The protection of nature has been rising up the agenda of governments, businesses and NGOs for some time. In this post we draw out some of the key differences between recent proposals in the UK and EU in this area before considering what can be expected of the UK in this space in the coming months.
On 22 June 2022, the European Commission published its proposals for two new regulations, intended to better protect ecosystems and address species loss within the EU - the Nature Restoration Regulation and the Sustainable Use of Pesticides Regulation. Similarly, the UK Environment Act 2021 introduced targets which seek to protect nature, but the UK’s approach to biodiversity protection appears to differ in both style and detail from that of the EU.
The EU Nature Restoration Regulation’s stated aims are:
- to contribute to the continuous, long-term and sustained recovery of nature across the EU’s land and sea areas through the restoration of ecosystems;
- to use such restoration to help achieve the EU’s net-zero by 2050 objectives; and
- to ensure the EU meets its international commitments with respect to biodiversity.
By 2030, the Nature Restoration Regulation sets a mandatory target for at least 20% of the EU’s land and sea areas to be subject to effective ecosystem restoration measures.
The restorative measures to be applied by the 27 EU Member States include assisting both the long-term resilience of ecosystems and the quality and quantity of species in order to conserve or enhance biodiversity. Member States are expected to develop National Restoration Plans which set out the measures to be taken to meet ecosystem-specific targets and obligations, to ensure the continuous improvement of specified habitat areas and, once they are in a good condition and a sufficient quality has been reached, to ensure those areas do not deteriorate. Additional obligations on Member States require increased urban green space and tree canopy cover and steps to reverse the decline in pollinator populations. In practical terms, the Regulation provides detailed percentage-based targets for the improvement of specific habitat areas identified in its Annexes. The habitat areas selected are described as those with the greatest potential for removing and storing carbon and preventing or reducing the impact of natural disasters.
Like many other pieces of recent draft legislation (see, for example, our previous blog posts on the draft Corporate Sustainability Due Diligence Directive here and here), the Nature Restoration Regulation ensures that certain members of the public can challenge a Member State’s restoration plan (or lack thereof). Similarly, in the UK there has been a recent increase in environmental groups challenging the legality of Government policy.
In the UK, the Environment Act 2021 (EA 2021) sets out a framework for implementing legally binding targets, aimed at delivering environmental improvements in England. The UK Department for Environment, Food & Rural Affairs (DEFRA) published its equivalent biodiversity targets in May 2022. In headline terms, the UK target with respect to the biodiversity of land seeks to stop the decline in species abundance by 2030 and then increase species abundance by at least 10% by 2042, compared to 2030 levels. The DEFRA proposal also seeks to improve species extinction risk, compared to 2022 levels, create or restore over 500,000 hectares of a range of wildlife-rich habitats outside protected sites and increase tree canopy and woodland cover from 14.5% to 17.5% of total land area in England by 2050.
At face value, the EU targets appear to set a higher bar than those of the UK – the targets are greater and more detailed than those proposed by DEFRA, providing protection for specific species (e.g., pollinators) and setting out how to improve species abundance (e.g., by improving habitats), rather than requiring a general improvement in species extinction risk. In contrast, the UK has favoured a deliberately more generalised approach to habitat protection: “This is the first time [the UK has] been able to take a holistic, evidence led approach to target setting which takes into account our domestic context, rather than acting in a reactive and piecemeal fashion to meet a patchwork of EU and international obligations”. It is worth noting that both the Local Government Association and Office for Environmental Protection have commented on DEFRA’s proposals, highlighting the need for clear implementation plans and greater specificity in the targets.
On one view, that generalised approach might appear slightly at odds with the UK Government’s announcement that it is taking a lead role in defining and strengthening the Global Biodiversity Framework and will co-ordinate a High Ambition Statement with other States. That framework includes the adoption of the ‘30 by 30’ target to protect at least 30% of land and ocean by 2030 to help restore ecosystems, drive species population recovery and halt extinctions by 2050. There are clear parallels between these targets and those in the EU’s proposed Nature Restoration Regulation (albeit that the EU’s proposals are legally binding). It is not yet clear whether the UK’s international commitments will lead to a redrafting of the proposed EA 2021 targets, or how the DEFRA 2030 ‘halt in decline’ target aligns with the 30% target at an international level. Draft legislation must be laid before the UK Parliament by 31 October 2022, and so any changes in approach would be expected to be publicised in the coming months, if not sooner.
The second EU proposal, the draft Sustainable Use of Pesticides Regulation, seeks to repeal and replace the existing Pesticides Directive (which the new proposal describes as ‘weak and unevenly implemented’) and establish a framework on the sustainable use of pesticides. The EU acknowledges that chemical pesticides harm human health and cause biodiversity decline and as such the underlying aim of the Regulation is the protection of sustainable food systems and the protection of health. The EU’s proposals do not simply look to decrease harms caused by pesticides, but aim to reduce their actual use, whilst encouraging individual users to adopt alternative approaches to pest management.
At a basic level, the proposed Regulation sets EU and national level targets for the reduction of both the use of and the risk from chemical plant protection products by 50% across the EU by 2030, compared to the average of the years 2015, 2016 and 2017. In order to achieve this EU-wide target, Member States are required to set national targets, which are premised on achieving the same 50% reduction on a Member State level. EU Member States are required to draft and publish National Action Plans setting out their national targets and further information required under the Regulation, and which must be consistent with their National Restoration Plan.
Unsurprisingly, the Regulation will directly impact those in the agricultural business. Key individuals (namely professional users of pesticides) are required to apply “integrated pest management” - an environmentally friendly system of pest control which is ecologically justified and must minimise risks to human health and the environment. Such users must only use certain pesticides under strict conditions (e.g., where it is necessary and provided all other non-chemical methods have been exhausted, etc.).
The Pesticides Directive is retained by implementing legislation in the UK and as such the current position remains the (‘weak’) competence requirements for the sale and use of pesticides, the use, handling and storage requirements of pesticides and requirements for the inspection of pesticide equipment. Whilst the UK appears to be considering its pesticide strategy, the revised national action plan due for publication in the spring of 2022 has been delayed without any real explanation. The responses to the DEFRA consultation on the matter do, however make clear that views diverge on the direction the UK should take, with some favouring a departure from the EU approach and with others taking a stance aligned with elements of the EU’s new proposals.
If passed in their current form, the EU proposals (and ensuing national plans) are likely to have a significant impact on businesses that own or manage large areas of land. In addition, the proposals could have broader implications, touching on issues such as land and sea use, nature impacts in value chains (both upstream and downstream) and how businesses dispose of waste (an issue which has gained attention already in the textiles sector). The legislative process in the EU will take at least one to two years and is likely to be pretty contentious. Agricultural businesses are expected to push back against the proposals and a number of Member States have already criticised the drafts in light of rising food prices. It will be interesting to see whether and to what extent the ambition of the EU approach or the generality of the UK approach will be challenged as the legislative process progresses.