23 June 2023

Addressing Legal Myths about the Proposed EU Nature Restoration Law

In June 2022, the EU Commission adopted a Proposal for a Nature Restoration law which aims to restore the degraded levels of biodiversity within the European Union. However, this objective has – over time – become highly contested. It should be stressed that the Proposal can, and should, be critically analysed by the EU Institutions and other stakeholders. Yet, the debate on the Proposal appears to be shifting from arguments based on ecological reality to a tense political one. The proposed instrument has been misinterpreted, in part by an active agroindustry lobby, seeking to prevent the adoption of the restoration law. Some claims made in this context are that nature restoration would frustrate farming in the EU and that it would substantially halt (housing) development. These scientific and economic myths have been contested in an open letter signed by 3000+ scientists and ecologists – as well as several environmental NGOs.

Yet, legal myths, oversimplifications or concerns often remain unaddressed. Indeed, some argue that the Proposal will have to be treated with caution ‘from the perspective of property protection of land owners or the ‘’right to conduct business.’’ In response, I argue that these fears are often overstated. In the end, such arguments may undermine the substantive debate in the public domain and distract from the overarching goals set out in the EU Biodiversity Strategy for 2030. The goal of this post is not to address all of the myths that are out there (of which there are many) – but to highlight the concerning shift towards an increasingly polarised debate on nature restoration.

Why was the law Proposed, and what does it contain?

At least eighty percent of natural sites in the EU are not in a favourable conservation status. This decline has been under the watchful eye of EU Nature Conservation Law: the existing Directives lack a deadline in relation to nature conservation. Additionally, these Directives do not formulate specific targets that can guide restoration measures in a cross-border manner. Without targeted action the future of wildlife looks troubled. Some estimates predict that one million species, including 40 % of insects, will become extinct in the coming decades. The Proposal seeks to repair the aforementioned faults within the EU Nature Directives and halt the decaying trends in biodiversity levels

The Proposal, as published last year, sets out to restore 20 % of the land and sea areas within the EU, bringing specific habitat types to a ‘good condition’. Of relevance is that the Proposal subscribes to a more holistic perspective on biodiversity recovery – at least compared to a present-day nature conservation law. For example, the Proposal formulates targets for agricultural and urban ecosystems, moving beyond the isolated patches of ‘protected islands’ that make up the Natura 2000 network.

Here, it should be stressed that restoration is not the same as conservation. These measures do not, by definition, preclude economic activity. Instead, restoration is the ‘process of actively or passively assisting the recovery of an ecosystem towards a good condition’. For example, restoration objectives may range from rewetting peatlands to restoring pollinator populations. The proposed law formulates specific targets in this respect, subject to deadlines ranging from 2030 to 2050. These to-be-agreed targets have to find their way into Natural Restoration Plans (NRPs) – drafted by the Member States concerned. These plans, in the end, must be approved by the EU Commission. Yet, Member States have a certain amount of flexibility on how to achieve the objectives, taking into account local and national conditions – provided they engage with the binding norms formulated within the Proposal.

Myths Surrounding the Proposal

As alluded to above, the Proposal has been heavily criticised. Opponents state that it will hurt landowners (from farming to foresters), or affect ‘the right to conduct a business’ (such as farming). Subject to more nuance, fundamental rights concerns have been raised. The nexus between property protection and environmental law can be described as a tense arena. For example, consider the objective for tree canopy coverage ‘to reach 10 % in urban centres by the year 2050’, as laid out in the Proposal. Here, it has been argued that the Proposal will ‘freeze housing development in cities and lock up the economy’ by the Dutch Farmers Party (BBB). This assumes a worst-case scenario, where Member States decide to implement this aim on (i) private property and (ii) against the will of the owner – which is not guaranteed nor required by the Proposal. Yet, even in this strictest form of national implementation, this is not a new phenomenon: countless other environmental laws have an impact on (the usage of) property rights. The question then becomes: does the proposed EU Nature Restoration law, indeed, go so far as to breach the fundamental right to property, directly, at the EU level? And more specifically, does it breach Article 345 of the Treaty of the Functioning of the European Union (TFEU), which outlines that ‘the Treaties shall in no way prejudice the rules in Member States governing the system of property ownership’?

Myth 1: The Proposal Directly Breaches the Fundamental Right to Property

The short answer to this question, at least in the view of the author, is a ‘no’. There are several reasons for this. First, the National Restoration Plan (NRP) provides Member States with a wide degree of discretion with regard to how these targets are to be met. Public authorities on the ‘national, regional and local level’ are to map the ecosystems and play a crucial role in the ‘funding, monitoring and implementation’ in order to give effect to the nature restoration targets. In essence, the Regulation has the flavour of a Directive, which for lack of a better word, is to be ‘transposed’ at the national level. Thus, the tension between restoration measures and (private) property rights will also have to be appraised at this level. Because of this, the Proposal is in coherence with the limitations as set out in article 345 of the Treaty on the Functioning of the European Union (TFEU). The rules of property protection at the national level remain untouched. Turning back to the example mentioned above: it is for the Member States to decide which properties in urban cities are to be ‘turned green’. The Proposal merely provides an overarching aim for European cities, which allows for the loss of tree canopy cover – provided it is compensated elsewhere.

Additionally, it should be noted that landowners receive strict protection under EU law. Landowners have the right to ‘own, use, dispose and bequeath of their lawfully acquired possessions’. Respect for the right to (private) property is binding upon the EU institutions and Member States when they implement EU law, in the view of Article 17 of the Charter of Fundamental Rights (CFR) and in line with Protocol I of the European Convention on Human Rights (ECHR). Member States are thus required to implement the Proposed Nature Restoration Law in line with these constraints. In some cases, interferences with (private) property may be justified to allow for restoration measures – as the protection of the environment is a reason of ‘’general (public) interest’’. Yet, this tension is to be appraised on a case-by-case basis: any restoration measure implemented at the national level that touches upon property rights, will require a careful assessment to determine its proportionality. In other words, the narrative that the Proposal automatically breaches property rights, as voiced by some actors, appears thin – and at the very least, should be subject to a lot more nuance. Strict protections apply – safeguarding landowners from arbitrary breaches of their private property rights.

Moreover, this view ignores the possibility of voluntary cooperation between governments and landowners to restore nature. This is a common practice in places such as Spain, where stewardship contracts are the most important tool to effectuate conservation and restoration targets. Other examples of private (and thus voluntary) conservation efforts are conservation easements or privately protected areas. These mechanisms are common throughout the EU and may provide vital in the implementation of nature restoration targets. Crucially, they do not require any interference with private property rights.

Myth 2: The fundamental right to conduct a business is at risk – Europe cannot afford this law

Others have raised concerns about the right to own a business in relation to the Proposal. Art. 16 of the Charter of Fundamental Rights (CFR) states that ‘the freedom to conduct a business in accordance with Union law and national laws and practices is recognised’. However, I would argue that a breach of this article by the Proposed law at the individual level is unlikely simply by the wording of the right itself – as this freedom has to be exercised ‘in accordance with Union Law’. Moreover, this freedom is by no means absolute and ‘must be considered in relation to its social function and can be limited when this is in the public interest to do so, provided it is proportional to the aims pursued.

Perhaps more pressingly, the proposed law does not preclude all economic activity in sites to be restored, nor does it expand the existing conservation regime as established with the Natura 2000 network. It does, however, have practical implications for the EU economy, should it be adopted. Eroded soil, for example, increases the risk of flooding in the case of extreme weather events. Without pollinators, food security is impeded, complicating farming practices. Human health and the functioning of our modern economies are entirely dependent on thriving ecosystems: from clean water to available resources. Thus, the argument can equally be flipped: the right to conduct a business stands to benefit from the Proposal, also on an individual level. As such, many large businesses have come out in favour of the law.

Furthermore, the benefits of nature restoration projects are expected to reach 1860 Billion euros – should a mere 10 % of Special Areas of Conservation (designated under the Habitats Directive) be restored. Scientists defending the law have invoked a ‘cost-benefit analysis of 1-12’ – whilst countless studies have shown that nature restoration safeguards economic activity in the long term. Yet, supranational coordination is needed in this regard, also from the perspective of ‘sincere cooperation’, as laid out in the Treaty of the Functioning of the European Union (TFEU). The transboundary nature of the problem of biodiversity loss, the migration of affected species, and the cross-border character of natural sites indicate that a purely national solution will be less cost-effective. One has to engage in burden-sharing for the initial costs to reap these benefits, as the effects of pollution or habitat deterioration do not stop at borders.

Wrapping up: fair scrutiny or legal myths?

The counter-mobilisation against the law enjoys wide support; Christian Democrats in the European Parliament have announced that they will reject the Proposal. In the past few weeks, the Agricultural Committee and Marine Committee of the EU Parliament have done the same. The Proposal narrowly survived a vote in the Environment Committee – meaning the law survives, for now. However, should it be rejected (or hollowed out) in July by a plenary vote, the prospects for biodiversity restoration within the EU look increasingly bleak.

Overstated fears of the Proposal breaching fundamental property rights distract from the collective aim of biodiversity restoration. Whilst critical engagement with the Proposed EU Nature Restoration Law should be welcomed (zooming in on details), oversimplistic claims in the media (that zoom out) should be rejected. Here, the hollowing out of the Proposal for an EU Nature Restoration Law – partly in the name of protecting fundamental rights – would be viewed through a prism of irony by future generations. After all: it can be argued that fundamental human rights protection and nature restoration secure two sides of the same coin.

Acknowledgement: A warm thanks should be extended to Anaïs Brucher (EUI), Jadé Botha (EUI) and Antoine de Spiegeleir (EUI) for their valuable comments on earlier versions of this blog.