Enforcement struggles to take root in Deforestation Regulation

New EU rules on deforestation are notable from an environmental democracy perspective. The Deforestation Regulation is the first piece of legislation in years to include a standalone provision on access to justice… but the devil’s in the detail. A closer look at the text reveals that this environmental right might just fail to take root once more, write Juliette Robert and Ruby Silk.

In 2020 the FAO Global Forest Resources Assessment estimated that 420 million hectares of forests across the globe have been cleared since 1990, totalling more than 10% of the earth’s entire forest area. The European Union directly contributes to deforestation through the importation of products like timber, beef, cacao and soy.

In early December 2022, the EU institutions struck a provisional deal for new rules – in the form of a Deforestation Regulation – to minimise deforestation and forest degradation including the Union’s contribution to global deforestation, and reduce the Union’s contribution to greenhouse gas emissions and global biodiversity loss. The agreement served as a strong negotiation position for the EU at the COP 15 of the UN Convention on Biodiversity, demonstrating the EU’s willingness to lead on nature protection and reducing its footprint. It has now been given the formal green light by Parliament and is awaiting a nod from the Council before being formally adopted. The new rules will begin to apply throughout the EU 18 months from the time of adoption.

The Regulation marks the first time in years that a law made it all the way through the EU legislative machinery with a specific provision on the right for the public and NGOs to hold national authorities to account in front of national courts. This follows the Commission’s commitment to introduce access to justice rights in every new legislative environmental proposal part of the Green Deal. This provision should empower European consumers, concerned citizens, and NGOs to take their governments to court when they don’t do enough to stop deforestation. But the formulation of these rights in the text are leaving NGOs stumped… more on this later.

What is the purpose of this Regulation?

The new rules will prohibit the placement of products that play a substantial role in deforestation, such as palm oil, cocoa, beef, coffee or wood, on the EU market. Each of these products will have to be “deforestation-free” as defined in the text. They will also have to comply with the local regulation from the origin country and must be accompanied by a due diligence statement.

To comply with this due diligence requirement companies will have to trace their products along the whole supply chain and provide authorities with the GPS coordinates of areas where their products were produced in order to prove they do not come from areas where deforestation and forest degradation has taken place. 

National authorities will have a huge role to play in ensuring that private companies and traders comply with this set of obligations. They will have to carry out annual checks of a certain percentage of these companies and closely monitor the products placed on the market, taking immediate action if they spot a risk of non-compliance. They will also have to impose penalties up to at least 4% of the company’s annual turnover for those that violate their obligations under this Regulation. 

What role for access to justice?  

When national authorities fail to fulfil their control of these due diligence schemes properly, it must be possible to challenge them, if needs be in front of a judge. By granting people access to the courts, access to justice provisions allow the public to hold their governments accountable for enforcing European standards. With access to judicial remedy, public authorities who fail to implement, enforce or even blatantly disregard these standards can be challenged and made to rectify their approach.

Guaranteeing access to justice rights as a standalone provision in the Deforestation Regulation is therefore key to ensuring its enforcement. Moreover, it is an obligation under the Aarhus Convention – an international agreement on environmental rights – to which all EU states are a party to. But, even with the inclusion of this provision, we are not yet out of the woods…

Cutting to the chase

The final provision for access to justice that was included has several shortcomings.

Access to justice provisions should grant people, coming not only from the EU but also from countries outside the region, the same access to court rights across all EU Member States and therefore remove hurdles for people in Member States where access to courts can be limited by domestic laws. Despite the progressive position of the European Parliament towards access to justice, the Council watered it down in the text, making access to the courts limited to where national laws already foresee it. This is contrary to the very essence of access to justice provisions, which aim to harmonise access to justice rights throughout the EU.

Furthermore, environmental NGOs have argued that access to justice should not have been limited to grievances directed towards public authorities but also towards operators through civil liability mechanisms. Taking your government to court is a good option to enforce the law but taking a company to court to claim the damages that it caused is better.

Environmental human right defenders, particularly vulnerable in territories subject to deforestation, are mentioned in the preamble of the text, which is most welcomed. However environmental NGOs have pointed out that deforestation related violations of human rights and particularly rights of Indigenous Peoples and local communities are not clearly recognised, as the Regulation only requires the respect for these rights when they have been recognised by the national law of the country of production—which, in practice, is often not the case. This is especially regrettable, considering the fact that Indigenous Peoples and local communities have been proven to be nature’s best protectors. The absence of such a reference eliminates yet another legal avenue to justice.

Not getting to the root of the problem

A closer look at the Regulation’s access to justice provision reveals it is more sapling than solid oak – prone to bend and snap at the slightest gust of resistance. The public, including NGOs, are left wondering whether the provision will be strong enough to have a national judge hear their case and enforce the much needed new rules on deforestation.