NRLs objectives, but can even risk other policies. The article states that MS shall prepare national restoration plans and quantify area targets for restoration of different habitats. The Parliament added an amendment stating that neither the Common Agricultural Policy (CAP) nor the Common Fisheries Policy (CFP) funds can be used for restoration:
Amendment 134: “The financing of funding gaps in relation to the implementation of this Regulation shall be ensured without using any funding from the CAP, the CFP or other agricultural and fisheries funding streams.”
Excluding the CAP and the CFP as sources of NRL funding is neither technically nor politically comprehensible. The CAP is the central European agricultural support policy including a wide range of agri-environmental measures (AECM) in CAPs pillar 2. A part of the AECM has an explicit focus on the implementation of the habitat regulation. In Germany, about 24% of the total AECM-funds between 2014-2021 is spent in Natura 2000-areas (see BMEL Statistikportal 2022) – which is a significant proportion. In our analysis in the Natura 2000 areas in Saxony, based on data between 2004 and 2011, shows that funding of through AECM makes a difference and increases the probability of farmers participation (see Lakner et al. 2020, LUP open access).
If this amendment is implemented, does that mean that farms in Natura 2000 areas would have their support withdrawn? This would be extremely questionable, both politically and legally, and would immediately lead to lawsuits against this law, as farmers could argue that they lose an acquired legal status. Also politically, this would signal that conservation measures should be implemented outside CAP and without appropriate funding options.
Even within the frame of the current CAP as it is, this addition is awkward. In the course of the debate over the NRL, the EPP repeatedly argued that the NRL would endanger farmers and even lead to the abandonment of many farms in marginal regions. The argument in itself is questionable since the legal obligation to implement the habitat directive already exists, and funding is also already in place on many areas; and the implementation of the NRL is unlikely to drive land-use change in areas where the habitat directive is implemented properly. Abandonment is rather driven by other reasons (Pe’er et al. 2023), like e.g., the ongoing structural change and missing economic perspective. Where the habitat directive is not implemented, stricter rules through the NRL can simply ensure that promised conservation targets will be achieved.
Yet if we put these misinformed arguments aside, if the EPP cares about farmers, and wants to protect the CAP from pressures, what sense does it make to delete an established funding possibility through the CAP to implement Natura 2000? In this respect, the proposed amendment is destructive not only for the NRL but also for the farmers, for whom the EPP was claiming to speak.
While NRL could set an incentive to finally address these deficiencies, and provide funding possibilities to complement the CAP, the Parliament proposed not only to delete Article 9 but even added a proposed amendment in Article 11 that CAP funding cannot be used to fulfil the NRL. This is extremely counter-productive given that streamlining the CAP with its own objectives (one of which is to protect biodiversity), and improving the measures within the CAP, can prove a straightforward and cost-efficient exercise. 300 Experts from agricultural and ecological sciences proposed in 2021/22 a large set of options and proposals to improve the CAP-funding for biodiversity (Pe’er et al. 2022). An evidence-based policy would pick-up these proposals instead of deleting one major funding source for Natura 2000.
Altogether, not much logic can be seen in this proposal – but if accepted, it may have significant implications for the future CAP, as it could mean that in the next CAP, nature protection elements, and accordingly budgets, have to be withdrawn from the CAP and moved to the NRL or another pot of money. Is this what the Parliament aiming at?
Hampering monitoring and indicators (Article 9/10)
Throughout the document, monitoring and reporting were weakened. One significant weakening is in the removal of indicators for assessing progress. In Article 9 (agriculture) this was done by removing the grassland butterfly index, stock of organic carbon soils and the share of agricultural land with high-diversity landscape features. The grassland butterfly index is an example for an effective indication system, easy to measure through citizen science, and indeed, demonstrating downward trends for years (see also figure below). In Article 10 (forests), rather a longer list of indicators was proposed, which sounds scientifically logical, but member states only have to meet only three of these. In this way, ambition is reduced by requiring MS to meet a limited number of targets from a longer list.
Beyond the question of indicator-selection, the Parliament relaxed monitoring and reporting requirements – a known method to reduce transparency and limit adaptive policy management. For example, in almost every place where the NRL requires reporting every 3 years, the requirement was altered to 6 years. If approved – and the likelihood is quite high that this will happen since, sadly, the same amendment was made also by the Council – it will pose a real challenge for the Commission to assess progress toward the objectives, thus hampering adaptive policy management.
Figure: Grassland butterfly indicator, published by the European Environmental Agency (EEA)
Small but cunning: remove peri-urban areas? (Article 11)
A small but strange change in the NRL, which is quite counter-productive, is the removal of obligation to take actions in peri-urban areas. This was achieved by a little alteration of several texts, such as in Article 11: “parts of the city or of the town and suburb, including at least its urban centres, urban clusters and, if deemed appropriate by the Member State concerned, peri-urban areas.”
It seems a bit surprising here that both the Parliament and the Council chose to remove peri-urban areas, given that their expansion is the leading form of land-use changes in Europe. The practice of expanding peri-urban areas typically involves wiping off entire areas, demolishing habitats, and then placing private houses and gardens.
Peri-urban areas often lack public areas, so restoration is a major challenge. Improving the way such areas are designed can therefore make a difference not only for nature but also for citizens living in these areas, as typically the lack of public areas results in missing social interactions and, with them, a negative effect on wellbeing. Excluding peri-urban areas from the NRL would therefore again be a major loss of a cost-efficient measure to improve nature, with little clarity as to why this amendment was introduced from the first place. It makes one wonder, who is it who pressed for this exclusion, and why were they successful both in the Parliament and the Council?
Other priorities, delays, exceptions and loopholes undermining NRL
Another cross-cutting issue in the NRL is the effort to introduce a range of overriding priorities that would place NRL at the bottom of the priority list compared to – e.g. building new roads, buildings, energy infrastructure (without defining which ones) or even plans for projects. This is reflected for instance in Article 4(8) and 5(8) “a plan or project of overriding public interest”, Article 5a with regards to renewable energy that “… shall be presumed as being in the overriding public interest.”, and Article 4(10a): “Member States shall take into account economic, social and cultural requirements and regional and local particularities”. These are mere examples of the large number of places where such weakening statements are made, placing NRL at low priority in face of ongoing drivers of habitat loss.
Adding to this, one amendment in Article 22 (review) and 23 (Entry into force) include provisions to report on the possible damage of the law instead of providing for the evaluation of the objectives:
Article 22, Amendment 45 “two years thereafter to assess the impact of this Regulation, in particular on the agricultural sector and the supply of safe and secure food, as well as the socio-economic impacts of this Regulation, especially in rural areas”.
The whole NRL can only come into force, if:
Article 23, Amendment 135: “It shall apply from the date where the Commission has provided robust and scientific data to the European Parliament and to the Council on the necessary conditions to guarantee long term food security, thereby respecting the need of arable land under conventional and ecological agriculture, the impact of nature restoration on food production, food availability and food prices. The Commission shall publish a notice in the Official Journal of the European Union indicating the date from which this Regulation applies.”
The aim is thus to show the extent to which it affects production output and the income situation in rural areas (difficult to measure). Also, the “demand for conventional and organic farmland” as well as on “food availability” and “food prices” are to be reported. Again, these criteria are unspecific and open up a broad field of interpretation without any clarity.
One can consider such reporting duties, however, there are more severe drivers of food scarcity. It should be noted, that EEP does not ask for these kinds of reports on other occasions like the use of biofuels, causing substantial effects on e.g., global food availability, food prices, land demand and socio-economic impacts. There is a certain degree of double-standards here: Global food issues are highly important and well picked-up arguments, when it comes to nature restoration, but for demand for feedstuff or biofuels, there is no such issue like availability of food and decreasing food prices.
Yet exceeding all other loopholes is Article 22a, where the Commission should evaluate the NRL application at the end of 2035. The new Article 22a states that the objectives of the Regulation can be “postponed” in case of exceptional socio-economic consequences. Socio-economic impacts in this case are building appartements (!) or new renewable energy projects, a 10% decrease in production or a 5% increase in food prices. These later margins seem very arbitrary, and lack any reasoning as to why they should affect NRL. Moreover, with climate change, losses of production are likely inevitable, but this should not have any effect on the NRL, or a justification why it should affect compliance with it.
Even less sense can be found in the proposal to postpone reporting due to housing construction: If a protection measure has been designated, then as of today, no construction should be allowed there. On the other hand, if this amendment is introduced, especially with the overriding option of a plan for a project, then in the future, NRL could be utilised as means to delay or even cancel the designation or implementation of protected areas with the argument that housing is an overriding priority that is being planned.
Altogether, there are too many loopholes, other priorities, delays and exceptions undermining NRL. It seems that anything is important than the original objective of the (let’s spell it out) Nature Restoration Law. Taking only Article 22, 22a and 23, the objective of NRL can’t be reached, and Article 23 alone means, that NRL will not come into force, since it is even scientifically very difficult to provide such facts – which are not evaluated when it comes to the imports of feedstuff or the production of biofules.
The proposed amendments do not only undermine the meaning of the law but are not comprehensible or justifiable.
Conclusion: We need a constructive mindset for the NRL
Our overall conclusion is that many of the amendments that were introduced by the Parliament are not constructive in nature. They rather try to weaken the NRL, at different forms and from different angles. This is in contrast to the potential of lawmakers, if they have a critic on the proposed law, to introduce amendments that improve its functioning – for instance, by making proposals for improved funding.
We find it disappointing that the Council chose to weaken many aspects of the NRL as well, although it comprises of environmental ministers. Such a lack of ambition for nature restoration is critical. Given the scientific consensus as to what is at stake – and the societal consensus that we should protect and restore nature as soon as possible – we recommend policymakers to adopt a much more constructive mindset recognizing the importance of the Nature Restoration Law (NRL) . One can acknowledge that nature restoration offers a safeguard for viable cities, for food security, for sustainable forestry and fisheries and more generally, for people’s health and wellbeing (See paper from Methorst et al. 2021).
A more constructive approach would mean that if there are real barriers – such as insufficient funding to support farmers or other land-owners in transitioning to sustainable practices, or even the need to compensate losses if areas are taken out of production, then law-makers have the power to find solutions within the legal framework. For instance, in Article 18 of the NRL one could add a requirement for Member States to establish task forces to mobilize additional funding, also from the private sector, in order to cover funding gaps.
This way, if policymakers are worried about farmers, for instance, they could ensure they take care of their needs, rather than damage the NRL as the policy mechanism that finally complements the CAP (e.g. compensating land-owners if land is taken out of production).
To our role: As scientists it’s not our job to tell policymakers or law-makers what to do, or how to negotiate new legal proposals. Still, it is our duty to inform society, citizens and taxpayers on the possible outcomes of policy proposals, and offer support where we can.
If some of the most critical amendments are adopted, the NRL may have little to no effect, or could even fall behind what exists already within legislation – at high costs not only for nature but also for human wellbeing. Ignoring the necessity to restore natural habitats implies ignoring palpable risks. We thus wish to warn: nature doesn’t read policy texts – it rather reacts to reality. One can compromise nature, but nature and climate will not compromise with us. If we fail to reverse ecosystem collapses, we may end pay a very high price. It’s our survival here that is at stake.
Already in July 2023, 24 authors published an open letter calling policymakers to be ambitious (Pe’er et al. 2023). 6000 scientists signed in support of this call. Many of these are experts in their fields, who expressed their readiness to help, to consult, and to propose solutions if anyone is interested. So, if you have questions or need help, do consult with the experts, to make sure you place an evidence-based policy, rather than compromise a potentially-important corner stone of the Green Deal.
Further comments and views are welcomed, especially from lawyers, which might have a more nuanced reading of some of the legal details presented here.
Schlagwörter: Agrarpolitik, Agrarumweltpolitik, Common Agricultural Policy, EU Parliament, Nature Restoration Law, Naturschutz, Renaturierungsgesetz
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