Questions concerning the climate and sustainability continue to stir up strong responses in society and are becoming ever more prominent on the agenda. These topics also raise important legal questions. A special blog series puts these important and wide-ranging issues in the spotlight. As we await whether climate commitments will be made more concrete in Glasgow, Edwin Alblas shines a light on the connection between climate and nature and shares some findings on the effectiveness of nature laws in the EU in practice.
All eyes are on Glasgow these weeks. Will our global leaders be able to make climate commitments concrete? Will they, as Greta Thurnberg said in her speech at the Youth Climate summit in Milan a week earlier, turn ‘blah blah’ into action? To be sure, the ‘blah blah’ has already been well-represented at this year’s COP conference. Think for instance of Amazon’s Jeff Bezos, flying his private jet to Glasgow to give a speech about how ‘finite and fragile‘ the planet is. His trip to space made him realise this, not, for instance, the recent UN’s Intergovernmental Panel on Climate Change (IPCC) report on how climate change is a ‘code red‘ for humanity.
Climate, nature and the EU
One thing that we are happy to see at the COP26 is the increased attention for nature in climate discussions. While climate and nature are still often treated as separate challenges – with their own separate COP meetings – they are in fact two sides of the same coin. According to the IPCC, no less than 23 percent of all global greenhouse gas emissions comes from agriculture, forestry and other land uses. At the same time, regenerative agriculture, re-greening land and coastal plants and seaweeds all provide major natural solutions to addressing climate change.
Of all participants of the COP, the EU likely has the most ambitious and highly-developed environmental and climate laws on its books. However, their effectiveness is severely compromised by non-compliance and poor implementation at the Member State level.
With the UNECE Aarhus Convention (1998), Europe launched an innovative legal experiment aimed at democratising environmental enforcement. In short, it gave citizens and environmental NGOs broad legal rights to access environmental information, participate in environmental decision-making, and obtain access to justice in environmental matters. This with the aim of contributing to ‘the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being’ (Article 1 Aarhus Convention).
Much is unknown, however, about whether this experiment has worked in practice. Are citizens and ENGOs actually using these Aarhus mechanisms? Is this helping to promote compliance with the rules on the ground? Has it had an impact on the enforcement activities of state actors?
Putting effectiveness to the test
With our ‘Effective Nature Laws’ project, a five-year European Research Council-funded project led by Professor Suzanne Kingston of University College Dublin, we have tried to answer these questions. We did this with a focus on the area where the law and practice are perhaps most apart: that of nature conservation. With a team of lawyers, economists and sociologists, we were able to use a variety of empirical methods to examine the effectiveness of EU nature governance laws.
We looked at developments over a 23-year period, namely from 1992 (the date of adoption of the Habitats Directive – the EU’s flagship nature law) until the year 2015. With this interdisciplinary team, we applied novel and complementary methodologies to this topic, including the coding of over 6,000 nature governance laws, taking over 2000 surveys and 165 interviews across France, Ireland and the Netherlands, and running a behavioural economics lab experiment. In this way, the project shows how nature governance laws have evolved over time, how they have been used in practice, and how this has impacted landowners, specifically farmers, compliance decisions.
For this purpose, we have created a new empirical tool called the ‘Nature Governance Index’, enabling a more objective and rigorous quantitative analysis of comparative trends in nature governance laws in Europe, and the relationships between different governance levels. This tool, detailed in our new article in International Environmental Agreements, may complement traditional doctrinal approaches to studying law and, we hope, will also inspire further empirical research in this vital area.
More is needed
Through qualitative research, we further showed that, even where legal rights of private enforcement are provided for in the law, much more is needed to promote citizen and ENGO take up of these rights in practice. As we set out in more detail in a recent article in Regulation & Governance, in practice only a small, sub-group of specialized ENGOs use the Aarhus mechanisms. Many barriers remain, including insufficient time and funds available. We also saw how an uncooperative attitude by the State makes it very difficult to translate even wins before national courts to environmental wins in practice.
As we further found, while citizens are reasonably aware of the rights provided by the Aarhus mechanisms, using these rights was often felt to be too complicated, time-consuming and costly for ordinary citizens.
For private environmental enforcement to flourish in practice, a supportive regulatory culture, fostered by the State, is required. The use of the Aarhus mechanisms must be straightforward, uncomplicated, and cheap. Access to information in France is a good example, where our data show (and as confirmed by the pending European Commission infringement procedure) that it can be very difficult in practice to obtain environmental information from State bodies, despite formal implementation of the right of access to environmental information.
We have also examined how the design of nature conservation laws can contribute to promoting pro-environmental motivations of farmers. Our main finding is both simple and intuitive: farmers become more motivated when they are involved in creating conservation rules, when agri-environmental subsidy schemes are consistent and make environmental sense, and when policy-makers communicate the reasoning behind those rules. We found many instances, however, where these intuitive principles were not followed. We also found that, while ENGOs can assist farmers in understanding and applying the rules, this must be handled with care. A perception of ‘outsiders’ getting involved with little knowledge of farming can strongly repel pro-environmental motivations.
Our findings point to practical ways in which nature governance laws might be made more effective. It is clear that, to ensure these findings will not become purely ‘blah blah’ and will have a practical impact, a close link with policy-makers, academics and society at large needs to be fostered. For this purpose, we very much invite you to join the discussion on how nature laws can be made more effective, by getting in touch with us via the Effective Nature Laws website or via email.
We are also organizing a symposium to present our project’s findings. This will take place on Friday 12th November, 11 am – 12 pm CET (10am – 11am GMT). You are very welcome to join this free, online event. Please register here.
Edwin Alblas is a Postdoctoral Researcher in Energy Law & Sustainability at the University of Groningen. His research concerns the role of citizens in the energy transition.
Edwin ALBLAS, "From climate to nature, from ‘blah blah’ to action?", Leuven Blog for Public Law, 10 November 2021, https://www.leuvenpubliclaw.com/from-climate-to-nature-from-blah-blah-to-action (geraadpleegd op 27 November 2021)
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