Summary
Anthropogenic activities and their impact on the environment are alarming. According to the Synthesis Report of the Intergovernmental Panel on Climate Change’s (IPCC) Sixth Assessment Report (AR6 Report), the warmer the planet gets, the more serious are the consequences and irreversible changes to Earth’s systems. Aditi Mukherji et al., Synthesis Report of the IPCC Sixth Assessment Report (AR6): Summary for Policymakers 6 (2023). According to the AR6 Report, hard adaptation limits have been reached in certain ecosystems, particularly in tropical, coastal, polar, and mountain regions. Id. at 8. In other words, adaptative measures are no longer feasible to avoid risks in certain areas because of climate change.
Temperature change has many impacts on biodiversity, such as causing shifts in species distribution, inducing species behavioral changes, creating environmental risks through increases in invasive species and wildlife diseases, and even driving species extinction. See Didier Aurelle et al. Biodiversity, Climate Change, and Adaptation in the Mediterranean, 13 Ecosphere 4, 11 (2022). We are currently witnessing the sixth mass extinction, and biodiversity loss is now more than a mere long-term environmental problem. Elizabeth Kolbert, The Sixth Extinction: An Unnatural History (2014). Climate change exacerbates biodiversity loss and ecosystem degradation, making managing the climate crisis even more difficult.
All these radical changes in nature render the concept of adaptation increasingly important. The IPCC Glossary defines adaptation in natural systems as “the process of adjustment to actual climate and its effects.” IPCC Glossary, 2023. This definition suggests that human beings may support this adjustment by intervening in the process. To address the pressing issue of climate change adaptation, the European Union (EU) has developed comprehensive nature conservation mechanisms. These constitute a crucial example for the future development of legal tools to manage biodiversity in the era of climate change.
This article focuses on how restoration law supports biodiversity’s adaptation to climate change. In this context, it analyzes the Nature Restoration Law proposal’s provisions on adaptation to climate change that the European Commission introduced in June 2022. See European Comm’n, Proposal for a Regulation of the European Parliament and of the Council on Nature Restoration (June 6, 2022) [hereinafter Proposal]. It addresses the urgent need for such regulation, its strengths, and its interaction with the EU’s obligations regarding biodiversity adaptation to climate change. Lastly, the article scrutinizes the Proposal’s implementation challenges and discusses possible solutions.
One may ask why there was a need for new nature restoration legislation and whether this legislation would provide better nature management for the adaptation of ecosystems to climate change. Member states of the EU aim to stop ecosystem degradation and recover those degraded ecosystems by 2030 pursuant to the EU’s biodiversity strategy. See Commc’n from Comm’n to European Parliament, Council, European Econ. & Soc. Comm. & Comm. of the Regions, EU Biodiversity Strategy for 2030 (May 20, 2020). A main target is to ensure that the biodiversity present in Europe’s ecosystems is resilient to the consequences of climate change. The efforts made so far have not been enough to halt biodiversity degradation in the EU. The measures stipulated in the core EU biodiversity conservation mechanisms, such as the Birds Directive and Habitats Directive, were criticized as being “static” because they were not sufficiently addressing the changes ecosystems face due to climate change. Jonathan Verschuuren, Climate Change: Rethinking Restoration in the European Union’s Birds and Habitats Directives, 28 Ecological Restoration 435–36 (2010). However, static in situ conservation methods are no longer the best option in the era of climate change because methods that seem valid for conserving a specific area may not be suitable over time as a result of change in climatic conditions.
Efforts by the EU to better manage climate change impacts on ecosystems reflect certain duties under international law and recent developments in international biodiversity instruments. Recent outcomes of the 13th Conference of Parties (COP) of the Convention on the Conservation of Migratory Species of Wild Animals (CMS), 19th COP of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 27th COP of the UN Framework Convention on Climate Change (UNFCCC), and 15th COP of the Convention on Biological Diversity (CBD) have influenced the EU’s efforts to adopt a more comprehensive and dynamic tool to protect biodiversity in the context of climate change.
The 13th COP of the CMS, held in February 2020, tackled the question of climate change and adaptation of migratory species. The parties adopted the Gandhinagar Declaration in India and voiced their concerns about how habitat fragmentation, habitat loss, and overexploitation affect migratory species. CMS, Gandhinagar Declaration on CMS and the Post-2020 Global Biodiversity Framework, Resolution 13.1 (Feb. 22, 2020). In this regard, the parties acknowledged that climate change aggravates these problems. The Declaration invites governments and stakeholders to prioritize protecting migratory species through conservation measures focusing on connectivity and ecological functionality.
A more recent and debated summit was the UNFCCC COP27 in November 2022. The summit emphasized the connection between climate and nature. The parties recognized the urgent need to stop biodiversity loss and adopt restoration measures for nature conservation. The Sharm el-Sheikh Implementation Plan adopted during COP27 aptly underscored that protecting and restoring ecosystems is a prerequisite to accomplishing the temperature goals foreseen in the Paris Agreement, an international agreement that pursues a united fight against climate change by adopting measures to limit global warming, ensuring adaptation to its impacts, and achieving international cooperation through the Nationally Determined Contributions outlining each country’s targets and actions in terms of combatting climate change. UNFCCC, Sharm el-Sheikh Implementation Plan (Nov. 20, 2022).
The 19th COP of CITES, also in November 2022, stressed the urgency of halting biodiversity loss if we want to live on a sustainable planet. For instance, the parties recognized climate change as a primary threat to wildlife in the resolution on the conservation of and trade in marine turtles. CITES, Conservation of and Trade in Marine Turtles, Resolution Conf. 19.5 (Nov. 25, 2022).
Shortly thereafter, the COP15 of the CBD adopted the Kunming-Montreal Global Biodiversity Framework in December 2022. CBD, Kunming-Montreal Global Biodiversity Framework, Decision 15/4 (Dec. 18, 2022). The Framework highlights that nature restoration is a key measure for biodiversity protection and set four key goals to be reached by 2050 and 23 targets to be accomplished by 2030. Restoring all ecosystems by 2050 is among the key goals. Id. subsec. F. Another goal is restoring genetic diversity among populations of native, wild, and domesticated species to assist their adaptive capacity. Id. subsec. G. Additionally, the Framework strives to restore at least 30% of degraded ecosystems, including terrestrial, inland water, coastal, and marine areas, by 2030. Id. subsec. H.
International biodiversity agreements and declarations do not stipulate a specific binding duty to ensure biodiversity adaptation to climate change. Nevertheless, these instruments acknowledge the serious problem of climate change’s impact on biodiversity and the need for adaptation to this crisis. Despite being a party to these conventions, however, the EU did not have a specific directive addressing biodiversity in the face of climate change. Enacting the Nature Restoration Law proposal may address this gap in EU law.
The Nature Restoration Law proposal is a binding legal tool that aims to recover nature and landscapes within the EU while facilitating ecosystems’ adaptation to climate change by increasing their resilience. In its preamble, the European Commission highlights the objective to deploy a goal-oriented strategy for the recovery of nature and its resilience that complies with the EU’s climate adaptation objectives. Indeed, the Nature Restoration Law could give legal teeth to the EU biodiversity protection regime for adapting to climate change.
As mentioned above, the core conservation instruments under EU law are the Birds Directive and the Habitats Directive. See European Parliament & Council of the EU, Directive 2009/147/EC (Nov. 30, 2009); European Parliament & Council of the EU, Directive 92/43/EEC (May 21, 1992). These two directives are the main mechanisms used to reach the 2030 Strategy for Biodiversity targets. The Birds Directive, adopted in 1979 and amended in 2009, has been criticized for having a limited protection scope. The Habitats Directive was subsequently adopted to overcome this drawback, and the Natura 2000 Network was established. Natura 2000 represents a significant network of Special Protection Areas under the Birds Directive and Special Areas of Conservation stipulated in the Habitats Directive’s annexes, which include specific habitats and species.
Scholars have scrutinized the extent to which these mechanisms can protect and recover habitats and species in the EU. See, e.g., Wouter Langhout & Ariel L. Brunner, The Best Idea Europe Has Ever Had? Natura 2000—The Largest Network of Protected Areas in the World, 34 George Wright F. 86 (2017). The current regime offers implied and indirect protection to nature and landscapes in terms of adaptation to climate change because it aims to ensure ecosystem resilience. However, the lack of deadlines or forceful language constitutes a barrier to bolstering political will in implementation. Additionally, scholars question the extent to which the Habitats Directive can effectively protect areas beyond the scope of the Natura 2000 Network. See Rob Amos, Assessing the Impact of the Habitats Directive: A Case Study of Europe’s Plants, 33 J. Env’t L. 363, 391–93 (2021).
Biodiversity and adaptation to climate change have been given attention in other binding EU documents. One important legal instrument is the European Climate Law. See European Parliament & Council of the EU, Regulation (EU) 2021/1119 (June 30, 2021). Article 5 of the European Climate Law attaches great importance to ensuring adaptive capacity and increasing resilience. Moreover, it aims to have a coherent integrated adaptation policy to cover all populations and sectors that are vulnerable to climate change. In this regard, the European Climate Law imposes a duty to develop and execute a national adaptation strategy for every member state and to promote nature-based solutions to address vulnerability to climate change in every area. In addition, the European Commission expects to adopt a regular review of the strategy to ensure that the EU meets its adaptation goals under the Paris Agreement. Nevertheless, the European Climate Law did not impose particular, concrete duties on member states to ensure biodiversity adaptation to climate change.
The new EU Strategy on Adaptation to Climate Change that the European Commission adopted in 2021 similarly emphasizes the detrimental effects of climate change on ecosystems and aptly highlights that climate change exacerbates forest fires, desertification, and habitat loss. Commc’n from Comm’n to European Parliament, Council, European Econ. & Soc. Comm. & Comm. of the Regions, Forging a Climate-Resilient Europe—The New EU Strategy on Adaptation to Climate Change (Feb. 24, 2021). It also recognizes the significance of better understanding how climate change affects ecosystems and promotes ecosystem restoration and management grounded in scientific evidence. The European Commission, in this strategy, aspires to incorporate climate adaptation measures and render them effective by revising the Natura 2000 Network.
Undoubtedly, there is a need for a binding and comprehensive mechanism in the EU that tackles climate change’s impacts on nature and landscapes. To address this necessity, the Proposal is an important step forward. Unlike the core biodiversity instruments, it is intended to be put into force as a “regulation” rather than a directive. Under EU law, regulations are direct and binding legislative acts that have immediate effect on the member states. In contrast, directives set a certain goal for the member states to achieve, but they are free to decide how to shape their national law to achieve that goal. In line with the urgency of the problem, the European Commission intends member states to implement the Proposal as a regulation, and its ambitious content calls for member states to implement area-based restoration measures for at least 20% of the EU’s land and sea areas by 2030. European Comm’n, Proposal. More ambitiously, the Proposal aims to restore all ecosystems in need by 2050.
Importantly, and in acknowledgment of climate change realities, the Proposal eliminates historical baselines from the concept of restoration or good condition. Instead, the Proposal defines restoration to be
the process of actively or passively assisting the recovery of an ecosystem towards or to good condition, of a habitat type to the highest level of condition attainable and to its favorable reference area, of a habitat of a species to a sufficient quality and quantity, or of species populations to satisfactory levels, as a means of conserving or enhancing biodiversity and ecosystem resilience.
Id., art. 3.
Thus, the Proposal does not require restoration to recreate a specific historical condition that habitats had in the past. It rather aims to recover and promote ecosystems’ vitality and ability to maintain healthy function into the future, consistent with a key goal under the Proposal to facilitate ecosystems’ adaptation to climate change. Specifically, the Proposal proposes to reestablish degraded areas as “favorable reference areas” with favorable conservation status for relevant habitat types. “Favorable reference area” means
the total area of a habitat type in a given biogeographical region or marine region at the national level that is considered the minimum necessary to ensure the long-term viability of the habitat type and its species, and all its significant ecological variations in its natural range, and which is composed of the area of the habitat type and, if that area is not sufficient, the area necessary for the re-establishment of the habitat type.
Id.
Under the Proposal, member states have a certain amount of flexibility, but not complete discretion. Notably, under Articles 4/3 and 5/3, the Proposal imposes certain duties regarding adaptation and requires member states to employ restoration measures to enhance connectivity. Articles 4/5 and 5/5 obligate consideration of improved connectivity. Under the Proposal, member states must implement national restoration plans, which must comply with the national adaptation strategies adopted through the European Climate Law. Nevertheless, a very important feature of the Proposal is flexibility, without compromising conservation measures. See An Cliquet, International and European Law on Protected Areas and Climate Change: Need for Adaptation or Implementation, 54 Env’t Mgmt. 720 (2014). The Proposal provides member states flexibility by enabling them to prioritize restoration according to their circumstances. Members may specify additional protected areas, employ conservation measures, and implement effective conservation measures while supporting private land conservation. European Comm’n, Proposal, pmbl. ¶ 42.
Given the factors discussed, the Proposal addresses long-standing needs to improve core EU biodiversity mechanisms. However, it is not flawless.
Expecting full ecosystem recovery may pose “insurmountable challenges” and mandate inexecutable obligations for member states. An Cliquet, Ecological Restoration as a Legal Duty in the Anthropocene, in Charting Environmental Law Futures in the Anthropocene, at 65 (Michelle Lim ed., 2019). In this vein, the Proposal stipulates justifications for nonfulfillment of obligations. Grounds for justification are “force majeure,” climate change–related habitat transformations, and overriding public interest. These justifications ground the Proposal in practical reality. Nevertheless, future interpretation by the European Court of Justice may reveal the extent to which member states can use these justifications in practice to avoid their biodiversity obligations.
The causal link between climate change and ecosystem transformation is complex. Climate change brings uncertainties, and it is not easy for legal tools to regulate them. There is no clear answer on whether a species will survive or go extinct because of climate change, or whether species introductions or assisted relocation may be successful. Therefore, if the EU enacts the Proposal, it should bear in mind this uncertainty.
Additionally, the legality of protecting certain habitats as temporary buffers and species introductions by member states and their interaction with biodiversity adaptation to climate change remain ambiguous in the Proposal. See Niels Hoek, A Critical Analysis of the Proposed EU Regulation on Nature Restoration: Have the Problems Been Resolved?, 31 Eur. Energy & Env’t L. Rev. 321 (2022). What would be the status of a protected area under the Nature Restoration Law if species leave them because of a changing climate? How will locations serving as temporary buffers for species be regulated? These questions constitute unresolved issues regarding biodiversity adaptation. The Proposal references measures such as buffer strips, terrace walls, habitat corridors, and improving connectivity as preferred restoration measures in Annex 7. However, it does not provide a detailed framework for how to implement these measures.
As mentioned above, the EU Nature Restoration Law Proposal is novel in that it imposes binding deadlines and targets for ecosystem restoration. However, to what extent member states will execute these duties is an open question. Actions speak louder than words, and science alarmingly warns that the planet will face irreversible climate change consequences, even in the case of full implementation of the most drastic measures.
Resistance to adopting the Proposal was already evident during negotiations, and certain member states have stated that the proposed text oversteps the scope initially intended. EURACTIV, EU’s Nature Restoration Law in Difficulty, Despite Climate Policy Wins (Apr. 21, 2023). Scandinavian nations are concerned about implementing the regulation and its consequences for the forestry sector. The impact of the Proposal on the farming industry and its compatibility with existing EU legislation on agriculture and energy constitutes another point of contention. Radical reductions in pesticide use, animal welfare considerations, and limitation plans on livestock production emissions generate fear because they may cause a decrease in agricultural production. On the other hand, there are criticisms that the Proposal doesn’t provide enough of an effective framework for nature conservation. Kris Decleer et al., EU Nature Restoration Law Needs Ambitious and Binding Targets, 601 Nature 191 (2022).
Moreover, the European Parliament’s environment committee’s rejection of the Proposal in June 2023 and the recent decision in July 2023 of the European Parliament saying yes to the Proposal show the deep division in the EU countries. The fate of the law is to be determined by future negotiations. Jorge Liboreiro, Nature Restoration Law Survives Knife-Edge Vote in the European Parliament amid Right-Wing Backlash, Euronews (July 12, 2023). Time is of the essence in the context of climate change and biodiversity loss. The swift implementation of adaptation measures and the extent to which the EU will monitor progress towards biodiversity and ecosystem recovery goals are poised to play pivotal roles in shaping future outcomes of the Proposal or a similar instrument.
Undeniably, the success of the nature restoration law in achieving climate change adaptation depends on its implementation. See Arie Trouwborst, Conserving European Biodiversity in a Changing Climate: The Bern Convention, the European Union Birds and Habitats Directives and the Adaptation of Nature to Climate Change, 20 Rev. Eur. Cmty. & Int’l Env’t L. 62 (2011). A well-crafted rule would help realize action by member states.
The Proposal addresses concerns regarding the degradation of ecosystems. However, there is tension between certain environmental policies, such as renewable energy, and biodiversity conservation efforts. While the EU is making great efforts to increase the use of renewable energy sources in the EU, these efforts can adversely affect biodiversity. For example, the use of wind turbines can negatively influence bird populations. Additionally, dam projects can create barriers for the migratory mobility of certain aquatic species. Although both renewable energy and biodiversity policies serve the joint purpose of environmental protection, a balance must be established between these two conflicting interests. Implementation of the EU Nature Restoration Law might face similar challenges.
The Proposal in fact applies the nondegradation principle not only by requiring recovery of degraded areas, but also by imposing a duty on member states to maintain the healthy status of restored areas by preventing any future degradation. It adopts a comprehensive and integrated approach to be effective on as wide an area as possible. However, the problems within degraded ecosystems are complex, and potential risks are diverse. Therefore, an effective legal instrument must likewise employ instrumental and diverse tools and solutions. If achieved, the Nature Restoration Law may have greater success than previous mechanisms and be effective in climate crisis management.
As a legal instrument, the Proposal is promising because it has provisions directly addressing biodiversity adaptation to climate change. Including precise definitions of duties and their limits, stipulating coherent policy planning based on an empirically grounded cooperative framework, and endorsing an inclusive and flexible approach towards vulnerable species populations may be keys to its success. Additionally, Member States’ National Restoration Plans must address issues such as biodiversity promotion and strategies for facilitating biodiversity adaptation to climate change. However, for the Proposal to serve as a path forward for EU nature to adjust to climate change, the national restoration plans must include thorough consideration of dynamic adaptation measures such as connectivity, steppingstones, protection of temporary buffer zones, wildlife mobility corridors, and conservation of species in controlled environments. If these considerations are met, the Nature Restoration Law could be an effective means for the EU to reverse the alarming trends in environmental degradation we currently face and protect biodiversity while the climate is changing on our planet.
