Getting Beyond the Proposal: The European Union Restoration Regulation
– by Emma Shensher and Prof. Kirk W. Junker
A Brief Historical Context for European Restoration Regulation
It would be a sad competition to determine which crisis is the most urgent. Although climate disruption may well win this competition, other crises demand redress, including legal redress. One such other crisis is ecosystem restoration. Ecosystem restoration can be placed in the context of habitat loss, which is the main driver of biodiversity loss.
If we pay attention to individual words and how some are elevated to thematic labels for the Zeitgeist, we might be pleasantly surprised at the re-introduction of “restoration” to the vocabulary of environmental law. Before there was a United Nations Framework Convention on Climate Change (UNFCCC), there were treaties and statutes in place around the world requiring those who had harmed or destroyed the public’s water, air or earth to restore the water, air or earth. The concept seems as basic as the law of obligations in most systems of the world–a wrongdoer is required to put the harmed person in the same condition that she or he would have been were it not for the harm done. But that was, in fact, not how public environmental law grew. Instead, we had, for instance, “brownfields” legislation, in which we said, “well, if we have already ruined a patch of earth, we can leave it ruined and just continue doing so, rather than ruin new earth.”
Using the United Nations’ (UN) language choices regarding climate as just one marker, one can also observe that even though further non-obligation thinking, when the UN included adaptation in the UNFCCC and later in the Kyoto Protocol, it did so as an alternative to mitigation, keeping in mind that the first duty was to mitigate. Article 7 of the 2015 Paris Agreement seems instead, however, to have been regarded as promoting adaptation over mitigation. Imagine telling a person injured by a recklessly illegal car driver that she would just need to get used to her injuries. We then completed the shift in thinking when we determined that it was even too much to ask people to adapt, but rather, we should just promote the survival of those species capable of resilience to climate disruption. The introduction of the notion of resilience to our climate actions would be analogous to telling our imaginary car driver that we are no longer concerned with traffic injuries but want to focus only upon those who can withstand collisions.
With the (re)introduction of “restoration” into our environmental actions, we may have deviated from mitigation-to-adaptation-to-resilience metamorphosis that we witness with climate disruption. Internationally, we might note that the International Union for Conservation of Nature (IUCN) and the government of Germany launched the “Bonn Challenge” in 2015 as a global goal to bring 150 million hectares of degraded and deforested landscapes into restoration by 2020 and 350 million hectares by 2030. The Challenge surpassed the 150-million-hectare milestone for pledges in 2017, and as of 2024, 210 hectares are counted as restored.
By reintroducing “restoration” into the discussion, it might be that the legal concept of obligations (again) matters. With the theme “Reimagine, Recreate and Restore,” through the March 1, 2019, resolution A/Res/73/284, the U.N. General Assembly designated 2021-2030 as the “Decade on Ecosystem Restoration.”[1] The Resolution’s goals call for restoration of an area of the earth’s surface as big as China. The Decade of Ecosystem Restoration. This resolution follows on from the 2011 – 2020 United Nations Decade on Biodiversity, and other such plans such as Millennium Development Goals (2000-2015) and Sustainable Development Goals (2015-2030). The international community agreed to protect thirty percent of the earth’s land, oceans, coastal areas, and inland waters at the 15th Conference of the Parties to the UN Biodiversity Conference in 2022.
The EU Nature Restoration Law
Regional entities, including the European Union (EU), have reintroduced the notion of restoration as well. The EU has been adopting various legislative conservation measures since the 1960s, including the EU Nature Directives[2] to protect natural areas (“Natura 2000” sites[3]) and specific species.[4] With the European Green Deal (2019), Europe endeavored to become the first climate-neutral continent by 2050. But the Green Deal is not limited to addressing climate disruption. Part of the European Green Deal is the Biodiversity Strategy for 2030, the plan of which is to protect nature, reverse the degradation of ecosystems, and put biodiversity on a path to recovery by 2030.[5] Part of the Biodiversity Strategy is the EU Nature Restoration Law (N.R.L.) which is currently going through the European legislative process.
The legislative process for the EU Nature Restoration Law (N.R.L.) began in June 2022, with the EU Commission submitting its proposal of the N.R.L. to the Council[6]. After the European Economic and Social Committee delivered its opinion in January 2023[7] and the Committee of Regions in February 2023[8], the E.U. Parliament adopted its position on the proposal in the first reading, which, in result, was a compromise agreement among involved institutions.[9] The Permanent Representatives Committee then forwarded the agreement to the EU Council in March 2023. The outcomes of the EU Council’s vote were rather sobering: After the member states gave their statements,[10] it became clear that the N.R.L. would not reach the qualified majority[11] necessary since half a dozen member states blocked the final adoption by either rejecting or abstaining. Thus, the planned final vote was removed from the agenda and postponed until later notice, even having been taken off the March 25, 2024, agenda of the EU environment ministers.[12] If the EU Council had given its approval as initially planned, the legislative act – after being signed by the presidents of the EU Parliament and EU Council – would have been adopted.
The proposed N.R.L. is described as the “first continent-wide, comprehensive law of its kind”[13] that targets the more than 80 % of EU habitats that are in poor condition,[14] including marine ecosystems, rivers, lakes, wetlands, forests, grasslands, rocky habitats, dunes, and the respective species each ecosystem hosts with the goal to restore and maintain them. To reach that rather broad goal, after laying out general provisions in Chapter I, Chapter II begins with Restoration targets and then proposes the following specifics:
- Restoration of terrestrial, coastal, and freshwater ecosystems includes specific numbers as to how many percent of habitats are to be restored that are not in good condition until 2030, while giving priority to areas that are located in Natura 2000 sites, Article 4.
- Restoration of marine ecosystems includes the restoration of marine habitats that deliver significant benefits, including climate change mitigation and restoring the habitats of iconic marine species such as dolphins, sharks, and seabirds (Art. 5).
- Restoration of urban ecosystems includes the avoidance of green urban spaces net loss by 2030, and an increase in the total area covered by green urban space by 2040 and 2050 (Art. 8).
- Restoration of the natural connectivity of rivers and natural functions of the related floodplains includes identifying and removing barriers that prevent the connectivity of surface waters to ensure that at least 25.000 km of rivers are restored to a free-flowing state by 2030 (Art. 9).
- Restoration of pollinator populations includes the reversing of the decline of pollinator populations by 2030 and the increase of said populations (Art. 10).
- Restoration of agricultural ecosystems includes the enhancement of biodiversity in said ecosystem – especially by increasing the population of grassland butterflies and farmland birds –, restoring drained peatlands under agricultural use, the share of agricultural land with high-diversity landscape features, and the aim to achieve an increasing trend of stock of organic carbon in cropland mineral soils (Art. 11).
- Restoration of forest ecosystems includes the abundance of common forest birds and stock of organic carbon, forest connectivity, and achieving uneven aged forests (Art. 12). Article 13 adds to that by setting the goal to plant additional three billion trees by 2030 at Union Level when identifying and implementing the restoration measures as set out in Articles 4, 8 to 12.
Even though the N.R.L. is set out to be a regulation, it is dependent on the implementation by the member states. In Chapter III of the proposal, specific requirements for the member states are laid out, including the key requirement of national restoration plans, which must be submitted to the EU Commission within two years after the N.R.L. comes into force for assessment pursuant to Article 16, and reviewed and revised by member states by June 30, 2032, and again by June 30, 2042.
Chapter IV of the proposal addresses the specific requirements for monitoring and reporting for each habitat type, including specific time frames and deadlines, and to whom to report. The Annex to the proposed N.R.L. is rather extensive and provides a guide to the states on what to consider. But even with rather strict requirements, each member state is still free to choose where they will begin with the restoration, what and how it is to be restored, giving each nation the freedom to attend to its own individual needs and interests.
Evaluation and Conclusions
Despite the celebration from pro-N.R.L. voices,[15] there remains significant resistance, mainly to the restoration requirements related to agriculture, which resulted in several protests of political and farming groups around the EU, claiming – inter alia – that the targets set out in the N.R.L. would “threaten the livelihoods of European farmers and fishers, disrupt supply chains, decrease food production and push prices up.”[16] These and similar protests were the reason that since the initial proposal, the percentage of land and sea area to be restored has been reduced from 30 % to 20 %.
After the initial proposal, further negotiations, and several (weakening) amendments, it barely passed the first vote in the E.U. Parliament in July 2023, with 335 votes in favor, 300 against, and 13 abstentions. After further negotiations between the E.U. Commission, Parliament, and Council, the N.R.L. was passed by the E.U. Parliament in the final vote on February 27, 2024, with 329 votes in favor, 275 votes against, and 24 abstentions.
Even with this restoration area reduction, political disagreements, international commitments, and interests that conflict with climate disruption measures, render it uncertain if and when the N.R.L. will re-enter the legislative process. Most recently, the N.R.L. was held back at the E.U. Council on March 22, 2024, with seven member states refusing to agree to adopt the law, making it impossible to reach the qualified majority necessary. This challenge is described as “the latest and arguably biggest blow to the EU’s environmental agenda in recent months.”[17] despite setbacks in the E.U. thus far, these efforts signal that there is still some notion of obligation in environmental law in the E.U. and elsewhere.[18]
Before leaving this review and evaluation of European Union (EU) restoration law, it is worth pausing for a moment on the nature of the term itself—“restoration.” In general, it would seem to have a positive connotation of fixing, correcting or going back in time to return something to a previous, better and healthier state. But the etymology of the word itself is a hint as to what the act of “re-storing” means.[19] It means to supply or stock for future use, as one would understand from the verb or noun “store.” This leads us to consider why we are concerned to restore—is it to re-stock for future use? Should we not instead consider ecosystems in a different way?
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[1] Recreate, Re-imagine, Restore! UN Decade on Ecosystem Restoration Kicks Off, United Nations Environment Program, (Jun. 4, 2021) https://www.unep.org/news-and-stories/press-release/recreate-re-imagine-restore-un-decade-ecosystem-restoration-kicks
[2] See, e.g., Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, 1979 O.J. (L 103), 25.4, 1–18; Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, 1992 O.J. (L 206), 22.7, 7.
[3] See generally Natura 2000 Viewer, Biodiversity Information System for Europe, https://natura2000.eea.europa.eu (last visited Mar. 25, 2024). (an interactive map of the Natura 2000 sites).
[4] See also Natura 2000: The largest network of protected areas in the world, European Commission, https://environment.ec.europa.eu/topics/nature-and-biodiversity/natura-2000_en (last visited Mar. 25, 2024).
[5] Biodiversity strategy for 2030, European Commission, https://environment.ec.europa.eu/strategy/biodiversity-strategy-2030_en (last visited Mar. 25, 2024).
[6] 10607/22 + ADD 1-15.
[7] 2023 O.J. (C 140) 46.
[8] 2023 O.J. (C 157) 38.
[9] 6985/24; position of the E.U. Parliament in PE-CONS 74/23. Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 1 March 2024 on nature restoration, at 162, COD (2022) 0195,
[10] 7629/24 ADD 1 REV 1, 7629/24 ADD 1 REV 2.
[11] See Qualified majority, Council of the European Union, (Jan. 11, 2024), https://www.consilium.europa.eu/en/council-eu/voting-system/qualified-majority/ (qualified majority voting is explained by the EU itself)
[12] See, e.g., Natasha Foote, EU’s Nature Restoration Law at Critical Juncture after Pushback by Member States, Agriculture and Rural Convention (Mar. 25, 2024), https://www.arc2020.eu/eus-nature-restoration-law-faces-critical-juncture/; Robert Hodgson, EU Policy. Future of Restoration Law uncertain amid further delay, Euronews (Mar. 22, 2024, 4:54 PM), https://www.euronews.com/green/2024/03/22/future-of-nature-restoration-law-uncertain-amid-further-delay
[13] Nature restoration law, European Commission, https://environment.ec.europa.eu/topics/nature-and-biodiversity/nature-restoration-law_en (last visited Mar. 28, 2024).
[14] State of nature in the EU: Results from reporting under the nature directives 2013–2018, Technical report No 10/2020 at 5, European Environment Agency (Oct. 19, 2020).
[15] See also Declaration of Support, SCIENTISTS CALL FOR THE RESTORATION OF 20% OF EU’S LAND AND SEAS BY 2030, AND ALL AREAS IN NEED OF RESTORATION BY 2050, Sala, E. et al, (May 2023) https://static1.squarespace.com/static/5f241700a3b9e7503c42710c/t/647783579a4344473dbbe203/1685554007289/Scientists+support+EU+nature+restoration_31May2023.pdf (Open letter from scientists); #RestoreNature Joint Statement, (Sept. 2023) https://wwfeu.awsassets.panda.org/downloads/final-restorenature-joint-statement-september.pdf (Joint statement from 200 NGOs).
[16] See Jorge Liboreiro, EU countries vote to move forward with Nature Restoration Law, piling further pressure on MEPs, Euronews (Jun. 10, 2023, 8:07 PM) https://www.euronews.com/my-europe/2023/06/20/eu-countries-vote-to-move-forward-with-nature-restoration-law-piling-further-pressure-on-m; See also Kate Abnett, Scientists fight claim EU nature law hurts farmers, Reuters (Jun. 13, 2023, 7:44 AM) https://www.reuters.com/sustainability/scientists-fight-claim-eu-nature-law-hurts-farmers-2023-06-13/#:~:text=BRUSSELS%2C%20June%2013%20(Reuters),open%20letter%20defending%20the%20proposal
[17] Lisa O’Carroll, EU nature restoration laws face collapse as member states withdraw support, The Guardian (Mar. 25, 2024, 3:18 PM), https://www.theguardian.com/world/2024/mar/25/eu-nature-restoration-laws-in-balance-as-member-states-withdraw-support
[18] Another potentially large legal step in current restoration efforts occurred in 2021 in the United States, when, the Bipartisan Infrastructure Law was included as part of the surprisingly-titled Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429. The statute is described as “a major investment in the conservation and stewardship of America’s public lands that will lead to better outdoor spaces and habitats for people and wildlife for generations to come […] [and] will build on proven, nature-based projects, programs, and partnerships to protect cherished wildlife and nature resources while creating good-paying union jobs to strengthen communities.” (Ecosystems Restoration, U.S. Department of the Interior). The statute reserves $1.4 billion for ecosystem restoration and resilience, accessible to states, tribes, and local communities for restoration and conservation projects and control of invasive species; The B.I.L. is also one of the largest long-term investment in infrastructure and economy of the states, providing $ 550 billion for projects until 2026 that build new roads, modernize transit service and vehicles, make transit services more accessible for communities, and deliver clean and safe water.
[19] See, e.g., Restoration, Oxford English Dictionary, https://www.oed.com/dictionary/restoration_n?tab=etymology (last visited Mar. 29, 2024); Douglas Harper, Etymology of restoration, Online Etymology Dictionary, https://www.etymonline.com/word/restoration (last visited March 29, 2024).
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