Drawing legal lines in the sand for Earth’s recovery
Kees Bastmeijer is Professor of Nature Conservation and Water Law. As a lecturer and a researcher (and as a photographer) he tries to give people food for thought. For saving nature we must completely change our thinking, and that involves bidding farewell to the ‘humankind first’ fundamental.
Photography: Kees Bastmeijer
“The role of the law in protecting nature is what drives me. To me as a lawyer, the law is an instrument: it can be used to achieve results. The international dimension fascinates me, protection of the polar regions especially, but certainly also nature protection in Europe and the Netherlands.
Everything I learn about international treaties, European directives, and case law of the EU Court of Justice (ECJ) I use to, for example, assess whether public authorities observe nature conservation law and to study how the effectiveness of legal systems for nature conservation can be improved. It is then my role to inform and advise."
"Humankind’s footprint on this planet has become so big that today only about a quarter of the earth’s surface consists of ‘wilderness areas’: large, naturally functioning areas without human infrastructure. A publication in Nature (2020) to which I was privileged to contribute even shows that less than one third of Antarctica has never been visited by people. In Europe only a very low percentage of land remains as wilderness. Such areas are valuable for various reasons, for example, as habitats of rare species and as reference areas for science. I explore the role of the law in protecting these last wilderness areas.
To assess whether the regulatory framework is truly effective, practical reviews can be important. For example, I am involved in the international governance of Antarctica, and one of the things the countries involved do is developing guidelines for site visits. As an observer I was in a position to assess whether these guidelines are effective. It is reassuring to see that experienced guides actually use these guidelines and related maps, know where the penguins and giant petrels nest, and steer clear of these areas. That shows regulation is useful. And it reveals weaknesses, such as tourists getting too close to seals or wanting to use drones. I also have mixed feelings about such visits, because for nature it would of course be better to stay at home."
Short-term view and cumulative environmental problems
"Over the past century and a half, a large body of law has been put in place to protect nature, but most systems give public authorities much room for balancing interests. That sounds logical, but in using that margin authorities often prioritize economic short-term interests. And generally, a new plan or project is authorised as long as environmental damage is kept to a minimum.
There is of course still room for economic interests to be considered, but lines in the sand have been drawn
The problem is that many small instances of environmental damage build up to create cumulative environmental problems: loss of nature, climate change, plastic soup, and so on, are all cumulative problems. It’s hard for legal systems to get a grip on issues of that magnitude and that is why European environmental law has developed strict quality standards for water, air, and nature. There is of course still room for economic interests to be considered, but lines in the sand have been drawn."
Searching for ‘rat runs’
"Many companies and politicians are unhappy with the strict European regulatory framework; they keep searching for legal ‘rat runs’ – tricks by creative interpretation of the law - to award authorisations for plans and projects that are detrimental to the environment, such as mega stables, new roads and airports (e.g., Lelystad airport), and gas and salt extraction from under the seabed in the Waddenzee. Regrettably, the highest administrative court in the Netherlands (the Administrative Jurisdiction Division of the Council of State) is often quite cooperative: it frequently confirms a creative interpretation of European law, that is to say, an interpretation that adheres to the letter of the law but is contrary to the spirit and objectives of European environmental law. It usually takes an ECJ ruling to establish that the lines in the sand have been crossed. The thing is that getting this clarity of the ECJ often takes many years and meanwhile the condition of nature has often continued to deteriorate. This in turn leads to more tensions between EU law and economic plans and projects, as well as to very high nature restoration costs. The nitrogen crisis clearly illustrates this, but similar processes can be observed to be at work regarding water and climate change."
If nature flourishes, the regulatory burden and limitations of European law will be less oppressive
"With public authorities operating on the edges of the law, compliance with European environmental law must often be enforced by citizens and environmental organizations taking cases to court. Lawsuits are also increasingly being brought against companies. It is intriguing that Shell had to appear in court as ‘the largest polluter in the Netherlands’ to resist claims brought by Friends of the Earth Netherlands. Cumulative environmental problems are caused by a large number of parties, and individual parties often emerge unscathed by pointing to others and arguing that their specific contributions cannot be identified. So when this type of litigation against companies is successful, things may well change."
There is also good news
"The good news is that strict protection helps. Many species that had disappeared, such as beavers, otters, and wolves, are making a comeback, and ospreys and sea eagles are nesting in the Netherlands again. And the efforts that are being made do not only relate to prevention of damage but also to active nature restoration. Eco-restoration is key to achieving international and European nature targets, and great results have been achieved: rewilding projects to make ecosystems more complete, a Dutch action plan to reintroduce sturgeons (an ancient species of fish) into the Rhine, and so on. And this will benefit the economy too, because if nature flourishes, the regulatory burden and limitations of European law will be less oppressive. That is why VNO-NCW (the Confederation of Netherlands Industry and Employers) recently called for a national nature restoration plan."
To make ecosystems in the Netherlands more complete and natural, large herbivores are given all the space they need. This photograph of an impressive specimen of Scottish Highland cattle was taken in the Deelerwoud in early February 2021 (© Kees Bastmeijer – for more pictures, see www.polarphotography.nl).
"Companies also more often choose to play a positive role. Some opt for strong sustainability, not only by reducing damage, but also by being part of solutions. For example, a company collects ‘ghost nets’ – fishing nets that have been lost in the ocean and continue to kill animals – and turns them into textiles. Functional connections are also made more often: if nature must make way for a new hospital, at the very least ensure a positive net result by creating and restoring more new nature around that hospital. Research shows that when patients have a view of greenery, their physical recovery is up to two days faster. In other words, nature restoration should be an integrated part of developing plans and projects and when assessing and authorising economic initiatives governments should focus on creating value rather than merely damage control."
"In education it is the above discussed positive role of the law in the search for solutions that I wish to draw attention to. This involves reflecting on the fundaments of law and considering the question whether things can be done differently. For example, law essentially revolves around the rights and duties of natural and legal persons and it regards nature as merely an object. Yet a group of students, inspired by developments in New Zealand, where a river was granted rights of its own, is now exploring the question whether the Dutch Wadden Sea should be recognized as a legal person. This notion so greatly inspires them that they are considering writing an academic article together.
Wouldn’t it be wonderful if all were to share their thoughts on how we can lead a good life that does not only result in compromises and less damage, but actually aims to create value and restore ecosystems? That would truly turn our thinking around, especially at the government level. Former Dutch Prime Minister Ruud Lubbers once said in a speech at this university: ‘The economy, politics, and the media tend to prioritise short-term interest.’ As a lawyer I am excited to build legal systems that ensure short-term efficacy without jeopardizing values for future generations. This requires enforcing compliance with legal lines in the sand as well as generating legal innovation to turn damage control into value creation.”
Date of publication: 10 May 2021