EU proposes Regulation on nature restoration | In Principle

In June 2022, the European Commission presented a proposal for new legislative solutions to restore ecosystems and enhance biodiversity in Europe. This innovative set of provisions will require member states to design and implement specific measures to restore the damaged environment of the European Union.

Under the Convention on Biological Diversity made at Rio de Janeiro on 5 June 1992, “biological diversity” is defined as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes diversity within species, between species and of ecosystems.” Biodiversity is crucial for the environment. Meanwhile, the degradation of natural ecosystems continues unchecked. It is estimated that more than 80% of habitats in the European Union are in poor condition. Extreme weather and climate phenomena make it impossible for them to adapt. This results in the loss of biodiversity, extinction of species, and threats to food security.

To halt further degradation, as well as to help mitigate and adapt to climate change, on 22 June 2022 the European Commission announced another package of legislative proposals implementing the European Green Deal. The draft Regulation on nature restoration is one element. The regulation falls within the EU 2030 Biodiversity Strategy, setting legally binding targets that include the restoration of terrestrial, coastal, freshwater, marine, urban, agricultural and forest ecosystems. It also sets deadlines by which corrective actions should be implemented:

• By 2030, the measures taken should cover at least 20% of the EU sea and land areas.
• By 2050, these measures should cover all ecosystems in need of restoration.

Basic definitions

The regulation defines “ecosystem” as “a dynamic complex of plant, animal, and microorganism communities and their non-living environment, interacting as a functional unit, and includes habitat types, habitats of species and species populations.” The regulation also defines “restoration” as the process of actively or passively assisting the recovery of:

• An ecosystem towards or to good condition
• A habitat type to the highest level of condition attainable and to its favourable reference area
• A habitat of a species to a sufficient quality or quantity, or
• Species populations to satisfactory levels

as a mean of conserving or enhancing biodiversity and ecosystem resilience

Restoration is aimed at restoring “good condition,” defined as “a state where the key characteristics of an ecosystem, namely its physical, chemical, compositional, structural and functional state, and its landscape and seascape characteristics, reflect the high level of ecological integrity, stability and resilience necessary to ensure its long-term maintenance.”

Different ecosystems, different rules

A key element of the proposed regulation is to oblige the member states to introduce restoration measures for specific ecosystems, including terrestrial, coastal, freshwater, marine, urban, agricultural and forest. The regulation sets various targets and timeframes, placing obligations on member states to introduce measures for a percentage of the area of land.

For example, the draft regulation obliges the member states to put in place restoration measures necessary to restore habitats to a good condition if they require it. The annexes to the proposed regulation specify the types of habitats and groups of habitats covered by these obligations. For areas where the condition of the habitats is not known, it is proposed to introduce a presumption that they are not in a good condition and thus require restoration. The most suitable areas for inclusion in restoration measures are determined based on the best available knowledge and the latest scientific evidence measured by the structure and functions necessary for their long-term maintenance.

In addition to the restoration of existing habitat types and their continuous improvement, the member states will be required to take measures to restore specific habitat types in areas not covered by these habitat types. Meanwhile, areas where good condition has been reached must not deteriorate. But in certain cases, if for example justified by force majeure and unavoidable habitat transformation caused by climate change, these conditions need not be met.

Still other rules apply to urban reconstruction. Here the problem is a regular reduction of green space, not only in cities but also in suburbs. Therefore, according to the draft regulation, the member states are to ensure that in all cities, towns and suburbs, there will be no net loss of urban green space or urban tree canopy by 2030 compared to 2021. The obligations under the draft regulation are special, as they not only seek to prevent deterioration and loss of green space, but expressly aim to increase it in the coming years. The net increment of urban green space is to be integrated with existing and new buildings and infrastructure development.

National restoration plans

The restoration measures to achieve the targets indicated in the regulation are to be set out in “national restoration plans” covering the period up to 2050. National restoration plans will be prepared by member states based on a uniform format and then submitted to the Commission, which will evaluate them. These plans would be developed and submitted to the Commission within two years after entry into force of the new regulation. Once the plans are in place, the member states will be required to review them at least once every 10 years.

The national restoration plans will designate renewables go-to areas in order to achieve the regulation targets. During the preparation of these plans, the member states should take into account the binding target set by the Renewable Energy Directive ((EU) 2018/2001) to ensure that the share of energy from renewable sources in the EU in gross final energy consumption in 2030 is at least 32%, as well as documents related to implementation of the directive, i.e. national energy and climate plans and long-term strategies, including in particular the reduction of greenhouse gas emissions. Additionally, the member states should take into account:

• Conservation measures established for Natura 2000 sites
• Prioritised action frameworks prepared in accordance with the Habitats Directive (92/43/EEC)
• Measures for achieving good ecological and chemical status of water bodies included in river basin management plans
• Marine strategies
• National air pollution control programmes
• National biodiversity strategies and action plans
• Conservation measures adopted under the common fisheries policy.

Access to justice

The draft regulation calls for appropriate provisions to be implemented into national law allowing members of the public with a sufficient interest or claiming impairment of a right to have access to a review procedure before a court of law. Environmental NGOs will be deemed to have rights capable of being impaired, and thus a sufficient interest to seek judicial review.

Summary

The draft Regulation on nature restoration should be evaluated positively, although it is a pity that such provisions were not proposed much earlier. The EU’s current legal instruments related to nature conservation are far from sufficient. Although construction of the Natura 2000 network and introduction of the Birds and Habitats Directive package of regulations were a milestone in nature conservation, they were adopted decades ago, and these solutions are insufficient. Subsequent biodiversity strategies based on voluntary and insufficiently specific commitments by different countries have failed to achieve the envisaged improvement of the state of the environment. An undoubted advantage of the current proposal is that it sets legally binding restoration targets. It is also beneficial to ensure the participation of the public in the development of national restoration plans. And access to judicial review will make it possible to question the legality of the plans and any omissions by the authorities.

Introduction of the proposed regulation will require significant changes in financing development. A lot of money will have to be spent on developing green infrastructure based on natural resources. Much support from the scientific community and the involvement of local communities, on local government and civic grounds, will also be needed. Success in implementing the regulation will also mean a completely new approach to the design, implementation and financing of major infrastructure projects, assessment of their environmental impact, and liability for damage to nature. Therefore, implementation of the regulation will require a quite significant reshaping of the operation of business and public administration, in order to restore natural aspects to their proper role in development.

Adoption and implementation of the proposed regulation will be an important step toward restoring natural ecosystems. But when the regulation will enter into force is still unknown. Currently the draft is awaiting further legislative action.

Dr Dominik Wałkowski, adwokat, Agata Matysiak, Environment practice, Wardyński & Partners