Lo staff EIEL: potenziale sito in Val d’Orcia incompatibile con un Deposito Nazionale di Rifiuti Radioattivi

Lo staff EIEL si associa alle critiche che in questi giorni sono state rivolte all’inclusione di un sito della Val d’Orcia all’interno della Carta Nazionale di Aree Potenzialmente Idonee (CNAPI) ad ospitare un Deposito Nazionale di Rifiuti Radioattivi.

Lo scorso 5 Gennaio è stata resa pubblica la Carta Nazionale di 67 siti potenzialmente idonei ad ospitare un Deposito Nazionale di Rifiuti Radioattivi, elaborata alcuni anni fa dalla società statale Sogin come primo passo per la realizzazione di un sito unico di stoccaggio e messa in sicurezza. La creazione di tale deposito nazionale è stata richiesta a ciascuno Stato Membro dell’Unione Europea dalla direttiva 2011/70/Euratom, in modo da consentire la messa in sicurezza di diversi tipi di scorie radioattive che in Italia sono oggi ospitate in depositi temporanei o esportate all’estero.

La pubblicazione della CNAPI apre una lunga fase di consultazione pubblica, volta ad approfondire gli aspetti critici relativi alle varie aree ritenute potenzialmente idonee e ad arrivare ad una decisione definitiva entro il 2025. In tale contesto, desideriamo associarci alle critiche che in questi giorni sono state avanzate alla scelta di includere un sito della Val D’Orcia, ubicato tra i comuni di Pienza e Trequanda ed identificato con il codice SI-5, all’interno della suddetta lista.

In primo luogo, va sottolineato come la stessa relazione tecnica che accompagna la pubblicazione della CNAPI evidenzi gli ‘elementi naturali ad alta valenza ecologica’ che caratterizzano la località interessata, inclusa la presenza reale o potenziale di una ‘fauna di interesse conservazionistico’. Più nello specifico, viene segnalata la presenza di diverse specie protette dalle Direttive Habitat e Uccelli all’interno dell’area individuata, nonché la sua prossimità a quattro siti Natura 2000 ed una Important Bird Area (tutte situate in un raggio di 10 chilometri). In secondo luogo, riteniamo in ogni caso imprescindibile dare risalto al fatto che il sito scelto sarebbe perfettamente adiacente al territorio attualmente tutelato dalla World Heritage Convention dell’UNESCO come parte del World Heritage Site ‘Val d’Orcia’.

In conclusione, al di là degli specifici criteri di esclusione evidenziati nella relazione tecnica, appare pertanto evidente come l’eccezionale valore ambientale e culturale del territorio interessato renda incompatibile una sua eventuale designazione come sede del Deposito Nazionale. Auspichiamo pertanto che il processo decisionale tenga conto di questi elementi, e segnaliamo una delle petizioni al Ministro dell’Ambiente lanciate in merito su Change.org.

Dr Leonie Reins announced as next guest of EIEL Webinar Series

The academic staff of the Jean Monnet Module in European and International Environmental Law (EIEL) is pleased to announce its second EIEL webinar, which will take place on January 15, 2021 at 2pm Central European Time (14.00).

For this second session of the 2020/2021 EIEL Webinar Series, we will welcome Dr Leonie Reins, Assistant Professor at the Tilburg Institute for Law, Technology and Society (TILT), Tilburg University. Her online presentation will examine the interpretation of the “environmental guarantee” set in Article 193 of the Treaty on the Functioning of the European Union (TFEU) by the Court of Justice of the European Union (CJEU), and its potential for providing effective protection of the objectives of EU environmental policy.

In order to ensure a high level of environmental protection and the preservation, protection and improvement of quality of the environment, the “environmental guarantee” enables EU Member States to unilaterally maintain or introduce “more stringent protective measures” beyond environmental measures adopted at the EU level under Article 192 TFEU. However, her analysis of case law shows that the need to develop EU environmental law as a coherent body of law, which is preserved by the CJEU, implies that some constraints are put on the ability of EU Member States to act more protectively than EU environmental law through Article 193. This seems to align with the intention of the drafters of the environmental guarantee, as introduced by the European Single Act, but what are the implications for the achievement of the objectives of the Union environmental policy?

Dr Leonie Reins joined Tilburg Law School as an Assistant Professor at the Tilburg Institute for Law, Technology and Society (TILT). Prior to joining TILT, she worked as a PhD Candidate and then as a Post-Doctoral Researcher at KU Leuven (Belgium). Her research project on “the coherent regulation on energy and environment – using shale gas as a case study”, was financed by the Research Foundation Flanders (FWO). In addition Leonie worked as Legal Advisor at a Brussels-based environmental law and policy consultancy, where she was involved in projects relating to environmental, energy and climate change law and policy. Leonie holds and LL.M. in International, European and Comparative Energy and Environmental Law. She has been part of, and managed, several complex multi-country legal and policy studies for the European Institutions.

These projects dealt with a range of topics, such as the precautionary principle and risk management, unconventional gas and environmental claims. Leonie’s work has been published in leading journals, such as Environmental Liability and the Review of European, Comparative & International Environmental Law. Her 2017 monograph on the regulation of shale gas, Regulating shale gas: The challenge of coherent environmental and energy regulation, was published with Edward Elgar. In 2017, she co-authored the volume EU Environmental Law (Edward Elgar) with Prof Geert van Calster.

The webinar will be streamed below or at the following link: https://www.youtube.com/watch?v=rovL5nVWV0E.
The slides prepared by Dr Reins are available here: https://eieljeanmonnet.files.wordpress.com/2021/01/leonie-reins_-where-eagles-dare.pdf.

European Environment Agency’s New Report Highlights Ongoing Challenges for EU Nature Legislation

Cover Photo Credits: Sperlingskauz (Glaucidium passerinum) im Nieselregen, Elsenborn, Ostbelgien. Frank Vassen 2015.

On 19 October, the European Environment Agency released a new report on the State of Nature in the EU, which contains its latest assessment of the conservation status of the Union’s species and habitats. The Report paints a bleak picture of the health of European ecosystems, and identifies the inadequate implementation of EU nature conservation legislation as one of the main obstacles to reversing the decline of biodiversity in the Union.

The State of Nature in the EU Report was compiled by the European Environment Agency based on the reports submitted by EU Member States from 2013 to 2018 under the requirements set by the Habitats and Birds Directives, as well as through subsequent biodiversity and ecosystem assessments conducted at both EU-wide and biogeographical levels. Its aim was to “identify successes and shortcomings in nature conservation, key pressures and threats, the status of current conservation measures and the restoration needed to further improve the conservation status of targeted habitats and species and the population status of birds“. In doing so, the Report also provided a new ‘fitness check’ on the state of the Natura 2000 network of protected areas and its contribution to the achievement of the Aichi Biodiversity Targets under the Convention on Biological Diversity.

Unfortunately, the Report highlights the ongoing deterioration of nature in the Union, with few success stories (e.g. improving population trends for breeding birds) and a clear increase in the number of species and habitats presenting a poor or bad conservation status. With respect to the 2008-2012 reporting period, this increase is of 7 percent for bird species and 6 percent for habitats, while a 4 percent increase in species presenting a conservation status under the Habitats Directive is mostly attributed to variations in data quality and measurement methods. Thanks to Member States’ own assessments, the Report also identifies agriculture, urbanisation and forestry activities as the most frequent pressures for European biodiversity, with climate change seen as a rising threat due to its impact on temperatures and precipitation.

Detail of a Figure contained in the State of Nature in the EU Report, summarising the results of reporting conducted the Habitats Directive. Source: European Environment Agency 2020 (p.34).

When it comes to the impact of the Natura 2000 network on the conservation status of European species and habitats, the European Environment Agency notes that the mandatory adoption of management plans and conservation measures inside protected sites, which is required by the Birds and Habitats Directives, can indeed improve the response to the above-mentioned pressures, for example by limiting land use change. Indeed, species and habitats covered by the network appear more likely to show a good conservation status and less declining trends. However, significant gaps remain in such coverage, with some species and habitats far less protected than others (e.g. breeding birds, marine fish and reptiles, forest habitats). Moreover, the Report suggests that in many cases conservation measures may have not been taken inside Natura 2000 sites, that they may have not been implemented fully, or that they may have been ineffective. Lastly, and perhaps most importantly, the overall ecological effectiveness of the network continues to be hindered by the lack of functional connectivity between sites, their limited capacity to adapt to the impacts of climate change, and an inadequate level of protection of biodiversity outside the sites themselves.

The European Environment Agency’s assessment clearly states that gaps in implementation at the level of Member States might be partly to blame. In doing so, the Agency aligns with the findings of the 2019 Environmental Implementation Review and the 2016 ‘Fitness Check’ evaluation of the Birds and Habitats Directives, both of which had identified implementation (including the adoption of management plans and assessment procedures), financing and policy integration at the national level as the main challenges to the effectiveness of nature conservation legislation. At the same time, the Report appears to highlight a series of more fundamental problems, implicitly suggesting that inadequate implementation is in many ways a consequence of the gaps that exist in the EU legal framework itself.

First, the fact that EU Member States seem to generally take limited measures to safeguard biodiversity outside of Natura 2000 sites can be linked to the fragmentation that continues to affect the Union’s approach to conservation. On the one hand, the Birds and Habitats Directives set very weak (and not easily enforceable) requirements for non-protected areas in the first place (for example, Article 4(1) of the Birds Directive, which requires States to ‘strive’ to protect bird habitats outside protected areas, and Article 10(1) of the Habitats Directive, which encourages Member States to integrate management measures in their land-use planning and development policies, “with a view to increasing the ecological coherence of the Natura 2000 network“). On the other hand, the lack of integration of biodiversity in other socio-economic sectors and sectoral EU policies prevents a comprehensive protection of ecological processes through greater policy coherence, a point raised in the Report which was also recently exemplified by the controversial votes on the proposed reform of the Common Agricultural Policy (CAP).

Secondly, the Agency emphasises the need for urgent action on the restoration and re-creation of habitats in order to expand their surface area and protect ecosystem services and functions. While the importance of a natural area for restoration purposes is indeed mentioned among the criteria that can lead to that site being adopted as a ‘site of Community importance’ under Annex III the Habitats Directive, there is no general obligation in EU law to restore biodiversity, nor is there guidance on which restoration measures should be taken in practice inside Natura 2000 sites. The European Commission seems to be keenly aware of this gap. As a consequence, restoration has now been included as a key pillar of its EU Biodiversity Strategy to 2030, which forecasts the introduction of legally binding nature restoration targets by 2021 as well as a series of thematic strategies and action plans for forests, soils, fisheries and marine ecosystems, among other measures. To assume that this target-setting approach alone will suffice, however, is premature. Moreover, it should be noted that the above-mentioned debate on the reform of the CAP will also have an impact on restoration ambitions. For example, the negotiating mandates agreed in October 2020 by the Agriculture and Fisheries Council and the European Parliament have both been described as significantly watering down the proposal that had been previously advanced by the European Commission, including by weakening the biodiversity-related standards governing conditional payments to farmers and by reducing the amount of money ring-fenced for so-called eco-schemes (which would, among other things, reward farmers for agricultural and land management practices that support habitat protection and restoration). This is particularly worrying, as the Report of the European Environment Agency confirms that land use change to make space for permanent crops and arable land constitutes a major driver of biodiversity loss both inside and outside the Natura 2000 network.

Third, it is important to realise that country-level challenges in selecting Natura 2000 sites and enacting effective management and monitoring measures cannot be seen in isolation from the wider normative framework that has been built around the Birds and Habitats Directives. While domestic variables such as political commitment, financial resources and capacity at the national level certainly play a role, some of the recommendations adopted by the European Environment Agency seem more directly addressed to European institutions themselves. For example, the Agency lists a series of problems affecting Natura 2000 site selection (e.g. a bias towards protecting remote areas, low prioritisation of conservation objectives compared to socio-economic objectives, incoherent planning) and management (e.g. inadequate consideration of human activities inside protected areas, insufficient implementation of management plans). Rather than merely pointing the finger at Member States, these findings also raise the question of whether EU nature conservation legislation should be tightened to restrict their discretionality in site selection processes and limit the possibility of using economic considerations as a means of ‘circumventing’ their conservation obligations, a struggle that is well-illustrated by the jurisprudence of the Court of Justice of the European Union on Article 4 and Article 6 of the Habitats Directive, respectively. In addition, in order to strengthen national capacity and fill knowledge gaps, the Agency suggests that the European Commission harmonise Natura 2000 monitoring frameworks and methodologies, which are presently fragmented and essentially overlooked in the Birds and Habitats Directives. Lastly, the Agency highlights the importance of providing more specific guidance on how all Natura 2000 sites can incorporate an ‘ecological‘ (ecosystem-based) approach to implementation and monitoring as well as more specific, quantifiable conservation and restoration objectives, thus further reducing the flexibility afforded to Member States.

In other words, while many of the concerns contained in the Report on the State of Nature in the EU are indeed reflected in the novel commitments of the EU Biodiversity Strategy, the European Environment Agency itself appears to recognise that more will be needed. While the Report does not explicitly state so, it is clear that there is a need to take a deeper look at existing legal and policy instruments, recognise some of their outstanding (and inevitable) shortcomings, and take urgent steps to maximise their potential. Even assuming that the Birds and Nature Directives are still fit for purpose, expecting them to remain so throughout the next decade might be a risky bet, given the ongoing struggle to reform other areas of the EU legal order and the worsening trends affecting European biodiversity and ecosystems.

Dario Piselli is the Programme Manager of the Jean Monnet Module in European and International Environmental Law. He is a Ph.D. candidate in International Law at the Graduate Institute of Geneva (IHEID), an affiliated researcher at its Centre for International Environmental Studies, and an independent sustainability consultant.

Riccardo Pavoni is the Academic Coordinator of the Jean Monnet Module in European and International Environmental Law. He is a Professor of International and European Union Law at the University of Siena, Italy.

Marjan Peeters to Join Inaugural EIEL Module Webinar

The academic staff of the Jean Monnet Module in European and International Environmental Law (EIEL) is pleased to announce its inaugural EIEL webinar, which will take place on October 30 at 2pm Central European Time (14.00).

For the first session, the EIEL module will welcome Prof Marjan Peeters, Professor of Environmental Policy and Law at Maastricht University and its Maastricht Centre for European Law (MCEL). Her online presentation will try to unpack the achievements and challenges facing the EU environmental legal order as the Union’s institutions seek to operationalise the European Green Deal. Prof Peeters will particularly delve into the concerns related to the compliance with, and enforcement of, EU environmental law, highlighting the important role of civil society and of the Court of Justice of the European Union. In addition, Prof Peeters will discuss the question of how to teach this complex and dynamic field at a time of critical policy developments, and points at the great possibility of using webinars for teaching purposes.

Prof Peeters holds her position at Maastricht University since April 2008. She started in 1987 with studying environmental law. Since then, she has been focusing on understanding how a high level of environmental protection can be effectively and efficiently reached based on the rule of law and in the context of sustainable development. Core research attention goes to legal aspects of climate change, regulatory instruments for emission reduction, and the way how law deals with uncertain risks. Prof Peeters has co-edited more than 6 books in the field of EU environmental and climate law, and she has supervised – and is still supervising – several PhD projects.

Her latest books are Climate Change Law (2016), co-edited with Daniel A Farber, and the Research Handbook on EU environmental law (2020), co-edited with Mariolina Eliantonio.

The webinar will be streamed below or at the following link: https://www.youtube.com/watch?v=U5vuoWjQFfM. At this link, it will be possible to download the slides used by Prof Peeters.

Announcing the New Jean Monnet Module in European and International Environmental Law (EIEL)

The academic staff of the Jean Monnet Module in ‘European and International Environmental Law‘ (EIEL) is excited to announce that the European Commission, through its Education, Audiovisual and Culture Executive Agency (EACEA), has awarded them with an Erasmus+ grant for Jean Monnet Activities, as part of its 2020 call for proposals.

The EIEL module is closely related to, and builds upon, the activities of the Jean Monnet Module in ‘European Union Law and Sustainable Development‘ (EULawSD), which was similarly hosted by the Department of Law of the University of Siena (Italy) and was implemented from 2017 to 2020. In particular, the new module aims to provide students, practitioners and civil society with in-depth knowledge about the state of the art of European and international environmental law and policy, its achievements and challenges, and its interaction with emerging environmental issues and landmark intergovernmental processes.

Two overarching themes will run through the module, informing the discussion of both cross-cutting and sectoral topics in all project activities. The first is the importance that will be attributed to the most pressing and/or emerging issues in European and international environmental law, with an emphasis on the Union’s approach to the two major planetary crisis of climate change and biodiversity loss and its role in the implementation of the relevant international legal instruments (i.e. the Paris Agreement, the Convention on Biological Diversity and its post-2020 framework). The second will be represented by a particular focus on implementation and enforcement at the level of the EU and its Member States, consistent with the outstanding needs outlined in the Commission’s latest Environmental Implementation Review (2019).

The EIEL module will be implemented for three years starting on September 1st, 2020. Module activities will consist of the following: (i) 50 hours of lectures, group discussions and seminars across four courses offered by the Department of Law; (ii) engagement of academics, practitioners and civil society through public keynote lectures, webinars and a final conference; and (iii) a dedicated website, social media pages, a newsletter and at least two publications which will facilitate the dissemination of the project’s research outputs.

Riccardo Pavoni and Dario Piselli, previously academic coordinator and programme manager of EULawSD, respectively, will retain their roles for the new module, while Sonia Carmignani will remain a key teaching staff member. The EIEL team will also include two new key teaching staff members who were not part of the EULawSD project, Professor Elisa Morgera and Gabriele Salvi. Elisa Morgera is widely recognised as one of the world’s foremost experts in the field of international environmental law. She is currently Professor of Global Environmental Law at the University of Strathclyde Glasgow and Co-Director of the Strathclyde Centre for Environmental Law and Governance. Gabriele Salvi is a Senior Researcher in Civil Law at the University of Siena, and brings a specific expertise in the private law aspects of European environmental law to the team.

Photo credits: contains modified Copernicus Sentinel data (2019), processed by European Space Agency, CC BY-SA 3.0 IGO.